What about the Takings Clause of the 5th Amendment? Given that copyrights currently held are valuable assets, would it be a case of "private property...taken for public use, without just compensation"? Scholars have written: "The Clause also applies to the confiscation of intangible property, including...copyrights".

@nanoman Its complicated. See harvardlawreview.org/2015/01/…

@PaulJohnson: It's too bad the Court hasn't recognized that unregistered copyrights should be limited in scope, as it did with unpatented mining claims. I'd have no problem with saying that registered copyrights should have a long duration provided their owners actively maintain them, nor with saying that even unregistered works should have some copyright protection, but saying that a work of unknown authorship which was created in 1980 will not enter the public domain until 70 years after the death of the last person who might possibly have created it, is absurd.

@nanoman which scholars? Scholarly writings mean nothing in the litigation world... you'd need some precedent.. Additionally, the constitution's restrictions applies to the federal government. It does not apply to some random person downloading a monkey NFT.

@nanoman, despite the misleading terminology put out by lobbyists, copyrights are not property, and there is even a branch of libertarianism that wants to abolish copyright as it is government distortion of the free market.

@tuskiomi ... And we are talking about actions of the federal government. The question is explicitly about the US government abolishing copyright, not an individual violating copyright -- just as the government turning private real estate into a park without just compensation would be a constitutional issue, not merely a matter of the individuals who end up using the park.

@nanoman you're confusing one's right to not have their property taken by the government with an imaginary right for the government to enforce intellectual property laws on citizens. You do not have any right to compel the government do anything. I'd recommend taking a look at the difference between positive rights and negative rights

@PaulJohnson Your source seems to support mine, at least in OP's scenario of abolishment: "The biggest constitutional problem associated with shortening the term is the fact that many copyrights would immediately cease to have any economic value. Even under Penn Central, this total deprivation would weigh heavily in favor of finding a taking."

@supercat Giving unpublished works protection for less than life+50 would make the US non-compliant with the Berne treaty, meaning other countries might refuse to honor any US copyrights, and also making the US possibly ineligible for WTO membership. I really doubt Congress would do that. Copyright by anon authors lasts only 95 years undercurrent US law if the author is not known. There seems a wide legal consensus that copyrights are property. They are inherited, they are sold, they are taxed, they are called IP. The takings issue is interesting, I did not address it in my answer as written.

@Simon Richter Copyrights are generally treated as, adn referred to as property. Why do you say that they are not? Libertarians argue that they should not exist, not that they are not property under current law.

@tuskiomi Legal scholars, including law review articles are often cited in court decisions including by the US Supreme Court. They are persuasive, not precedent, but can be very persuasive. Nimmer on Copyright is probably cited more often in copyright cases than The Federalist is in federalism cases.

Copyright is a requirement for WTO membership, but confirming members to the WTO Appellate Body is not? By not doing so, the USA unilaterally prevents the WTO from actually enforcing anything ever. You would think that would be more important than copyright.

@user253751 I said having copyright (more exactly joining and complying with the TRIPS agreement) is a WTO requirement, I said nothing about its importance compared to other WTO requirements, nor how it is enforced.

@DavidSiegel: Prior to the so-called "harmonization", some companies had short copyrights but no registration, while others had longer terms but required registration. I don't know if it will ever be possible to roll back the abomination that results from giving long copyrights to unregistered works, rather than recognizing works as having a short automatic copyright but allowing it to be extended via registration, but saying that all countries must be harmonized to have more extreme copyright protection than any countries had pre-"harmonization" is a disaster.

@Supercat. I am not speaking of what the law should be, only of what it is and was. In the US there was never a time when unregistered copyrights were protected but for a shorter term. Unregistered works were not protected at all until the US 1976 act, after that they had the full term. I am less sure of what the law used to be in the EU, but the Berne convention has called for no formalities and a long term from all signatory countries since the early 20th century, or perhaps before. US joined Berne in 1989, I believe. France much earlir. "Harmonization" is an EU thing, I understand.

Isn't there a requirement in the Constitution with Article 1, Section 8, Point 8 "The Congress shall have Power (...) To 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;" ie. copyright and patents.

@DavidSiegel: The protection of unregistered works was put in as part of "harmonization" with countries which protected unregistered works, but also had terms of copyright which were not tied to the lifetime of the author. Tying copyright duration to the lifetime of the author makes sense if there is a defined means by which the possessor of a work can determine if and when the author has died, but becomes nonsensical notion when applied to works that do not contain evidence sufficient to track down such information.

