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.

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.)

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.)

See

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0438_0104_ZO.html

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.

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?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=870073

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

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”?

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.

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.”

“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.

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?