Florida Law Review
Sonny Bono Copyright Term Extension Act of 1998, copyright, constitutional law, patent law
On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (hereinafter the “Bono Law”). The Bono Law extended the term of copyright protection by an additional twenty years, both prospectively and retrospectively. The former is probably constitutionally proper; the latter is almost certainly forbidden by the Constitution's copyright clause. But most criticism5 has not forcefully distinguished between retrospective as opposed to prospective extension and so far has failed to convince either Congress or the courts of any constitutional infirmity. This is because most critics agree-or at least do not seriously contest the notion-either that prospective extension is probably constitutional, though there is not absolute unanimity on this point, or that it is subject to a standard that is virtually nonjusticiable. Failing to distinguish (or, surprisingly often, confusing) the radically different limitations which apply to the two kinds of extension, they effectively cede the entire issue to proponents of extension. This has allowed proponents to argue that extension in general (mistakenly combining both forms of extension into one argument) is constitutionally unassailable. Proponents also deploy a second argument, surprisingly bereft of any identifiable textual basis, contending that any copyright legislation which yields a “public benefit” is constitutional, thereby immunizing any conceivable legislation that might otherwise be constitutionally vulnerable. In a seemingly counterproductive tactic, some opponents of term extension have also embraced this theory, claiming that retrospective extension produces no public benefit or good, at the same time however implicitly supporting what is surely an ineffective argument. Most importantly and a pivotal point of this article, opponents of extension have failed to understand that although retrospective extension seems less important, ts constitutional invalidity contains the strategic means to block prospective extension as well.
Michael H. Davis, Extending Copyright and the Constitution: "Have I Stayed Too Long?" 52 Florida Law Review 989 (2000).