Justices Hear Challenge to Copyright Law

Extensions Stifle Access, Opponents Say; Government Claims Congressional Prerogative

Charles Lane
The Washington Post

October 10, 2002

The future ownership of such icons of American popular culture as Mickey Mouse and George Gershwin's "Rhapsody in Blue" was at stake in the Supreme Court yesterday as the justices heard a much- anticipated oral argument on a novel constitutional issue: For how long may Congress extend copyrights on literature, art, music and film?

In the 1998 Sonny Bono Copyright Term Extension Act, named after the late congressman and singer, Congress gave copyrighted works from as long ago as 1923 an additional 20 years of protection -- through 2018 for the oldest material.

For new works, copyright terms were extended from the life of the author plus 50 years to the life of the author plus 70 years, or, in the case of anonymous or corporate works, 95 years from time of publication.

That rescued a host of Jazz Age creations, including early Mickey Mouse cartoons and Gershwin's melodies, from imminent passage into the public domain, where anyone could have used them -- for profit or otherwise -- without paying royalties.

Opponents of the law, led by Internet archivist Eric Eldred, say it unduly burdens scholars and publishers, commercial and noncommercial, who depend on free access to, and free dissemination of, art and literature. They say the law, coming after previous extensions and applied retroactively, is tantamount to a perpetual copyright for existing copyright holders, while the Constitution gives Congress the power to grant copyrights for "limited times."

Opponents also say that courts should be able to review copyright extensions to determine whether they stifle free expression.

Reflecting both the enormous amounts of money involved and the intense interest in a knotty legal and intellectual problem, the justices have received friend-of-the-court briefs from a Who's Who of American arts and letters, including photographer Richard Avedon, the Screen Actors Guild and Dr. Seuss Enterprises in support of the law; and the American Historical Association and novelist Ursula K. Le Guin in opposition.

During yesterday's argument, the justices seemed concerned about pyramiding copyright extensions -- but unclear about what, if anything, to do about it, given the difficulty of deciding how long a copyright term is too long.

"I can find a lot of fault with what Congress did," Justice Sandra Day O'Connor said. "This flies directly in the face of what the framers of the Constitution had in mind. But is it unconstitutional?"

Arguing for Eldred, Stanford University law professor Lawrence Lessig told the court, "Just as a limited-edition print is not limited if you print a new one each time a customer leaves the store, so a limited term is not limited if it is extended" every time it is about to end.

Defending the law, U.S. Solicitor General Theodore B. Olson said Congress struck a permissible balance between the public's right to eventual access and the constitutional mandate "to promote the progress of science and the useful arts" by rewarding creative individuals.

"These are quintessentially legislative judgments," Olson told the court.

The 1998 law was intended in part to harmonize the United States' copyright law with that of its European Union trading partners. It was strongly supported by such entertainment giants as AOL Time Warner and Walt Disney Co.

Disney earned an estimated $8 billion in 1998 just from licensing Mickey Mouse products. United Airlines had to pay $500,000 to use Gershwin's "Rhapsody in Blue," copyrighted in 1924, in its commercials.

Such other works of the 1920s as "The Jazz Singer," "The Great Gatsby" and "Show Boat" were also about to enter the public domain, but were protected for 20 more years.

Eldred runs an Internet archive called Eldritch Press, which includes such books as Nathaniel Hawthorne's 19th-century classic "The Scarlet Letter." But the 1998 law would have forced him to pay to publish works from the '20s such as stories by Sherwood Anderson and some poems by Robert Frost.

Eldred challenged the law in 1999, but lost in U.S. District Court in Washington and the U.S. Court of Appeals for the D.C. Circuit.

In a sense, then, yesterday's case, Eldred v. Ashcroft, No. 01- 618, is about the point at which songs, pictures and stories that are widely thought of as part of the American cultural patrimony will be recognized as such under the law.

Justice Stephen G. Breyer expressed concern that the 1998 law showered huge financial benefits on the heirs or corporate successors of long-dead artists, with little foreseeable positive impact on the economic incentives for current artists.

"Here you have a law where billions are going to existing [copyright] holders and zero to new production," Breyer told Olson.

Olson replied that that might be true, but that the Constitution clearly assigns Congress the power to make such judgments.

Lessig was asked about the possible impact of overturning the 1998 law, given that Congress had previously enacted similar extensions.

"Don't we run the risk of upsetting all those previous acts?" O'Connor asked.

The legal and economic disruption could indeed be great, Lessig replied, which is why the court could, under its own precedents, limit its ruling to the 1998 law only.

A decision in the case is expected by July.