Introduction
Copyright is a set of exclusive rights in literary, musical, choreographic, dramatic, and artistic works.  The individual holding a copyright has the exclusive rights of reproduction, adaptation, public distribution, and performance.i  The Constitution guarantees this right, "Congress shall have Power:  [t]o 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."ii  Congress codified the Copyright Clause in Title 17 of the U.S. Code.
Copyright attaches to a work as soon as it is created and recorded in some medium, and it lasts...virtually forever.iii  For works created after January 1, 1978, copyright lasts for the life of the creator plus seventy years.iv  Copyright easily protects for more than 100 years.  For example, the current life expectancy of the average woman is 80.v  If she publishes something at 35 and lives until 80, that's 115 years before the work enters the public domain, not quite forever, but certainly a drain on the public domain.
In order to understand how shorter copyright terms and tougher enforcement of owners' rights better serve the constitutional purposes of the copyright laws in a digital age, it is important to understand the current criticisms of copyright, different approaches to fulfilling the goal of copyright, and how new technologies greatly change the copyright landscape.

Criticism of the Current Copyright Regime
There has always been criticism of copyright law, and the current regime is no exception.  Critics claim the most recent extension to copyright, the Sonny Bono Term Extension Act (CTEAvi), in 1998 (also known as the Mickey Mouse Protection Act)vii, unconstitutional because it virtually eliminates the limited time for copyright, it violates the First Amendment, and it does not promote the progress of science and useful arts.  The current copyright regime focuses its benefits on big business/the content industry/mass media conglomerates and threatens to dry up the public domain.

For a "Limited Time"
In creating the Copyright Clause can be examined using a means-ends analysis, the framers sought to promote the progress of science and art by creating a monopoly in the creator of a work for a limited time.  In addition, the framers endeavored to strike a balance between the interests of the creators in receiving compensation for their works while allowing the public access to these works.viii  Siva Vaidhyanathan describes this as the copyright bargain.ix  The copyright holder is granted a monopoly in order to earn money, and in exchange the public gets access to the copyrighted material and it eventually enters the public domain.x
The extension altered copyright laws, so they no longer resemble what the framers intended.  Life plus seventy years hardly seems limited, but is virtually limitless.xi  The content industry lobbied Congress to extend copyright, so much so that it does not necessarily promote the progress of arts and sciences, its justifiable ends.
The content industry argues that the extension allows publishers to make more money off of copyrighted material.xii  This money can then used to publish more works.xiii  Similarly, the industry finances the restoration of older works, especially film, which is costly to restore.xiv  Yet, thousands of old movies, records and books fade behind a legal blockade because copyright prevents the public from accessing them.xv  The vast majority of older works whose copyright has been retrospectively extended are not even commercially viable.xvi  However, not being commercially viable does not mean the public cannot benefit from these older works.  Except, due to the CTEA these works will remain unused.xvii
The Supreme Court recently held the CTEA  constitutional.  In Eldred v. Ashcroftxviii the petitioners challenged the CTEA on two Constitutional grounds.  First, the CTEA is not for a limited time as required by the Constitution.  Second, the CTEA violates the First Amendment's free speech guarantee.xix
Petitioners do not argue that adding 20 years to the term for a copyright is the flaw with the extension, but that the extension retroactively affects works with existing copyrights.xx  For example, Gershwin's Concerto in F, written in 1925 would have entered the public domain in approximately 1983.  However, with the CTEA, Gershwin's copyright will not expire until approximately 2025.xxi  Petitioners claim this violates the limited time means in the Copyright Clause.
