Copyright 2003 The New York Times Company
The New York Times
January 16, 2003, Thursday, Late Edition -
Final
SECTION: Section A; Page 24;
Column 3; National Desk
LENGTH: 1221
words
HEADLINE: THE SUPREME COURT: PROTECTED
WORKS; 20-Year Extension of Existing Copyrights Is Upheld
BYLINE: By LINDA GREENHOUSE
DATELINE: WASHINGTON, Jan. 15
BODY: The Supreme Court today upheld the 20-year
extension that Congress granted to all existing copyrights in 1998,
declaring that while the extension might have been bad policy, it fell clearly
within Congress's constitutional authority.
The 7-to-2
decision came in the court's most closely watched intellectual property case in
years, one with financial implications in the billions of dollars. A major
victory for the Hollywood studios and other big corporate copyright
holders that had lobbied strenuously for the extension, the ruling had the
effect of keeping the original Mickey Mouse as well as other icons of
mid-century American culture from slipping into the public domain.
Justice Ruth Bader Ginsburg's majority opinion
methodically dissected and rejected the arguments that a coalition of Internet
publishers and other users of noncopyrighted material had marshaled against the
Copyright Term Extension Act. The dissenters were Justices John Paul
Stevens and Stephen G. Breyer.
The named plaintiff in
the case was Eric Eldred, who wanted to publish some Robert Frost poems. Other
plaintiffs included a church choir director; an orchestral sheet music company;
a company that restores old films; and Dover Publications, a publisher of books
that have passed into the public domain.
Organized by a
Stanford Law School professor, Lawrence Lessig, who argued the case before the
court in October, the plaintiffs did not attack the duration Congress chose for
new copyrights: the life of the creator plus 70 years for individual
works and 95 years from publication for copyrights held by
corporations.
Rather, they argued that retroactive
application of the 20-year extension to existing copyrights was a
giveaway that violated the sense if not the literal words of the Constitution's
grant to Congress of authority to "promote the progress of science" by issuing
copyrights for "limited times." Extending existing copyrights
would not promote new creativity, the plaintiffs argued, and a duration that is
virtually perpetual in effect violates the meaning of "limited times."
But Justice Ginsburg said that history refuted the
plaintiffs' argument. Going back two centuries, she noted that every time that
Congress extended the duration of copyrights, which began with a 14-year
renewable term in 1790, it granted the new terms to existing copyrights
as well as to new works. This practice reflected a Congressional judgment that
all copyright holders should be "governed evenhandedly under the same
regime," Justice Ginsburg said.
In any event, she said,
"the wisdom of Congress's action, however, is not within our province to second-
guess" because the Constitution itself gave Congress broad discretion and the
court only a very limited role in the area of intellectual property.
"As we read the framers' instruction, the copyright
clause empowers Congress to determine the intellectual property regimes that,
over all, in that body's judgment, will serve the ends of the clause," she said,
adding, "We are not at liberty to second-guess Congressional determinations and
policy judgments of this order, however debatable or arguably unwise they may
be."
Paying something of a back-handed compliment to
the plaintiffs, Justice Ginsburg said that "beneath the facade of their
inventive constitutional interpretation" they were basically arguing that
"Congress pursued very bad policy."
Justice Breyer
spent much of a 29-page dissenting opinion explaining how bad, in his view, the
policy was. The extension's "practical effect is not to promote, but to inhibit,
the progress of 'science' -- by which word the framers meant learning or
knowledge," he said. And while the Constitution speaks of a grant of
copyright to "authors," he continued, the effect of the extension "is to
grant the extended term not to authors, but to their heirs, estates or corporate
successors."
Noting that the majority appeared to find
the statute at worst unwise, but not unconstitutional, he said: "Legal
distinctions, however, are often matters of degree, and in this case the
failings of degree are so serious that they amount to failings of constitutional
kind." He added, "I cannot find any constitutionally legitimate,
copyright-related way in which the statute will benefit the public."
Justice Stevens, in his dissenting opinion, called the
extension a windfall for current copyright owners. "Members of the public
were entitled to rely on a promised access to copyrighted or patented works at
the expiration of the terms specified when the exclusive privileges were
granted," he said, while copyright holders have no reason to complain if
they do not receive more protection than they were originally promised.
Justice Stevens said the decision left Congressional
action in the copyright area "for all intents and purposes judicially
unreviewable," adding, "That result cannot be squared with the basic tenets of
our constitutional structure."
In quoting Chief Justice
John Marshall's famous words from the Marbury v. Madison decision in 1803 -- "it
is emphatically the province and duty of the judicial department to say what the
law is" -- Justice Stevens may have been tweaking the majority in the series of
federalism cases in which he has been a consistent dissenter as the court has
invalidated numerous acts of Congress. Chief Justice William H. Rehnquist and
his allies in those decisions have frequently quoted the line from the Marbury
decision as justification for the court's active role in policing the
federal-state boundary.
Professor Lessig himself cited
the federalism cases last year as part of his effort to persuade the court to
hear his appeal, Eldred v. Ashcroft, No. 01-618, after two lower federal courts
here had earlier rejected his attack on the 1998 law. The court should take the
same skeptical stance toward Congress's exercise of its copyright
authority as it has toward other congressional actions, he argued then.
Expressing his disappointment today, Professor Lessig
said, "The impossible thing is, How do people on that court believe Congress's
power is so constrained sign onto an opinion that says Congress's power is not
constrained?"
Jack Valenti, president of the Motion
Picture Association of America, said the ruling was "a victory for consumers
everywhere" because "copyright, whose aim it is to provide incentive for
the creation and preservation of creative works, is in the public interest."
In her majority opinion, Justice Ginsburg insisted that
the proper stance for the court toward Congress in this context was a
deferential one. The law, formally known as the Copyright Term Extension
Act, "reflects judgments of a kind Congress typically makes, judgments we cannot
dismiss as outside the legislature's domain," she said.
The court noted that the extended term made the United States
consistent with the copyright policy of the European Union.
The plaintiffs had also challenged the law under the First
Amendment as a suppression of free expression, but the majority rejected that
argument as well. Copyright law "contains built-in First Amendment
accommodations," Justice Ginsburg said, including the concept of "fair use" that
permits copyrighted material to be reproduced for scholarship and other
purposes.
http://www.nytimes.com
GRAPHIC: Photo: The ruling yesterday has the effect
of keeping the original Mickey Mouse as well as other icons of American culture
from slipping into the public domain. Above, Walt Disney working on a
sketch of Mickey. (Reuters)
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