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Friday, October 18, 2002
Last week, one of the most interesting recent Supreme Court cases was argued. The case involves an issue that has been extensively discussed by copyright scholars, but curiously has never reached the Supreme Court before-- whether the extension of copyright terms is constitutional.

To understand this issue, here is a little background. A copyright is a limited monopoly right, i.e., the copyright holder (i.e., the author or someone who the author sells or gives the rights to), and only the copyright holder, has the right to exhibit, public, or perform a composition, or to make other compositions from it. (This is subject to some limitations not germane to the current discussion, such as the right of others to make "fair use" of the work, and the "first sale" doctrine that allows a buyer of a book to resell it without permission from the copyright holder.) Like a patent, a copyright is for a limited duration-- currently a copyright lasts the author's life plus 70 years (or 95 years for a work created by a corporation).

Congress' power to grant copyrights is contained in the Copyright Clause of the Constitution, which states that Congress has the power "To promote the Progress of Science..., by securing for limited Times to Authors... the exclusive Right to their... Writings". The first federal Copyright Act, passed in 1790, three years after the Constitution took effect, provided for a maximum 28 year copyright. Since 1790, Congress has on occasion extended the terms of copyright, both retroactively and prospectively, numerous times. Before the latest extension took effect, the term was life of the author plus 50 years (or 75 years for corporate works). That was due to an extension in 1978; before that, under a major copyright revision in 1909, the maximum term was 56 years.

The obnoxious thing about the latest copyright extension was that it was passed after extensive lobbying by Disney to protect Mickey Mouse, which was about five years from falling into the public domain. (Mickey was also fairly close to the public domain in 1978 when the last extension took effect.) There is no doubt that 20 years from now, Disney will be back lobbying for another extension.

Bad policy and big money politics aside, why is any of this important? Because of the constitutional provision I quoted above. First, and most importantly, the Congressional power to protect copyrights is not absolute but only extends to protection "for limited times". In other words, it is clear that a perpetual copyright term is impermissible. Further, a term that is effectively perpetual (e.g., 1 million years) would be equally impermissible. The question is, can Congress get around this by simply extending the term in bits and bites to ensure that Mickey never makes it into the public domain? The answer can't be yes-- a continually extended time is not "limited". Moreover, the preamble to the Copyright clause makes clear that the purpose is to "promote the progress of science"-- i.e., new works. Extending existing copyrights does nothing to create incentives to produce new works. Indeed, quite the opposite; it increases the monetary incentives to keep on exploiting the old rather than creating something fresh.

Nobody expected the Supreme Court to even review this case. The Court of Appeals had upheld the copyright statute, holding that Congress' power to set the term of copyrights was nearly complete. There was no other case going the other way (a split in the circuits is the usual reason for Supreme Court review). The Court must have taken the case because it believed it to be important, and quite possibly because at least four justices (the minimum number to grant review) believed that the lower court was wrong and the statute was unconstitutional. There are differing reports on what went on in oral argument; I have now read the transcript and think that the Court was tough on both sides. But I sincerely hope that the Court puts an end to this business of continually extending copyright terms. I actually think they had it right in 1790-- a 28 year monopoly is more than adequate compensation for a person's creative efforts. But life plus 70 just ensures that an author's often talentless and idle grandchildren, or some faceless corporation that obtained the rights, continues to get rich, while the public is denied the use of the work. This is lousy legislation, and it is not in any sense a "limited time".

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