Ruling on copyright extension will determine whether Congressional copyright powers have any limits

From the Fall 2002 issue of The News Media & The Law, page 14.

By Jennifer LaFleur

When Eric Eldred’s triplet daughters were struggling to understand Nathaniel Hawthorne’s Scarlet Letter, he decided to put the book on computer. He added a glossary, notes, illustrations and links. The project spurred Eldred to put online other works that are in the public domain because their copyrights have expired.

The work took Eldred all the way to the U.S. Supreme Court where he and others argued that Congress overstepped its bounds when it extended the length of time copyright protection is in effect.

The Supreme Court heard arguments on Oct. 9 in a case that challenged a 1998 extension to the term owners hold in copyrights. At issue in Eldred v. Ashcroft was whether the Sonny Bono Copyright Term Extension Act violates the First Amendment.

“Unless the court draws a line about this extension, there will be no limit,” argued Lawrence Lessig, the Stanford University Law School professor who represented plaintiff Eric Eldred, the Web-based publisher who challenged CTEA. Lessig submitted that Congress has extended copyright 11 times during the past 40 years.

The 1998 act extended copyright terms to 70 years beyond the death of the creator, from 50. Corporation copyrights are protected for 95 years, rather than 75 under the previous law. Works that would be in the public domain today had it not been for the extension include the movie “The Wizard of Oz;” the song “Stardust,” by Hoagie Carmichael and Mitchell Parish; works by composer Maurice Ravel and early depictions of Mickey Mouse.

“It gets put into the public domain at the end of the term. That’s the important part of the bargain,” Justice Anthony Kennedy said.

While the intent of copyright was to “promote the progress of science,” those who benefit from the extension today are companies such as AOL Time Warner, Inc., The Walt Disney Company and Universal Studios.

“It’s choosing between these particular authors and the public at large,” Lessig said.

Supporters who filed friend-of-the-court briefs for Eldred include 17 economists, 15 library associations and the National Writers Union, among others.

Those submitting opposing briefs included AOL Time Warner, Inc., the Recording Industry of America and the Directors Guild of America.

Solicitor General Theodore Olson argued on behalf of the government, saying that Congress has the authority to pass the act. He also noted that the law brought the United States into line with similar laws in the European Union. Olson agreed that an unlimited extension or a “functional equivalent” would not be allowed.

“In Victorian Europe you could buy a box seat for 900 years,” Kennedy said. “Functional equivalent of limited time is precisely the argument of the petitioners.”

Some members of the court expressed concern about what the impact of finding the law unconstitutional might mean with regards to previous extensions, in particular a 1976 extension of the copyright.

“Congress has extended so often, don’t we run the risk of upsetting previous extensions of time?” asked Justice Sandra Day O’Connor.

“If the latter (CTEA) is unconstitutional how could the former (1976) not be and if the former is, the chaos that would ensue would be horrendous,” said Justice Stephen Breyer.

And although Lessig agreed that a decision in his favor could open the 1976 law to potential attack, he said that the court could reject a claim against the law if it “would cause severe disruption.”

Also argued was the original intent the Constitution’s framers had in mind when they used the term “limited times.”

“The framers envisioned a very short term,” O’Connor said. “I can find a lot of fault with what Congress did. It flies in the face of what the framers had in mind, but does it violate the Constitution?”

Breyer spoke to the economics of the decision. “Ninety-nine percent of copyrights have no commercial value,” he said. “With Verdi’s Othello, do you think an extra 20 years down the pike would have made a difference?”

Technology also played a part in the arguments because the “public domain” now includes Web publishers such as Eldred who disseminate materials over the Internet.

“This case affects so many people who use the Internet,” Lessig said. “[The law is] keeping people from taking parts of their culture and sharing it with others on the Internet.”

This is a violation of the First Amendment, Lessig said, because “it describes the burden on speech that retroactive extensions of copyright creates. Ordinarily, copyright law gives a monopoly in exchange for new speech. That is speech enhancing. But when you give a monopoly for speech already created, that suppresses speech without any pro-speech benefit.”

But technology also concerns supporters of the 1998 legislation, including Rep. Mary Bono (R-Calif.), widow of the law’s namesake, Rep. Sonny Bono, who was killed in a skiing accident in 1998.

“The convenience and flexibility of technology offers a tremendous benefit to consumers, but it also brings legitimate issues of concern for the lawful owners of copyrighted materials,” Bono said in an Oct. 9 statement. “Copyrighted works should have protections which strike a delicate balance between the various constitutional interests at stake.”

Lessig said the arguments went well. “We were very pleased that the Court understood the excess Congress has taken, and seemed motivated to find a way to restrain it.”