The Supreme Court's ruling this week to uphold the Sonny Bono Copyright Term Extension Act (CTEA) reignited the debate over whether Congress' 1998 decision was unconstitutional in granting extended copyright protection and whether that extension impacts free speech guarantees in the First Amendment.
Petitioners in the case of Eldred v. Ashcroft were individuals and businesses such as plaintiff Eric Eldred's Eldritch Press whose products or services rely on creative works that have entered the public domain. Eldred was among 11 plaintiffs represented by Stanford Law Professor Lawrence Lessig.
Other plaintiffs included Dover Publications, a publisher of books in the public domain, a choir director, a sheet music company, and a film restoration company.
The Constitution gives Congress 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" which it exercised in 1998 by extending copyright protection law by 20 years, (the life of the creator plus 70 years for individual works, and 95 years from publication for copyrights held by corporations).
Plaintiffs Eldred and Lessig argued the point that the CTEA deprived them of free speech rights and abandoned what they call the Constitution's clear intention of allowing "limited" copyright terms that would serve "progress in the useful arts by preserving that balance."
Lessig's argument did not attack the duration Congress chose for new copyrights, but rather the retroactive application of the 20-year extension to existing copyrights.
Lessig along with other opponents to the CTEA insist that Congress was swayed by the lobbying efforts of deep-pocketed copyright holders such as Disney, AOL Time Warner, and many other media organizations who would have lost control over many highly profitable creative properties when former copyright claims expired.
In an immediate response to the high court's decision to uphold the CTEA, the Consumer Electronics Association issued a public statement expressing its disappointment with the Court, and suggesting that Congress was pandering to the forces of Hollywood.
"Certainly, creative work must be encouraged and original ideas protected," said Gary Shapiro, president and CEO of the Consumer Electronics Association. "But this idea must be balanced with the need - and right - to promote broad public access to copyrighted works and to allow for technological innovation."
The Consumer Electronics Association represents more than 1,000 corporate members involved in the design, manufacturing, and distribution of audio, video, mobile electronics, wireless, and multimedia and accessory products.
"It is simply unfair that companies who made their fortune taking works in the public domain and reformatting them for new technology are now preventing others from following the same business model," Shapiro continued. "Congress took from the public and gave to Disney. And while most Justices recognized this was horrible public policy they also chose to find it Constitutional."
Organizations in favor of seeing the law upheld by the Supreme Court claim that the CTEA is critical in that it aligns American copyright law with the European Union, which also uses longer copyright terms.
The Motion Picture Association of America (MPAA), whose members include Sony Corp., The Walt Disney Co., AOL Time Warner, and MGM, filed a brief amicus in the Supreme Court in August 2002 stating that the petitioner's arguments against the extended copyright law are both "doctrinally and empirically ill-founded."
In its amicus, the MPAA stated that the CTEA encourages the preservation and restoration of older, classic works of film and literature that might otherwise be lost, and it brings the U.S. copyright term in line with other countries as well as the entertainment community as a whole.
"The Constitution is plain and clear that Congress has the authority to set copyright terms," said Jack Valenti, president and CEO of the MPAA. "The CTEA keeps creators and copyright owners in this nation on even footing with their counterparts in other parts of the world and provides incentives for the creation of new works and the continued preservation and restoration of older ones."
Valenti called Tuesday's ruling "a victory for consumers everywhere."
Thomas Broido, president of the Music Publishers' Association said that he and many other members of the intellectual property community were pleased with the Supreme Court's ruling.
"The entertainment industry is one of the largest net creditor industries," said Broido. "Copyright laws are laws of equity and try to establish a balance between one group of citizens who create the property and another group who wants access to this property. I see the point in saying where does it end, meaning the protection, but there has to be a reasonable limit, and I feel that the Supreme Court upheld that reasonable limit."
Karl ZoBell, an attorney who represents Dr. Seuss Enterprises, the E.B. White estate, and the copyright holder of the classic children's character, "Madeline" filed an amicus brief on behalf of his clients in the case of Eldred v. Ashcroft. ZoBell believes the Supreme Court made the proper decision in upholding Congress' ability to extend the term of copyrights, and that Congress acted well within its bounds as set forth by Constitution.
"What it comes down to economically is should the artist and his successors profits from the material, or should the buyer of a Xerox machine or a digital scanner profit?" said ZoBell. "The business plan of Mr. Eldred and those on that side of the case isn't really so much about sharing all of the works, it's about who is going to charge money for producing and disseminating them," said ZoBell.
Fred von Lohmann of the Electronic Frontier Foundation, a San Francisco-based civil liberties advocacy organization, makes the point that Congress should be able to generate copyright law, but they should not be allowed to give copyright an extended layaway plan that works indefinitely under the auspice of 'limited times.'
"The important thing is that with the rise of the Internet, the public domain has become more useful and needed than ever before," said von Lohmann. "For the first time we live in a moment where everyone has the potential to have cheap access to the public domain."
But many works are being held back, said von Lohmann, under the umbrella of those works that still generate revenue for media companies and copyright holders, which according to von Lohmann, only account for one percent of copyrighted works in existence today.
"Many of those works are not even being published anymore, and there is a good chance those works will be lost forever just to protect profits," said von Lohmann. "It's an incredibly bad deal for the public."
According to the Lessig camp, the next step after this week's defeat is to head back to the legislative arena and jump back into the fire.
Lessig will act as co-counsel on Golan v. Ashcroft, a case not entirely dissimilar to Eldred v. Ashcroft, which challenges copyright term extension and the restoration of expired copyrights.
Plaintiff Lawrence Golan, a professor of music at the University of Denver, and two orchestra conductors, filed suit in November 2001 against the U.S. government challenging a law that grants copyright protection to foreign works that were formerly in the public domain.
A spokesperson from The Consumer Electronics Association added that if there was a legislative vehicle at this time to contest the Supreme Court's decision, they would put their weight behind it, but at this point it is not likely.
"Almost any reasonable person would agree that a hundred years is an excessively long time," said the spokesperson.