@DavidSiegel: If Bob Smith in 2093 finds a work that seems to have been written in 2022 by "Fred Jones", and finds a Fred Jones who says he might have written the work, but can't really be certain, and that as far as he's concerned Bob Smith can do whatever he likes with it, who should be liable if the work was actually written by some other Fred Jones, who files suit for copyright infringement?

@DavidSiegel: Suppose alternatively that someone in 2093 found a work that seems to have been written and published in 2022 by a "James Johnson", who died later that year with one surviving heir, who says the work might have been written by his dad, but that he would have been two years old at the time so he has no idea. What level of due diligence could one possibly do to be indemnified against copyright infringement claims for statutory damages?

@DavidSiegel: If the rules were changed so that for a copyright to last beyond 70 years it would need to be reregistered at least once every 70 years, and copyrights would be regarded as abandoned and expire 70 years after the last registration or the author's death, whichever happened first, that would hardly seem like a "taking". Further, there are many situations even today where the rules are unworkable. If someone takes a public domain work and makes a few subtle changes before posting it on line without saying it's an altered work, should they be allowed to sue people who repost it?

@Baard Kopperud It says that "Congress shall have the power to 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. It does not say that "Congress shall secure to authors..." Congress has the power, but need not use it. Congress has the power to grant Letters of marque (i.e commission privateers) but has not used that power since the war of 1812.

@supercat. I believe that you are mistaken about the history of the protection of unregistered works. Under current US law when a work is probably under copyright, but the owner cannot be traced, no one an use it. This is the "orphan works" problem. It really deserves a separate question. The question on derivatives of public domain works also needs more than a comment to answer, but in general only the new content is protected.. Other ways copyright law might work if Congress said so are off-topic here as speculation.

@DavidSiegel: Is there any way by which someone who downloads what purports to be a copy of an obscure public domain work can know whether it contains any copyrighted content? Congress' authority isn't to write provide copyright and patent protection for the purpose of promoting progresses in the Sciences and useful Arts, but rather is to promote such progress by granting such protections. Rules which can be shown to significantly inhibit such progress, without any plausible mechanism by which they could promote it, would exceed such a grant of authority.

@DavidSiegel: Is it plausible that informing content creators that a failure to make any effort to claim ownership of works that they wish to commercially exploit will be interpreted as abandonment of such works to the public domain, would have a bigger chilling effect on progress in the sciences and useful arts than informing them that failure to register works in which they have no commercial interest may result in such works being orphaned and thus lost to history? If not, how would rules that completely waive all "formality" requirements be justifiable under Congress' authority?

@supercat. The argument that certain changes to copyright law, in particular the "Sonny Bono Copyright extension act" did not "promote science and the useful arts" and were thus not within the power of Congress was brought forward in at least two different court case. The Supreme Court did not accept that argument, nor one based on the "limited items" language. Some might think your argument made sense, but unless the Supreme Court overrides itself, it won't hold any legal water.

@DavidSiegel: I don't think the court completely rejected the argument, since I recall it explicitly said it would not look kindly upon perpetual extensions. I think the problem is that if a company has just paid a lot of money to license an 80-year-old copyrighted work for hire, shortening the copyright from 95 years to 75 could reasonably be seen as a "taking". A fair course of action may have been to say that the copyrights for existing works should not have been extended past 56 years, but since they were, the remaining copyright term would be pro-rated so that every year...

...between publication and the court case would be regarded as (56/95) years for purposes of computing what fraction of a 56-year copyright remained, but the Court probably figured that allowing the current retroactive extensions to stand while disallowing future ones would be simpler and have roughly the same long-term outcome.

@DavidSiegel Did you mean to make a substantive revision/clarification to your answer? I'm confused because your edit summary says "I am specifically writing of copyright, not IP" (suggesting a substantive point), but the only change was a typo ("choose" -> "chooses").

@nanoman I removed the suggested edit that changed "copyright" to "intellectual property"

@supercat. the count did not disallow future extensions, nor did it use any analysis about portions of a term, nor any takings analysis. It hardly could, sinde the extended terms were newly granted. The question before the court was not whether to shorten terms, but whether to allow the then new extensions to the terms. WE are really getting rather far away from the question here.