The Court found that each time Congress extended copyright it applied to existing works and future works alike, and therefore noted the argument had little weight.xxii  Furthermore, the extension was not in perpetuity and therefore copyright still exists for a limited time.  The Court also discerned that it is persuasive that the American law is in line with both the Boerne Convention and European law.xxiii  Yet, in the past the Court has held that complying with foreign law is not a valid reason for creating unconstitutional laws.xxiv  Ultimately, the Court's decision focused on the fact that it is Congress' job to worry about copyrights, and it is not the Court's place to question their actions.xxv
Both Justice Breyer and Justice Stevens dissented to the Court's opinion.  Breyer thought the statute unconstitutional for falling outside the scope of the legislative power in the Copyright Clause.xxvi  Although the extension is not perpetual, he finds that it virtually is.xxvii  Justice Stevens agrees, under the majority's analysis Congress may continually extend the length of copyright retrospectively, thereby preventing works from ever entering the public domain.xxviii
Most importantly, Breyer finds that the extension of time does not produce the wanted result - to promote the progress of art and science.  Breyer eventually turns to the framers themselves to advance his argument.  Madison warned against monopolies, but found they were valuable for the authors of books and inventions.xxix  In those two instances the monopolies were temporary and there was actually a community benefit.xxx  This idea should carry through today, and Congress should not be extending copyright without trying to strike a balance between the public and private interests.xxxi
Justice Stevens in his dissent stressed the exchange of the grant of a limited monopoly for the later contribution to the public domain, and he found Congress did not honor this bargain by allowing the private interests a windfall.xxxii

Promote the Progress of Science and Useful Arts
 As previously stated, the purpose of extending a monopoly to the creators of useful arts and science, for a limited time, is to promote progress  -- stimulate writing, creativity, learning, knowledge and invention.  Precedent shows that Congress' motivation to extend copyright should be to serve the public and not the private interests.xxxiii  Justice Breyer is skeptical of Congress' motive for enacting the CTEA, and he argues that it is not for the promotion of the arts because the extension actually inhibits it.xxxiv
 The costs associated with someone or, more often, some corporation holds the copyright an interested party pays to use of the work.  According to a Congressional Research Service report, approximately "2% of copyrights between 55 and 75 years old retain commercial value--i.e., still generate royalties after that time."xxxv  In order to generate revenues from the multitude of older works with copyrights, the few classics might have higher than necessary royalties.xxxvi  Another added cost is that of obtaining permission to use copyrighted material.  The need to locate copyright holders, in order to obtain permission to use their work, deters potential users, especially if the work has n o commercial value, and its intended user is a scholar, historian, teacher or writer who may benefit from access to historical information and works.xxxvii
It is not difficult to discern what Congress' motive was when enacting the CTEA.  Companies like Disney, the American Society of Composers, Authors, and Publishers (ASCAP), the American Motion Pictures Association, and others from the content industry bought the CTEA.xxxviii  They spent millions lobbying Congress in order to prevent images like Steamboat Willie (an early Mickey Mouse) from entering the public domain.xxxix  Copyright protection is supposed to balance public and private interests but it cannot because it is impossible to quantify those interests in order to identify a balance.  Even if we could, that's not what lawmakers respond to.  Looking at this from the perspective of public choice theory, Congress' behavior is hardly unreasonable.  Public choice theory hypothesizes that lawmakers cannot balance the public and private interests in the case of copyrights.xl  Even with all the available data and the knowledge of what effect this extension will have on the public domain, lawmakers will not necessarily use that information to make laws.xli  Lawmakers, like most humans, respond to certain stimuli, and the money lobbyists throw at politicians to extend copyright is a strong stimulus.xlii  The CTEA purposefully keeps works of mass communications culture from entering the public domain on the schedule copyright provided, so their owners could horde them for as long as their money could buy.xliii
In bowing down to these corporations Congress negated the copyright bargain between the public and the private interests, and Congress is no longer promoting the progress of art and science.  It is easy to see how continued royalties is a major incentive for the content industry, but that is difficult to reconcile with the empty promises and continued higher prices the public must pay to access information that should have gone into the public domain.
