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The Supreme Court on Wednesday considered whether Congress violated the Constitution when it took thousands of works by foreign authors out of the public domain. As Chief Justice Roberts described it: "One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?"
In the 2003 case of Eldred v. Ashcroft, the high court ruled that the Constitution allowed Congress to retroactively extend the terms of in-copyright works.
But Justice Antonin Scalia was skeptical. "it seems to me Congress either had the power to do this under the Copyright Clause or it didn't," he said. "I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President, and Zimbabwe."