‘Limitless’ Copyright Case Faces High Court Review

The Supreme Court announced Tuesday that it will hear a major challenge to Congress’ power to extend the copyrights of films, books and songs that first appeared in the 1920s and 1930s–a move that could result in hundreds of thousands of classic and forgotten works becoming freely available via the Internet.

The Supreme Court announced Tuesday that it will hear a major challenge to Congress’ power to extend the copyrights of films, books and songs that first appeared in the 1920s and 1930s–a move that could result in hundreds of thousands of classic and forgotten works becoming freely available via the Internet.

Films such as “Gone with the Wind” and “The Wizard of Oz,” the music of the jazz era and the compositions of George and Ira Gershwin, novels such as “The Great Gatsby” and “The Sun Also Rises,” even Mickey Mouse and Donald Duck–all would have passed into the public domain had Congress in 1998 not extended their legal shield by 20 years. Under pressure from Hollywood
studios and music publishers, Congress has extended the period of copyright protection 11 times over the last 40 years.

The result, say scholars and librarians, is “to transform a limited monopoly into a virtually limitless one.” The copyright laws are intended to encourage creativity by allowing authors, composers and filmmakers to profit from their works. But under the recent extension, the legal monopoly continues for 70 years after an individual author’s or composer’s death.

“How can you say you are creating incentives for authors who are long dead?” asked Jessica Litman, a law professor at Wayne State University in Detroit, one of 21 copyright law experts who urged the Supreme Court to take up the issue. “Without some check on congressional power, it is unlikely that any of the cultural and historical works of the first half of the 20th century will ever enter the public domain,” added UC Berkeley law professor Mark Lemley.

In a statement issued by his office, Jack Valenti, the president of the Motion Picture Assn. of America, said he had “absolute confidence that the Supreme Court will uphold the decision” of a lower court and “the wisdom of the Congress . . . in extending the term of copyright protection by 20 years to maintain parity with the European Union and other nations.”

The justices considered the appeals for several weeks before voting to grant the case, known as Eldred vs. Ashcroft, 01-618. Its lead plaintiff, Eric Eldred, runs an Internet library that posts works in the public domain. But perhaps more important, his appeal was filed by Stanford law
professor Lawrence Lessig, one of the foremost legal experts on the Internet and the law.

His appeal challenges the Sonny Bono Copyright Term Extension Act of 1998, which added 20 years to most copyrights. Because of that law, “an extraordinary range of creative invention will be blocked from falling into the public domain at least until 2019–or longer if Congress extends the
copyright term again,” Lessig said.

This, he argues, is unconstitutional. First, he says, the Constitution gives Congress a limited power to protect copyrights. It says Congress can “promote the Progress of Science” by granting “exclusive rights” to authors for “limited times.” Lessig argues that Congress has violated this clause by “creating in practice an unlimited term” for copyrights. The nation’s Copyright Act in 1790 protected written works for 14 years, after which authors could seek a renewal for 14 more years. This 28-year limit continued until 1909, when Congress doubled the limit to a possible 56 years.

Since 1962, Congress has repeatedly extended the maximum term, usually under pressure from movie producers and the music industry. Under the law being challenged, works for hire, including films, are protected for 95 years after their release. Works by individual authors or composers are protected for 70 years after their deaths. In their appeal, Lessig and his colleagues also say the extended copyright monopolies violate the 1st Amendment’s guarantee of freedom of speech. Usually, the government should not limit free speech more than necessary, and a 95-year shield for some works is well more than necessary, Lessig argues.

“The real beneficiaries of this are big media companies, because they own the copyrights,” said Washington lawyer Daniel H. Bromberg. “The 1998 bill was snidely referred to as ‘The Mickey Mouse Extension Act’ because it was seen as protecting Disney’s characters.” And Tuesday, underscoring the importance of traditional characters, Walt Disney Co. executives trotted out Mickey Mouse, Peter Pan and “Beauty and the Beast’s” Belle at the company’s shareholder meeting in Hartford, Conn. These Disney characters are “extraordinary assets,” Disney President Bob Iger said. “They are among the reasons the Disney brand is so incredibly strong by any measure.”

Author: David G. Savage

News Service: Los Angeles Times