Interestingly, it is important to recognize that often it is not the artist that is benefiting from this extension.  Often, the artist signs a contract with some large corporation giving away his rights in order to be produced/published/heard.  Then the artist earns mediocre royalties while the copyright holder earns more.xliv  Only an artist with enough clout or importance or that brings in tons of money is able to negotiate these standard industry contracts that require the creator to sign away most, if not all, of his/her copyrights.  This is interesting because it too seems a step removed from what the framers originally intended.  No longer does copyright simply protect the creator, but instead has help create the colossal content industry we have today, which also seems removed from promoting the progress of the arts and sciences.xlv
 However, maybe the size and success of the content industry is reason enough to extend copyright.  An industry that generates so much revenue, supplies jobs and advances technology should simply be able to do whatever it needs in order to maintain its success. Without copyright Hollywood would not be able to make multi-million dollar films, Jack Valenti, Chairman of the Motion Picture Association of America, argues that without copyright expensive, high quality, high budget material will not get produced.xlvi  Pat Schroeder, a lobbyist for the industry, argues that the they export more goods than the car, agriculture and aircraft industries, and it deserves the same kind of protection as those other industries.xlvii  The arguments advanced by the industry are all well and good, but they do not explain the need for the extension of copyright, and their arguments certainly do not justify the extension in order to truly serve the public, but more likely their pocketbooks, eventually negating the Constitution.

First Amendment
 Petitioners in Eldred claimed the CTEA violated the First Amendment's free speech guarantee because it is a content neutral regulation of speech.xlviii  There is a basic conflict between copyright laws and the freedom of speech guaranteed in the First Amendment.  Principally, copyright is good for expression and disseminating ideas, which is why it is allowed to conflict with the 1st Amendment.xlix  Finally, the Copyright Clause prevents people from disseminating speech.
Judge Ginsberg, when first hearing the Eldred v. Ashcroft case (in the district court) stated that the copyright is "categorically immune from challenge under the first amendment." l  In Harper & Row Publishers Inc. v. Nation Entersli the Court explained the relationship between copyright and the First Amendment.  "[C]opyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'"lii Further, copyright only protects the explicit expression, a creator may not copyright ideas or facts.liii  Therefore, the Court has always seen copyright as fostering the dissemination of speech, as opposed to inhibiting it.
Erwin Chemerinsky notes the benefit of copyright to the dissemination of ideas, but explains that extending copyright protections after the speech has occurred does nothing to foster creativity or the dissemination of ideas.liv  Nothing in the Court's history has ever given Copyright a blanket First Amendment immunity, and yet recently the court keeps relying on it.lv

The Public Domain
 Critics of the new copyright law say media companies have expanded their control in another way: by keeping things out of the public domain. lvi  Once copyright expires works enter the public domain where they are available to anyone to use for any purpose.  For instance, Walt Disney used stories in the public domain for many of his animated features like Snow White and the Seven Dwarves.  The entire public may benefit from the public domain.  In the case of Disney, his reshaping of stories in the public domain was entertaining, successful and highly profitable.lvii  "The public domain is a rich source of creativity. Congress, though, has stopped up the replenishment of the public domain, ironically, at the behest of the Disney Corporation."lviii
Due to the CTEA fewer works will be entering the public domain, and by 2018 350,000 of these works will be 75 years of age or older and not commercially viable.  There seems little argument for keeping these works out of the public domain and strong reasons for allowing works to fall into the hands of the public.  "We are in serious danger here, because we have altered the law. But just as importantly, we've altered the culture. Actually, more importantly. We've taken the fun and the play out of our culture. And that is going to create a creative dark age, if we're not careful."lix

Advances in Technology and Fair Use
 The current copyright regime strongly favors the private interests of mass media conglomerates over the public interest.  Legislation like the CTEA and the Digital Millennium Copyright Act (DMCA)lx go to new extremes in order to protect the content industries holdings of copyrighted material.  Interestingly, as technology develops big business will need less help from Congress, and the public will need help protecting the only right they have in copyrighted material, fair use.
The fair use doctrine confers privileges on people other than those that hold the copyright.  Reasonable use of copyrighted material is allowable, notwithstanding monopoly grant to the owner."lxi  Fair use includes such use by reproduction in copies or phonorecords or by some other permissible means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.lxii  Courts look to four factors in determining if a use of copyrighted works falls within the fair use doctrine:lxiii (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect of the use upon the potential market for or value of the copyrighted work.lxiv  The Supreme Court held that as long as users are entitled to fair use of a form of expression, then the CTEA survives a First Amendment Constitutional challenge.lxv  However, what if the content industry can eliminate fair use?
