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Article I, Section 8 of the Constitution of the United States:

The Congress shall have power to... 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...

This bit is commonly broken up into two separate clauses, the Copyright Clause and the Patent Clause. The Copyright Clause would be separated out as follows: "The Congress shall have power to promote the progress of science by securing for limited times to authors the exclusive rights to their writings." The word "science" has been taken to encompass works that expand the "marketplace of ideas" or generally enhance knowledge and education, and "writings" has been regarded as a shorthand encompassing almost any form of fixation of the work.

It all seems clear enough, yet the practical application of the Copyright Clause is not without difficulties.

There are two pervasive views on what the Copyright Clause means. In one view, Congress has the unlimited right to legislate so long as it somehow benefits authors. The other reads the "promote the progress of science" and the "limited times" language as limits beyond which Congress no longer has Constitutional authority to extend Copyright.

This Wednesday, October 9th, Eldred v. Ashcroft will be argued in front of the Supreme Court of the United States. Eldred represents a group of businesses and libraries who depend upon the distribution of works in the public domain. They challenge the Sonny Bono Copyright Term Extension Act, which extended the term of Copyright to the life of the author plus 70 years.

Assume that an author died 50 years ago. Under the previous law, her works would be passing into the public domain this year. Now, we have to wait until 2022 for those works to become available to the public.

The argument in favor of longer Copyright terms is that such a long duration adds some value to the Copyright and thus benefits the authors and encourages them to create. That has been the rationale behind the last several extensions of the Copyright term.

The problems with that rationale are manifold: How does this accord with the Constitutional mandate that Copyright bestows a monopoly "for limited times"? How does a law that affects the works of a long-dead author stimulate that author to create more works? How can indefinitely-extending the monopoly that has vested in the grandchildren or corporate owners of the works be of any benefit to the public? Does Congress then have the right to infinitely extend the term of Copyright without regard for the harm that befalls the public?

Eldred is seen by many people as an opportunity strike against a legislature that has succumbed to the money-laden special interests of the entertainment and software industries. If the Supreme Court agrees that there are limits to our legislature's power, then there is hope that it will slow or halt the adoption of bills that would allow law agencies to spy on you without oversight, bills that would permit corporations to spy on your computer, bills that would prevent "fair use" of your books and music, bills that would prevent webcasting and peer-to-peer file-sharing and numerous anti-speech measures that Congress has before it.

Some of those bills stemmed from excellent ideas, but have been poorly drafted to the benefit of a few rich companies. The legislature has an obligation to see that the general public has the ultimate benefit from their works. It should be wary of benefitting the few over the many.

There isn't much hope for Eldred and his peers. This Court has not looked favorably upon similar questions. But the very fact that Eldred has gotten this far is important. There are people out there who fight for their beliefs and there are people who still have the capacity to listen. Let us hope that there are at least 9 people who listen with an open mind and heart.

Good luck, Mister Eldred.