Copyright Contraction

by John Holbo on March 12, 2006

I have a question for lawyers. Would it be possible simply to repeal copyright extension? Could Congress just repeal the Copyright Extension Act of 1998, for example, placing many works in the public domain with a stroke – and letting the mouse out of jail, etc.?

The main concern is that repeal would be a ‘taking’, under the 5th Amendment: “nor shall private property be taken for public use, without just compensation.” This would make such a repeal prohibitively expensive. But would it be a taking? That’s what I’m asking. What are the precedents in this area? I’ll spare you my untutored, a priori thoughts about this question. But I would like to focus the question a bit more, if I may. The relevant bit from Article I is brief to a fault (or virtue, as you like): “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I realize that giving people rights – especially rights they can sell – amounts to giving them a kind of property. But Congress can always legislate to provide benefits, ergo rights to benefits, that can later be repealed. Is copyright different? I am curious what precedent there is. One (very legally naive) argument against the ‘takings’ reading would be this: if copyright is regular old property, copyright extension – which deprives the public of its property – is a taking. The right to copy, which I am going to get in 20 years is already my property, just like a trust fund that will only starting paying out in 20 years is already my property. Since apparently taking this from the public isn’t a legal taking, copyright isn’t regular old property, and repealing copyright wouldn’t be a taking. I realize this is dubious.

I also realize the argument could be made that it would be imprudent of Congress to extend copyright, then turn around and contract it. Such inconsistent shenanigans would deprive copyright holders of confidence. But no one denies that Congress has the right to make some dumb laws. (The Copyright Extension Act of 1998, for example.) Let’s just discuss whether it would be strictly possible to contract copyright without compensation to holders.



John 03.12.06 at 9:42 am

(1) Granting your premise, what would the compensation be? During Supreme Court argument, Breyer cited favorably an amicus brief that said the 71st through 90th years of protection add negligible value to copyright protection. (How much would you value a pension/annuity that doesn’t pay a dime for 70 more years?)

(2) One could make the repeal prospective rather than retroactive, i.e. future works receive less protection. (Mickey would stay in jail, though.)


Bruce Baugh 03.12.06 at 10:29 am

Doesn’t the Berne Convention come into play?


John Holbo 03.12.06 at 10:35 am

Probably. Care to explain? I really am asking for someone to explain this.


Seth Finkelstein 03.12.06 at 10:49 am

You might want to skim through Eldred v. Ashcroft, which upheld the retroactive copyright extension. The two dissents make related points, but the seven other justices in the main opinion didn’t go along.


John Holbo 03.12.06 at 10:53 am

John, it’s clear that you could make the repeal prospective. No possible problem there. Yes. The concern (I’m sure you appreciate it) is that you’re screwed for a century in the meantime, regarding a great many works. The problem with compensation is that you have literally millions of works, however insignificant their individual values through those 70-90 years. A nightmare class action suit waiting to happen, I guess. Congress would be (understandably) hesitant to open the door to such a thing.


John Holbo 03.12.06 at 10:55 am

I did skim Eldred, Seth, and I noticed something of the sort but wasn’t quite sure what to make of it.


Mike Russo 03.12.06 at 11:00 am

I don’t know a huge amount about property law (second year law student more interested in human rights etc.), but I believe that a contraction of copyright such as you propose would in fact be a taking. Once the relevant legislation passes, a right has been vested in the copyright holder. By contrast, the rights in the public to make free use of the material once the copyright expires are rather general and inchoate, inasmuch as they attach to society, not a particular individual, and therefore not classically “property rights,” even if you can bring them within a rights paradigm. Even though they’re both aspects of copyright, there’s no analytic reason why the treatment has to be the same — especially because the benefits which flow from holding a copyright are well-established in law, while the idea that there’s a public right to make use of material once copyright expires looks much more original and floaty.

The reason “classical” rights are important is a string of cases dealing with so-called “new property” which you allude to above — Congress passing entitlements, etc. The legal protection of such claims against the government has been rather weak; the basic upshot is that Congress can get rid of them if they want, but once you pass e.g. Social Security, you need to administer it fairly, not deprive people of their benefits without some degree of process, etc. The precise analysis will vary from circumstance to circumstance, of course.