 Regardless, of what Congress does, the digital age also gives the content creators more power to control what we read, how many times we can read it and if it can be printed.  This will affect our fair use of these works, in fact it may completely abate it.
In the not so distant future books, newspaper and magazines will be digital, text on the page will change whenever the page is turned.lxvi  As we are awed by these advances in technology it will be possible to use this to preempt fair use.  It is feasible that with the distribution of an electronic book, the publisher might only permit a certain number of viewings before the content becomes inaccessible.  There may be blocks on the software prohibiting printing of the text or even a small portion of the text.  Further, software can be coded to work with only one device, after uploading something into your digital book, you may not be able to loan it to a friend.  "You're losing freedom: to record a TV show and watch it later; to photocopy a page out of a book; to e-mail a news article to a friend. And someday, the critics say, you may no longer be able to check a book out of the library."lxvii
Someday copyright could be used as an instrument of censorship. Once the content industry is able to control how and when we access copyrighted information, they are able to prevent our fair use of that information.  Without fair use the public has no way to comment, critique or parody without having to first obtain permission and pay a price giving the copyright holder carte blanche over the work.lxviii
  In addition to developing new technology, publishers and other media companies have been aggressively enforcing their digital rights. In 2001, a corporate lawsuit shut down the music "file sharing" service known as Napster.  In 2003, the Recording Industry Association of America (RIAA) used the DMCA in order to obtain the name of an alleged copyright infringer from his/her service provider.lxix  The court held that John Doe actions were too much of a burden to try and learn the name of the alleged infringer and an ISP had no obligation to protect anonymity of its users.lxx  The test also seems less burdensome for the infringed then say the test needed to learn the name of an anonymous person under the Communications Decency Act.  To obtain a subpoena under the DMCA a copyright owner must have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.lxxi  It seems interesting that copyright owners can easily compel a service provider to divulge the name of a potential infringer, but in a defamation cause of action the plaintiff cannot get the name from a service provider without meeting the prongs of a stringent test, another clear case of the clout of big business compared to the little guy.
Critics fear the new legal climate could eventually kill off the public lending library, as well.lxxii  Nancy Kranich, former president of the American Library Association states that the first sale doctrine allowed a library to buy a book and then do anything they wanted with it.lxxiii  As books become digital, libraries have to purchase licenses to use these materials.lxxiv  This becomes too costly for the public library.  In addition the licensing agreements themselves restrict the libraries use of the digital copyrighted material, and this includes how the libraries' patrons use the material.lxxv  As more things become digital, everything we were once able to do in a library will cost money each and every time it happens under these licensing agreements.  "During a budget crunch, a library might not be able to pay the 'rent' on a digital book, so to speak. And so the book will disappear from the library's collection."lxxvi
"Fair use doctrine" confers privilege on people other than copyright owner to use copyrighted material in reasonable manner without his consent, notwithstanding monopoly grant to the owner."lxxvii
  Broadcast flags are another technological advance that obstructs fair use.  Broadcast flags are a mark on digital programming that limit the improper use of digital television programming.  The mark also prevents fair use like video taping a television show to watch it later.
The content providers argue they need these extra legal and technological protections.  The music industry says it needs protection because of piracy and the advancements in technology.  In 2001 and in the first half of 2002 music sales fell, and only one album has sold more than ten million copies worldwide.lxxviii  Similar to broadcast flags, the music industry wants to use digital rights management technology (DRM).  This is technology that locks each track to a particular device.  While proponents of DRM claim that it merely helps keep honest users honest, in fact, argues Cory Doctorow of the Electronic Frontier Foundation, a lobby group, it "keeps honest users in chains."lxxix  The DMCA steps in to help this aspect of the industry as well.  The DMCA makes it a federal offense for an end user to circumvent any of this new technology or for someone to sell software or devices for circumvention.
