“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 …” [1]

INTRODUCTION

Before the enactment of the Copyright Term Extension Act, [2] (hereinafter “CTEA”) the United States had a copyright term of author’s life plus fifty years, [3] or when there is no identifiable author, a copyright term of the earlier of seventy-five years from publication or one-hundred years from creation, [4] under the 1976 Copyright Act. This copyright term of the author’s life plus fifty years put the U.S. in conformance with global standards under the Berne Convention [5] and the World Trade Organization (hereinafter “WTO”)’s Agreement on Trade Related Aspects of Intellectual Property Rights [6] (hereinafter “TRIPS”).

In 1993, however, a European Union directive extended the copyright term to the author’s life plus seventy years. [7] The United States followed suit in 1998 with the Sonny Bono Copyright Term Extension Act, which, like the E.U. directive, extended the copyright term for an individual’s works by twenty years, resulting in a term of the author’s life plus seventy years. [8] It also extended the term for anonymous, pseudonymous, or works made for hire by twenty years, resulting in a term of ninety-five years from publication or 120 years from creation, whichever comes first. [9] The CTEA also applied retroactively, extending the term of existing copyrights. [10]

This retroactive extension of the terms of existing copyrights was challenged in Eldred v. Ashcroft, but the United States Supreme Court on January 15, 2003 held (in a seven to two decision) that this did not transgress constitutional limitations. [11] This article will examine the constitutionality of the CTEA, and will consider the question of when a limited time for a copyright term does end, under the U.S. Constitution. [12]…

Sue Ann Mota*

When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29^th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari.1 Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright in the digital era.”2 Respondents agree that the stakes are considerable, observing that this “case raises a question of critical importance at the border between copyright and innovation: when should distributors of p2p software—a multi-purpose tool—be held liable for infringements that may be committed by end-users of the tool?”3

This case will review the Ninth Circuit ruling that p2p software providers do not have secondary liability for those copyright infringements possibly committed by actual direct users of the p2p software.4 The Ninth Circuit followed the paradigm set forth in Sony Corp. of America v. Universal City Studios, Inc.,5 which drew on the staple article of commerce doctrine from patent law.6 Under this rule, it is “sufficient to defeat a claim of contributory copyright infringement if the defendants showed that the product was capable of substantial or commercially significant noninfringing uses [and thus was a fair use].”7 The Ninth Circuit first followed this rule in the Napster cases.8 The court reasserted the Sony/(Betamax) rule in Grokster, concluding that since the p2p software was capable of substantial or commercially significant noninfringing uses, the copyright owners must show the software distributors had reasonable knowledge of specific infringing files.9 Relying on this, it found that since Respondents merely offer for download distributed file-sharing software (p2p software) that is capable of a myriad of uses, including downloading infringing and noninfringing content, no liability could attach as they (1) lacked knowledge of the infringing activity; and (2) did not materially contribute to the infringing conduct.10 Respondents offered nothing more than executable distributed file-sharing software; they provided neither support, nor storage, nor directory services that would have created a basis for secondary liability.11

Margo E. K. Reder*