Copyright looks very much like “old property,” what with it being in the Constitution and all, while the right to free access to once-copyrighted material, if it is a property right at all, is definitely novel. So courts are going to exercise a lot of deference to the vested copyright, which means yanking it out from under the holder who was relying on the Congressional grant is certainly going to be a taking, and the judicial response to the inverse-copyright claim is likely to be “get your new-property loving butt out of my courtroom, hippie!” The judiciary can be a bastard like that.

Again, I know practically nothing about the substance of copyright law, but this is how things look to me.


KCinDC 03.12.06 at 11:28 am

… the right to free access to once-copyrighted material, if it is a property right at all, is definitely novel.

How is it novel? It’s existed since copyright came into being, and the public domain existed before there was copyright at all.


Seth Finkelstein 03.12.06 at 11:55 am

John: My take on it (I-am-not-a-lawyer) is that Justice Stevens’ makes an argument similar to yours above:

“It would be manifestly unfair if, after issuing a patent, the Government as a representative of the public sought to modify the bargain by shortening the term of the patent in order to accelerate public access to the invention. The fairness considerations that underlie the constitutional protections against ex post facto laws and laws impairing the obligation of contracts would presumably disable Congress from making such a retroactive change in the public’s bargain with an inventor without providing compensation for the taking. Those same considerations should protect members of the public who make plans to exploit an invention as soon as it enters the public domain from a retroactive modification of the bargain that extends the term of the patent monopoly. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis.” (and then says copyright should be the same analysis)

But the seven other justices basically say wrong, wrong, wrong.


Mike Russo 03.12.06 at 12:05 pm

kcindc — sure, the ability to freely access material once it’s moved out of copyright — or freely use it if it hasn’t been copyrighted — has been around forever. But to the best of my knowledge, it’s never been recognized as a legal claim (the Stevens dissent quoted by Seth indicates this is probably the case), and thus it’s novel as a right qua right. People were conducting abortions well before there were laws prohibiting it — in fact, the anti-abortion statutes were relatively modern creations themselves. But Roe v. Wade finding a constitutional right to an abortion is still definitely novel. Likewise, my understanding is that people have been going to court and enforcing judgments against people who violate their copyrights for at least several hundred years.

This isn’t wholly dispositive — until the recent ridiculous expansions of the copyright period, it’s unclear under what circumstances a potentially aggrieved person could bring a suit alleging that their right to post-copyright use had been infringed. And one could argue that, unlike abortion, which is a medical procedure, copyright is an entirely legal edifice, so that any power arising from it, even its expiration, has a legally forceful character. But again, knowing very little about copyright law, these arguments seem fairly novel to me. And since the right vests in the public at large, as opposed to one individual property-owner, this really looks a lot more like Social Security than it does a tract of land, i.e. more like “new” property than “old.”


John 03.12.06 at 1:45 pm

Seth, thanks for the Stevens quote: highly relevant, and correct on the substance.

But I think the SCOTUS holding is that Congress has the ability to legislate policy that enables the Constitutional bargain (or right, if you prefer) underlying intellectual property. If Congress says 90 years is too little, the Supreme Court would defer to that conclusion, too.

But once Congress makes the promise, the horse has left the barn. Disney is still making investments — and realizing profits — from Mickey. Those investments are substantially impaired if Congress takes back its rights. Anyone with a valid copyright — in its first or 71st year — could claim their investments are capitalized over the extended copyright period.


anon 03.12.06 at 6:11 pm

Probably if the reversal took the form of requiring periodic prospective payment of a nominal registration fee to have the longer period, no taking could be shown to occur. The problem with the longer copyright period is not so much the extension as the fact that most copyrighted works cannot be used due to uncertainty about the owner of the copyright. A change to require nominal registration fees would mean those copyright holders who cared could reap the benefits of their ownership, and other “orphaned” works would be released into the creative commons.


Rob Rickner 03.12.06 at 6:27 pm

The quote Seth brings up is interesting because it cuts against thinking of copyright as property, rather than a government conferred benefit that resembles property. Stevens seems to imply that taking things from the public domain by extending copyright resembles a taking, not the other way around. The other seven justices didn’t accept this interpretation (obviously), however, I suspect they would take the more moderate view that although extending copyright is not unconstitutional, neither is shortening.

Stevens is also alluding to the generally accepted constitutional norm that in economic matters the court shouldn’t upset the settled expectations of the people affected by the law. He’s making a bit of a dig against the majority opinion which rests, in part, on the idea that copyright holders had a settled expectactation that the copyright term would be extended, and had made investments accordingly.

