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The Constitutional Law of Intellectual Property After Eldred V. Ashcroft

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The Constitutional Law of Intellectual Property After Eldred V. Ashcroft The Constitutional Law of Intellectual Property After Eldred v. Ashcroft By Pamela Samuelson* I. Introduction The past decade has witnessed an extraordinary blossoming of scholarship on the constitutional law of intellectual property,1 much of which focuses on copyright law.2 Had the Supreme Court ruled in favor of Eldred’s challenge to the constitutionality of the Copyright Term Extension Act,3 this body of scholarship would have undoubtedly proliferated with alacrity. Many scholars would have been eager to offer interpretations of implications of an Eldred-favorable decision for other intellectual property disputes.4 Given the Ashcroft-favorable outcome, some may expect the Eldred decision to “deconstitutionalize” intellectual property law and reduce to a trickle further scholarly * Chancellor’s Professor of Law and Information Management, University of California at Berkeley. Research support for this article was provided by NSF Grant No. SES 9979852. I wish to thank Eddan Katz for his exceptional research assistance with this article. 1 See, e.g., Dan L. Burk, Patenting Speech, 79 Tex. L. Rev. 99 (2000); Paul J. Heald and Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 U. Ill. L. Rev. 1119 (2000); Robert Patrick Merges and Glenn Harlan Reynolds, The Proper Scope of the Copyright and Patent Power, 37 J. Legis. 45 (2000); Mark A. Lemley, The Constitutionalization of Technology Law, 15 Berkeley Tech. L.J. 529 (2000); Malla Pollack, Unconstitutional Incontestability? The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. v. Silstar Corp, 18 Seattle U. L. Rev. 259 (1995); Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Part I), 83 J. Pat. & Trademark Off. Soc’y 763 (2001). 2 See, e.g., Symposium, Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution, 37 Loyola L.A. L. Rev. 1 (2002); Edwin C. Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891 (2002); Yochai Benkler, Free as The Air To Common Use: First Amendment Constraints on Enclosure of The Public Domain, 74 N.Y.U. L. Rev. 354 (1999); Julie E. Cohen, A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace, 28 Conn. L. Rev. 981 (1996); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright, 14 Cardozo Arts & Ent. L.J. 215 (1996); Marci A. Hamilton, Copyright at the Supreme Court, 47 J. Cop. Soc’y 317 (2000); Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1999); LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (2000); Glynn S. Lunney, The Death of Copyright: Digital Technology, Private Copying, and the DMCA, 87 Va. L. Rev. 813 (2001); Neil W. Netanel, Locating Copyright in the First Amendment Skein, 54 Stan. L. Rev. 1 (2002); L. Ray Patterson, Understanding the Copyright Clause, 47 J. Cop. Soc’y 365 (2000); Jed Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112 Yale L.J. 1 (2002). I confess to having contributed to this literature as well. See Pamela Samuelson, Economic and Constitutional Influences on Copyright Law In the United States, 23 Eur. Intell. Prop. Rev. 409 (Sept. 2001); Pamela Samuelson, Copyright and Freedom of Expression in Historical Perspective, 11 J. Intell. Prop. L. (forthcoming 2003). 3 Eldred v. Ashcroft, 123 S.Ct. 769 (2003). Justices Stevens and Breyer dissented with separate opinions, the former offering an alternative historical and constitutional analysis, and the latter mainly focusing on the economic effects of the CTEA. See id. 790-801 (Stevens dissent) and 801-15 (Breyer dissent). 4 See, e.g., Heald & Sherry, supra note 1 (analyzing constitutional vulnerability of several intellectual property rules, including the CTEA). A successful challenge to the CTEA would have made these other challenges more likely. discourse about limits that the Intellectual Property Clause, the First Amendment, or other provisions of the U.S. Constitution place on Congressional power to regulate in this field.5 This article suggests that the scholarly debate will and should continue and that the proponents of constitutional limits are likely to enjoy some successes in the future, even if they did not do so in the Eldred case itself. Why might this be so? For one thing, a substantial consensus exists within the community of American intellectual property scholars that the CTEA is unconstitutional.6 Some legal scholars will have the temerity to contend that the Supreme Court was wrong on issues about which both they and the Court have opinions.7 The post-Eldred scholarship will undoubtedly include articles dissecting flaws in Justice Ginsburg’s opinion or offering narrow interpretations of the decision, 8 as well as commentary 5 See, e.g., Siva Vaidhyanathan, After the Copyright Smackdown, Salon, Jan. 17, 2003, available at http://www.archive.salon.com/tech/feature/2003/01/17/copyright.html (quoting Shubha Ghosh as predicting that the Eldred decision will “deconstitutionalize” copyright policy). See also Justin Hughes, Of World Music and Sovereign States, Chi. Loyola L. Rev. (forthcoming 2003)(predicting a significant decline in this scholarly literature after Eldred). 