Brief Amici Curiae of the Progressive Intellectual Property Law Association and the Union for the Public Domain in Partial Support of Petitioners in the Matter of Eric Eldred, et al. v. John Ashcroft, U.S. Attorney General (United States Supreme Court No. 01-618)

Abstract

This case affords this Court a unique opportunity to do more by doing less. Judicial restraint generally impels this Court to decide only essential constitutional issues. Here the issues are uniquely situated so that the decision of only one issue - that of retrospective extensions - will do far more than merely defer the remaining issue of prospective extensions, but will render that issue permanently beyond any need of judicial review.If this Court decides that retrospective extensions are unconstitutional, it will not only be able to avoid deciding the other issue today of whether a prospective extension violates the “limited times” Constitutional provision but will likely never have to decide that issue. Prospective copyright term extensions are reviewable only with great difficulty. Fortunately, however, the primary reason Congress has been urged to extend copyright terms is to obtain retrospective, not prospective, extension. By seizing this opportunity to declare only retrospective copyright extensions unconstitutional, this Court can remedy the distortion of the political process effected by its proponents. Congress will then be free to balance the competing concerns of incentives for authorship and a rich public domain, unburdened from constitutionally suspect demands that are inconsistent with the design of the Copyright Clause.This amicus brief was submitted by intellectual property professor and U.S. Supreme Court Bar member Michael H. Davis and co-authored by Marquetta Bryan, Jay Crook, Michael Dolan, Jr., Lisa Johnson, Angela Marshall, Edward Pekarek, Dawn Snyder, and Peter D. Traska, with Mr. Pekarek serving as editor of the brief.