Copyright Corner

79526 AALL Spectrum.Feb no ads 1/27/03 12:11 PM Page 8 copyright corner

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 he U.S. those poems would remain the intellectual Supreme property of Frost’s heirs for the next two T Court decades, thus preventing Eldred from heard oral including the poems on his Web site. arguments In 1998, before Congress passed the Oct. 9, 2002, CTEA, works from 1923 were to lose all photo credit: Declan McCullagh Declan photo credit: in Eldred v. copyright protection and enter the public Eric Eldred, a New Hampshire Web Ashcroft, the suit publisher, sued to overturn the 1998 Sonny domain. If it weren’t for this copyright Bono Copyright Term Extension Act. that many have called the most important extension legislation, thousands of copyright case in a generation. copyrighted works would have been added to At issue is the constitutionality of the the public domain each year, allowing people 1998 Sonny Bono Copyright Term Extension to copy, distribute, perform and use those Act. Passed with the support of media works as the basis for additional creative lobbyists from companies like Disney, the efforts without the payment of royalties. law extends copyright protection another Fearing the loss of millions of dollars in 20 years, effectively granting intellectual revenue, major corporate copyright owners, Supreme Court property holders, including the entertainment the recording and motion picture industries, industry, perpetual ownership of works that and publishing associations lobbied Congress would have entered the public domain. The to extend the term of personal copyright from Hears Case on outcome of the case will determine whether life of the author plus 50 years to life of the thousands of books, songs and movies will be author plus 70 years. Corporate copyright Copyright, available on the Internet and digital libraries. was lengthened from 75 years to 95 years. The lead plaintiff is Eric Eldred, a New Congress passed the new copyright law Mickey Mouse Hampshire Web publisher who runs a ostensibly to harmonize American law with nonprofit Web site, www.eldritchpress.org, the European Union’s. But proponents of the which allows people to download literature plaintiff consider it yet another effort by the and Congress in the public domain for free. Before the Disney Company and other media giants to passage of the CTEA, Eldred had intended to maintain a monopoly over their creations by Michael B. Reddy post some early Robert Frost poems that from the 1920s and 1930s. Congress has would have entered the public domain in extended copyright terms 11 times since 1998. Unfortunately for Eldred, Congress 1962, each time just as the copyright on the passed the Sonny Bono Copyright Term first Mickey Mouse cartoon, “Steamboat Extension Act in 1998, which gave the owners Willie,” was about to expire. The 1998 law of new and existing copyrighted works an is often referred to as the Mickey Mouse additional 20 years of exclusive rights. So Preservation Act because after aggressive

lobbying by Disney, the law took effect installment plan,” said Peter Jaszi, a law He explained that unless there is a limit to just as the company’s original 1928 professor at American University. the number of times Congress lengthens copyright of Mickey Mouse was to end copyright protection, that constitutional Fifteen library groups, including and enter the public domain in 2003. provision is rendered meaningless. “If this AALL, were among the numerous Some legal experts point out the hypocrisy [extension] is permitted, then there is no organizations that filed amicus briefs of Disney’s position, given that many of limit,” Lessig said. in support of Eldred. Disney’s most profitable animated films Following the reasoning of the lower were based on fairy tales that had long The three briefs filed by the two courts, the solicitor general of the United been in the public domain, such as parties in the case contain 300 pages of States, Theodore Olson, maintained that “Cinderella,” “Snow White and the Seven copyright history and reasoning. Eldred’s the CTEA promotes both new creativity Dwarfs,” and the “Little Mermaid.” attorney, cyber law guru and Stanford and extended copyright protection for a University law professor Lawrence Lessig, Eldred, along with other individuals limited time. Thus the law is constitutional, argued in his brief that the CTEA violated and groups that depend on public domain he argued. the First Amendment by limiting the works for their businesses, sued to have the number of works entering the public Olson conceded during oral arguments statute declared unconstitutional. The suit domain. His brief also contends that that Congress neither had the power to claimed that the 1998 law undermines the Congress exceeded its constitutional power grant a perpetual copyright nor the free flow of ideas by limiting the growth of under the copyright clause when it granted functional equivalent of one. He did not public domain works and that Congress another 20-year copyright extension. answer Justice Antonin Scalia when Scalia overstepped its constitutional authority pointed out that Lessig was arguing that under the copyright clause when it Many legal observers expected both Congress had, in fact, done the latter. passed a law that retroactively protects the First Amendment and the copyright Olson insisted that Congress had complete copyrighted works. clause to take center stage at oral discretionary power to extend the term of arguments. But the justices decided to The plaintiffs lost their case at trial and copyright protection so long as it was not focus mostly on whether Congress at appeal. The district court upheld the law, perpetual. Under the CTEA, Congress gave overstepped its authority and violated the granting the federal government’s motion for intellectual property holders another 20 copyright clause in enacting the CTEA. judgment on the pleadings. The federal years of copyright protection, which does appellate court affirmed the lower court’s constitute a “limited time.” Olson also ruling by a 2-1 vote. The appeals court ruled emphasized that the retrospective extension that the copyright law already adequately did provide further incentives to the protected free-speech values through holders of those existing copyrights to doctrines such as fair use. The court also preserve older works and to further determined that Congress had the authority distribute them, thus satisfying the under the copyright clause of the U.S. copyright clause provision to “promote the Constitution to pass the CTEA. However a progress of science and useful arts” under strong dissent by Judge David Sentelle article I of the U.S. Constitution. declared that the CTEA’s retrospective In addition, Olson argued that the extension of copyright protection for existing framers intentionally left the specific works violated the Constitution’s copyright length of copyright protection vague so clause because it neither promoted progress that Congress, and not the courts, could of the arts and science nor was it for a adjust the copyright-protection term as limited time, as expressly required by the circumstances dictated over time. In this language of that clause. McCullagh Declan photo credit: case, he maintained Congress had weighed Lawrence Lessig, the Stanford University law professor who A year ago the Supreme Court represented the plaintiff, faces reporters after oral arguments at the advantages and disadvantages for surprised many copyright observers by the Supreme Court. copyright extension and used its broad granting Eldred’s petition for certiorari, power under the necessary and proper A majority of the nine justices were signaling that at least four members of clause to give American copyright owners uneasy with Congress’ passage of the the court believed the case merited their the same level of protection as their CTEA and the retroactive extension of attention. European competitors. copyright. However the justices most “[M]uch is at stake for the library sympathetic to the library community’s Having clerked for Scalia from community,” the Library Journal said interest in an expanding public domain 1990–1991, Lessig is familiar with the about the case. Singling out just one year were equally unsure if they had the power philosophy of the current majority of the and one medium of expression, it noted to declare the law unconstitutional. court. So he crafted a narrowly tailored that approximately 10,000 books were argument on the copyright claim that The copyright clause in the published in 1930 and less than 200 of would appeal to at least five justices. In his Constitution grants Congress authority to those were still in print. If the CTEA’s blog following the arguments (http:// give copyright protection for a “limited retrospective copyright protection is not cyberlaw.stanford.edu/lessig/blog/archives/ time.” But Lessig argued that Congress had struck down, all 10,000 of those books 2002_10.shtml), Lessig explained that he extended copyright protection 11 times, will be kept out of the public domain for expects to prevail in this case based on a undermining the original intent that these another 20 years. “In the United States, protections be in place for a “limited time.” (continued on page 27) we have perpetual copyright on the

