Eldred Opinion Met with Anger, Determination

by Richard Koman

While the entertainment industry gleefully welcomed the Supreme Court's 7 to 2 decision yesterday to uphold the Copyright Term Extension Act, the forces of copyright reform were left with a mixture of disappointment, outrage, and determination.

Jack Valenti, president and CEO of the Motion Picture Association of America, called the ruling in the case of Eldred v. Ashcroft a "victory not solely for rights holders but also for consumers everywhere," and Cary Sherman, president of the Recording Industry Association of America, said, "The Supreme Court has affirmed the importance of the copyright system and the authority of Congress to adapt it in response to evolving markets and international developments. The Court also recognized, once again, that copyright and the First Amendment are completely compatible, noting that our copyright system contains 'built-in free speech safeguards.'"

Meanwhile, the hackers and activists who make up the Electronic Frontier Foundation are seething, said EFF spokesman Cory Doctorow. "There's widespread anger and even rage that this decision came down the way it did, and there's a renewed sense that something must be done as soon as possible to counteract the harmful effects of bad laws like the Sonny Bono act. ... We are now at a point where the issue of copyright reform and the public domain, which two years ago was so obscure as to be invisible--even among very technical people--is now a mainstream issue, at least within the technology world. We can hope now that this [decision] will vault this issue into the nontechnical world, but certainly a generation of technical people have been changed forever by the preparation for and the outcome of this case."

So, how important was this case to the overall goal of copyright reform--a goal that includes not only rolling back the copyright extension but also attempting to remove the anti-circumvention clause of the Digital Millennium Copyright Act, fighting proposals for a broadcast flag for digital television and the embedding of copyright-detection chips in consumer electronics, and attempting to re-establish fair use exemptions?

"In a narrow sense, remember that today's decision is only about whether words written in the 1920s will enter the public domain," says Declan McCullagh, Washington reporter for "The important thing about the decision is that it was a repudiation of the same tactics, techniques, and arguments that are going to be used against other forms of copyright expansion, and that's why it dealt a sore blow to this growing movement."

There's precious little reason for optimism in the decision, McCullagh said in a telephone interview. "The majority decision was so strongly worded, it's difficult to imagine a more thorough rejection of the arguments Larry Lessig and his allies advanced. The dissent, especially Stevens' dissent, in which he talks about the history of copyright law, and even more so Breyer's excellent economic analysis, gives Lessig and his friends some hope, but it's clear this is the most important Supreme Court decision in this area in this generation. It's difficult to overemphasize the impact of today's ruling."

How will Congress react to the ruling? A bipartisan group of four House members quickly issued a statement of support for the decision. House Judiciary Committee chairman F. James Sensenbrenner said, "The United States produces more intellectual property than any other country in the world. The copyright and related industries employ millions of American workers, and its vitality is critical to our national economy. The Court's decision will ensure that American copyright holders will generate additional revenues from domestic and foreign sales of their copyrighted works."

"The decision immediately emboldens the MPAA and similar groups and makes them more likely to seek changes to copyright law," McCullagh added. "The Supreme Court's majority opinion gave them almost a blank check by saying, 'Congress can do what it wants and we won't review it.' Because content owners control Congress, content owners control what happens to copyright law for the foreseeable future, which means for at least the next ten years. ... There is a danger for the copyright holders' lobby. They might be so emboldened they could overreach. They have to be very careful they don't use this to enact things like the Hollings CBDTBA bill. That's a danger, but it's a relatively small danger."

Reading the Opinion

The thrust of the challenge to the Copyright Term Extension Act revolves around the Constitution's instruction that copyrights be of "limited time." While ceding to Congress the right to decide the length of the copyright terms for new works, Lessig and his team argued that by extending copyright terms for previously published works, Congress is effectively violating the "limited time" clause by stringing together "an unlimited number of limited times."

Quoting Justice Holmes' remark that "a page of history is worth a volume of logic," Ginsberg wrote: "History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime." In addition, Congress sought to accomplish a number of goals they thought would be good policy, Ginsberg writes. In passing CTEA, Congress sought to bring the U.S. copyright term into accord with those in Europe so "American authors would receive the same copyright protection in Europe as their European counterparts"; sought to provide a greater incentive for authors to disseminate works in the U.S.; and sought to encourage copyright holders to restore and distribute older works.

"In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA, which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes, is an impermissible exercise of Congress's power under the Copyright Clause."

For his part, Lessig, with not a little self-flagellation, seems mystified at the court's reasoning. "The constitutional question is not even close. To have failed to get the Court to see it is my failing," he wrote in his blog. Noting that the Court had invalidated numerous Congressional actions that it said overstepped the legislature's authority, Lessig told The New York Times: "The impossible thing is how do people on that Court that believe Congress's power is so constrained sign onto an opinion that says Congress's power is not constrained?"

Joining the Debate

While the Court excused itself from policy decisions, it is policy that is on the minds of people on both sides of the issue. The question is, how does the country best assure that the public has access to the greatest amount of work? The split comes not on a right-left or Republican-Democratic axis, but on whether you believe people are motivated by money or by a desire for the fastest, most effective way to reach the largest audience.

It comes as no surprise that the movie industry falls into the financial motivation camp. Charles Sims, an attorney with the New York law firm of Proskauer Rose, who represents MPAA, noted with satisfaction that "the Court reminded copyright opponents [and Justice Stevens] that the monetary incentives for authors are not a secondary consideration; they are the 'best way to advance public welfare through the talents of authors and inventors.' From a legal point of view, the Court rejected the arguments, made recently by various anti-copyright forces, that copyright law is in tension with or even disserves the First Amendment. Instead, copyright law is 'the engine of free expression.'"

Nor does it surprise Eric Eldred, the Internet publisher who was the lead plaintiff in the case, who believes in the virtue of putting as much as possible on the Net. The court "seemed to accept the argument that the copyright law gives financial incentive to copyright owners to make things available, and extending the term only increases the chance of availability," Eldred said in a telephone interview, "which seems to me just wrong, actually."

Eldred thinks the burden is now on the publishers to make works available online. "If the court says this law is the best way to do it, then fine, let's do it--put up or shut up." If this doesn't happen, he warns, Internet users will start taking the law into their own hands. "I think people will just kind of disregard the copyright law and make things available if they want to, and if there are suits about it, then maybe this decision will be some sort of defense." He noted that there's a section of the 1998 law that allows libraries and archives to publish works in the last 20 years of their copyright term. "As far as I know nobody's taking advantage of that, but both the government and the court have pointed to that as some sort of escape passage, and I'd like to see people just go ahead and make the works available on the Internet, and we'll see if there are any lawsuits that come out of that."

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