In the end the current copyright regime is a win-win situation for the content industry.  The copyright has been extended 20 years in order to protect Mickey Mouse, and the industry is safe in ending fair use to copyright with new technology.

Alternatives to the Current Copyright Regime
 Not everyone believes our current copyright regime is bad.  The content industry generates so much money, and deserves protection from piracy, especially internet piracy.  Further, both consumers and copyright owners have committed offenses in this battle.lxxx  The consumers behave as if they are entitled to free access to copyright material, or at least they do not realize they are committing a wrong, and the industry charges too much and has paid for the recent extension.  On the other hand, others demands change because currently Congress is drafting laws that forget about the public.lxxxi  Additionally, in a behavioral study it was found that the life plus years regime does not provide incentives to create and therefore it makes little economic sense.lxxxii
There are others, though, that believe copyright should be eliminated entirely.  The framers were motivated to include the Copyright Clause in order to help disseminate ideas.  With the internet ideas can be widely distributed with little cost to the creator.  The creator will still have a limited time to profit solely from the creation before others pick it up, and for many going to a concert and hearing the Beatles perform Sgt. Peppers would be worth a lot more than hearing the Backbeat Boys cover the album.  Additionally, technological developments on the Internet, especially peer-to-peer networking, have made the effective enforcement of copyright a virtual impossibility.lxxxiii  If copyright cannot be effectively enforced, for instance in the music industry, due to the internet than their should be no copyright laws and artists should find other ways of making money, recordings can be used as advertisements for their live performances etc.lxxxiv
 Another view suggests we treat copyrights like patents.  J.A. Lorengo argues this.  Interestingly it is points out that "to be granted a limited monopoly in the form of a patent, must prove that her invention promoted the progress of the useful arts through a showing of utility, novelty and non- obviousness."lxxxv  This seems a dangerous suggestion because who determines whether a work promotes the progress of art.
Copyright was originally the grant of a temporary government-sponsored monopoly on copying a work.  It's sole purpose was to encourage the circulation of ideas by giving creators and publishers a short-term incentive to disseminate their work.  There is no reason to believe that copyright was not meeting its intended purpose when it was for a specified amount of time, and renewable once.  A specified duration of copyright allows an easier determination when something has entered the public domain, it generates a stronger incentive to create and requiring the creator to renew the copyright term allows works that are no longer commercially viable to enter the public domain.  Further, with DRMs and broadcast flags the content industry is able to protect itself from infringement while it holds the copyright.

Conclusion
Shorter copyright terms and tougher enforcement of owners' rights better serve the constitutional purposes of the copyright laws in a digital age.  The current copyright extension benefits the culture industry without looking to see how it promotes the progress of science and useful arts.  Additionally, with the new technology the content industry is protecting itself from copyright violations, with the CTEA and the DMCA the law is on their side, but before fair use is impossible Congress needs to take a step back and find a copyright regime that goes back to trying to balance both the public and the private interests.  In the past, this balance seemed to have been reached with a specified duration for copyright and a one time renewal.
 It is time to reevaluate copyright and determine whether the content industry is about our culture and creativity or is it just another form of commerce.  Today it is the copyright holders that are controlling how we deal with copyrighted material, it is a commodity Congress has sold to the detriment of the public interest.  

i Independently produced same or similar works, Ideas are not copyrighted Facts and systems explained are not copyrighted.  Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980) (Author did not infringe another's copyright by using the same theory for the Hindenberg explosion); Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (Phone book entries are facts and therefore not copyrightable).
ii U.S. CONST. art. I, § 8, cl. 8.
iii 17 U.S.C.A. §102(a) (2000).
iv 17 U.S.C.A. § 302(a) (2000)
v DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE ON WOMEN'S HEALTH, Women's Health Issues: An Overview (May, 2001), available at http://www.4woman.gov/owh/pub/womhealth%20issues/.