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line of recent Supreme Court decisions, and images to enter the public domain. And concern isn’t that Mickey or ‘Happy beginning with United States v. Lopez, that it would be a grand defeat for corporations, Birthday’ enter the public domain, but reigned in Congress’ heretofore almost which claim they would forfeit billions in all the other stuff — classical music, unlimited power to legislate under the lost revenues,” Business Week noted. little-known films — that gets incidentally commerce clause. In those cases, the restricted in order to protect a few valuable The supporters of the CTEA nevertheless Supreme Court ruled that Congress has works.” The petitioner’s brief cites a insist there is a clear difference between laws certain enumerated powers under the Congressional Research Service study that are bad policy and those that are Constitution and they must be interpreted that found that under the CTEA, 375,000 unconstitutional. Because they deem the law in a way that is limited. The power to nonrevenue-generating works would be constitutional, CTEA supporters predict that regulate interstate commerce is one of those blocked from the public domain for another the Supreme Court will affirm the two lower congressional powers that is discretionary 20 years so that 49,000 that were still court rulings. but not unlimited. While this aspect of earning royalties could continue to do so Eldred’s case was only mentioned briefly One Eldred supporter is optimistic for the next two decades. during the oral arguments, it was the regardless of what the Supreme Court The Supreme Court will announce its linchpin of the dissenting opinion in the decides. Congress will likely overturn the decision before it ends its current term in court of appeals and was one of the main CTEA on its own even if the court upholds June. But no matter how the court rules arguments in Eldred’s brief. Lessig it, according to Gary Shapiro, president of in Eldred v. Ashcroft, the landscape of U.S. is confident that the court will treat the the Consumer Electronics Association. copyright law will not be the same, with copyright clause in the same way the “Hollywood pushed something through ripples that will affect Hollywood, the majority of the court had recently handled Congress, and nobody was watching,” Internet and libraries. the commerce clause cases that came before Shapiro said. “There is no question that this them: In short, Congress didn’t have legislation would not pass Congress today. To read more about Eldred v. Ashcroft, unlimited power to regulate copyright. Five years ago we should have opposed this. check out these Web sites: http://www. However he is not so certain that the court is We made a big mistake.” eldred.cc/, http://law.asu.edu/HomePages/ convinced that it has the power to strike Karjala/OpposingCopyrightExtension/ and Jaszi considers the Eldred case to be a down this particular discretionary exercise of http://llr.lls.edu. that limited power. turning point for American copyright law. “What the Supreme Court must answer is Michael B. Reddy ([email protected]) “A Supreme Court ruling against CTEA whether the intention of copyright is to is director of research services at Lewis and would be the first major victory for digital protect economic value or to promote Roca LLP in Phoenix. rights activists, who want more books, music science and the arts,” Jaszi said. “The real

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