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Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This article analyzes the ramifications of Eldred v. Ashcroft, for both constitutional law and intellectual property law. The Supreme Court upheld the twenty year extension of existing and future copyrights. A broad coalition had challenged the constitutionality of the term extension, on both Copyright Clause and First Amendment grounds. I. With respect to First Amendment law generally, the article analyzes whether Eldred can be read as using "traditionalism" to define the scope of protected rights under the First Amendment. Such a reading could represent a considerable change in First Amendment law. II. Eldred leaves open the possibility of First Amendment …