INFORMATION & TECHNOLOGY LAW

Will the Bell Ever Toll on Copyrights?

By Jon M. Garon*
As published in Interface Tech News, April, 2002

In a move that surprised many, the Supreme Court recently agreed to hear a challenge to the 1998 Sonny Bono Copyright Term Extension Act that added an additional twenty years to the terms of all copyrights in existence in the United States. Eldred v. Ashcroft has been stewarded by Stanford law professor Lawrence Lessig, author of Code. (By way of full disclosure, I must mention that I was one of dozens of commentators who joined in the open-source brief writing opposing the law.)

The lawsuit challenges the ability of Congress to continually extend the length of the term of copyright, both prospectively and retroactively. For new works, Congress has increased the term of copyright to the life of the author plus seventy years. The life-plus-seventy allows the United States to match the term provided to European Community (EC) members. Although most of Europe also used the shorter, life-plus-fifty measure, Germany had adopted the longer term, in part, to make up for the loss of revenue suffered by its copyright holders during World War II. Under the laws governing the EC, the rights of any EC national are to be as great as those of any other EC national. In practical terms, this means that the longest term of protection anywhere in the EC becomes the term for all EC authors. Ostensibly to match this term, the U.S. agreed to the copyright extension, as well.

Under the Berne Convention and treaties administered by the World Intellectual Property Organization, the U.S. must provide at least the life-plus-fifty copyright term. There is no significant movement to increase these worldwide treaty terms to the German life-plus-seventy years.

More troubling, the Sonny Bono extension not only increased the term of copyright for new works, but it also added twenty years to the term of copyright for all protected works — going back to 1923. The dates are critical because it was the late 1920s that saw the birth of modern entertainment — including the 1927 introduction of sound films with The Jazz Singer, the maturation jazz and pop music, and the 1928 introduction of the world to Mickey Mouse.

The Walt Disney Company, buoyed by the Gershwin estate, led the assault on Washington to include all copyrighted works in the Sonny Bono term extension. Although occasionally framed as a fight between the author and the public, there are few authors who truly can control their portfolio after their deaths. Instead, it is the content aggregators who are most interested in protecting these works from falling into the public domain.

The timing for such legal protection comes at a particularly poor time. The Internet has created a seemingly limitless set of tools for the exploitation of uncopyrighted works. By legitimizing free access to books, films, music, and other artifacts from our cultural history, these public domain works might be preserved (even if inelegantly) through downloads and file swapping. Eldred himself runs the Eldritch Press, a Web site dedicate to the re-publication of public domain books.

Instead of the term extension, the law should have required that the Library of Congress begin to digitize and make publicly available works as they fall into the public domain. Even assuming that the door to the public domain vault was flung open, the amount of material available would remain disappointingly low. Only a tiny fraction of silent films remain in existence and even fewer early television shows. Even among books and musical recordings, only a small portion of those once protected by copyright still physically exist.

For those that do, the public domain continues to pose valuable but stiff competition to modern authors. Imagine listening to original recordings of songs by Gershwin, tunes sung by Paul Robeson, or reading the monthly installments of the original Superman. This free content would compete well against current musicians, singers, and publishers. If it was (legally) free as well, it might start to change the way the media companies do business.

While all of these possibilities suggest that Congress utterly ignored the consumers and the public when writing the Sonny Bono extension, there remains a significant difference between unsound policy and unconstitutionality. So why did the Supreme Court agree to hear this case?

Eldred might represent a unique situation where bitter political opposites on the Supreme Court come together. Justice Scalia leads the conservative wing of the Court, writing increasingly strident opinions that have served to limit Congress' power to legislate in areas as diverse as patent law, religion, labor law, and civil rights. These cases have reinvigorated or even reinvented the limitations placed on Congress by the Constitution.

At the other end of the political bench sit liberal justices such as Ginsburg and Breyer. The recent conservative-led cases have increased the Court's ability to question the thoughtfulness of Congress, and Eldred may be a particularly tempting case to test the Court's reach. It may be more than mere coincidence that the Eldred petition to the Supreme Court quoted Columbia Professor Jane Ginsburg — Justice Ginsburg's daughter — for the proposition that "extending (the) term of existing works 'cannot enhance the quantum of creativity from the past, but it can compromise the creativity of the future, by delaying for 20 years the time at which subsequent authors may freely build on these works.'" In the same footnote, the brief quoted from the 1970 article by Justice Breyer himself as saying that an "additional incentive to produce is irrelevant."

Given the confluence of conservative and liberal thinkers who may all agree that Congress has gone too far, the Court will answer whether the retrospective extension of copyright is unconstitutional, as well as whether future prospective extensions may be challenged using the First Amendment.

Evidently authorship, like politics, makes strange bedfellows.

*Jon M. Garon is admitted in New Hampshire and California.

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