Glenn remarks on the ramifications of a little-discussed aspect of the Eldred decision on the new blog, dedicated to "technology, culture, politics and the law":
- In passing the Sonny Bono Copyright Extension Act, Congress drastically extended copyrights, including some dating back when my daughter's great-grandmother was born. Many people thought this was unconstitutional: how can nearly a century of copyright protection be considered a "limited time," - especially when Congress keeps extending it? And how can rewarding people who have been dead for decades produce more creativity?
The majority opinion by Justice Ginsburg largely ignored those questions, leaving such issues to Congress's discretion. (Though the influence of Big Media money on Congress suggests that the Framers were on to something where the corruption angle is concerned.) More strikingly, all the Justices who have stood for limiting Congress's powers in other recent cases (such as United States v. Lopez and United States v. Morrison) sided with her, calling their commitment to limited government into question. It was left to the unlikely duo of Justice John Paul Stevens and Justice Stephen Breyer to write, in dissent, about the importance of limited Congressional power. While many people are unhappy with the Intellectual Property implications of this decision, its most striking aspect is the strict constructionists' abandonment of the principles of limited government. I predict that this will come back to haunt them in future cases.
Howard Owens defends Reynolds against charges of misrepresentation here.