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Supreme Court Agrees to Hear Copyright Challenge Case
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Posted On February 25, 2002
On February 19, the U.S. Supreme Court (http://www.supremecourtus.gov) gave an unexpected, late Valentine surprise to the copyright and publishing communities by agreeing to hear a challenge to the 1998 Sonny Bono Copyright Term Extension Act (CTEA). The act (available at http://thomas.loc.gov) extended the terms of existing copyrights by 20 years and added the same 20-year extension to the term of all future copyrights. As a result of the act, copyrighted material will not go into the public domain for at least 70 years and often for at least 100 years or more.

The CTEA is being challenged in Eldred v. Ashcroft as a violation of the Constitution's Copyright Clause (Article I, Section 8). This provision empowers Congress 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." Eric Eldred is the founder and principal of Eldritch Press (http://www.eldritchpress.org), a nonprofit Web site that provides free access to online public-domain books. Eldred and the other petitioners, which include businesses and individuals who publish public-domain content on the Web and in print, argue that the extensions violate the intention of the "limited times" clause by continually extending copyright protection. They further argue that the extended copyright terms defeat the promotion of the Constitution's "progress" requirement.

Supporters of the CTEA maintain that the "limited times" clause is intended to distinguish a limited time period from an unlimited time period and that, although long, the current terms are within the powers granted to Congress by the Constitution. They also point out that the CTEA is necessary to bring U.S. copyright law into line with the European Union's copyright terms, giving U.S. copyright holders a level playing field in the global marketplace. Lastly, they contend that extending the copyright term is of benefit to "Science and the useful Arts" by enhancing the economic incentive for creativity.

There are many advocates on both sides of the issue. Eldred is represented by Lawrence Lessig, a law professor at Stanford Law School's Center for Internet and Society (http://cyberlaw.stanford.edu), and by professors Charles Nesson and Jonathan Zittrain of Harvard's Berkman Center for Internet & Society (http://cyber.law.harvard.edu). In addition, a number of library associations, intellectual property and constitutional law professors, and Internet advocacy groups have filed amicus (friend of the court) briefs in support of Eldred. Amicus briefs supporting the CTEA were filed by publishing associations and authors' advocacy groups.

Like the Supreme Court's Tasini decision last summer, the outcome of this case is likely to have a significant impact on access to and control of content on the Internet. The Internet's ability to provide mass access to content at a comparatively low cost is an ideal platform for making available works that would otherwise not be marketable for reasons of age, specialized interest, or cost. Tasini's restoration to individual authors of the copyright control over their articles is one such source for this content. The movement of copyrighted works into the public domain is another. It's no coincidence that many of the petitioners in Eldred v. Ashcroft are nonprofit and boutique publishers that primarily make public-domain works available through the Internet as e-books or as low-cost print books.

A number of newspaper and other articles on the CTEA have pointed out that large media companies like Disney and AOL Time Warner stand to benefit significantly from it. The copyright for the character of Mickey Mouse, for example, was to expire in 2003 and is now continued until 2023. Copyrights for the great movies, music, and literature of the late 1920s and 1930s (such as both the book and film versions of Gone with the Wind, the songs of the Gershwins, the novels of F. Scott Fitzgerald, and films like The Jazz Singer and Frankenstein) that would soon be moving into the public domain are now locked up until the next decade at the earliest.

While there may be a legitimate reason to be concerned about the availability of those great works, there's a greater reason to be concerned about the loss of pieces of our cultural history. Thousands of out-of-print books, journals, musical compositions, scripts, and other "useful Arts" from the 1920s and 1930s risk being lost to time. The existing copyright holders—for legitimate reasons of cost or market—are not in a position to reprint or republish these works. But if they were in the public domain they could be made available on the Internet at minimal cost.

Pursuing copyright issues in the courts is only one mechanism being evaluated to strengthen the amount of content available through the Internet. In an upcoming Legal Issues column in Information Today I will be looking at the still developing concept of "copyleft." An intellectual work published under a copyleft agreement is made available in the public domain and can be freely copied, modified, or adapted by subsequent users. However, those users agree that as a condition of their use, they in turn must make their modifications or adaptations freely available in the public domain as well, subject to the same continuing copyleft agreement. Copylefts have been a part of open source software development for some time. Recently, however, copylefts have been explored as a tool that authors and publishers can use to make certain their creative content on the Internet remains public. Copylefts may also provide protection for publishers of public domain content, ensuring that the content remains public notwithstanding any future use or adaptation.

The Supreme Court will soon schedule oral arguments in the Eldred v. Ashcroft case, and a decision is likely to be issued during the 2002-2003 term.


George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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