vi The CTEA is the eleventh congressionally mandated extension of copyright terms in 40 years. Copyright terms were extended only twice in the first 120 year history of our republic - once in 1831 and once more with the passage of the Copyright Act of 1909.  Originally, under the Copyright Act of 1790, a copyright was granted an initial term of 14 years which could be renewed a second 14 years.  The Copyright Act of 1831 extended the initial term to 28 years but preserved the 14-year renewal term.  The 1909 Act extended the renewal term to 28 years, as well. Copyright Act of 1976 which provided for a single term of protection for new copyrights measured by the life of the author plus 50 years. J.A. Lorengo, What's Good for the Goose is Good for the Gander:  An Argument for the Consistent Interpretation of the Patent and Copyright Clause, 85 J. Pat. & Trademark Off. Soc'y 51 Journal of the Patent and Trademark Office Society January, (2003).
vii A Radical Rethink, THE ECONOMIST, Jan. 23, 2003, available at http://www.economist.com/opinion/PrinterFriendly.cfm?Story_ID=1547223 (the Extension stopped certain images, owned by Disney, from entering the public domain).
viii Kevin Davis, Fair Use on the Internet: A Fine Line Between Fair and Foul, 34 U.S.F. L. Rev. 129, 132 (1999).
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in the general benefits derived by the public from the labors of authors.'  Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984) citing, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043, 45 L.Ed.2d 84
ix Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
x Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
xi --U.S.--, 123 S.Ct. 769, 800 (2003).
xii Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech:  Why the Copyright Extension Act is Unconstitutional, 36 Loy. L.A. L. Rev. 83, (2002).
xiii Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech:  Why the Copyright Extension Act is Unconstitutional, 36 Loy. L.A. L. Rev. 83, (2002).
xiv Lawrence B. Solum, Congress's Power to Promote the Progress of Science:  Eldred v. Ashcroft, 36 Loy. L.A. L. Rev. 1, 9 (2002).
xv A Radical Rethink, THE ECONOMIST, Jan. 23, 2003, available at http://www.economist.com/opinion/PrinterFriendly.cfm?Story_ID=1547223 (the Extension stopped certain images, owned by Disney, from entering the public domain).  In fact, the content industry spent approximately $150 million in twelve years trying to buy political influence.  Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
xvi David G. Savage, Publish, but Never Perish? 88-OCT A.B.A. J. 23 (2002).
xvii David G. Savage, Publish, but Never Perish? 88-OCT A.B.A. J. 23 (2002).
xviii --U.S.--, 123 S.Ct. 769.
xix Discussed infra
xx --U.S.--, 123 S.Ct. 769, 775.
xxi Dan T. Coenen and Paul J. Heald, Means/Ends Analysis in Copyright Law: Eldred v. Ashcroft in One Act 36 Loy. L.A. L. Rev. 99.
xxii --U.S.--, 123 S.Ct. 769, 775.
xxiii --U.S.--, 123 S.Ct. 769, 776, 780.
xxiv Reid v. Covert, 354 U.S. 1 (1957).
xxv --U.S.--, 123 S.Ct. 769, 784.
xxvi --U.S.--, 123 S.Ct. 769, 813.
xxvii --U.S.--, 123 S.Ct. 769, 800.
xxviii --U.S.--, 123 S.Ct. 769, 800 (2003).
xxix --U.S.--, 123 S.Ct. 769, 802.
xxx --U.S.--, 123 S.Ct. 769, 802.
xxxi Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law in COPY FIGHTS:  THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 1-16 (Adam Thierer and Clyde Wayne Crews, Jr. eds., 2002).
xxxii --U.S.--, 123 S.Ct. 769, 802.
xxxiii "The Clause exists not to 'provide a special private benefit'--U.S.--, 123 S.Ct. 769, 802 citing Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429; "TheClause exists...'to stimulate artistic creativity for the general public good'" Id. citing Twentieith Century Music Corp. v.Aiken,  422 U.S. 151, 156.
xxxiv --U.S.--, 123 S.Ct. 769, 801 (2003).
xxxv --U.S.--, 123 S.Ct. 769, 804.
xxxvi --U.S.--, 123 S.Ct. 769, 804.
