Re: Constitutional Challenge to (C) Code

Thomas F. Cotter <cotter[_at_]law.ufl.edu> wrote:
>
> On Mon, 30 Mar 1998, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > On Sat, 28 Mar 1998, Bob Smith <cosmith[_at_]ash.palni.edu> wrote:
> > >
> > > What would be the likelyhood of success for a Constitutional Challenge
> > > of the Duration of Copyright under both current and pending US Code?
> > > It seems to me that life plus fifty-seventy years does not "promote
> > > the progress of science and the useful arts by securing for limited
> > > time." I do not understand how a lifetime beyond my lifetime is
> > > limited and how it guarentees my right to my work when I am dead.
> > > Class action, anyone?
> >
> > The difficulty would be finding a defendant for the class action.
> >
> > I think you'd run into mootness problems if you just tried to sue to
> > have the duration provision repealed. You'd have to bring it up as a
> > defense in an actual infringement suit, or in a declaratory judgment.
> > (What do you call what would ordinarily be called a "defense," when
> > it's brought up by the plaintiff in a declaratory judgment suit,
> > rather than by a defendant in an infringement suit?)
> >
> > On the substantive issue, at least the present duration term is
> > mandated by Berne, so even if, arguendo, you assume that the limitation
> > of life+50 is not a "limited time" as that term is understood by Article
> > I, s.8, cl.8 in the Constitution, there is separate empowerment under
> > the treaties clause. (Although the fact that the duration provision
> > was amended 9 years before we entered Berne hampers this argument.)
>
> I don't think it would be that hard to come up with a litigable case
> or controversy to test the constitutionality of the legislation.
> Hire an orchestra next year to perform Gershwin's "Rhapsody in Blue,"
> which (I believe) is set to go into the public domain on January 1,
> 1999, if the term extension doesn't pass. When the orchestra is sued
> for copyright infringement, it can raise the constitutional argument
> as a defense.

I know that this theme is more adequate to a Constitutional Law list than this one, but I wonder why you must have a case and controversy to discuss constitutionality issues. In Brazil, the courts may pass on a constitutional argument either on a indirect basis (as an issue in a case) or as a direct claim against a statute. A more recent constitutional amendment even created a direct _affirmative _ declaratory action, whereby the court is requested to confirm that a statute _is_ constitutional. The purpose of that direct actions is to dispense with artificial causes of action as that suggested by Professor Cotter, or the case decided in the 30's where an anti-Darwin statute was put into discussion by Clarence Darrow.

Denis Borges Barbosa - Rio de Janeiro.
<denisbarbosa[_at_]BBS.unikey.com.br> Received on Wed Apr 01 1998 - 15:36:53 GMT