Eldred's Aftermath : Tradition, the Copyright Clause, and the Constitutionalization of Fair Use

This article analyzes the ramifications of Eldred v. Ashcroft, for both constitutional law and intellectual property law. The Supreme Court upheld the twenty year extension of existing and future copyrights. A broad coalition had challenged the constitutionality of the term extension, on both Copyright Clause and First Amendment grounds. I. With respect to First Amendment law generally, the article analyzes whether Eldred can be read as using "traditionalism" to define the scope of protected rights under the First Amendment. Such a reading could represent a considerable change in First Amendment law. II. Eldred leaves open the possibility of First Amendment scrutiny of nontraditional copyright protection. Thus, Eldred may strengthen First Amendment arguments against various nontraditional protections in the copyright statute, such as protection for anticircumvention technologies, for copyright management information, and digital rights management technologies. III. Eldred could affect the ever-changing role of the fair use doctrine. Fair use has been threatened by various judicial decisions, legislation, and academic theories. Eldred, however, firmly grants fair use constitutional status, by making it a basis for the constitutionality of copyright law in general. Fair use may now also play a greater role in protecting expressive interests with respect to use of copyrighted works. IV. Eldred also plays a role in federalism. The Court declined to impose the sort of limits that it has applied in the Commerce Clause area. But Eldred could nonetheless affect the interplay between federal and state intellectual property law. Eldred gives strength to arguments that federal policies central to copyright (such as fair use and the idea/expression dichotomy) should not be frustrated by conflicting state law in such areas as software licensing and database protection