Opposing Copyright Extension

Constitutionality of Copyright Term Extension

 Justices to Review Copyright Extension
Linda Greenhouse
New York Times
February 19, 2002

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WASHINGTON, Feb. 19 * The Supreme Court agreed today to decide whether  the 1998 law that extended the duration of existing copyrights by 20  years was constitutional. The court's action took the world of copyright  holders and users by surprise and held the potential of producing the  most important copyright case in decades.

 A challenge to the law, the Sonny Bono Copyright Term Extension Act,  which many had regarded as a fanciful academic exercise, suddenly looked  very different once the Supreme Court declared its interest.

 The issue is whether the Constitution's grant of authority to Congress  to issue copyrights and patents "for limited times" to "promote the  progress of science and useful arts" contains any real limitation on how  that power is to be exercised. That question has implications for future  cases as the battle over the ownership of intellectual property focuses  on the Internet.

 As a practical matter, the consequences could be enormous, both for  those with stakes in copyrights that are running out and for the growing  community of people * represented by the plaintiffs in this case *  trying to use the Internet to expand the boundaries of the public  domain. If the 20- year extension was unconstitutional, early Mickey  Mouse depictions would no longer belong exclusively to the Walt Disney  Company * although Disney would retain trademark protection for the  character.

 Two lower federal courts here had rejected arguments by a coalition of  publishers and individuals that the latest extension of copyright  protection * the 11th in the last 40 years * defeated the original  intent of the Copyright Clause, in which the framers sought to grant a  limited monopoly that would encourage and reward the creation of works  while ensuring eventual public access. The initial Copyright Act, which  Congress amended only once in the next 150 years, provided for a 14-year  term, with a 14-year renewal only if the author was still alive.

 The plaintiffs had argued unsuccessfully that extending copyright  protection for existing works did nothing to promote new creativity  while subverting the concept of "limited times." They had also argued  that the extension restricted free speech in violation of the First  Amendment. They lost in a 2-to-1 ruling by the United States Court of  Appeals for the District of Columbia Circuit one year ago.

 After the plaintiffs filed their Supreme Court appeal last October, the  Bush administration urged the Supreme Court to reject the case, Eldred  v. Ashcroft, No. 01-618. The administration pointed out that there were  no conflicting rulings on the validity of the 1998 law * with lower  court disagreement being the most important criterion for Supreme Court  review * and "no decision of any court holding that Congress cannot,  consistent with the Copyright Clause, enact legislation that extends the  term of existing copyrights."

 The 1998 extension was a result of intense lobbying by a group of  powerful corporate copyright holders, most visibly Disney, which faced  the imminent expiration of copyrights on depictions of its most famous  cartoon characters. Mickey Mouse, first copyrighted in 1928, would have  been the first to go under the old law, which gave a 75-year copyright  to works created for hire and owned by corporations. That became 95  years under the new law, both prospectively and for existing works;  material created by individuals, previously protected for the life of  the artist or author, plus 50 years, also received 20 more years.

 Support for the extension also came from those who argued that it was  necessary to match the copyright term granted by the European Union.  The plaintiffs' Supreme Court appeal, filed by Prof. Lawrence Lessig of  Stanford Law School, garnered support from concerned groups including  the American Library Association and other libraries. Now that the court  has agreed to hear the case, with arguments to be held in the fall,  briefs will undoubtedly pour into the court from copyright holders as  well as from public domain advocates.

 The libraries' brief accused Congress of "transforming a limited  monopoly into a virtually limitless one." Prof. Peter Jaszi, a copyright  expert at American University, whose law students wrote the brief, said  today that he was "flabbergasted and delighted" that the justices had  accepted the case.

 While "copyright is good," he said, the challenge was "based on the  proposition that constitutionally, you can have too much of a good  thing." He said that while the court had interpreted Congress's exercise  of its copyright authority many times, it had never before taken on a  direct challenge to that authority.

 The plaintiffs' direct challenge to Congress in fact may have made their  case attractive to justices who might otherwise not have been interested  in a copyright dispute. The court is in the midst of its most active and  skeptical scrutiny of Congressional action in more than 50 years. In his  appeal, Professor Lessig cited recent decisions curbing Congress's  exercise of another of its powers under Article I, Section 8, of the  Constitution, the power to regulate interstate commerce.

 He also argued that the 20-year extension would block "an extraordinary  range of creative invention" from entering the public domain "just at  the time that the Internet is enabling a much broader range of  individuals to draw upon and develop this creative work."