Extending Copyright and the Constitution: 'Have I Stayed Too Long?'

Abstract

The Sonny Bono Law extended the term of copyright protection by an additional twenty years, both prospectively and retrospectively. The former is probably constitutionally proper; the latter is almost certainly forbidden by the Constitution's copyright clause. Many proponents contend that any copyright legislation which yields a "public benefit" is constitutional. In a seemingly counterproductive tactic, some opponents of term extension have also embraced this theory, claiming that retrospective extension produces no public benefit or good, at the same time, however, implicitly supporting what is surely an ineffective argument - that "public benefit" can justify otherwise unauthorized copyright law.

Most discussion of copyright term extension has involved the "limited times" phrase (as well as the "public benefit" test that appears nowhere in the Constitution). But copyright term extension also involves the promotion-of-progress phrase, and retrospective term extension is governed and surely effectively limited only by that phrase. The failure to identify these two distinctively different phrases - the limited-times phrase and the promotion-of-progress phrase - condemns the issue to one of hopelessly indecipherable constitutional confusion.

The possibility of gaining unconstitutional retrospective extensions through the guise of prospective extensions has served to pervert the normal democratic processes. Applying Alaska Airlines to the Bono Law leads inescapably to the conclusion that its provisions are not severable because Congress simply would not have passed prospective extension without retrospective extension; realistically, of course, they would not even have been asked to consider prospective extension without enacting the only real goal of the bill: saving imminently terminating copyright terms. Thus, if the Supreme Court were to declare retrospective term extensions invalid as inconsistent with the Constitutional clause, it could safely decline review of future prospective extensions because, without the possibility of retrospective extension, few, if any, such extensions will ever garner Congressional support.