Eldred v. Ashcroft, 537 U.S. 186 (2003), was a decision by theSupreme Court of the United States upholding theconstitutionality of the 1998Sonny Bono Copyright Term Extension Act (CTEA). The practical result of this was to prevent a number of works from entering thepublic domain in 1998 and following years, as would have occurred under theCopyright Act of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

Eldred v. Ashcroft
Supreme Court of the United States
Argued October 9, 2002 Decided January 15, 2003
Full case name	Eric Eldred, et al. v. John Ashcroft, Attorney General
Docket no.	01-618
Citations	537U.S.186 (more) 123 S. Ct. 769, 154L. Ed. 2d 683, 71 U.S.L.W. 4052
Decision	Opinion
Case history
Prior	Eldred v. Reno, 74F. Supp. 2d 1 (D.D.C. 1999); aff'd, 239F.3d 372 (D.C. Cir. 2001); rehearing and rehearingen banc denied, 255 F.3d 849 (D.C. Cir. 2001);cert. granted,534U.S. 1126 (2002); order granting cert. amended,534U.S. 1160 (2002).
Subsequent	Rehearing denied,538U.S. 916 (2003).
Holding
20-year retroactive extension of existing copyright terms did not violate theCopyright Clause or theFirst Amendment of the Constitution.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens ·Sandra Day O'Connor Antonin Scalia ·Anthony Kennedy David Souter ·Clarence Thomas Ruth Bader Ginsburg ·Stephen Breyer
Case opinions
Majority	Ginsburg, joined by Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas
Dissent	Stevens
Dissent	Breyer
Laws applied
U.S. Const. Art. I, § 8, cl. 8;U.S. Const. amend. I;Copyright Term Extension Act of 1998

Internet publisherEric Eldred was the lead petitioner, and was joined by a group of commercial and non-commercial interests who relied on the public domain for their work (includingDover Publications) and manyamici including theFree Software Foundation, theAmerican Association of Law Libraries, theBureau of National Affairs, and theCollege Art Association. Eldred was represented byLawrence Lessig and a team at theBerkman Center for Internet and Society.^[1]

Supporting the law wereUnited States Attorneys GeneralJanet Reno andJohn Ashcroft, along with a set ofamici including theMotion Picture Association of America, theRecording Industry Association of America,ASCAP andBroadcast Music Incorporated.

TheSonny Bono Copyright Term Extension Act (or CTEA) extended existingcopyright terms by an additional 20 years from the terms set by theCopyright Act of 1976. The law affected both new and existing works (making it both aprospective extension as well as aretroactive one). Specifically, for works published before January 1, 1978, and still in copyright on October 27, 1998, the term was extended to 95 years. For works authored byindividuals on or after January 1, 1978 (including new works), the copyright term was extended to equal the life of the author plus 70 years. For works authored by joint authors, the copyright term was extended to the life of the last surviving author plus 70 years. In the case ofworks-for-hire, anonymous or pseudonymous works, the term was set at 95 years from the date of first publication, or 120 years from creation.

The practical result of this was to prevent a number of works from entering thepublic domain in 1998 and following years, as would have occurred under the Copyright Law of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

The lead petitioner,Eric Eldred, is anInternet publisher. Eldred was joined by a group of commercial and non-commercial interests who relied on the public domain for their work. These includedDover Publications, a commercial publisher ofpaperback books; Luck's Music Library, Inc. and Edwin F. Kalmus & Co., Inc., publishers of orchestral sheet music; and manyamici including theFree Software Foundation; Tri-Horn International of Boston, Massachusetts, a golf publishing and technology company; theAmerican Association of Law Libraries; theBureau of National Affairs; and theCollege Art Association.

Supporting the law were theU.S. government, represented by theAttorney General in anex officio capacity (originallyJanet Reno, later replaced byJohn Ashcroft), along with a set ofamici including theMotion Picture Association of America, theRecording Industry Association of America,ASCAP, andBroadcast Music Incorporated.

The original complaint was filed in theUnited States District Court for the District of Columbia on January 11, 1999. The plaintiffs' argument was threefold:

1. That by retroactively extending copyright terms, Congress had violated the requirements of theConstitution'sCopyright Clause, which gives Congress the following power:

   To promote the Progress of Science and useful Arts, by securingfor limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

   Plaintiffs argued that by reading this formulation so as to allow for any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection, thus thwarting the intent of the clause.
2. That any copyright law must be subject to scrutiny under theFirst Amendment, thereby ensuring a balance between freedom of speech and the interests of copyright.
3. That the doctrine ofpublic trust requires the government to show a public benefit to any transfer of public property into private hands, and that the CTEA violates this doctrine by withdrawing material from the public domain.

