Harvard Law School professor Larry Lessig filed the lawsuit in the U.S. District Court in Washington on behalf of the Eldritch Press. The publisher posts writings such as the Scarlett Letter on the Net as soon as they enter the public domain--which previously had been 75 years after first date of publication.
However, the Sonny Bono Copyright Term Extension Act, signed by President Clinton in October of last year, retroactively prolongs copyright holders' control of their works for 20 additional years. Artistic works can now be protected for up to 95 years, a dramatic increase from the 28 years of protection Congress originally allocated for copyrights in 1790.
As of January 1, the public should have been able to freely copy, distribute, and use any book, software, film clip, or sound recording published in 1923. But under the revised statute, those works now won't enter the public domain until January 1, 2019.
Eldritch Press' lawyers say Congress has given copyright holders an unfair--and unconstitutional--grip on their material.
"Windows 95 is quite literally 'Windows 95' now," said Jonathan Zittrain of Harvard's Berkman Center for Internet & Society, who is cocounsel in the case.
"Congress arbitrarily extends the copyright monopoly on them every 20 years, by another 20 years, like clockwork," he added. "It's particularly troublesome when the speed and access of the Internet promises a substantial audience for the works that remain locked up."
Along with Zittrain and Lessig, who was at the center of controversy when he became the court-appointed "special master" in the Microsoft antitrust case, Eldritch is represented by Harvard professor Charles Nesson, as well as Geoffrey Stewart and Pamela Jadwin of law firm Hale and Dorr.
In its case, Eldritch Press argues that Congress can promote the progress of science and the arts by giving authors and inventors control over their creations, but that copyrights may only be secured for "limited times" under the Constitution.
For example, the first Winnie the Pooh book was published in 1926 and would have gone public in about two years. Under the new law, that won't happen.
"We call it the 'Steamboat Willie rule' after the first Mickey Mouse cartoon in 1928, because this [is the type of material] that prompts [these extensions]," Zittrain said.
On the other hand, proponents of the extension, such as the film industry, argue that the U.S. economy will benefit from new businesses sparked by the reselling of older copyrighted content both online and off.
The new law does carve out some exemptions for libraries and other public archives. Those liberties don't apply to Eric Eldred, a volunteer who founded Eldritch Press in 1995, or sites such as Project Gutenberg, unless the owners can work out agreements with--and pay--every owner of every copyrighted work they want to publish.
"Imagine if, before you quoted in a movie, you had to get permission and pay someone," Zittrain said. "It's part of our culture now, it's not just this guy Bill Shakespeare's work."
Eldred is in danger of criminal prosecution if he posts any work copyrighted after 1923.
"The copyright extension has its insidious effect through two other laws: one that made copyright infringement a criminal act, the No Electronic Theft Act, and the Digital Millennium Copyright Act, which made it a criminal act to remove the copyright notice and put a work on the Net," Eldred said. "We feel this is quite unconstitutional and deserves a hearing."