Eldred v. Reno: An Example of the Law of Unintended Consequences

Journal of Intellectual Property Law Volume 8 | Issue 2 Article 3 March 2001 Eldred v. Reno: An Example of the Law of Unintended Consequences L. Ray Patterson University of Georgia School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Constitutional Law Commons, First Amendment Commons, Intellectual Property Law Commons, and the Legislation Commons Recommended Citation L. R. Patterson, Eldred v. Reno: An Example of the Law of Unintended Consequences, 8 J. Intell. Prop. L. 223 (2001). Available at: https://digitalcommons.law.uga.edu/jipl/vol8/iss2/3 This Case Comment is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Patterson: Eldred v. Reno: An Example of the Law of Unintended Consequences CASE COMMENT ELDRED V. RENO: AN EXAMPLE OF THE LAW OF UNINTENDED CONSEQUENCES L. Ray Patterson* In Eldred v. Reno the U.S. Court of Appeals for the D.C. Circuit held that the Copyright Term Extension Act (CTEA), which extends the copyright term for present and future works for twenty years, was a constitutional exercise of Congress's copyright power.' The CTEA2 thus puts an end (at least for two decades) to a policy in effect for more than two centuries, since the Copyright Act of 1790, that the copyright of a work expires at the end of a stated term defined at the time the copyright was granted.3 Since works were copyrighted annually, the policy meant that each year a certain number of copyrighted works entered the public domain, as the copyright terms ended seriatim. The mandate of the CTEA is that no copyrighted work in the United States will go into the public domain before year 2018.' The Eldred case thus constitutes judicial approval of the legislative moratorium of the constitutional mandate that copyright protect the public domain, a policy in partial fulfillment of the fact that copyright, as the U.S. Supreme Court has repeatedly stated, is primarily to benefit the public, only secondarily to benefit the author (as copyright holder).' * S.J.D. Harvard 1966, LL.B. Mercer University 1956, M.A. Northwestern 1950, A.B. Mercer University 1949. Mr. Patterson is the Pope Brock Professor of Law at the University of Georgia School of Law where he teaches Copyright Law, Legal Profession, and Legal Malpractice. ' Eldred v. Reno, 239 F.3d 372, 57 U.S.P.Q.2d (BNA) 1842 D.C. Cir. 2001). The Supreme Court of the United States has granted certiorari to hear this case. On appeal to the Court, the case is now styled Eldred v. Aslhcroft. ' Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (1998). 3 17 U.S.C. S 101 (1994). ' Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (1998). s Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,432,220 U.S.P.Q. (BNA) 665, Published by Digital Commons @ Georgia Law, 2001 1 Journal of Intellectual Property Law, Vol. 8, Iss. 2 [2001], Art. 3 J.INTELL. PROP.L [Vol. 8:223 Arguably, the CTEA serves the interest of no one except that of publishers (and other copyright holders) and their heirs. Eldred is thus contrary to the Supreme Court's long tradition of rendering copyright decisions that serve the public interest in preference to the publishers' interests. In Wheaton v. Peters,decided in 1834, the Court ruled that copyright is a limited statutory monopoly, not the perpetual common law monopoly that the publishers sought; 6 in Baker v. Selden, decided in 1879, the Court ruled that copyright does not protect ideas, as the plaintiff claimed in seeking to protect his method of bookkeeping; 7 in Bobbs-Merrill v. Straus, decided in 1908, publishers sought a ruling to give them the right to control the secondary market for works they published, but the Court ruled that the publisher's sale of a copy of a work exhausts the right to control the future sale of that copy;' in Sony Corp. ofAmerican v. Universal City Studios, Inc., decided in 1984, publishers desired to establish precedent for a compulsory licensing scheme for personal copying, but the Court held that an individual can copy a copyrighted motion picture off-the-air for personal use without infringing the copyright;9 and in FeistPublications,Inc. v. Rural Telephone Service Co., decided in 1991, the Court held that the white pages of telephone directories are not copyrightable because they are not original and originality is a constitutional condition for copyright. 0 The Court also ruled that there is a constitutional right to use uncopyrightable material in a copyrighted work.11 Unfortunately, lower federal courts have not always followed the lead of the High Court in copyright cases and have created their own tradition by rendering copyright decisions that serve the publishers' interest in preference to the public interest. The most enigmatic example, perhaps, is the decision in West Publishing Co. v. Mead Data Central, in which the lower courts acquiesced to West's claim that the copyright monopoly protects its publication of the opinions of both state and federal courts.12 The general 674 (1984). 6 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). Baker v. Selden, 101 U.S. 99 (1879). Bobbs-Merrill v. Straus, 210 U.S. 339 (1908). 'Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,220 U.S.P.Q. (BNA) 665 (1984). to Feist Publication, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 18 U.S.P.Q.2d (BNA) 1275 (1991). " Id at 341. 12 West Publ'g Co. v. Mead Data Cent., 799 F.2d 1219, 1226-27, 230 U.S.PQ. (BNA) 805 (8th Cir. 1986). https://digitalcommons.law.uga.edu/jipl/vol8/iss2/3 2 Patterson: Eldred v. Reno: An Example of the Law of Unintended Consequences 20011 UNINTENDED CONSEQUENCES rule is that law is not copyrightable and the copyright statute specifically denies copyright protection for works of the U.S. Government13 (of which judicial decisions are a prime example), which would seem to have presented insuperable obstacles to West's claim. The lower courts, however, were up to the task. They granted protection to the page numbers of the reports,"' but they did not explain how copyright for the pages of the reports does not provide copyright protection for cases in the reports, however limited. 5 Perhaps the most brazen example of the lower courts' too often Pavlovian response to the petition of publishers for relief to which they are not entitled, in order to obtain a precedent that the copyright statute does not justify, is the crippling of the fair use doctrine, a judicial creation of the 19th century that Congress codified in the 1976 Act." Thus, despite the language of section 107 of that statute that the fair use of a copyrighted work, including use by copying for purposes such as news reporting, com (...truncated)