BY MIKE WISER
When the 1998 Sonny Bono Copyright Term Extension Act (CTEA) passed, Prof. Lawrence Lessig was not happy. CETA marked the 11th time that Congress had extended the copyright term in the past 40 years, and Lessig felt that that the practice of extending the copyright was robbing the public domain of works that would otherwise be lost.
It was then, according to Prof. Charlie Nesson, that Lessig decided to challenge the law. “What I remember is Larry coming up with the idea, born of his rage at the Sonny Bono Copyright Extension, of challenging it and seeing if we could get the challenge to the Supreme Court of the United States,” Nesson said. “And so [Professor Jonathan] Zittrain, Lessig and I sat around and came to the conclusion that we’d have a try at it.”
After a loss in a District Court and the Court of Appeals for the D.C. Circuit, Lessig will finally get a chance to convince the Supreme Court that Congress exceeded its authority when it passed CTEA. On February 19th the Court agreed to hear Eldred v. Ashcroft, No. 01-618, Lessig’s challenge to CTEA.
Almost everything about Eldred was unconventional. The issue, whether Congress’ ability to extend the term of copyrights is limited by either the First Amendment or Article I, had never been directly litigated. The case itself would be run by the school’s Berkman Center for Internet and Society, an organization originally founded for research as much as litigation. Even more unusual, the team decided to develop the legal arguments for Eldred by using a method called “Openlaw” that allowed anyone to participate in the project.
From the start the Eldred case was designed to challenge Congress’s authority to extend the copyright on older works by 20 years and the copyright on newer works to the creator’s lifetime plus 70 years. It’s really not that important who Eric Eldred is, but it happens that he publishes public domain works on the Internet.
“[The case] was conceived from the beginning to raise an issue of importance and crafted not to be dependent on findings of fact. And that left it an instrument that Larry could wield. And he swings a pretty good sword,” Nesson said.
With a plaintiff, Lessig and the Berkman team turned to the Internet community to help draft their case. The idea was that the team could draw on the model of open-source programming that is used for software like Linux. Under the model, the team’s legal arguments are posted on the Internet for visitors to comment on and contribute to.
“We’re testing the idea that the sort of ‘parallel processing’ that goes on in open-source software development can be used effectively, in some cases, in developing a legal argument,” Lessig told Wired in 1999.
According to Lessig and Nesson, the project was a success.
“We would also not be here but for the extraordinary help of a wide range of law professors and volunteer lawyers, who have used the Openlaw process to make our work better,” Lessig posted on the Berkman website for the case after the Supreme Court granted certiorari.
Now, Nesson says, that the key will not be research or devising new arguments.
“From here out it is all crafting of the arguments. New research isn’t the issue at this point. But I think there is a considerable amount of work to be done in crafting the argument,” he told the RECORD.
Last fall Lessig left Harvard for Stanford Law School, but the legal team already had experience in crafting its briefs over the Internet and Nesson said the move hadn’t hurt the case. Besides, he said, the prospect of Kathleen Sullivan joining the team more than made up for Lessig being farther away spatially.
“So far as I’m concerned, Larry’s move to Stanford only strengthened our case,” Nesson said.
CTEA was passed in 1998 under intense lobbying from the entertainment industry. The Walt Disney Corporation lobbied for the extension, and some critics have claimed that it was to protect their copyright on the original Mickey Mouse images which would have expired under the old law. (Although, Disney would have retained the trademark to Mickey.) Lessig calls it the “Mickey Mouse Protection Act.”
“Now why is it Mickey Mouse or Donald Duck should fall under the public domain or more precisely why should Walt Disney Corporation lose this creative work which they have so powerfully put into our culture?” Lessig told NPR’s “On the Media.” “Well for the same reason that the Hunchback of Notre Dame fell into the public domain, and Walt Disney could then use that to produce its own work called ‘The Hunchback of Notre Dame’…. This is our system.”
Lessig saw the Congress’s 11th extension of the copyright law within the last 40 years as a disturbing trend. Under the initial Copyright Act, authors were entitled to a 14-year term and a 14-year renewal if the author was still alive. Congress only amended that act once during the first 150 years. In their petition for certiorari, Eldred’s team called the recent pattern “radically different” and unconstitutional.
“By repeatedly extending the terms of existing copyrights … Congress has adopted a practice that defeats the Framers’ plan by creating in practice an unlimited term,” the plaintiffs wrote.
At the heart of Lessig’s case is the claim that the Patent and Copyright Clause does not allow Congress to extend existing copyrights, and that, under the First Amendment, the Court should apply intermediate scrutiny to CTEA provisions extending newer copyrights.
The first issue raised in the petition for certiorari is whether the preamble to the Copyright Clause restricts Congress’s authority. Article I says that Congress 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.” In a 2-1 decision at the circuit level, a court rejected the argument that Congress’s power to extend copyrights should be scrutinized by courts to decide whether application to particular situations would promote useful arts. However, if the Supreme Court found that Congress’s power was limited, then, the Berkman team says, it would be difficult to argue that extending a copyright for unoriginal works would encourage their creation since they already exist.
In their response, the Government argued: “Nothing in the Constitution … compels Congress to establish a dual-system of copyright under which works created the moment before Congress enacts copyright term extension legislation must have a shorter term than works created the moment after.” The government also cited the Court of Appeals’ decision which said that extending copyright could give copyright holders an incentive to preserve older works like decaying motion pictures.
Secondly, the plaintiffs challenged CTEA’s provision that newer materials can be protected for the life of the author plus 70 years.
“Because copyright shrinks the available idea space and so butts up against the creators urge to expand it by expression,” Nesson explained. “That line of division has been almost obliterated by the copyright advocacy groups, so that recognizing the boundary as a significant one and attending to it with the rhetorical apparatus of First Amendment analysis is another aspect of what Larry is advancing.”
Another concern of electronic archivists like Eldridge is that materials that are still protected by copyright, but out of print, will become inaccessible and lost. According to an amici brief filed by the Internet Archive, only 174 of the 10,027 books published in 1930 were still in print. The Internet Archive argued that without CTEA 9,853 out of print books would not be inexpensively available. Without CTEA, they could be posted on the Internet and accessible to everyone.
By using the Copyright Clause to prevent publication of these works, opponents of CTEA argue the Copyrig
ht Clause starts to conflict with First Amendment protections for free speech.
“Hundreds of thousands of works will be kept from the public domain for another 20 years unless the statute is overturned. When you remove a huge chunk of works, it impinges upon free speech,” said Geoff Stewart, a lawyer who worked with Lessig, Nesson and Zittrain, to Wired.
According to the petition for certiorari, Congress should be required to justify the length of copyrights under intermediate scrutiny because the Copyright Clause is limited by the First Amendment. “These limitations were established by the Framers to assure a rich public domain, and to avoid the temptation to corruption that state-backed monopolies (as the Framers understood copyrights to be) inevitably invite,” the plaintiffs brief said.
The Solicitor General responded to the First Amendment claim by pointing out that copyright protects only the expression of the author and not the underlying ideas. “Petitioners offer no reason why … the idea/expression balance does not similarly prevent copyright from infringing their First Amendment rights. Nothing prevents them from using the ideas or facts contained in works protected by the CTEA,” the reply said.
However the case comes out, the Berkman lawyers are optimistic. While Nesson refused to make a prediction about any potential ruling, he said: “The very process of having this question validated and on the intellectual agenda of interested of constituencies for the period of time it takes until the court speaks; that in itself is of tremendous value.”