6 Among the lawyers representing Eldred were several law professors who have written about intellectual property issues, including Lawrence Lessig, Edward Lee, William Fisher, and Jonathan Zittrain. Approximately sixty intellectual property scholars were signatories of amicus curiae briefs submitted to the Court in Eldred. See Brief Amicus Curiae of Intellectual Property Professors, Brief Amicus Curiae of Historians, and Brief Amicus Curiae of Malla Pollack, all of which are available at http://eldred.cc/legal/supremecourt.html. One intellectual property scholar submitted an amicus brief in support of General Ashcroft. See Brief Amicus Curiae of Edward Samuels, available at http://www.nyls.edu/samuels/copyright/beyond/cases/eldredamicus.htm. Copyright treatise author Paul Goldstein served as co-counsel on an amicus brief submitted by the American Society of Composers, Authors, and Publishers (ASCAP) et al, available at http://eldred.cc/legal/supremecourt.html. Most of the law review literature on Congress’ extension of existing copyright terms argued against its constitutionality. See, e.g., Erwin Chemerinsky, Balancing Copyright Protections and Free Speech: Why the Copyright Extension Act is Unconstitutional, 36 Loy. L.A. L. Rev. 83 (2002); Richard A. Epstein, The Dubious Constitutionality of the Copyright Term Extension Act, 36 Loy. L.A. L. Rev. 123 (2002); Heald & Sherry, supra note 1, Dennis S. Karjala, Judicial Review of Copyright Term Extension Legislation, 36 Loy. L.A. L. Rev. 199 (2002); Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057 (2000); Merges & Reynolds, supra note 1; Tyler Ochoa, Patent and Copyright Term Extension and the Constitution: An Historical Perspective, 49 J. Cop. Soc’y 19 (2002); William Patry, The Enumerated Powers Doctrine and Intellectual Property: An Imminent Constitutional Collision, 67 Geo. Wash. L. Rev. 359 (1999). Some scholars regarded the CTEA as constitutionally sound before the Court so ruled. See, e.g., Edward Samuels, Eldred v. Ashcroft: Intellectual Property, Congresssional Power, and the Constitution, 36 Loyola L.A. L Rev. 389 (2002); Symposium, The Constitutionality of Copyright Term Extension: How Long Is Too Long?, 18 Cardozo Arts & Ent. L.J. 651 (2000) (remarks of Jane C. Ginsburg and Arthur Miller). 7 See, e.g., Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 Law & Contemp. Probs. 173 (2003)(criticizing Eldred for its misconstruction of the Intellectual Property Clause and flawed understanding of the First Amendment); L. Ray Patterson, What’s Wrong With Eldred? An Essay on Copyright Jurisprudence, 10 J. Intell. Prop. L. (forthcoming 2003) (criticizing Eldred’s adoption of a natural rights approach to copyright law rather than the positive law concept that has generally prevailed in U.S. copyright tradition and is most consistent with the U.S. constitutional tradition). 8 See, e.g., Stephen McJohn, Eldred’s Aftermath: Tradition, the Copyright Clause, and the Constitutionalization of Fair Use (criticizing the Court’s failure to reconcile Eldred with its federalism decisions and suggesting that nontraditional copyright rules may be subject to heightened First Amendment scrutiny after Eldred) (manuscript on file with the author). 2 arguing that the outcome in Eldred decision was sound but should have been based on a different rationale.9 The boldest may even see in Eldred some ammunition for other challenges to intellectual property rules.10 The pre-Eldred scholarship brought into being many interesting theories, analytical frameworks, and historical arguments that will be grist for the scholarly mill. 11 Moreover, several constitutional questions posed in Eldred, which the Court chose not to address, have significance for other constitutional challenges to intellectual property rules.12 Speculation about what the Court will ultimately do with these questions is still fair game for scholarly discussion. The Eldred case certainly did not exhaust the range of possible issues in this domain, and some scholarly debate about the constitutional law of intellectual property law may now
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