I posted this on the other thread, before I realized it was the wrong one. To keep things in the right place, I’ll re-post it here.

I would read Eldred again, including its reference to Graham v. John Deere

For those playing along with the home edition, here’s the relevant part of Eldred v. Ashcroft:

As petitioners point out, we have described the Copyright Clause as “both a grant of power and a limitation,” Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966), and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist, 499 U.S., at 349. The “constitutional command,” we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a “system” that “promote[s] the Progress of Science.” Graham, 383 U.S., at 6.18.

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives. See Stewart v. Abend, 495 U.S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces […] . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony, 464 U.S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham, 383 U.S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”).

Nowhere does the Supreme Court say promoting the progress is “not a limit on Congress’ legislative power.” It’s just that it’s an incredibly broad limit. As long as Congress can give a rational basis for the proposed legislation “promoting the progress of science and the useful arts,” then they are not acting unconstitutionally.

But if Congress cannot provide a rational basis for the law “promoting the progress,” then Congress is acting outside the bounds of the Copyright Clause, and the law is unconstitutional. You may also want to read the explanation of these limits in the court case that you cited, Graham v. John Deere:

The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which, by constitutional command, must “promote the Progress of […] useful Arts.” This is the standard expressed in the Constitution, and it may not be ignored. And it is in this light that patent validity “requires reference to a standard written into the Constitution.” Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, at 340 U. S. 154 (concurring opinion).

Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which, in its judgment, best effectuates the constitutional aim. This is but a corollary to the grant to Congress of any Article I power.

This is why both the Graham case, and the Eldred case, spent over half of each ruling going into the reasons why Congress enacted the laws it did, and whether those reasons constituted a rational basis for promoting the progress.

Ms. Pallante’s comment is much more in consanance with Supreme Court decisions than that of Ms. Lofgren.

This is a transcript of the exchange in question.

Pallante: So, when I took this job, I was required to take an oath, to uphold the Constitution and the laws of the United States. Uh, the Constitutional Clause to promote the progress of science and the useful arts, works in part, by, quote, securing for limited time to authors, their respective writings and discoveries. What I was doing in that interview, and you extracted one sentence from a four-page interview, was making the point that the Supreme Court has interpreted that clause, including in two recent decisions, Eldred and Golan, in the last year, that the limited monopoly goes first to authors, so that they will produce, so that in the end, the public will benefit.

Lofgren: I think that’s a real misstatement of the Eldred case. The Eldred case, basically, had to do with the jurisdiction of Congress. It didn’t find that the, um, the benefit was to authors instead of society. It basically was, uh, a finding that Congress was not limited by the words, uh… for limited periods, for the extreme measure that we’ve done now, life of the author plus seventy years.

Pallante is indeed wrong. The Supreme Court did not say that the limited monopoly “goes first to authors, so that they will produce, so that in the end, the public will benefit.”

Here’s what the court actually decided:

In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity. In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.

In contrast, the court did not say that “in the end,” the public will benefit. They reiterated that the primary objective of copyright is to promote progress. (I’ve already provided the quotes above.)

Regarding Eldred, Lofgren is right, and Pallante is wrong.

But perhaps she was thinking of Golan v. Holder. Here’s what Golan said about copyright going “first to authors:”

The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. […] Evidence from the founding, moreover, suggests that inducing dissemination – as opposed to creation – was viewed as an appropriate means to promote science. […] Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” [Emphasis in original]

So, no, they didn’t hold that copyright goes “to authors first” so that the public will benefit “in the end.” They held that the public benefited even when works were still under copyright, because the dissemenation of works was an immediate benefit to the public.

So, Pallante is wrong again.