Vol 7 No 1 - Roger Williams University School of Law

even by the plaintiffs today.86The plaintiffs were also unsuccessful on the issue of “limitedTimes.” The court explained that, at widest, if “Congress were[sic] to make copyright protection permanent, then it surely wouldexceed the power conferred upon it by the Copyright Clause.”87 Itwent on to dispose of the argument at hand by saying:The present plaintiffs want a limit well short of the ruleagainst perpetuities, of course. And they claim to havefound it—or at least a bar to extending the life of asubsisting copyright—in the preamble of the CopyrightClause: “The Congress shall have power . . . To promotethe Progress of Science and useful Arts . . . .” Their ideais that the phrase “limited Times” should be interpretednot literally but rather as reaching only as far as isjustified by the preambular statement of purpose: If 50years are enough to “promote . . . Progress,” then a grantof 70 years is unconstitutional. Here the plaintiffs runsquarely up against our holding in Schnapper v. Foley, inwhich we rejected the argument “that the introductorylanguage of the Copyright Clause constitutes a limit oncongressional power.” The plaintiffs, however, disclaimany purpose to question the holding of Schnapper; indeed,they expressly acknowledge “that the preamble of theCopyright Clause is not a substantive limit on Congress’legislative power.” Their argument is simply that “theSupreme Court has interpreted the terms ‘Authors’ and‘Writings’ in light of that preamble, and that this Courtshould do the same with ‘limited Times.’”The problems with this argument are manifest. First,one cannot concede that the preamble “is not asubstantive limit” and yet maintain that it limits thepermissible duration of a copyright more strictly thandoes the textual requirement that it be for a “limitedTime.” Second, although the plaintiffs claim that Feistsupports using the preamble to interpret the rest of theClause, the Court in Feist never so much as mentions thepreamble, let alone suggests that the preamble informs86. Id. at 376-77.87. Id. at 377.