"It has expanded very much, and they also envisioned a very short term. I can find a lot of fault with what Congress did here, because it does take a lot of things out of the public domain that one would think that someone in Congress would want to think hard about. ... It's longer than one might think desirable. ... I would agree with you, in terms of policy, that this flies directly in the face of what the framers had in mind, absolutely. But does it violate the Constitution?"
"Well, if it flies in the face of what the framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes."
— Justice Sandra Day O'Connor questioning Professor Lawrence Lessig in oral arguments for Eldred v. Ashcroft
The U.S. Supreme Court heard oral arguments Oct. 9, 2002, in Eldred v. Ashcroft, the suit that many have called the most important copyright case in a generation.
At issue is the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act. (.pdf) Passed with the support of media lobbyists from companies like Disney, the law extends copyright protection another 20 years, effectively granting intellectual-property holders, including the entertainment industry, perpetual ownership of works that would have entered the public domain. The outcome of the case will determine whether thousands of books, songs and movies will be available on the Internet and digital libraries.
The lead plaintiff is Eric Eldred, a New Hampshire Web publisher who runs a nonprofit Web site (eldritchpress.org) which allows people to download literature in the public domain for free. Before the passage of the CTEA, Eldred had intended to post some early Robert Frost poems that would have entered the public domain in 1998. Unfortunately for Eldred, Congress passed the Sonny Bono Copyright Term Extension Act in 1998, which gave the owners of new and existing copyrighted works an additional 20 years of exclusive rights. So those poems would remain the intellectual property of Frost's heirs for the next two decades, thus preventing Eldred from including the poems on his Web site.
In 1998, before Congress passed the CTEA, works from 1923 were to lose all copyright protection and enter the public domain. If it weren't for this copyright extension legislation, thousands of copyrighted works would have been added to the public domain each year, allowing people to copy, distribute, perform and use those works as the basis for additional creative efforts without the payment of royalties. Fearing the loss of millions of dollars in revenue, major corporate copyright owners, the recording and motion picture industries, and publishing associations lobbied Congress to extend the term of personal copyright from life of the author plus 50 years to life of the author plus 70 years. Corporate copyright was lengthened from 75 years to 95 years.
Congress passed the new copyright law ostensibly to harmonize American law with the European Union's. But proponents of the plaintiff consider it yet another effort by the Disney Company and other media giants to maintain their monopoly over their creations from the 1920s and 1930s. Congress has extended copyright terms 11 times since 1962, each time just as the copyright on the first Mickey Mouse cartoon, "Steamboat Willie," was about to expire. The 1998 law is often referred to as the Mickey Mouse Preservation Act because after aggressive lobbying by Disney, the law took effect just as the company's original 1928 copyright of Mickey Mouse was to end and enter the public domain in 2003. Some legal experts point out the hypocrisy of Disney's position given that many of Disney's most profitable animated films were based on fairy tales that had long been in the public domain, such as "Cinderella," "Snow White and the Seven Dwarfs," and the "Little Mermaid."
Eldred, along with other individuals and groups that depend on public-domain works for their businesses, sued to have the statute declared unconstitutional. The suit claimed that the 1998 law undermines the free flow of ideas by limiting the growth of public-domain works and that Congress overstepped its constitutional authority under the Copyright Clause when it passed a law that retroactively protects copyrighted works.
The plaintiffs lost their case at trial and at appeal. The district court upheld the law, granting the federal government's motion for judgment on the pleadings. The federal appellate court affirmed the lower court's ruling by a 2-1 vote. The appeals court ruled that the copyright law already adequately protected free-speech values through doctrines such as fair use. The court also determined that Congress had the authority under the Copyright Clause of the U.S. Constitution to pass the CTEA. However, a strong dissent by Judge David Sentelle declared that the CTEA's retrospective extension of copyright protection for existing works violated the Constitution's Copyright Clause because it neither promoted progress of the arts and science nor was for a limited time, as expressly required by the language of that clause.
A year ago, the Supreme Court surprised many copyright observers by granting Eldred's petition for certiorari, signaling that at least four members of the court believed the case merited their attention.
"[M]uch is at stake for the library community," the Library Journal said about the case. Singling out just one year and one medium of expression, it noted that approximately 10,000 books were published in 1930 and less than 200 of those were still in print. If the CTEA's retrospective copyright protection is not struck down, all 10,000 of those books will be kept out of the public domain for another 20 years. "In the United States we have perpetual copyright on the installment plan," said Peter Jaszi, a law professor at American University.
Fifteen library groups, including AALL, were among the numerous organizations that filed amicus briefs (.pdf) in support of Eldred.
The three briefs filed by the two parties in the case contain 300 pages of copyright history and reasoning. Eldred's attorney, cyber law guru and Stanford University law professor Lawrence Lessig, argued in his brief that the CTEA violated the First Amendment by limiting the number of works entering the public domain. His brief also contends that Congress exceeded its constitutional power under the Copyright Clause when it granted another 20-year copyright extension.
