Opposing Copyright Extension

Constitutionality of Copyright Term Extension

Online Publisher Challenges Copyright Law
by

Carl S. Kaplan "

New York Times Report, January 15, 1999


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Online Publisher Challenges Copyright Law

By CARL S. KAPLAN

New York Times
January 15, 1999

Copyright 1999 New York Times.  I have concluded that the importance of this case to the ongoing public policy debate, together with the noncommercial nature of this web site, justify the reprinting of this report as a fair use under copyright law.  Please do not copy for any purpose other than a fair or otherwise noninfringing use without the permission of the New York Times.

Two months ago, Eric Eldred was set to pull the plug on his Web site, where he posts literary works that are in the public domain, in a lone protest against what he viewed as an unfair new copyright law.

But now Eldred has decided to fight back. And he is not alone.

Earlier this week, with the help of several well-known lawyers, Eldred filed suit in federal district court in the District of Columbia challenging the constitutionality of Congress's recent decision to retroactively extend the length of copyright protection by another 20 years.



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Eldred's legal team includes Profs. Lawrence Lessig and Charles Nesson of Harvard Law School, Jonathan Zittrain of Harvard Law School's Berkman Center for Internet & Society, and Geoffrey Stewart and Pamela Jadwin, lawyers with the firm Hale and Dorr.

The case, Eldred v. Reno, is supported on a pro bono basis by members and friends of Harvard's Berkman Center for Internet & Society, an Internet law think tank, and represents an attempt by some lawyers and Internet intellectuals to reset the balance between the competing rights of copyright owners and the general public in the digital age.

It is also an effort to support the work of Eldred and hundreds of others like him who post public-domain books on the Internet for the free use of readers around the globe.

"People like Eric, they are the spirit of the Net," said Professor Lessig, an expert on Internet law, constitutional law and other subjects. "These are the logical people to stand up for the principle of the public domain that the framers of the Constitution had in mind."

The government has 60 days to respond to the complaint. A spokesman for the Justice Department was not immediately available for comment.

Beginning in 1790, Congress has enacted a series of laws that set the term for a work's copyright -- the period in which a copyright owner has a virtual monopoly over his book, film, song or other intellectual property. Upon the expiration of a copyright, the work enters the public domain. Only then can people copy the work without getting the copyright owner's permission or paying royalties.

Under the last copyright law, passed in 1976, copyright protection in the United States lasted 50 years after the author's death. In the case of corporate authors, like The Walt Disney Company, and for works published before 1978, the copyright term was 75 years.

Last year, however, in a little-noticed move, Congress passed the Sonny Bono Copyright Term Extension Act of 1998 (CTEA). In general, the new law added 20 years to the term of most copyrights. Under CTEA, for example, a copyrighted book published in 1923 -- which otherwise would have entered the public domain this year -- is protected until Dec. 31, 2018.

Backers of the new extended copyright law, including the film industry, the American Society of Composers, Authors and Publishers, some book publishers and the heirs of copyright owners, argued in part that extending copyright was necessary to account for the greater longevity of heirs and to bring American protections more in line with European law, where copyright terms are generally longer.

But the new law upset Eldred and other advocates of the public domain.

"'New Hampshire,' a collection of poems written by Robert Frost, was published in 1923," said Eldred, 55, a computer consultant who has operated his Eldritch Press out of his home since 1995. "Robert Frost lived in Derry, where I live. His farm is a few miles from my house. I would have been interested in posting that book," which would have entered the public domain in 1999. "But now the book can't go online for 20 more years," he said.


Lessig said the essence of the copyright "bargain" is that owners have rights over works for a limited time, then the works must be turned over to the public domain.


In the complaint, filed on Jan. 12, Eldred's lawyers specifically attack the provision in CTEA that retroactively extends copyrights of already written works. In legal papers, they reminded the court that the U.S. Constitution, Article I, Section 8, grants Congress authority "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." Yet, Congress's practice of continually extending copyright retroactively "means that Congress, in effect, is granting copyright holders more than a 'limited term,'" the lawyers wrote.

In an interview, Professor Lessig said the essence of the copyright "bargain" is that owners have rights over works for a limited time, then the works must be turned over to the public domain so people can freely use the works and ideas. "It's important for the court to say 'limited' means 'limited,'" he said, adding that a reasonable copyright term should be the life of the author or close to it.

In a related argument, the complaint further charged that extending the protection of old works to a term of 95 years has no "rational basis." "Copyright is about giving incentives to future individual creativity," Professor Lessig said. "One thing we know about incentives is you can't give an incentive to a dead person. Steinbeck doesn't need any more incentives. So the retroactive extension of incentives serves no legitimate constitutional purpose. The only purpose it serves is to give money to existing holders of copyright."

Finally, in a novel argument, the complaint also claims that the copyright extension law violates what is known as the "public trust doctrine," because works that would otherwise have fallen into the public domain this year are given to private copyright holders. The public trust doctrine, a legal principle normally applied in cases involving public lands, holds that the government may not transfer public property into private hands in the absence of any public benefit.

Fritz Attaway, senior vice president and Washington, D.C., general counsel of the Motion Picture Association of America, a group that lobbied hard for the CTEA, said in an interview that he believes the latest copyright extension law will "absolutely be held constitutional" because the new terms are reasonably limited.

"As the world's leading exporter of intellectual property, it is in the long-range interest of U.S. copyright holders and the U.S. economy that U.S. companies have the longest term of copyright to exploit their works," he said, referring to his group's motivation in supporting the new law.

Allan Adler, vice president for legal and government affairs at the Association of American Publishers, a trade group whose membership had mixed views about copyright extension, agreed that the court is unlikely to find CTEA unconstitutional. He added that the concept of the public domain does not necessarily ensure wide distribution of ideas and books.

"A good argument can be made that [copyright] extension allows publishers to have an incentive to disseminate old works," he said. "Otherwise, the world has to rely on amateur publishers with limited resources."

Not so fast, responded Zittrain of the Berkman Center. "The argument that there must be an economic incentive to publish doesn't take into account the Net," he said in an interview. "The Internet answer is you don't need [commercial] publishers to bring out cheap editions. You've got Eric to do it."

John Mark Ockerbloom, editor of a free books site called The On-Line Books Page, estimates there are about 10,000 public domain books posted on the Internet by hundreds of individuals and organizations. Publishers include people like Eldred, university libraries and large-scale networked organizations like Project Gutenberg, which alone has posted about 2,000 works. "I think it would be a shame if so much of our cultural heritage, books, songs and other things, are kept from unrestricted free public use indefinitely," he said.

Eldritch Press has posted more than 50 books, including works by Nathaniel Hawthorne, Oliver Wendell Holmes Sr., and Henry James, Eldred said. The Eldritch Press also posts collections of obscure World War I novels and writings about small boats. Some of the works are not included in library collections or are long out of print.

Some books posted by Eldred are exact reprints. In others, the amateur scholar has added features, including notes, illustrations, glossaries, timelines of dates and discussion pages, all linked back to the authoritative texts.

"I was all set to close down my site last year, when I got a call from Lessig, who had read an article about me," Eldred said. "He asked whether I would consider staying open so he and others could file a suit on my behalf. I said I thought that was a good thing to do."

At present, Eldred says he gets about 4,000 visits a day from people all over the world, and that the Hawthorne pages are the most popular on his site. "I'm still working about an hour a day on an annotated 'Scarlet Letter,'" he said. He vowed his work would continue despite the diversion of the lawsuit.

CYBER LAW JOURNAL is published weekly, on Fridays.


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Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.