During oral arguments, the justices reserved their most pointed questions for foes of the Copyright Term Extension Act, a federal law that of all U.S. copyrights for 20 years. It prevents works like Walt Disney's "Steamboat Willie" and the poems of Robert Frost from becoming part of the public domain.
Larry Lessig, a Stanford University law professor representing opponents of the law, argued that Congress went too far when enacting the law and that it served no legitimate economic purpose.
But just moments into his opening remarks, Justice Sandra Day O'Connor interrupted and noted Congress had repeatedly extended the duration on copyrights, with no intervention before by the Supreme Court. What, O'Connor asked, is different about this case?
Justice Stephen Breyer asked a related question, wondering if the court, to be consistent, must rule the 1976 copyright extension unlawful as well? "The chaos that would ensue would be horrendous," Breyer predicted.
"You're right," Lessig replied. "The 1976 act would be unconstitutional." But he said that because ditching that long-established law would be so disruptive to America's economy, it should remain intact.
In a narrow sense, the outcome of Wednesday's arguments may be limited only to whether yet another copyright lengthening is permissible. Lessig and his allies are hoping not merely to overturn this law, however, but to build momentum for an all-out legal assault on many recent copyright expansions. Another target: the Digital Millennium Copyright Act, which says copy-protection devices should not be bypassed.
Power to promote
At issue in this case, which will be decided by July 2003, is how far Congress may go under the Constitution, which says the government has the power to "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."
Lessig argued that repeated extensions were unconstitutional because they ran afoul of the Constitution's "limited times" requirement and also conflicted with the First Amendment's guarantees of freedom of speech.
That was such a radical view, O'Connor said, that she did not "think there are examples" of the high court taking that approach in analyzing copyright laws.
"I can find a lot of fault with what Congress did here because it takes a lot of work out of the public domain," O'Connor said. But she added: "Is it not limited?"
An attorney for the Justice Department, which is charged with defending acts of Congress, had an easier time of it.
Ted Olson, the Justice Department's solicitor general, argued that courts should be very deferential to Congress' power to enact copyright laws. A copyright extension of 20 years may not be what the justices think is good policy, Olson said, but it is nevertheless for a "limited time."
"The authority is vested in Congress to make these judgments, rather than courts to make their judgments," Olson said.
A federal district court and an appeals court have agreed with that view, with both ruling that the law was perfectly constitutional.
Breyer appeared to be the most critical of Olson's position, saying longer copyright durations almost certainly would be a net loss to society. "I cannot imagine a person whose incentive to write would be governed by such longer durations," Breyer said. "Who are these people?"
Starting around 4 p.m. Tuesday, hardy geek activists began to brave a chill fall evening to queue up for the scarce seating available during the oral arguments. As many as 200 people showed up with hopes of squeezing into the crowded courtroom, but only a few managed to secure a seat.
"Fifty people who thought they would get in were there by 4:30 a.m.," said Jace Cooke, a 21-year-old physics student at Harvard University who slept on the courthouse steps. "But they only let in 25."