Supreme Court nixes copyright challenge

The U.S. Supreme Court says Congress can extend the duration of copyrights, a decision that deals a grave blow to the movement against more expansive legal protections of artistic works.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
WASHINGTON--The U.S. Supreme Court on Wednesday said Congress had the power to extend the duration of copyrights, a decision that dealt a grave blow to a growing movement against more expansive legal protections of artistic works.

In a strongly worded ruling, the court said by a 7-2 majority that the legislature had great leeway in allowing repeated delays to when copyrighted works would enter the public domain. The ruling means that Walt Disney's first Mickey Mouse cartoons, poems by Robert Frost and other works created in the 1920s fall under a retroactive copyright extension of 20 years.

"Congress acted within its authority and did not transgress constitutional limitations," Justice Ruth Bader Ginsburg wrote for the majority. "We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be," Ginsburg said.

In a narrow sense, the outcome of this challenge to the Copyright Term Extension Act (CTEA) determines when some works will become part of the public domain. However, Stanford University law professor Larry Lessig and his allies were hoping when they launched the challenge not merely to overturn this law but to build momentum for an all-out legal assault on other recent copyright expansions.

Another target is the Digital Millennium Copyright Act (DMCA), also enacted in 1998, which broadly says that copy-protection devices should not be bypassed. Last week, Rep. Rick Boucher, D-Va., and three other legislators reintroduced a bill to defang the "anti-circumvention" sections of the DMCA.

"I think perhaps in the immediate future we may be disappointed," said Nathan Mitchler, a representative of advocacy group Public Knowledge. "But in the long run it makes these things more important. Those attempts to rescind the DMCA become more important since the CTEA won't be cut back at all."

Eben Moglen, a Columbia University law professor who filed an amicus brief siding with Lessig on behalf of the Free Software Foundation, said one benefit of the decision is that it will radicalize programmers and free-software activists. At the same time, Moglen said, it will embolden the entertainment industry and eventually prompt them to "ask for too much" from Congress.

"The very same arguments the Supreme Court rejected today, it would accept in 2014, if there were no precedents against it," Moglen said. "Everyone who's a member of the literate community would see at that time what Justice Breyer saw today (in his dissent)."

Moglen and the dozens of others who supported the challenge by filing amicus briefs found staunch allies in the pair of justices who dissented.

In a 22-page dissent that chronicled the development of intellectual property law since the 1790 act, Justice John Paul Stevens said that by declining to review the copyright extension, the court has ceded to Congress "its principal responsibility in this area of the law."

Justice Stephen Breyer was more blunt. His analysis, which focused on the economic impact, relied on research performed for Congress that concluded that CTEA will cost American consumers "several billion" dollars in additional royalty payments to copyright holders.

"The economic effect of this 20-year extension--the longest blanket extension since the Nation's founding--is to make the copyright term not limited, but virtually perpetual," Breyer wrote. "Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates or corporate successors."

Jack Valenti, the president of the Motion Picture Association of America (MPAA), said in a statement: "We are pleased that the Court has reaffirmed the absolute authority of Congress to set copyright terms. We have always maintained and the law has long recognized that copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest."

Not unexpected
Wednesday's ruling was not unexpected. First, a federal district court and the federal appeals court in Washington, D.C., both ruled that CTEA was constitutional.

Then, during oral arguments in October 2000, the justices reserved their most pointed questions for Stanford University's Lessig.

At issue in this case 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.

But just moments into Lessig's 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?

"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.

Over the last 40 years, bowing to pressure from movie studios and record labels, Congress has lengthened copyright durations 11 times. CTEA extends copyrights 70 years after the death of the artist and, for those copyrights held by corporations, a total of 95 years in duration.

Lessig brought the lawsuit on behalf of 11 plaintiffs, including Eric Eldred, who runs the free Internet library called Eldritch Press. Eldred started the Web site in 1995 and uses it to distribute American literature such as the works of Nathaniel Hawthorne, Oliver Wendell Holmes Sr., and Henry James.

In the lawsuit, Eldred said the CTEA made it unlawful to post works from 1923 that would have otherwise begun to fall into the public domain. Those included "New Hampshire" by Robert Frost, "Horses and Men" by Sherwood Anderson and "Racundra's First Cruise" by Arthur Ransome.