Reflecting on the DC Circuit’s opinion in Luck’s Music Library v. Gonzales: Setting aside the pragmatics of the policy at issue (William Patry’s observations are characteristically helpful), does the opinion suggest any limit whatever to Congressional authority under the Copyright Clause? That’s a loaded and somewhat unfair question. Here’s a more precise one: Does the public domain now exist purely as a matter of statute? The court wrote, relying on Eldred v. Ashcroft:
But the knowledge that Congress may pass laws like the URAA [the Uruguay Round Agreements Act] in the future does affect the returns from investing time and effort in producing works. All else equal, the expected benefits of creating new works are greater if Congress can remedy the loss of copyright protection for works that have fallen accidentally into the public domain.
In other words, it is rational for Congress to conclude that incentives to create will be increased by the prospect of a new work being prevented from ever falling into the public domain.
Suppose Congress were to pass and the President were to sign a bill that restored copyright to The Adventures of Tom Sawyer. Would the resulting law survive constitutional challenge, given Luck? If not, why not? Perhaps Luck is limited to restoration of works that have fallen “accidentally” into the public domain. Perhaps Luck is limited to restoration of U.S. copyrights in works that remain in copyright in their source countries. But could Luck be read more broadly? Its reliance on Eldred suggests that it could be, and if so, it seems to me that the idea/expression distinction and fair use have to bear even more of the public domain burden than they do now — and that both may be inching closer to true constitutional status.