In short, repealing the copyright act would not be a taking. To quote Lawrence Tribe, “Citizens have no more of a vested property rule in statutorily promised government benefits than they do in any rule of common law.” He goes onto explain that only a fairly small, traditional set of expectations will be protected by the takings clause. To rule otherwise would really curb the power of congress to repeal any act which confers a benefit on members of the public. Imagine if any tax or welfare benefit couldn’t be eliminated. The best way to think of non-physical takings is to imagine how big would the impact be on people’s settled expectations – investments, etc. It seems the further you go from traditional, physical notions of property, the bigger the impact must be. If it’s huge, then you’ve got a better case that it is property protected by the just compensation requirement.

Of course, copyright has a better claim to being property than the right to get a welfare check. Eliminating copyright completely might rise to the level of a taking. However, the holding in Eldred certainly implies that congress can mostly do what it likes in this matter. There isn’t anything directly on point because congress has never shrunk the scope of any IP right. Of course, patent reform might be coming, so a case could be in the works.

Stevens’ argument failed, among other reasons, bec ause the public domain in copyright is not a force unto itself. You can read Edward Samuels for a complete explanation. In short, the lack of protection for copyrighted works does not equate to a public domain in which the public has an interest. Now, I think there should be a true public domain, but the supreme court hasn’t latched onto this concept in copyright law. “Not protected by copyright law” and “owned by the public” might seem the same in practice, but conceptually they are different. This was the gap Lessig and others just plain failed to bridge. If they had, then the settled expectations of the public would have had more force, and the case could have been won – in my opinion.

As far as the Berne Covention is concerned, repealling the extention would be a violation. In fact, we might already be in violation in other areas, but that’s a different point. But, congress can break treaties all it wants to. It might be bad politics, ruin business plans, and generally piss of the rest of the world, but the US has done that before. Read Scalia’s dissent in the juvenile death penalty case. The supreme court never sees itself constrained by international laws. So, the Berne convention might not change much in a takings analysis. Of course, if repealling the act would result in american authors not being protected abroad, then it might come out the other way.

Of course, I took con law a while ago, so any better lawyers out there should chime in if I’ve made any mistakes.


J Thomas 03.12.06 at 6:41 pm

I am not a lawyer. And specifically I am not a tax lawyer. But if for some reason we wanted to repeal extended copyright, and if there was a concern about taking monetary value….

wouldn’t it be possible to tax extended copyright income at 100%? “The power to tax is the power to destroy.” After that tax was passed (and perhaps it could be done as an administrative ruling by the IRS, given some congressional action that would appear to justify it), then the extended copyright could be removed entirely without taking as much obvious value.

However, that would still leave various sorts of intangible value. Disney might not get any income from licensing Winnie the Pooh t-shirts etc, but there could be considerable untrackable value in having the right to license Pooh and the right to deny licensing. That value could be expressed in the form of kickbacks, etc. I’m not sure exactly how they would argue the monetary value of it when proclaiming that value amounts to admitting tax fraud, but then I am not a lawyer.

I think I’ll just quit now, the request was for lawyers to answer, not just kibitzers.


Tony 03.12.06 at 7:14 pm

These days, it all depends on what Justice Kennedy thinks.


Mike Huben 03.12.06 at 7:40 pm

Has other property been nullified in the past and passed takings muster? Slaves (though the later amendment may have mooted the cases.) What about shorelines and rights of way?

What about “securing for limited times”: if government ceases to secure something, is that a taking? For example, if government says that a particular form of contract is unenforcible, is that a taking?


francis 03.12.06 at 9:12 pm

federal vested property rights is an extremely thorny area of the law. One important case is US v Winstar, which deals specifically with the US breaching contracts under which certain S&Ls were promised favorable accounting treatment. The court ultimately found that the essence of these contracts was the shift in the risk that the regulatory environment might change from the regulated banks to the government.

There are other cases that establish that detrimentally relying on a govt freebie does not give rise to a taking when the govt changes the rules for getting the freebie. (i’m thinking of a recent grazing case, if anyone can help with a cite.)

Other important cases are Pennsylvania Coal v. Mahon (1922) and Penn Central v. New York (1978), the granddaddy of regulatory takings cases. A taking occurs when government regulation goes “too far”. [gee thanks, that’s really helpful.]

