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Abstract

Eldred v. Ashcroft offered the Supreme Court broad issues about the scope of Congress's constitutional power to legislate in the area of intellectual property. In 1998, Congress added twenty years to the term of all copyrights, both existing and future copyrights. But for this term extension, works created during the 1920s and 1930s would be entering the public domain. Now such works will remain under copyright until 2018 and beyond. Eldred v. Ashcroft rejected two challenges to the constitutionality of the copyright extension. The first challenge contended that Congress had exceeded its power to grant copyrights for "limited Times" in order to "promote the Progress of Science. The purpose of copyright protection is to provide an incentive to create works, but nothing Congress did in 1998 could provide an incentive to create works in the 1920s. However, the Court declined to impose the sort of limits it has recently imposed on other powers of Congress, especially Congress's power to regulate commerce. Rather, the Court held that the Constitution left it to Congress to choose the intellectual property regime that best serves the purposes of the Copyright Clause. Eldred also rejected a First Amendment challenge to the constitutionality of the term extension. The plaintiffs had argued that the term extension was a content-neutral regulation that should be subject to intermediate scrutiny under the First Amendment. The Court, however, reasoned that First Amendment scrutiny was unnecessary where Congress had not "altered the traditional contours of copyright." The Copyright Clause was adopted around the same time as the First Amendment, and so copyright was probably not considered inconsistent with the First Amendment. Moreover, copyright law itself provides traditional First Amendment safeguards, such as fair use and the freedom to copy ideas from protected works[...] This Article explores the consequences of Eldred for intellectual property law and for constitutional law. The first two parts seek to place Eldred within the larger First Amendment and federalism case law. As Part I discusses, with respect to First Amendment law generally, Eldred could well be read as the first First Amendment case to use "traditionalism" to define the scope of protected rights. Such a reading would represent a considerable change in First Amendment law. Part II discusses how to reconcile Eldred with the line of recent federalism cases, which it seemed to ignore. The rest of the Article looks to the effects of Eldred. As Part III discusses, with respect to copyright, Eldred leaves open the possibility of First Amendment scrutiny of nontraditional copyright protection. Congress has added various nontraditional protections to the copyright statute, such as protection for anti-circumvention technologies, for copyright management information, and other types of proposed protection against consumer copying. Such provisions may still be susceptible to challenge after Eldred. Part IV analyzes whether, within copyright law, Eldred could affect the ever-changing role of the fair use doctrine. Fair use has been threatened by various judicial decisions, legislation, and academic theories. Eldred, however, firmly grants fair use constitutional status, by making it a basis for the constitutionality of copyright law in general. Fair use may now also play a greater role in protecting expressive interests with respect to use of copyrighted works. Finally, Part V analyzes whether Eldred could also affect the interplay between federal and state intellectual property law. The Supremacy Clause gives Congress the primary role in regulating intellectual property, but courts have been relatively reluctant to read the federal copyright statute as preempting state law. Eldred gives strength to arguments that federal policies central to copyright, such as fair use and the idea/expression dichotomy, should not be frustrated by conflicting state law in such areas as software licensing and database protection.

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