In response, the government argued that Congress does indeed have the latitude to retroactively extend terms, so long as the individual extensions are also for "limited Times", as required by the Constitution. As an argument for this position, they referred to theCopyright Act of 1790, the first Federal copyright legislation, which applied Federal protection to existing works. Furthermore, they argued, neither the First Amendment nor the doctrine of public trust is applicable to copyright cases.

On October 28, 1999, JudgeJune Green issued a brief opinion rejecting all three of the petitioners' arguments. On the first count, she wrote that Congress had the power to extend terms as it wished, as long as the terms themselves were of limited duration. On the second count, she rejected the notion ofFirst Amendment scrutiny in copyright cases, based on her interpretation ofHarper and Row Publishers, Inc., v. Nation Enterprises, an earlier Supreme Court decision. On the third count, she rejected the notion that public trust doctrine was applicable to copyright law.

The plaintiffs appealed the decision of the district court to theUnited States Court of Appeals for the District of Columbia Circuit, filing their initialbrief on May 22, 2000, and arguing the case on October 5 of the same year in front of a three-judge panel. Arguments were similar to those made in the district court, except for those regarding the public trust doctrine, which were not included in the appeal.

Instead, the plaintiffs extended their argument on the copyright clause to note that the clause requiresCongress to "promote the Progress of Science and useful Arts", and argued that retroactive extensions do not directly serve this purpose in the standardquid pro quo previously required by the courts.

The case was decided on February 16, 2001. The appeals court upheld the decision of the district court in a 2–1 opinion. In his dissent, JudgeDavid Sentelle agreed with the plaintiffs that CTEA was indeed unconstitutional based on the "limited Times" requirement. Supreme Court precedent, he argued, held that one must be able to discern an "outer limit" to a limited power; in the case of retrospective copyright extensions, Congress could continue to extend copyright terms indefinitely through a set of limited extensions, thus rendering the "limited times" requirement meaningless.

Following this ruling, plaintiffs petitioned for a rehearingen banc (in front of the full panel of nine judges). This petition was rejected, 7–2, with Judges Sentelle andDavid Tatel dissenting.

On October 11, 2001, the plaintiffs filed a petition forcertiorari to theSupreme Court of the United States. On February 19, 2002, the Court granted certiorari, agreeing to hear the case.

Oral arguments were presented on October 9, 2002. Lead counsel for the plaintiff wasLawrence Lessig; the government's case was argued bySolicitor GeneralTheodore Olson.

Lessig focused the Plaintiffs' brief to emphasize the Copyright Clause restriction, as well as the First Amendment argument from the Court of Appeals case. The decision to emphasize the Copyright Clause argument was based on both the minority opinion of Judge Sentelle in the appeals court, and on several recent Supreme Court decisions authored by Chief JusticeWilliam Rehnquist:United States v. Lopez (1996) andUnited States v. Morrison (2000).

In both of those decisions, Rehnquist, along with four of the Court's more conservative justices, held Congressional legislation unconstitutional, because that legislation exceeded the limits of the Constitution's Commerce Clause. This profound reversal of precedent, Lessig argued, could not be limited to only one of the enumerated powers. If the court felt that it had the power to review legislation under the Commerce Clause, Lessig argued, then the Copyright clause deserved similar treatment, or at very least a "principled reason" must be stated for according such treatment to only one of the enumerated powers.

On January 15, 2003, the Court held the CTEA constitutional by a 7–2 decision. The majority opinion, written by JusticeGinsburg, relied heavily on the Copyright Acts of1790,1831,1909, and1976 as precedent for retroactive extensions. One of the arguments supporting the act was that life expectancy has significantly increased among the human population since the 18th century, and therefore copyright law needed extending as well. However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever", any limit set by Congress can be deemed constitutional.

A key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years andto deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.^[2]

The Supreme Court declined to address Lessig's contention thatLopez andMorrison offered precedent for enforcing the Copyright clause, and instead reiterated the lower court's reasoning that a retroactive term extensioncan satisfy the "limited Times" provision in the Copyright Clause, as long as the extension itself is limited instead of perpetual. Furthermore, the Court refused to apply the proportionality standards of theFourteenth Amendment or the free-speech standards in theFirst Amendment to limit Congress's ability to confer copyrights for limited terms.

