November 27, 2002 · Lessig
In Eldred v. Ashcroft, we challenged the 1998 Sonny Bono Copyright Term Extension Act. During oral argument, the Court asked whether our rule would affect the 1976 Act’s extension. Though this issue had not been briefed, we indicated that it would, but that the Court’s own caselaw gave it a way to strike the 1998 Act without striking the 1976 Act.
Justice Bryer in particular was concerned about the effect on contracts entered into in reliance on the 1976 Act. His view seemed to be that there would be “chaos” if those contracts were invalidated.
Jason Schultz of Fish and Richardson and Deirdre Mulligan of the Berkeley Center for Law and Technology (both of whom worked on a great amicus brief in the case) have now looked at the numbers. Their work is great, and the numbers surprising. See the chart on books here and the brief analysis here. Bottom line: a surprisingly small amount of work would be affected.