Last week, Senator Josh Hawley proposed a new copyright bill in the Senate that would have the effect of eviscerating existing copyrights for certain parties. The bill is known as the Copyright Clause Restoration Act. The bill would only affect entities with market caps exceeding $150 billion, which for practical purposes demonstrates that it is unambiguously intended to punish the Walt Disney Company for Disney’s recent stance against the “Don’t Say Gay” bill in Florida. As if the legislation itself didn’t make its vindictive intent clear, Senator Hawley’s office released a statement saying that, “Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists.” This isn’t just absurd, but its patently false. Disney doesn’t receive special copyright protections. Those protections exist for all copyright holders that choose to take full advantage of the Copyright Act. After reviewing the legislation, it’s clear that this is nothing more than the Senator pandering to his base, and not a serious attempt to reform copyright law.

While the bill purports to shorten the length of the exclusive right to use a creative work under copyright law from 95 years from publication or 120 years from creation, whichever is shorter, to 54 years, it goes much further than that. The bill would not only shorten the length of copyrights on a proactive basis, but it would have a retroactive effect that would strip copyright holders of rights that they currently possess. While the law remains unsettled concerning whether a copyright constitutes a property interest for purposes of a constitutional taking, it seems logical that the Supreme Court would conclude it does. Sadly, many of the media outlets have failed to even acknowledge the retroactive affect and its absurdity. The ludicrousness is bolstered by the fact that Senator Hawley was a constitutional law professor, and a former clerk to Chief Justice John Roberts. In other words, he understands basic constitutional principles, and he knows that this bill could never pass constitutional muster. It’s nothing more than noise, and it’s not worthy of any more ink than we’ve just used.


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