Larry Lessig announced last week at ETCON that he'd just finished the brief on Eldred v. Ashcroft, the case that could restore the notion of copyright as a limited monopoly, repealing the Bono Act's twenty year extension to copyright. Lessig's been working on this for weeks now, nonstop, and when he gave his talk at ETCON he had three quarters of a beard and purple eye-bags. I read this over the weekend, and it's killer stuff, really sharp and stirring and convincing and exhaustive, even for a legal punter like me.
The retroactive aspect of CTEA (The Bono Act) violates this requirement of
exchange. Whatever material benefit might flow to the author
or his heirs or publisher from the extension of this exclusive
right, Congress has not conditioned that grant upon a gain by
the public. The grant is thus a windfall, not an incentive.Rather than "a compensation for a benefit actually gained to
the community as a purchase of property," Madison, Aspects of
Monopoly, supra, at 490, CTEA is simply a boon to the heirs
of copyright holders. It thus violates the core of the quid pro
quo built into the Copyright Clause.Congress certainly has the power to grant such windfalls
through tax benefits, or outright gifts. But its Copyright Clause
power is contingent upon an exchange. As nothing is received
by the public in exchange for, or conditioned upon, the retroactive
extension, CTEA is beyond Congress's power.
