An Uphill Battle in Copyright Case

Amy Harmon
The New York Times

October 14, 2002

At 11:01 a.m. last Wednesday, at the conclusion of the Supreme Court arguments over the constitutionality of a law that extended copyrights for 20 years, the statute's challengers knew they had not scored a decisive victory.

"My sense is that the case could be in trouble," Charles Nesson, the co-director of the Berkman Center for Internet & Society at Harvard Law School, said afterward at a lunch reception. "They saw the problem, but they didn't necessarily buy our solution."

Some of the justices expressed what bordered on disdain for the 1998 legislation, which passed after intensive lobbying by the major film studios.

"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," said Justice Sandra Day O'Connor. "One wonders what was in the minds of the Congress."

But there is a big difference between thinking a law is bad policy and finding it unconstitutional. That hangs on the question of whether Congress has exceeded its Constitutional authority to grant copyrights for "limited times" by repeatedly extending the term.

The original copyright term was 14 years, with the option to renew for another 14. The current term is the life of an author plus 70 years for individuals, or 95 years for corporate copyright holders. The government argues that Congress has the power to continue lengthening the term, so long as it does not make it permanent.

As guests munched on chicken Caesar salad and sesame noodles, Lawrence Lessig, the Stanford law professor who argued the case, reminded them that what mattered most was that a public debate had begun about why the public domain matters.

Gigi Sohn, the director of the non-profit group Public Knowledge, one of the luncheon's hosts, noted it was being held at the Sewall-Belmont House, the historic home of the National Women's Party, which led the movement for women's suffrage. "We, too, are building a movement," Ms. Sohn said.

But there was also a growing acknowledgment among the loose coalition of nonprofit groups, lawyers, Internet publishers and librarians that most people still do not quite understand the relevance of copyrights to their lives.

As the copyright debate moves to topics like whether entertainment companies can control what consumers record on digital television sets and what they can send over the Internet — the subject of proposed legislation to be taken up in coming months — the subject may become less abstract.

"A lot of us feel like this is the environmental movement before `Silent Spring,' " said Jonathan Zittrain, a Harvard Law School professor who worked on the copyright case.