Intellectual Property & the Constitution Class 25 Notes Law 507 | Intellectual Property | Spring 2004 Professor Wagner

2/13 Today’s Agenda 1.Structural Limitations on Intellectual Property 2.First Amendment Limitations on Intellectual Property

3/13 IP & The Constitution: Overview We’ll look at two basic aspects of constitutional law, as applied to IP: 1.Structural aspects: Article I: powers and limitations 2.Affirmative limitations: Amendments: limitations (especially 1st Amendment) Aside: 11th Amendment limitations as well

4/13 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.

5/13 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?

6/13 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?)

7/13 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?

8/13 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?)

9/13 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)?

10/13 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?

11/13 First Amendment Limitations on IP Universal Studios v Corley (2nd Cir. 2001) The three big questions: Is computer code (source code) speech for 1A purposes? (Should it be?) Does the prohibition against posting DeCSS implicate the 1st Amendment? (How?) Does the prohibition against posting DeCSS run afoul of the 1st Amendment? (Why or why not?)

12/13 First Amendment Limitations on IP Universal Studios v Corley (2nd Cir. 2001) The court notes that the DMCA issue raises the question of when a law that ‘affects’ speech is unconstitutional under the First Amendment oIs this a special form of problem, or generally applicable to many situations? oWhat analysis does the court use to determine the 1A status of the DMCA? oFollowing this analysis, and reviewing the holding of Harper & Row, what does this suggest about 1A challenges to copyright generally?

13/13 First Amendment Limitations on IP After Corley and Harper & Row, can the government restrict the fair use requirement? What does Eldred suggest about this? Any theories about what’s going on here?