How Long Is Too Long?

Recent Congressional Copyright Giveaway Claimed Unconstitutional

January 12, 1999 - Cambridge, MA - Lawrence Lessig, the Berkman Professor of Law at Harvard Law School, announced today the filing of a lawsuit on behalf of Eldritch Press, a non-profit organization that posts literary works in the public domain onto the Internet. The suit challenges Congress's recent retroactive extension of the term of copyright by another twenty years. Professor Lessig is joined as counsel by Professor Charles Nesson and Jonathan Zittrain of the Berkman Center for Internet & Society at Harvard Law School, and Geoffrey Stewart of Hale and Dorr.

In 1790, Congress provided for up to twenty-eight years for a work's copyright—after which the work would enter the public domain, freely copyable and usable by anyone. Since then, Congress has enacted a series of extensions, including the Copyright Act of 1976, which provided for copyright terms of up to seventy-five years—retroactively extending copyright for works written long ago and otherwise about to enter the public domain.

Last year, Congress once again retroactively extended copyright terms through the Sonny Bono Copyright Term Extension Act of 1998 (CTEA). A book published in 1923 under the old law would have come into the public domain on January 1, 1999, but under the new statute the copyright prevents the work from entering the public domain until January 1, 2019.

"You get the feeling that works created on or after 1923 seem destined never to enter the public domain; Congress arbitrarily extends the copyright monopoly on them every twenty years, by another twenty years, like clockwork," said Zittrain. "It's particularly troublesome when the speed and access of the Internet promises a substantial audience for the works that remain locked up."

Fortunately, the Constitution offers clear guidance on the subject. In enumerating Congress's powers in Article I, section 8, it clearly says that Congress may "... 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" (emphasis added).

"The Constitution empowers Congress to propose a bargain whereby authors have a limited time to benefit exclusively from their work, after which the public may freely benefit from the intellectual property they create," said Nesson. "This allows for an economic incentive to publish while also respecting the public's ultimate right to share and share alike with speech. That's why the Constitution provides that Congress's judgment be carefully scrutinized when it seems intent on making a copyright go on indefinitely—or when it allows for the odd bargain of, retroactively, more monopoly time for authors who are long dead, or have long since transferred their rights in their work to someone else, having been fully willing to work with the shorter copyright time limit at the time they wrote."

Eric Eldred founded the Eldritch Press in late 1995 as a means of demonstrating that computers could be used to present books on the Internet in new ways, and in ways that improved upon the capabilities of print books. Initially, the Eldritch Press began with works of American literature, by authors such as Nathaniel Hawthorne, Oliver Wendell Holmes (Sr.), and Henry James. Because some of the works Eldritch Press posts are not included in library collections or are long out of print, they are not obtainable by the public in any other way. The Eldritch Press now posts new works the moment they enter the public domain.

The Eldritch Press site receives as many as 4,000 visitors per day and has been accessed from virtually all countries in the world. It has been recognized as one of the 20 best humanities sites on the Web from edSITEment (National Endowment for the Humanities).

More information about the case, and an opportunity to join a coalition in support of it, may be found at http://cyber.law.harvard.edu/eldredvreno/.

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Contact:

Berkman Center for Internet & Society
617 495 7547
http://cyber.law.harvard.edu

Eric Eldred - Eldritch Press
+1 603 434 7746
eldred@mediaone.net
http://eldred.ne.mediaone.net