A Reply to Tepp — There Was Nothing “Conservative” about Eldred Decision

I will leave the debate about what constitutes “conservative” copyright reform to others, as that’s not my area of expertise. There is one claim in Stephen Tepp’s recent article, “Assailing Copyright Isn’t Conservative,” however, that merits a response.

In his article, Tepp claims that the Supreme Court’s Eldred v. Ashcroft is a “conservative” decision because in this case “the conservative justices overwhelmingly sided with private property.”  Lest anyone be confused, what happened in this case is that the Court agreed to recognize a congressional grant of private property, and in the process made a mockery of the constitutional text.  

Contrary to Justice Ginsburg’s suggestion in Eldred, the copyright clause of the Constitution does not give Congress an unfettered right to grant copyrights or other forms of intellectual property.  Rather, the clause only grants Congress the power “to promote the progress of science and the useful arts.”  The power to grant copyrights — specifically the power to “secur[e] for limited time to authors and inventors the exclusive right to their respective writings and discoveries” — only exists insofar as it serves the constitutionally enumerated end, and the retrospective extension of copyrights in pre-existing works does not serve that end.  Extending the copyright term for a work that has already been created or, worse, restoring copyright to items that have already entered the public domain, does not “promote progress” as it does nothing to encourage the creation of new works — the sole end Congress may use its copyright power to pursue.  It’s true that the conservative justices joined Justice Ginsburg’s opinion, but that’s not because her opinion embraced conservative principle or properly applied the clear constitutional text.  If one wants to read a constitutional conservative take on the constitutional question, I ‘d ignore what the Supreme Court said in Eldred and instead look at Judge Sentelle’s dissent below in the U.S. Court of Appeals for the D.C. Circuit.  

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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