When does a regulation go too far? Diminution in property value is not enough. But the extent to which the regulation interferes with distinct investment-backed expectations is a relevant consideration.

so where does this end? I don’t think that Disney has much of a case. Copyright exists “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. As the purpose of copyright is to benefit the public, not profit the inventor, the case for a taking arising from shortening the exclusivity period is weaker than a straight taking of land. Also, there is no contract between the US and the copyright holder. All citizens generally presumed to conduct their affairs on the basis that citizens, not the government, bears the risk of regulatory change.

[required disclaimer: yes, iaal — but this is not legal advice and i’m not your lawyer.]

On the other hand,


francis 03.12.06 at 9:13 pm

oops, please ignore the last four words. i forgot to delete them.


John Holbo 03.12.06 at 10:27 pm

Thanks francis (and everyone else). Following up. Compare the syntax of the following two items: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

And: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Now there is a concern that, just as you don’t actually need to be in a well regulated militia to have your right to bear arms protected, so Congress does not need to be promoting progress etc. in order to have a right to give people this particular brand of time-limited but exclusive rights. Congress has a right to thwart the useful arts by indefinitely extending copyright if it wants. Now this is such a very bad result that I hate to even consider it. But there is a real question whether that ‘to promote’ clause has any force. Thoughts?


Rob Rickner 03.13.06 at 12:01 am

To quote Nimmer on copyright:

“Even though largely nonoperative, it has suggested that the phrase ”To promote the progress of science and useful arts” does at least require that a copyrighted work contain some substantial, and not merely trivial, originality. However, the requirement of originality is more generally regarded as due to this use of the term ”authors” in a subsequent phrase of the Copyright Clause.”

In the end, the words don’t have any force. Patent cases have said the same thing. Even if they did constrain the legislature, congress might still be able to enact the same laws under the commerce clause. That issue hasn’t been decided yet, and likely won’t until we get some kind of database protection that gets arround the Feist case.


Seth Finkelstein 03.13.06 at 1:50 am

About: But there is a real question whether that ‘to promote’ clause has any force. Thoughts?

What I think doesn’t matter. What the Court thinks in _Eldred_ is this:

“We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives. See Stewart v. Abend, 495 U. S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces . . . . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony, 464 U. S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham, 383 U. S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra, at 14n17, provide a rational basis for the conclusion that the CTEA “promote[s] the Progress of Science.”


goatchowder 03.13.06 at 3:05 am

*This* court? Basically, the same one who smacked down Eldred, but now with two bona-fide wingnuts added to it?

Forget it.

There are no rights in America except the Private Property of the Already Wealthy. The only legitimate purpose for government is the protection of those rights.


paul 03.13.06 at 9:37 am

If we were taking the “promotion” language seriously, no patented invention or copyrighted work would be subject to protection for longer than allowed by the law at the time of its creation. That’s where the incentive to new works lies, not in retroactive reward for particularly successful old works.

Then again with copyright extensions getting passed on a regular basis, you could argue that the expectation of future extensions, each adding value to existing successful works, is an additional incentive to production. This is, of course, the same reasoning that makes real estate and securities ever more valuable in a rising market — you get the underlying return plus a capital gain. Can anyone say “bubble”?


Lewis Hyde 03.13.06 at 10:04 am

One comment on the language we use for a discussion such as this. It is my belief that the grant of copyright should be called a “monopoly privilege” rather than a “property right.” I argue this at length, with lots of historical data, in an essay called “Frames from the Framers.” The abstract & link to the essay can be found here:

Surely the feel of the argument shifts if we ask “can Congress revoke a privilege it once granted?”


John R 03.13.06 at 11:41 am

Two follow up questions:

1. What if Congress extended the term to something that had a number of years associated with it, but in practical terms was indefinite, say 1,000 years? This would effectively be granting permanent rights. If combined with a conclusion that reducing the term was a taking, wouldn’t such an action impair later Congresses and Presidents, perhaps fatally so?

2. Flipping Thomas’s tax question upside down, if reducing term is a taking, then might not extending term being a granting of something of value and therefore potentially taxable?


Sebastian Holsclaw 03.13.06 at 11:45 am

It might be interesting to compare this to a discussion about future entitlements (Social Cecurity being a classic example). Revising benefit levels down is not a taking under the Constitution. However there is some discussion of an ‘entitlement’ not being a vested right–presuming that copyright is a vested right maybe the analogy wouldn’t be so interesting. Anyway, just throwing that out there.


