A landmark United States Supreme Court case that is challenging the constitutionality of the Sonny Bono Copyright Extension Act (CTEA), filed by Eric Eldred of Eldritch Press (an online resource that makes available electronic versions of books and publications that have entered the public domain). The case was first filed on January 11, 1999, and began life as Eldred v. Reno, as a lawsuit filed against the then-Attorney General Janet Reno in her official capacity (as all constitutional challenges are made), in the Washington, DC district court. The case was dismissed on October 28, 1999 by Judge June Green. Undaunted, they filed an appeal against the district court's decision with the DC Court of Appeals, which on a 2 to 1 vote upheld the decision of the district court. Now, the case is known as Eric Eldred v. John Ashcroft (the new Attorney General under George W. Bush's administration), and has been taken to the Supreme Court, where a Writ of Certiorari was been requested for the case to be heard. The request was granted just last February 19, 2002, and oral arguments before the Supreme Court are scheduled for October 9, 2002. Other plaintiffs besides Eldred have in the meantime joined the fray, such as Dover Books, Moviecraft, the American Film Heritage, and Luck's Music Library, and many prominent law professors such as Lawrence Lessig and Kathleen Sullivan are prosecuting the case.

The lawsuit's main arguments are that the Constitution of the United States of America specifically grants copyright for limited times only, in order to balance the interests of the public to have more content and also their interest in seeing that content thus produced be easily and cheaply accessible, and the constant and retroactive extension of copyright terms (of which the CTEA is the most recent) is a perversion of this intent. The Constitution states:

Section 8. The Congress shall have Power ... 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;

The passage of the CTEA, approved by President Bill Clinton, as it is the eleventh in a series of consecutive copyright term extensions raises an important question: if we keep getting extensions like that, then what does the phrase "for limited times" mean? Effectively, it's as though the Constitution has placed a limit on the powers of Congress as it usually does, but in this case, Congress gets to decide how far the limit goes!

A site such as Eldritch Press or the similar Project Gutenberg offers tremendous benefits to the public, providing literary works to the public freely, but extending the term of copyrights will enrich copyright holders but no tangible benefits will be received by the public in exchange for such an extension. This asymmetry violates the spirit of the Constitution, which states that the purpose of copyright is not to enrich or reward authors, but to "promote the progress of science and the useful arts."

Copyright is also intended to provide a financial incentive for authors to produce more works, and the plaintiffs in Eldred v. Ashcroft do not dispute the fact that copyright can serve its purpose in this way. They maintain, however, that the Framers of the Constitution never intended to extend the copyright to the grandchildren of authors, and that it's quite unlikely that struggling artists would decide not to create some work of art because a hundred years into the future their descendants would not have control over it and no longer have exclusive rights to their creations. Copyright, by its very nature is a violation of freedom of speech, a right enshrined in the First Amendment, and Congress is specifically prohibited from abridging freedom of speech unless doing so serves a clear and important public purpose (the classic example is yelling "Fire!" in a crowded theater). The same principle applies here: the clear and important public purpose is the production of more content, but it is not clear how retroactively extending the term of copyright the way the CTEA does serves this public purpose.

What they contend is that this current copyright regime is the doing of corporations, which are effectively immortal and can outlive artists and writers, and they have worked hard to create a system of legal protections at the expense of the public good. It has been said that Disney created the CTEA with the help of other heavy hitters in the entertainment industry such as the RIAA, Dreamworks SKG, AOL Time Warner, and Sony because they were afraid that Mickey Mouse (or more specifically, the first Mickey Mouse clip "Steamboat Willie") would imminently enter the public domain. They pumped US$6 million into the campaign contributions of key congressmen and senators, who responded by passing the CTEA. Ironically, most of the Disney Corporation's fortune was made by siphoning from the public domain. As Lawrence Lessig puts it, because of the CTEA, "no one can do to Disney what Disney did to the Brothers Grimm."

This case has just entered the Supreme Court, and the decision made there has profound implications for the future of copyright in the age of the Internet. Let's just hope that the Supremes do the Right Thing and declare the CTEA unconstitutional soon.

Update (Nov 3, 2002): The oral arguments have concluded and it seems that in spite of over 600 pages of filings in support of the CTEA, it seems the Justices didn't buy it. They apparently "expressed an impatient contempt for what Congress had done," as Lessig puts it. For instance, Justice Sandra Day O'Connor even remarked: "It is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that. One wonders what was in the minds of the Congress." Charles Nesson, co-director of the Berkman Institute remarks however: "My sense is that the case could be in trouble. They [the Justices] saw the problem, but they didn't necessarily buy our solution." In other words, the justices are afraid of being accused of legislating from the bench. It seems that the Supreme Court now understands why the CTEA is a Bad Thing, but now they are pondering whether they have any right to do something about it.

Update (Jan 16, 2003): Sad news. The Supreme Court has finally decided just yesterday not to strike down the CTEA, in a 7-2 ruling. "The Constitution," says Justice Ruth Bader-Ginsburg, "gives Congress wide leeway to prescribe 'limited times' copyright protection and allows Congress to secure the same level and duration of protection for all copyright holders, present and future." That is, they decided, just as Lessig and Nesson feared, that it wasn't their job to second-guess the intentions of Congress. Further, they stated: "Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the 'limited Times' constraint." Although they believed the CTEA to be "debatable and unwise", they also felt that Congress held the final decision as to what would best promote "the progress of science and the useful arts." Justices John Paul Stevens and Stephen Breyer dissented. This ruling is a severe blow, as it sets a precedent that says that Congress has the right to keep on extending and extending copyright saecula saeculorum. Kiss the public domain goodbye, folks.

Update (May 15, 2003): In spite of this grave setback, it appears that Eldred, Lessig, and many of the other people involved in the case are not yet finished. They are lobbying for the creation of a new law, the Eric Eldred Act, that would require regular re-registration of copyrights. Watch that space for more details.




Hal Plotkin, "Free Mickey: Stanford Law Professor seeks to overturn the Sonny Bono Copyright Extension Act", http://www.sfgate.com/technology/beat/

Steven Levy, "Lawrence Lessig's Supreme Showdown", http://wired.com/wired/archive/10.10/lessig_pr.html

Amy Harmon, "An Uphill Battle in Copyright Case", http://www.nytimes.com/2002/10/14/technology/14LESS.html

Lawrence Lessig, "Time To End The Copyright Race", http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1033849059661

Gina Holland, Associated Press, "Supreme Court Keeps Copyright Protections", http://dailynews.yahoo.com/news?tmpl=story2&ncid=&e=4&u=/ap/20030115/ap_on_bi_ge/scotus_copyrights


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