Salon: In Defense of Copyright Goldberg's argument is that the Constitution delegates matters of copyright policy to the Congress, and that the Supreme Court should not raise the Copyright Term Extension Act to a Constitutional level. I myself believe in a conservative role of the Court. The Supreme Court Justices are an unelected group that should not nullify the democratic process by second guessing the Congress. However, I still find it compelling that the Congress has once again extended the copyright term for existing works. I think the Court should consider the possibility that no new works will ever be released into the public domain, which is clearly unconstitutional. If Congress is planning to change the term of copyrights whenever they are about to expire -- heck, why don't they just pass a law now that says copyright terms are unlimited from now on. Obviously, the Court would have to consider the term "limited times." If no works have passed into the public domain since 19-whatever because Congress has repeatedly extended the terms of copyrights, then I think the issue should be raised to a Constitutional level.
Goldberg makes some arguments about why extending the copyright term is good. The problem is, that his arguments are also arguments about why works should never be released into the public domain. His arguments will no doubt be presented once again 15 years from now, when Congress is again asked to extend the term. Because his arguments argue for continual extension of copyright terms, I tend to think they are arguments against the Constitution, which specifically says "limited times." The Court must acknowledge that the Framers intended works to eventually pass into the public domain. To the extent that Congress prevents works from passing into the public domain, they are violating the Constitution, even if the Constitution delegates to them the matter of copyright policy.
Posted by Doug Sauder at April 15, 2002 01:16 PM