xxxvii --U.S.--, 123 S.Ct. 769, 804. "Thus, the American Association of Law Libraries points out that the clearance process associated with creating an electronic archive, Documenting the American South, "consumed approximately a dozen man-hours" per work. Brief for American Association of Law Libraries et al. as Amici Curiae 20. The College Art Association says that the costs of obtaining permission for use of single images, short excerpts, and other short works can become prohibitively high; it describes the abandonment of efforts to include, e.g., campaign songs, film excerpts, and documents exposing "horrors of the chain gang" in historical works or archives; and it points to examples in which copyright holders in effect have used their control of copyright to try to control the content of historical or cultural works. Brief for College Art Association et al. as Amici Curiae 7-13. The National Writers Union provides similar examples. Brief for National Writers Union et al. as Amici Curiae 25-27. Petitioners point to music fees that may prevent youth or community orchestras, or church choirs, from performing early 20th-century music. Brief for Petitioners 3-5; see also App. 16-17 (Copyright extension caused abandonment of plans to sell sheet music of Maurice Ravel's Alborada Del Gracioso). Amici for petitioners describe how electronic databases tend to avoid adding to their collections works whose copyright holders may prove difficult to contact, see, e.g., Arms, Getting the Picture: Observations from the Library of Congress on Providing Online Access to Pictorial Images, 48 Library Trends 379, 405 (1999) (describing how this tendency applies to the Library of Congress' own digital archives)."
xxxviii Dan T. Coenen and Paul J. Heald, Means/Ends Analysis in Copyright Law: Eldred v. Ashcroft in One Act 36 Loy. L.A. L. Rev. 99.
xxxix Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003) (Mass media conglomerates spent nearly $150 million over the last 12 years to buy influence in Washington).
xl Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law in COPY FIGHTS:  THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 1-16 (Adam Thierer and Clyde Wayne Crews, Jr. eds., 2002).
xli Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law in COPY FIGHTS:  THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 1-16 (Adam Thierer and Clyde Wayne Crews, Jr. eds., 2002).
xlii Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law in COPY FIGHTS:  THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 1-16 (Adam Thierer and Clyde Wayne Crews, Jr. eds., 2002); Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003) (Disney and its employees contributed more than $1.2 million to federal political campaigns; film, television and music companies gave more than $16 million).
xliii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
xliv For instance a band like Hootie and the Blowfish only sees about $1.25 per album sold.  Whereas an artist like Ani Difranco earns higher royalties on her albums, independently produced by her own record label, but she sells far fewer albums.  Letter from Ani DiFranco, recording artist and founder of Righteous Babe Records, to Marcia Ann Gillespie, Editor in Chief, Ms. Magazine (Nov. 5, 1997) at http://www.columbia.edu/~marg/ani/letter.html
xlv "The content industry which consists of movies, television programming, home video, music publishing, software, and computer games, generates more revenues internationally than any other US industry. Copyright-based industries create jobs in the United States at three times the rate of any other US industry, including such giants as aircraft, agriculture, and automobiles."  William Sloan Coats, Vickie L. Feeman, David K. Boudreau, Hot Issues in Copyright and Trademark Licensing, 20 NO. 2 Computer & Internet Law. 16 (2003);  Copyrighted works make up a large portion of both American exports and the gross national product.  Jane C. Ginsburg, How Copyright Got a Bad Name for Itself, 26 Colum. J.L. & Arts 61 (2002).
xlvi Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
xlvii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
xlviii --U.S.--, 123 S.Ct. 769, 775(2003).
xlix Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech:  Why the Copyright Extension Act is Unconstitutional, 36 Loy. L.A. L. Rev. 83, (2002).
l Lawrence B. Solum, Congress's Power to Promote the Progress of Science:  Eldred v. Ashcroft, 36 Loy. L.A. L. Rev. 1, 9 (2002).
li 471 U.S. 539, 105 S.Ct. 2218 (1985).
lii Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2002).