Sebastian Holsclaw 03.13.06 at 12:09 pm

Now that is an interesting spelling of Social Security. :)


Thales 03.13.06 at 12:24 pm

The Penn Central case mentioned above by one commenter would probably control the regulatory takings analysis (I am assuming, plausibly I think, that prospective shortening of copyright term or repeal of the Bono Act would be a regulatory taking if it is a taking at all–I don’t think there’s a precedent that it would constitute a physical taking a la condemnation of one’s house).


There is a facts and circumstances based standard in Penn Central about how much economic value is taken by the regulation over how long of a time horizon. In that case the Court concluded that an ordinance requiring Grand Central Station (among many other properties) to preserve its historical appearance did not effect a taking, because the investment backed expectations of the owners of the site were not significantly affected. The length of time involved in these expectations was an important consideration, as well as the fact that the owners did not suffer concentrated or disparate harm from the regulation. I would imagine that copyright owners who were quite near to the last 20 years of their Bono Act-extended term and had invested heavily in using the copyrights in that period might have a good takings claim. But then again, intellectual property protection is a monopoly grant provided by the federal government, rather than the common law of property. One could argue that legislative grace (in whatever direction) is an inherent part of the expectations of IP owners, and therefore that the bite of takings claims in these situations should be appropriately discounted.

I don’t think your public domain has been taken claim has any bite, simply because the public’s rights are not “private property” under the takings clause.


Tim 03.13.06 at 1:47 pm

John R says: Flipping Thomas’s tax question upside down, if reducing term is a taking, then might not extending term being a granting of something of value and therefore potentially taxable?

I read a very smart essay arguing that copyright should be taxed after a certain number of years in order to retain copyright protection: a nominal tax for works that are still making money for their authors (or publishers), but substantial enough that most works would go into the public domain.

This would clear up a lot of questions of who owns copyright on old works and whether it’s owned at all (if no one’s paying the copyright tax, it’s in the public domain). And that uncertainty makes a lot of copyright research so difficult.

And taxation is, of course, a great way to take something away that you can’t take away by other legal means! (Said humorously, but it’s something to bear in mind.)


Thales 03.13.06 at 2:26 pm

By the way, Lawrence Lessig likely has some thoughts about these issues, or could participate fruitfully in this discussion.


John Holbo 03.13.06 at 7:43 pm

Thales, yeah, I didn’t think it would fly. The bit about bites out of the public domain being takings, that is. (Sorry, for some reason this comment didn’t show immediately. Author gets stuck in own comment queue.)

In general, thanks for the good discussion all around. This has been a helpful thread. Please continue. (I don’t have any more brilliant thoughts, but I’m following with interest.)


cm 03.14.06 at 10:17 am

rob (#13): Terminology wise I would prefer to go with mike’s (#7) “vested interest”. In fact, I would condense his presentation to “vested interest overrides unvested interest”. This is essentially the principle applied to may phaseouts — people know the difference between vested and unvested full well, and screwing (broadly) vested interests arguably does far more to reduce trust in the social order, or rule of law if you will, than cutting off people before they vest any stakes.

OTOH I don’t think that screwing around with the excesses of copyright would destabilize our society. I have a hunch those interests are not exactly vested very “broadly”, and not generally in individuals who are creating works but those who own others’ creations.


Thales 03.14.06 at 12:12 pm

To add one more thing–if Congress passed a statute completely ending all existing copyright terms tomorrow, regardless of their original length, I can’t think of a good argument that this would *not* constitute a regulatory taking under Penn. Coal v. Mahon and Lucas v. South Carolina Coastal Commission. This action would completely destroy 100% of the economic value to the copyright holders. The Court of Federal Claims would be flooded with inverse condemnation proceedings. But anything less than a 100% reduction in value is subject to the Penn Central test. I don’t think subsequent takings cases change this. One legal problem raised by the fuzziness of the Penn Central test is the incremental taking, e.g. one regulation takes 5% of the value of your property in one year, next year a new one takes 10%, etc. Each individual step may not disappoint the owner’s reasonable investment backed expectations, but in the aggregate they do the same thing–compensable? Who knows. No one doubts that congressional power over copyright term is plenary, and after Eldred that anything less than infinity is a “limited time.” But I think it’s an open question how much retroactive legislation can be used to tinker around the edges without triggering a compensable taking (my hunch is a lot). One thing Congress could almost do without violating anyone’s rights is repeal the Sonny Bono Act but only prospectively.

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