Eldred vs. Ashcroft
October 08, 2002
Eldred and Internet Bookmobile in NY Times

Court to Review Copyright Law
By Amy Harmon.

Here is the entire text of the article in case the link goes bad:


Court to Review Copyright Law

The Supreme Court is scheduled to hear arguments this week over the constitutionality of a 1998 law that extended copyright protection by 20 years. Experts on both sides of the closely watched case say that its outcome could reshape the way cultural products are consumed and how their profits are divided.

The court's decision will determine whether a host of material including early Mickey Mouse movies, Cole Porter songs and Robert Frost poems will become available for free to the public or remain in the control of their copyright holders.

Since the court agreed to hear the case in February, it has become a touchstone in an increasingly acrimonious debate over how to balance the rights of consumers with those of big media companies at a time when digital technology is threatening both.

Under the 1998 law, material whose copyright formerly would have lapsed 50 years after its creator's death became protected for an additional 20 years. Copyrights held by corporations, meanwhile, were extended to 95 years, from 75 previously.

Over the long term, supporters of the law say, it will promote creative work by offering a bigger economic payoff to those who invest in it.

The 1998 law also aligns the United States' copyright terms with those of European countries.

But detractors say the statute inhibits creativity by making it harder and more expensive for other people to obtain and build upon existing works. The 1998 law, these critics argue, mainly benefits powerful corporate copyright holders like the Walt Disney Company, whose intensive lobbying helped pass the legislation.

The law's challengers say that it disregards the public's side of the balance that the Constitution sought to strike when it authorized Congress to issue copyrights "for limited times" to "promoted the progress of science and useful arts." The initial Copyright Act, in 1790, set a maximum term of only 28 years.

Opponents of the 1998 law say that by issuing a series of 11 extensions over the last 40 years the latest being by far the longest Congress has exceeded its powers by, in effect, giving copyright holders a permanent monopoly over the use of their material.

Lawrence Lessig, the Stanford law professor who has spearheaded the case since its inception almost four years ago, says that the rise of the Internet makes the copyright issue all the more urgent, because works that fall into the public domain would for the first time be easily accessible via the Internet for millions of people to enjoy and to incorporate into new digital works of their own.

"Imagine you want to do something with the New Deal, and you get images and songs and stories and put it together on the Internet for everyone to see," Mr. Lessig said last week in a telephone interview from a Washington hotel room, where he was preparing for this Wednesday's oral argument. "Just at a point where technology is making all of this available, the law ought not to get in the way for no good reason."

Mr. Lessig said that he planned to argue that throughout the last century, copyrights primarily governed only commercial entities companies with the printing presses, movie studios or broadcast stations capable of widely distributing information and entertainment. But now, Mr. Lessig said, copyright law touches everyone who has an Internet connection, which makes it more important than ever to adhere to the limits the Constitution intended to place on the duration of copyrights.

The government, to be represented on Wednesday by Theodore B. Olson, the solicitor general, is expected to argue that no one, including the Supreme Court, can impose an arbitrary definition of "limited times." In its filings on the case, the government has argued that the Constitution leaves such definitions up to Congress.

But the law's opponents argue that any law limiting speech must satisfy a compelling state interest in the least restrictive way possible. The copyright term extension, they say, should be tested under the First Amendment to see whether it is overly restrictive of the free-speech rights of would-be users of copyrighted material that previously would have been in the public domain.

Courts have traditionally rejected that position. It is also rebutted in the government's filings and in a brief by Floyd Abrams, a prominent First Amendment lawyer. Mr. Abrams argues that free speech is protected under the extension because of the fair-use provisions built into copyright law, which enable scholars, critics and other individuals to make some use of copyrighted material in their own work. What is more, he argues, the copyright law protects only the expression of ideas, not the ideas themselves.

Jack Valenti, the chairman of the Motion Picture Association of America, said that, in practice, a longer copyright term would serve the Constitution's goal of harnessing copyright for the public good. Private ownership is the necessary incentive to make material widely available, he said.

"Who is going to digitize these public domain movies?" Mr. Valenti said. "To digitize a movie costs a huge amount of money. Who would spend the money if they didn't own it? If you didn't own your house would you spend a lot of money to bring it up to snuff?"

The entertainment industry is particularly sensitive to copyright issues these days. File-swapping services like KaZaA are enabling Internet users to easily exchange free digital copies of copyrighted music. And the impending transition to digital television raises copyright concerns about viewers' ability to trade high-quality digital copies of movies and television shows over the Internet.

The case has attracted 38 friend-of-the-court briefs from prominent intellectuals, artists, elected officials and advocates in numerous fields who in some instances seem to defy traditional political lines. Fifteen economists from across the political spectrum, including the Nobel laureates Milton Friedman and Kenneth Arrow, for instance, wrote a brief in support of the challenge, arguing that it is "highly unlikely that the economic benefits from copyright extension" outweigh the additional costs.

The conservative advocate Phyllis Schlafly, who is the founder of the Eagle Forum Education and Legal Defense Fund, also submitted a brief in support of overturning the law, as did the Intel Corporation, besides more predictable partisans like the Free Software Foundation and several library associations.

Mr. Lessig filed the suit on behalf of Eric Eldred, a New Hampshire computer administrator who had published dozens of public-domain books online as a hobby until the copyright extension act prevented him from posting a selection of Robert Frost poems in 1998.

In an elaborate demonstration of what it means to have a public domain, Brewster Kahle, the founder of the nonprofit Internet Archive in San Francisco, is driving across the country in a van that has an Internet-linked satellite antenna on top and a laser printer inside.

Last week Mr. Kahle made several stops at schools and libraries, as well as a bookmobile conference, to distribute "Alice's Adventures in Wonderland," "Heart of Darkness" and other books in the public domain that have been scanned and are available free online. He plans to park outside the Supreme Court and do the same on Wednesday.

Lined up on the government's side are Mr. Abrams; Dr. Seuss Enterprises; Senator Orrin Hatch, a Utah Republican; several members of the House Judiciary Committee, and virtually all of the major copyright holder trade associations.

It will fall to Mr. Lessig, who is a former clerk for Supreme Court Justice Antonin Scalia and who has become a kind of rock star for the digital liberties set, to convince the justices to accept the unconventional analysis.

If they do, the decision could be a turning point in redefining a balance between copyright consumers and producers and the technology companies that are often in the middle.

Among the points Mr. Lessig likes to make is that extending copyright terms for works of great artists who are deceased, like George Gershwin, cannot promote the creation of new works because the original artists themselves can no longer create.

Only about 2 percent of works protected by copyright produce continuing revenue for their owners, Mr. Lessig says. But no one can use the rest without hunting down the owners and negotiating licenses.

Disney faced no such restrictions, he says, when the company drew on Victor Hugo's work to produce the animated film "The Hunchback of Notre Dame" or the fairy tales of the Brothers Grimm to make "Cinderella" and "Snow White."

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