liii 17 U.S.C. § 102(b) (2002).  See e.g., New York Times Co. v. United States, 403 U.S. 713, 726 (1971); Hoehling v. Universal City Studios, 618 F.2d 972, (2nd Cir.N.Y. 1980) (Author did not infringe another's copyright by using the same theory for the Hindenberg explosion); Feist Publications, Inc. v. Rural Telephone Service, 506 U.S. 984 (1992) (Phone book entries are facts and therefore not copyrightable)
liv Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech:  Why the Copyright Extension Act is Unconstitutional, 36 Loy. L.A. L. Rev. 83, (2002).
lv Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech:  Why the Copyright Extension Act is Unconstitutional, 36 Loy. L.A. L. Rev. 83, (2002).
lvi Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lvii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lviii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lix Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lx 17 U.S.C. § 512 (2000).  The Digital Millenium Copyright Act makes it a federal crime to diminish a copyright holder's control over digital books, music and movies. Media executives say the law is supposed to stop piracy.  Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxi Hustler Magazine Inc. v. Moral Majority Inc., C.A.9 (Cal.) 1986, 796 F.2d 1148.
lxii 17 U.S.C. § 107 (2000).
lxiii 17 U.S.C. § 107 (2000).
lxiv 17 U.S.C. § 107 (2000).  Single most important element in determining "fair use" under copyright law is effect of use upon potential market for or value of copyrighted work.  National Rifle Ass'n of America v. Handgun Control Federation of Ohio, C.A.6 (Ohio) 1994, 15 F.3d 559.  See Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir.2002) For an in depth discussion of fair use and the internet.
lxv --U.S.--, 123 S.Ct. 769, 776, 777.
lxvi Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxvii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxviii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxix RIAA v. Verizon
lxx RIAA v. Verizon (Problem with the Verizon interpretation is that the private individual's identity is revealed without significant due process or legal protection);  CENTER FOR DEMOCRACY & TECHNOLOGY, COPYRIGHT, Court Decision on DMCA Subpoenas Raises Privacy Issue Law Must Balance Copyright Enforcement with Privacy, Free Expression (Jan. 30, 2003), available at http://www.cdt.org/copyright/030130cdt.shtml.
lxxi 17 U.S.C. § 512 (c)(3)(A)(v) (2000).
lxxii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxxiii Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxxiv Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxxv Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxxvi Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
lxxvii Hustler Magazine Inc. v. Moral Majority Inc., C.A.9 (Cal.) 1986, 796 F.2d 1148.
lxxviii Unexpected Harmony, The Economist (Jan. 23, 2003) available at http://www.economist.com/opinion/PrinterFriendly.cfm?Story_ID=1549398.
lxxix Unexpected Harmony, The Economist (Jan. 23, 2003) available at http://www.economist.com/opinion/PrinterFriendly.cfm?Story_ID=1549398.
lxxx Jane C. Ginsburg, Essay -- How Copyright Got a Bad Name for Itself, 26 Colum. J.L. & Arts 61 (2002).
lxxxi Pamela Samuelson, Toward a "New Deal" for Copyright in the Information Age, 100 Mich. L. Rev. 1488 (2002) summarizing Digital Copyright, Jessica Litman.  Amherest, NY: Prometheus Books.  2001.
lxxxii Avishalom Tor and Dotan Oliar, Incentives to Create Under a "Lifetime-Plus-Years" Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldred v. Ashcroft, 36 Loy. L.A. L. Rev. 437, 439 (2002).
lxxxiii John Perry Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, WIRED, Mar. 1994, at 84- 90, 126-29 (arguing that intellectual property rights in the digital world must be rethought because of the way information can be freely obtained and copied).
lxxxiv Aric Jacover, I Want My MP3! Creating a Legal and Practical scheme to Combat Copyright Infringement on Peer-to-Peer Internet Applications, 90 Geo. L.J. 2207, 2209 (2002).
lxxxv J.A. Lorengo, What's Good for the Goose is Good for the Gander:  An Argument for the Consistent Interpretation of the Patent and Copyright Clause, 85 J. Pat. & Trademark Off. Soc'y 51 Journal of the Patent and Trademark Office Society January, (2003).