D.  Supreme Court Upholds 

Copyright Term Extension 

 

      In one of the most significant copyright rulings in recent history, the U.S. Supreme Court on Jan. 15, 2003 upheld the federal law that extends existing and future copyrights by 20 years.  Eldred v. Ashcroft, 123 S. Ct. 769 (2003).

      While not endorsing the wisdom of the extension, the Court ruled in Eldred v. Ashcroft that the Sonny Bono Copyright Term Extension Act of 1998 was well within the power of Congress to enact under the Copyright Clause of the Constitution.  The decision was a major victory for Hollywood and other media companies seeking to maintain their hold on old copyrighted creations -- among them Disney’s Mickey Mouse -- whose copyrights were about to expire.  Internet advocates, who saw the law as a major obstacle to the spread of digital information, decried the ruling.

      The 7-to-2 decision also made significant First Amendment law, and is likely to limit the ability of future litigants to challenge copyright legislation on First Amendment grounds.

 

“Limited Time,” First Amendment Challenges Rebuffed

      The case was brought by Internet publisher Eric Eldred, who claimed that the copyright extension violated the Constitution, especially when the extension is granted to existing works that are already copyrighted.  The Copyright Clause gives Congress the power to grant copyrights for “limited times.”

      “To comprehend the scope of Congress’ power under the Copyright Clause, ‘a page of history is worth a volume of logic,’” Justice Ruth Bader Ginsburg wrote, quoting a maxim of Justice Oliver Wendell Holmes.  “History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.”  Justice Ginsburg also wrote that “a time span appropriately ‘limited’ as applied to future copyrights does not automatically cease to be ‘limited’ when applied to existing copyrights.”

      Mr. Eldred and his lawyer, Stanford University law professor Lawrence Lessig, also challenged the law on First Amendment grounds, claiming that by extending existing copyrights, it infringed on the free speech rights of those who want to make use of creative works in the public domain.  Mr. Eldred operates an online publishing site made up of public domain materials for the use of students and scholars.

      Justice Ginsburg, writing for the majority, dismissed that argument somewhat sarcastically. “The First Amendment securely protects the freedom to make -- or decline to make – one’s own speech,” Justice Ginsburg wrote.  “It bears less heavily when speakers assert the right to make other people’s speeches.”  Justice Ginsburg’s words echoed, but did not cite, similar sentiments voiced by Justice Ginsburg’s daughter Jane, a copyright scholar at Columbia University Law School, who was quoted in several amicus curiae briefs in the case.

      The U.S. District Court for the District of Columbia had upheld the law, as had the U.S. Court of Appeals for the District of Columbia Circuit.  Eldred v. Ashcroft, 74 F. Supp. 2d 1 (D.D.C. 1999), aff’d, 239 F. 3d 372 (D.C. Cir. 2001).  The appeals court found that copyrights were “categorically immune” from attack under the First Amendment.  The court invoked the 1985 Supreme Court ruling Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), which found copyright to be “the engine of free expression.”

      Justice Ginsburg said the appeals court “spoke too broadly” when it immunized copyrights completely from First Amendment challenges.  But, she continued, “when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

      That is likely to discourage future First Amendment challenges against any aspect of copyright, said Charles Sims, lawyer for the Association of American Publishers.  “Copyright owners will be better able to enforce their rights in court,” he said.  Many First Amendment practitioners -- including publishers and moviemakers -- praised the decision  and said it would encourage and protect creativity and expression.

 

Current First Amendment Safeguards Found Adequate

      Justice Ginsburg noted that the Copyright Clause and the First Amendment “were adopted close in time.  This proximity indicated that, in the framers’ view, copyright’s limited monopolies are compatible with free speech principles.”  She also noted that copyright law has developed  “built-in First Amendment accommodations,” among them the idea/expression dichotomy and the fair use doctrine.

      Under the first doctrine, specific expressions of ideas can be copyrighted, but ideas themselves cannot.  Under the second, portions of copyrighted materials may legally be used by others for news reporting, criticism, research, and even parody.  Those safeguards, Justice Ginsburg said, are “generally adequate” to accommodate First Amendment concerns about copyright protections.

      The 1998 law itself, Justice Ginsburg also pointed out, contains some exceptions that supplement First Amendment safeguards.  It allows libraries to reproduce, in print or digital form, works in the final 20 years of their copyright, if those works are not currently being exploited commercially and are unavailable at a reasonable price.  The law also allows small businesses and restaurants to play music from licensed broadcasters without paying royalty fees.

      More abstractly, the court also rejected a key concept advanced by Prof. Lessig, Mr. Eldred’s attorney: namely, that the Constitution’s Framers saw the copyright power as a “bargain” between Congress and writers and authors.  In exchange for giving creators exclusive rights for a limited time, the Framers intended that the public would gain the benefits of the work thereafter, Prof. Lessig argued.  While that quid pro quo may operate in the context of patents, Justice Ginsburg said that “one cannot extract from language in our patent decisions … genuine support for petitioners’ bold view.”

 

Justices Breyer, Stevens Dissent

      In dissent, Justice Stephen Breyer -- not usually counted as a strong First Amendment defender -- said the law “will cause serious expression-related harm.  It will likely restrict traditional dissemination of copyrighted works.  It will likely inhibit new forms of dissemination through the use of new technology.”  Justice Breyer said the extension would serve to make copyrights “virtually perpetual.”

      Justice John Paul Stevens also dissented, criticizing the majority for abdicating its role of interpreting congressional enactments.  “By failing to protect the public interest in free access to the products of inventive and artistic genius, indeed by virtually ignoring the central purpose of the Copyright/Patent Clause, the Court has quitclaimed to Congress its principal responsibility in this area of the law.”

      Other critics of the ruling outside the Court also viewed the decision as a tool that would be used to restrict free expression.  “This is simply a disastrous opinion for free speech, and the Court should be ashamed of the shoddy job it’s done in this case,” said Yale Law School professor Jack Balkin.  “If you make copyright too strong, you shrink the public sphere and damage public discussion.”

      Prof. Balkin asserted that the other doctrines cited by Justice Ginsburg as accommodating First Amendment concerns -- fair use and the contrast between ideas and expression -- have been narrowed in recent years, in large measure because big media organizations have clout with legislators that enables them to secure protective legislation.

      The Supreme Court denied a request to rehear the case.  Eldred v. Ashcroft, petition for cert. denied, 2003 U.S. LEXIS 2133 (U.S. Mar. 10, 2003).

 

--Tony Mauro