Intellectual Property & the Constitution I Structural Limitations Class Notes: April 11, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

4/11/032Law 507 | Spring 2003 Today’s Agenda 1.Quick Overview: IP & the Constitution 2.Structural Limitations on Intellectual Property

4/11/033Law 507 | Spring 2003 Structural Limitations on IP U.S. Constitution, article I, § 8, cl. 8: [to] promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.

4/11/034Law 507 | Spring 2003 Structural Limits on IP Eldred v Ashcroft (2003) What was the congressional act in question? (Why did Congress do this?) What, specifically, is the constitutional limitation at issue? oWhat do the petitioners suggest it means? (Why?) oWhat does Justice Breyer suggest it means? (Why?) oWhat does the majority determine it means? –What tools does the Court use to decide the issue? –Do you agree with the analysis?

4/11/035Law 507 | Spring 2003 Structural Limits on IP Eldred, continued... 1.Given the majority’s decision about the meaning of ‘limited times,’ what does the constitutional analysis require? oOn what grounds does the statute meet the standard? 2.What is Justice Breyer’s alternative 3-part analysis? (Does this comport with the general approach the court takes in such circumstances?)

4/11/036Law 507 | Spring 2003 Structural Limits on IP Eldred, continued... 1.Consider the Court’s rejection of the major counterarguments: 1.Does the CTEA create ‘perpetual’ copyrights? (See, e.g., the Breyer argument -- that it creates 99.8% of a perpetual copyright.) 2.Does retroactive extension: 1.Run afoul of the originality requirement 2.Fail to ‘promote’ progress 3.Violate a quid-pro-quo between the public and authors Do you agree with the Court’s ‘reasonable expectation’ argument on pp 24-25?

4/11/037Law 507 | Spring 2003 Structural Limits on IP Eldred, continued... Why would Justice Breyer come out differently? (Who has the better argument?) Locating Eldred: Can you reconcile Eldred with the recent jurisprudence in... The Commerce Clause (e.g., Lopez) The Eleventh Amendment/State Sovereign Immunity Didn’t each of these lines of cases involve nontextual limitations on the scope of Congressional power. After Eldred: What limits exist on term extensions? Retroactive term extensions? What policy options exist? (Does the Breyer analysis suggest any?)

4/11/038Law 507 | Spring 2003 Structural Limits on IP Eldred, continued... How much does Eldred really matter? How many works are still being commercially exploited after life + 50 years? (What has happened to the rest?) Aren’t the works that are commercially exploited after life+50 years precisely those we’d want to grant protection to? Do the two observations above suggest any policy approaches? What does Eldred suggest about the viability of structural challenges to IP laws (at least those based on Article I, Section 8)?

4/11/039Law 507 | Spring 2003 Structural Limits on IP What does the court suggest is the limit? (How does it reach its conclusion?) Are you convinced by the largely historical analysis? Why does the court determine that the

4/11/0310Law 507 | Spring 2003 Next Class Intellectual Property & the Constitution II First Amendment Limitations