copyright us-constitution
How come the periodic copyright term extensions do not violate the US Constitution?
<p><a href="https://en.wikipedia.org/wiki/Copyright_Clause" rel="nofollow noreferrer">US Constitution, section 8, clause 8</a>:</p>

<blockquote>
  <p>[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries</p>
</blockquote>

<p>This authorizes <em>both</em> <a href="https://en.wikipedia.org/wiki/Patent" rel="nofollow noreferrer">patents</a> and <a href="https://en.wikipedia.org/wiki/Copyright" rel="nofollow noreferrer">copyright</a>. My question is <strong>only</strong> about the <strong>latter</strong>.</p>

<p>In practice the Congress has been extending the copyright term by 20 years every 20 years, <strong>effectively</strong> making copyright terms <strong>unlimited</strong>. This seems to contradict the constitution:</p>

<ol>
<li><p>How does extending the term for <strong>existing</strong> works "promotes the progress"? The work has already been created! The only way the extension in 1996 <strong>encourages</strong> the creative work of 1930 is if the author in 1930 <strong>anticipates</strong> that the copyright term will be extended in 1976, 1996 &amp;c. But then...</p></li>
<li><p>... if it is generally expected that the copyright term will be extended continually, then, effectively, the perception is that the copyright term is <strong>unlimited</strong>. This literally contradicts the Constitution.</p></li>
</ol>

<p>I am sure I am not the first one to advance this (or similar) argument, so my question is <strong>why is the argument rejected</strong>?</p>

<p>If it has been considered by a court (SCOTUS?) I would love to see a reference to the decision and a <strong>brief explanation/summary</strong>.</p>

<p><strong>Notes</strong>:</p>

<ul>
<li><p>I am not a lawyer. I am not a law student. I am a mathematician. Please do not tell me to read a 25 page "brief". :-)</p></li>
<li><p>I am not arguing that ...</p>

<ol>
<li>... copyright extension robs the Public Domain ...</li>
<li>... it is unfair that everything created before 1929 is in the Public Domain while nothing created after that date will ever enter the Public Domain ...</li>
</ol>

<p>... these are irrelevant to my question.</p></li>
<li><p>I am not asking <em>why</em> Congress does this.</p></li>
<li><p>I am asking <strong>how come this is constitutional</strong>?</p></li>
</ul>

<p>See <a href="https://supreme.justia.com/cases/federal/us/537/186/case.html" rel="nofollow noreferrer">Eldred v. Ashcroft 537 U.S. 186 (2003)</a> and <a href="https://supreme.justia.com/cases/federal/us/565/10-545/opinion.html" rel="nofollow noreferrer">Golan v. Holder 565 U.S. ___ (2012)</a>, especially the first four pages of <a href="https://supreme.justia.com/cases/federal/us/537/186/case.pdf" rel="nofollow noreferrer">Eldred</a> (the syllabus).</p>

<ol>
<li><p>How does extending the term for existing works "promote the progress"?</p>

<p>This is a judgement that the courts have left in the hands of the legislature.</p>

<blockquote>
  <p>The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain. (Eldred)</p>
</blockquote></li>
<li><p>if it is generally expected that the copyright term will be extended continually, then, effectively, the perception is that the copyright term is unlimited</p>

<p>First, this isn't generally expected.</p>

<blockquote>
  <p>Concerning petitioners' assertion that Congress might evade the limitation on its authority by stringing together "an unlimited number of 'limited Times,'" the Court of Appeals stated that such legislative misbehavior "clearly is not the situation before us." (Eldred)</p>
</blockquote>

<p>Second, in the situation that has actually been happening, Eldred says:</p>

<blockquote>
  <p>Although conceding that the CTEA's baseline term of life plus 70 years qualifies as a "limited Tim[e]" as applied to future copyrights, petitioners contend that existing copyrights extended to endure for that same term are not "limited." In petitioners' view, a time prescription, once set, becomes forever "fixed" or "inalterable." The word "limited," however, does not convey a meaning so constricted. At the time of the Framing, "limited" meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a timespan appropriately "limited" as applied to future copyrights does not automatically cease to be "limited" when applied to existing copyrights. </p>
</blockquote></li>
</ol>

<p>This is Constitutional because the Copyright Clause gives Congress the power to make these extensions, and its legislative actions until now have not strayed beyond the scope of what the Constitution permits.</p>

<p>Briefly, the court took a textualist approach to interpreting the "limited times" restriction. They found that "at the time of the Framing, limited
meant what it means today: confined within certain bounds, restrained,
or circumscribed," and that Congress has a long established practice of providing extensions to both patent and copyright holders. "Congress’ unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works overwhelms petitioners’ argument." This weighs in favor of the view that "limited times" did not mean to the founders that extensions are unconstitutional.</p>
