Berkeley Professor Pamela Samuelson, in "Constitutional Law of Intellectual Property after Eldred" suggests that constitutional law scholars will have plenty to chew on even after the Supreme Court decision in Eldred v. Ashcroft, 123 S.Ct. 769 (2003) upholding the Copyright Term Extension Act. She disputes the contentions from some that the "Ashcroft-favorable decision" in Eldred will "deconstitutionalize" intellectual property law and reduce scholarly attention to the constitutional law issues of the topic field. She disagrees, outlining the issues in six fields that she sees as likely areas of focus (continued):
2. Challenges to several Congressional acts in the 1990's restoring copyrights in foreign works in the public domain due to non-compliance with U.S. formalities, for which justification has been claimed under various international treaties.
3. Potential legislation (like that in the European Union) to protect databases compiled of public domain content. Constitutional challenges could be based upon Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
4. The theory that law changes that alter the traditional contours of intellectual property law should be subject to heightened scrutiny such as that applied by the 2nd Circuit in Universal Studios v. Corley, 273 F.3d 429 (2nd Cir. 2000).
5. Expanded implications of the First Amendment in intellectual property cases, perhaps even in the patent field.
6. Supremacy Clause challenges to mass-market license terms that limit activities that would be lawful under copyright law as 'fair use'. Vault v. Quard Software 847 F.2d 255 (5th Cir. 1988) and Bowers v. Bay State Technologies, 320 F.3d 1317 (Fed. Cir. 2003) reached conflicting decisions that may end up before the Supreme Court to resolve.
This note is from "Unintended Consequences," a legal weblog at DougSimpson.com.
Posted by dougsimpson at July 30, 2003 08:41 PM | TrackBack