Eldred and Lochner: copyright term extension and intellectual property as constitutional property.

• Author: Schwartz, Paul M.
• Position: Eldred v. Ashcroft, Lochner v. New York

1. INTRODUCTION

   Since the ratification of the Constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. (1) Yet, until very recently, this Clause and its meaning--and the larger subject of the relationship between constitutional law and intellectual property--received little attention from constitutional law scholars. (2) In a short period of time, however, as intellectual property has come to play a dramatically larger role in the national economy, (3) scholars have begun to focus on the Constitution's Copyright Clause. And, to a remarkable extent, they have reached a common position. With striking unanimity, scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area.

   The champions of this position--we refer to them as the "IP Restrictors"--represent a remarkable array of constitutional and intellectual property scholars, including Yochai Benkler, Paul Heald and Suzanna Sherry, Lawrence Lessig, Jessica Litman, Robert Merges and Glenn Reynolds, and William Patty. (4) Their position appeals to the deepest convictions of the left; it urges courts to vindicate the interests of the public by overturning legislation that favors the naked self-interest of moneyed elites. This position also appeals to the deepest convictions of the right; it builds on cases such as the Commerce Clause decisions of Morrison (5) and Lopez (6) in urging courts to read narrowly another of the Constitution's grants of power to Congress.

   In this Term's Eldred v. Ashcroft, (7) leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. At issue in Eldred was the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA). (8) The CTEA extends by twenty years the period of copyright protection both for new works and for already existing works, and Eldred argued that the Copyright Clause bars Congress from increasing copyright protection of works already created. From a commercial perspective, the retrospective aspect of the statute has enormous consequences. At the time of the statute's passage, a number of iconic works were on the cusp of entering the public domain, the most prominent being early films starring Mickey Mouse. Indeed, Lessig termed the statute the "Mickey Mouse Protection Act." (9) Harvard Law School's Berkman Center for Internet and Society, with which Lessig brought the case, stated the matter even more tersely on its website: "Free the Mouse." (10)

   By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. (11) But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny of the congressional legislation without explaining why this was the appropriate standard. Thus, while embracing deferential review, the Court did not make the case for it.

   The purpose of this Essay is to develop the case for deferential review and, at a deeper level, to offer a new paradigm for understanding the Copyright Clause. We hope that this paradigm will influence future case law. The Essay's basic insight is that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is best understood as analytically similar to congressional legislation affecting other forms of property. (12) Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. (13)

   In developing our position, we draw on constitutional history and, in particular, on the lessons of Lochner v. New York. (14) In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. Informed by the historical critique of Lochner-era jurisprudence, this Essay argues that the originalist claims of the IP Restrictors fail for the same two reasons that the claims of Lochner's defenders failed. In arguing for active judicial review, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, in arguing that the Founders were deeply fearful of any monopolies and that they therefore must have given Congress only a very limited power to create intellectual property rights, the IP Restrictors and the dissenters disregard the range of views among the Founders about monopolies.

   Lochner also suggests a further critique of the IP Restrictors' claims and of the Eldred dissenters' constitutional approach. Lochner can be understood as an act in a drama that has repeatedly taken place in our nation's history when the economy has undergone fundamental change.

   This drama has three acts: (1) a legislative response to economic change, (2) an activist judicial review of the legislative response, and (3) a judicial retreat. This process occurred in the nineteenth century as business corporations emerged. It occurred once again in the late nineteenth and early twentieth century with the rise of the modern business corporation. Indeed, Lochner is best understood as part of the stage-two reaction to the rise of the modern business corporation. It occurred, again, in the late twentieth century with the arrival of the welfare state.

   Eldred might have been the third millennium's Lochner. Lessig, as part of his Eldred challenge, highlighted the fact that the economy was undergoing fundamental change and pointed to the arrival of the Internet as making copyright law of central importance. (15) Justice Breyer, in his Eldred dissent, even argued that economic change made heightened review necessary. (16) Had the petitioners prevailed in Eldred, the case would have constituted the second-stage opinion that followed the development of the Internet economy. (17)

   The Supreme Court avoided this trap. Rather than creating a Lochner for this new moment of economic transformation, the Eldred Court adopted a deferential stance of judicial review. We seek here to offer a justification for why this is the right result.

   Part II begins by setting out the policy proposals of the IP Restrictors. It then shows how the IP Restrictors transformed their normative vision into a constitutional one. We will highlight the originalist claims of the IP Restrictors and discuss their methodology; in the absence of traditional types of originalist evidence supporting their positions, the IP Restrictors instead invoke broad abstractions. Part III then discusses Eldred itself and the various opinions.

   The next two Parts build on the lessons of Lochner. Part IV presents our originalist challenge to the originalist claims of the IP Restrictors and the Eldred dissenters. In particular, it focuses on their claim that consistency with the original understanding demands that the Supreme Court strike down the CTEA's retrospective extension of copyright protection. Part V then develops the larger historical point that although courts have consistently responded to economic change by making new assertions of judicial power, to do so in Eldred would have been a mistake. Thus, these two concluding Parts argue that the policy vision advanced by the IP Restrictors and underlying Eldred's arguments is not one that the Founders would have thought constitutionally mandated, and therefore not one that the Court should have constitutionally mandated. More broadly, Parts IV and V develop our claim that the appropriate judicial stance in reviewing congressional legislation under the Copyright Clause is one of deference.

2. THE IP RESTRICTORS' VISION

   The U.S. Constitution gives Congress the power "[t]o 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." (18) Like numerous constitutional texts, these few words lead to innumerable debates. Is the Preamble--"to promote the Progress of Science and useful Arts"--hortatory or legally binding? If it is legally binding, does that mean that Congress cannot extend copyright or patent protection in a particular instance if that extension does not "promote the Progress of Science and useful Arts," but serves some other end? Should "limited Times" be read literally or should the Preamble's purpose influence the understanding of what constitutes a "limited Time[]"? Is there any outer limit to what constitutes a "limited Time[]"? If Congress's power to provide copyright or patent protection is only proper if the exercise of that power advances certain ends, how tight must the fit between means and ends be? More fundamentally, how closely should courts scrutinize congressional exercises of power under the Copyright Clause?

   A group of scholars that we call the IP Restrictors has answered these questions in a fashion that would sharply limit congressional authority under the Copyright Clause. And the Eldred litigation represented an attempt to convince the Supreme Court of the validity of their answers. At the most...