Law Professors Take Case To High Court

Nura A. Hossainzadeh, Contributing Writer
The Harvard Crimson Online

October 10, 2002

Harvard Law School professors Charles R. Nesson ’60 and Jonathan L. Zittrain argued before the U.S. Supreme Court yesterday that a congressional act creating stricter copyright laws is unconstitutional and hinders academic progress.

The case—Eldred v. Ashcroft—will determine the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA), which prevents the free dissemination of copyrighted material for 20 more years than past legislation had. Under the act, new copyright terms will last the life of a work’s author plus 70 years; renewed copyrights will last 95 years.

Nesson, who is Weld professor of law, and Zittrain, Berkman assistant professor of entrepreneurial legal studies, are long-time advocates of easier public access to intellectual works—especially through the Internet. They see such access as necessary for progress in the arts and sciences.

Along with co-counsel Lawrence Lessig, a Stanford professor who used to teach at Harvard Law School, they told the court that CTEA violates the Constitution’s Copyright Clause, which states that the work of authors and inventors may be protected by government copyrights only for “limited terms.”

Multiple extensions of copyright terms over the past 40 years, they said, have caused the terms to be closer to unlimited than limited.

Society’s right to benefit from intellectual advancements is being compromised, they said.

“The only thing being promoted is the continued wealth of corporate copyright holders,” said Donna Wentworth, an affiliate of the Berkman Center for Internet and Society, an institution founded by Nesson and Zittrain. “Not only is the public domain of ideas—our shared cultural history—robbed, but the public has to pay a ‘copyright tax’ to make use of creative works that, barring Congress’ repeated extension of copyright, would already have been theirs.”

Nesson and Zittrain could not be reached for comment in Washington, D.C.

Legislators counter that extensive copyright terms support intellectual progress by protecting authors and inventors and making American copyrights comparable in length to international terms.

They contend that CTEA does not make copyright terms “unlimited,” only extended.

The current case came about when CTEA prevented New Hampshire computer administrator Eric Eldred from publishing copyrighted literary works on his website for an additional 20 years, prompting him to challenge the act.

With the team of Nesson, Zittrain and Lessig behind him, he filed for Supreme Court review last October.

Both the U.S. District Court in Washington, D.C. and the U.S. Court of Appeals have ruled against the Eldred team.The Supreme Court is expected to reach a decision within the next few months.