Eldred, Eric, et al. v. Ashcroft, John, Attorney General

Questions presented: Whether the 20-year extension of the terms of all copyrights, set forth in the Copyright Term Extension Act of 1998 violates the Copyright Clause of the Constitution or the 1st Amendment.

BY: NATALIE SHEPHERD & KRISTIN ENGLISH, MEDILL NEWS SERVICE

Eric Eldred was under the impression that "limited time" didn't mean forever.

So, when Congress passed the Copyright Terms Extension Act (CTEA) in 1998, adding another 20 years to existing copyrights, he decided that was stretching the bounds of the Constitution. Article I, Section 8, clause 8, of the Constitution, often called its copyright clause, states that Congress has 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."

Eldred runs a website that publishes books that are in the public domain. Once a copyright has expired, Eldred is free to put that work on his Web site. Prior to 1998, an individual authors copyright lasted for the authors lifetime plus 50 years. Corporate authors copyrights were protected for 75 years.

The 1998 amendment was the 11th copyright extension passed by Congress in the past 40 years. Initially, in 1790, the First Congress provided, both for works "already printed" and for those that would be "[t]hereafter made and composed," initial and renewal terms of 14 years, for a combined term of 28 years. Eldred and others see the most recent extension as a slippery slope to unlimited "limited times." Eldred said copyright extension is akin to "padlocking the library."

"It's like going to each shelf and taking off anything published after 1922, putting it into a locked closet, and telling readers they will have to pay money to read those, and if they want to wait 20 years they may be able to read them for free," Eldred said. "I call it marginalizing the library, diminishing the public domain, segregating our culture into what is economically important."

So, Eldred, along with a number of others who use the public domain for livelihood, filed suit against the U.S. Attorney General, questioning the constitutionality of the CTEA.

They lost their case in the district court, but appealed to the Court of Appeals for the District of Columbia.

Before the appeals court, lawyers argued that the CTEA violated the 1st Amendment, did not meet the copyright clauses requirement of originality for copyrighted work, and violated the constitutional requirement that copyrights last for a "limited time."

In a divided appeals court decision on Feb. 16, 2001, Judge Douglas Ginsburg wrote that the "plaintiffs benefit from using works in the public domain and, but for the CTEA, they would be able to exploit additional works the copyrights to which would have expired in the near future. As such, they suffer an injury in fact that is traceable to CTEA."

But, Ginsburg continued, the plaintiffs did not have an argument based on violation of the 1st Amendment. "Copyright laws are not restrictions on freedom of speech," because copyrights protect only the "form of expression and not the ideas expressed," Ginsburg wrote. Noting that the court "need not linger further in disposing of" the 1st Amendment claim, Ginsburg rejected it "because the plaintiffs lack any cognizable first amendment right to exploit the copyrighted works of others."

Lawyers for the plaintiffs also argued that a copyright could not legally be extended on works that were already copyrighted because one requirement for a copyright is originality. Lawyers for the plaintiffs argued that "copyrighted work already exists and therefore lacks originality."

Ginsburg wrote that this was not true, because "originality is what made the work copyrightable in the first place."

The aspect of this case that has been most debated is the subjective concept of "limited time." Lawyers argued that extending copyright lengths is outside of the limit of promoting the "progress of science and the useful arts." The court found the CTEAs 20-year copyright extension to be within the bounds of "limited time."

In his dissent, Judge David Sentelle found that "limited time" should have more finite limits. He wrote, "A term of years for a copyright is not a 'limited time' if it may later be extended for another 'limited time.'" He continued, writing that this might "confer a perpetual copyright by stringing together an unlimited number of "limited times."

Five months later, in July of 2001, the appeals court panel denied Eldred's petition for rehearing, as did the entire appeals court in a request for en banc review. In dissent, Judges David Sentelle and David Tatel took issue with the very idea of extending copyright protection for 20 more years for works long since published.

"I accept that extending copyright terms for future works may well increase creative efforts at the margin," wrote Sentelle. "Once a work is published, however, extending the copyright term does absolutely nothing to induce further creative activity by the author-and how could it? The work is already published. A simple finding by Congress to the contrary is not sufficient to demonstrate that the exercise of that power is 'necessary and proper."'

Lawrence Lessig, lawyer for Eric Eldred and a professor at Stanford Law School, said Congressional power is at issue in this case.

"The main issue in this case is Congress power to extend the terms of existing copyrights," said Lessig. "If the CTEA stands, then Congress has the power to decide that there will be no public domain."

On Feb. 19, 2002, the U.S. Supreme Court granted certiorari in the case, and on Oct. 9, 2002, three days into the Court's 2002-03 term, heard oral arguments in the case.

Once the lines of people that had stretched around the Court's block were ushered to their seats, the justices went right to the heart of the issue; whether Congress' incremental extensions in the life of copyrights effectively perpetuate copyright limitations out of existence.

"Unless this Court draws a line about this extension, there will be no limit to Congress ability," said Lessig, who argued for Eldred.

"Authority is vested in Congress to make these judgments, not the Court to make these judgments," countered U.S. Solicitor General Theodore B. Olson, who argued the case himself for the government.

"We are living in an era where piracy is a problem," Olson argued.

"I can find a lot of fault with what Congress did here, because it takes a lot out of the public domain," said Justice Sandra Day O'Connor. But, she said, it is difficult to find wording prohibiting Congress decision in the Constitution even if "it's longer than one might think desirable."

Lessig argued that the extension violated the limits outlined by the founding fathers in the copyright clause in the Constitution, in that life plus 70 years would not fit within the bounds of "limited time."

"Is there any limiting principle out there that would ever kick in?" O'Connor asked of Olson. An explicitly perpetual copyright would be unconstitutional, Olson conceded.

The government also argued that extended copyright laws encourage creativity and entice writers to produce more.

"What this statute does is favor the creator," Olson argued.

Lessig noted that the previous 11 copyright extensions, the first of which was in 1790 and the last in 1976, were never challenged.

"If we agree with you, does that mean we have to hold the 1976 extension unconstitutional?" Breyer asked Lessig. If so, he said, "the chaos that would ensue would be horrendous."

"Under our theory as we've advanced it, you're right," Lessig conceded, adding that the Court would not have to go so far.

"Maybe we ought to find another theory," Breyer responded.

Lessig also argued that the publics right to more current material was encompassed in the 1st Amendment.

"The opportunity to build upon works in the public domain is a fundamental 1st Amendment right," Lessig said. "We want the right to copy verbatim works that should be in the public domain."

O'Conner questioned such a 1st Amendment argument, saying, "This would be quite a new proposition."

Another new proposition in the equation is the Internet itself. Lessig adivsed the Court that the Internet, on which his client Eldred published works in the public domain, had brought about a "fundamentally important changed circumstance" on the copyright landscape.

"You want the right to copy verbatim other people's books, don't you?" Chief Justice William Rehnquist asked.

"We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified" either under the 1st Amendment or Congress' copyright power, Lessig responded.

On Jan. 15, 2003, the Court affirmed, holding 7-2 that Congress did not exceed its authority under the copyright clause by extending existing copyrights another 20 years.

Justice Ruth Bader Ginsburg wrote the majority opinion. Justices John Paul Stevens and Stephen Breyer filed dissents.

Attorneys: For Eric Eldred, et al.:Lawrence Lessig Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305650-736-0999For Attorney General John Ashcroft (U.S.):Theodore OlsonSolicitor General, Counsel of RecordRobert D. McCallum, Jr. Assistant Attorney GeneralWilliam KanterJohn S. Koppel