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50 J. Copyright Soc'y U.S.A. 1 (2002-2003)
How Long Should a Copyright Last

handle is hein.journals/jocoso50 and id is 13 raw text is: HOW LONG SHOULD A COPYRIGHT LAST?
We have learned from the decision in Eldred (decided by a robust
majority of 7 to 2) that a twenty-year extension of the already very long
copyright terms (life plus fifty years for most copyrights other than those
on works for hire) violates neither the copyright clause of the Constitution
nor the First Amendment, even if the extension applies to existing as well
as new works. And should Congress as the newly extended copyrights
near expiration tack on another twenty years, there is nothing in the ma-
jority opinion to suggest that a constitutional challenge to that extension
would fare any better than that of Mr. Eldred and his co-plaintiffs.
Although I have reservations about the reasoning in the majority
opinion (and, for that matter, in the dissenting opinions as well), I do not
think that the Court had any real alternative to upholding the Sonny Bono
Copyright Term Extension Act.' It was highly popular legislation that did
not violate the literal terms of the copyright clause, and neither the ably
presented plaintiffs nor the dissenting Justices were able to articulate a
satisfactory standard for determining the constitutionality of copyright
term extensions. But in upholding the Act, and in implying as I have just
suggested that future extensions are highly likely to survive constitutional
challenge as well, the Court has flagged a very serious problem. For we
shall now have many copyrights lasting a century or more, and with the
momentum that the Act and the Court's upholding of it are bound to lend
to future extensions, we face the prospect of copyrights that are de facto
perpetual or close to it. And such copyrights are a bad thing, although to
explain why they are a bad thing will require a careful analysis, an analysis
*Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University
of Chicago Law School. This is the revised text of the Thirty-Second Annual Don-
ald C. Brace Memorial Lecture, sponsored by the Copyright Society of the U.S.A.
and delivered on November 18, 2002, at Fordham Law School. The text is based on
an article coauthored with William M. Landes, Indefinitely Renewable Copy-
right, 70 University of Chicago Law Review 471 (2003), which appears in a slightly
different form as Chapter 8 of our book The Economic Structure of Intellectual
Property Law (Harvard University Press, forthcoming); the reader is referred to
the article and the chapter for details and references. The Supreme Court had not
yet decided Eldred v. Ashcroft, 123 S. Ct. 729 (2003), when I delivered the lecture,
and my revisions of the text are based in part on what we have learned from that
1 See Richard A. Posner, The Constitutionality of the Copyright Term Extension
Act: Law, Economics, Politics, and Judicial Technique in Eldred v. Ashcroft,
Sur. Or. REV. (forthcoming).

How Long Should a Copyright Last?


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