Justice Breyer dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests. While the constitution grants Congress power to extend copyright terms in order to "promote the progress of science and useful arts", CTEA granted precedent to continually renew copyright terms making them virtually perpetual.^[3] Justice Breyer argued that it is highly unlikely any artist will be more inclined to produce work knowing their great-grandchildren will receive royalties. With regard to retroactive copyright extension, he considered it foolish to apply the government's argument that income received from royalties allows artists to produce more work saying, "How will extension help today's Noah Webster create new works 50 years after his death?" He also attacked the idea that thefair use defense would efficiently solve theFirst Amendment issue, as the defense could not help "those who wish to obtain from electronic databases material that is not there", e.g. teachers searching online for material to be used in the class (and finding that the ideal material has been deleted from the database).^[4]

In a separate dissenting opinion,Justice Stevens also challenged the virtue of an individual reward, analyzing it from the perspective of patent law. He argued that the focus on compensation results only in "frustrating the legitimate members of the public who want to make use of it (a completed invention) in a free market". Further, the compelling need to encourage creation is proportionally diminished once a work is already created. Yet while a formula pairing commercial viability to duration of protection may be said to produce more economically efficient results in respect of high technology inventions with shorter shelf-lives, the same perhaps cannot be said for certain forms of copyrighted works, for which the present value of expenditures relating to creation depend less on scientific equipment and research and development programs and more on unquantifiable creativity.^[5]

Lessig expressed surprise that no decision was authored by Chief Justice Rehnquist or by any of the other four justices who supported theLopez orMorrison decisions. Lessig later expressed regret that he based his argument on precedent rather than attempting to demonstrate that the weakening of the public domain would cause harm to the economic health of the country.^[6]

Within a year ofEldred, it was serving as decisive precedent. Two cases,Luck’s Music Library, Inc. v. Ashcroft and Peters andGolan v. Ashcroft and Peters, challenged the constitutionality of theUruguay Round Agreements Act on the grounds that its "restoration amendment," which provided copyright restriction to foreign works that were in the public domain because foreign works were formerly not copyrightable, violated the First Amendment rights of those who would no longer be able to perform the works without observing copyright. The court citedEldred and dismissedLuck's Music on the grounds that the First Amendment did not protect the ability to use others' words as much as it does protect one's ability to use their own.Golan v. Ashcroft and Peters'sUruguay Round portion survived a motion to dismiss even though its own challenge to the Sonny Bono Act did not.^[7] That case culminated inGolan v. Holder, which held that there was nothing in the Constitution preventing the government from taking works out of the public domain.

A 2007 case,Kahle v. Gonzales, worked from theEldred v. Ashcroft opinion to argue that a change in copyright law as drastic as the change from opt-in to opt-out required a review in regard to freedom of speech. The plaintiffs, represented by Lawrence Lessig, argued that the limitations placed on speech and expression by copyright were drastically expanded and possibly too limiting.^[8] The Ninth Circuit determined that the argument was too similar to the one adjudicated inEldred and dismissed the case.^[9]

• Copyright
• United States copyright law
• Intellectual property clause
• Public Domain Enhancement Act
• Free culture movement

Related cases

• Golan v. Holder (2012)
• Kahle v. Gonzales (9th Cir. 2007)

• Austin, Graeme W. (2003). "Copyright's Modest Ontology - Theory and Pragmatism inEldred v. Ashcroft".Canadian Journal of Law and Jurisprudence.16 (2):163–178.doi:10.1017/S0841820900003672.S2CID 146365475.SSRN 528224.
• Jones, Michael (2004). "Eldred v. Ashcroft: The Constitutionality of the Copyright Term Extension Act".Berkeley Tech. Law Journal.19: 85.
• Samuelson, Pamela (2003). "The Constitutional Law of Intellectual Property AfterEldred v. Ashcroft".Journal of the Copyright Society.50.SSRN 419540.
• Ackman, Dan (January 17, 2003)."0.2% for the Mouse!".Wall Street Journal, January 17, 2003.

•   Works related toEldred v. Ashcroft at Wikisource
• Text ofEldred v. Ashcroft,537U.S. 186 (2003) is available from:CornellFindlawGoogle ScholarJustiaLibrary of Congress
• Oral argument before the Supreme Court, in MP3 format (Transcript)
• Opinion of the Supreme Court, in MP3 format (Text)
• OpenLaw amicus briefs - also has other information including media coverage, etc.
• Links to various briefs filed in the case
• Symposium onEldred from theLoyola of Los Angeles Law Review
• A timeline of U.S. Copyright
• First-person narrative of the experience of attending the Oral Argument before the Supreme Court
• Lawrence Lessig's article about why Eldred lostArchived April 25, 2021, at theWayback Machine
• Thomas Jefferson letters relating to Copyright ClauseArchived 2015-05-23 at theWayback Machine