Many legal observers expected both the First Amendment and the Copyright Clause to take center stage at oral arguments. But the justices decided to focus mostly on whether Congress overstepped its authority and violated the Copyright Clause in enacting the CTEA.
A majority of the nine justices were uneasy with Congress' passage of the CTEA and the retroactive extension of copyright. However, the justices most sympathetic to the library community's interest in an expanding public domain were equally unsure if they had the power to declare the law unconstitutional.
The Copyright Clause in the Constitution grants Congress authority to give copyright protection for a "limited time." But Lessig argued that Congress had extended copyright protection 11 times, undermining the original intent that these protections be in place for a "limited time." He explained that unless there is a limit to the number of times Congress lengthens copyright protection, that constitutional provision is rendered meaningless. "If this (extension) is permitted, then there is no limit," Lessig said.
Following the reasoning of the lower courts, the solicitor general of the United States, Theodore Olson, maintained that the CTEA promotes both new creativity and extended copyright protection for a limited time, and thus the law is constitutional.
Olson conceded during oral arguments that Congress neither had the power to grant a perpetual copyright nor the functional equivalent of one. He did not answer Justice Antonin Scalia when Scalia pointed out that Lessig was arguing that Congress had, in fact, done the latter. Olson insisted that Congress had complete discretionary power to extend the term of copyright protection so long as it was not perpetual. Under the CTEA, Congress gave intellectual-property holders another 20 years of copyright protection, which does constitute a "limited time." Olson also emphasized that the retrospective extension did provide further incentives to the holders of those existing copyrights to preserve older works and to further distribute them, thus satisfying the Copyright Clause provision to "promote the progress of science and useful arts" under article I of the U.S. Constitution.
In addition, Olson argued that the framers intentionally left the specific length of copyright protection vague so that Congress, and not the courts, could adjust the copyright-protection term as circumstances dictated over time. In this case, he maintained Congress had weighed the advantages and disadvantages for copyright extension and used its broad power under the Necessary and Proper Clause to give American copyright owners the same level of protection as their European competitors.
Having clerked for Scalia from 1990-1991, Lessig is familiar with the philosophy of the current majority of the court. So he crafted a narrowly tailored argument on the copyright claim that would appeal to at least five justices. In his blog following the arguments, Lessig explained that he expects to prevail in this case based on a line of recent Supreme Court decisions, beginning with United States v. Lopez, that reigned in Congress's heretofore almost unlimited power to legislate under the Commerce Clause.
In those cases, the Supreme Court ruled that Congress has certain enumerated powers under the Constitution and they must be interpreted in a way that is limited. The power to regulate interstate commerce is one of those congressional powers that is discretionary but not unlimited. While this aspect of Eldred's case was only mentioned briefly during the oral arguments, it was the linchpin of the dissenting opinion in the court of appeals and was one of the main arguments in Eldred's brief. Lessig is confident that the court will treat the Copyright Clause in the same way the majority of the court had recently handled the Commerce Clause cases that came before them: In short, Congress didn't have unlimited power to regulate copyright. However, he is not so certain that the court is convinced that it has the power to strike down this particular discretionary exercise of that limited power.
"A Supreme Court ruling against CTEA would be the first major victory for digital-rights activists, who want more books, music, and images to enter the public domain. And it would be a grand defeat for corporations, which claim they would forfeit billions in lost revenues," Business Week noted.
The supporters of the CTEA nevertheless insist there is a clear difference between laws that are bad policy and those that are unconstitutional. Because they deem the law constitutional, CTEA supporters predict that the Supreme Court will affirm the two lower court rulings.
One Eldred supporter is optimistic regardless of what the Supreme Court decides. Congress will likely overturn the CTEA on its own even if the court upholds it, according to Gary Shapiro, president of the Consumer Electronics Association. "Hollywood pushed something through Congress, and nobody was watching," Shapiro said. "There is no question that this legislation would not pass Congress today. Five years ago we should have opposed this. We made a big mistake."
Jaszi considers the Eldred case to be a turning point for American copyright law. "What the Supreme Court must answer is whether the intention of copyright is to protect economic value or to promote science and the arts," Jaszi said. "The real concern isn't that Mickey or "Happy Birthday" enter the public domain, but all the other stuff -- classical music, little-known films -- that gets incidentally restricted in order to protect a few valuable works." The petitioner's brief cites a Congressional Research Service study that found that under CTEA, 375,000 non-revenue-generating works would be blocked from the public domain for another 20 years so that 49,000 that were still earning royalties could continue to do so for the next two decades.
The Supreme Court will announce its decision before it ends its current term in June. But no matter how the court rules in Eldred v. Ashcroft, the landscape of U.S. copyright law will not be the same, with ripples that will affect Hollywood, the Internet and libraries.
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