The U.S. Supreme Court has ruled, 7-2, that the Sonny Bono copyright
extension act is not unconstitutional. All challenges to that law have
been rejected, and the law is allowed to stand. Mickey Mouse need not fear
being pushed into the public domain anytime soon.
The majority opinion (available in PDF
format) was written by Justice Ginsberg. The majority found that the
phrase "limited time" in the U.S. Constitution doesn't mean that the time
has to be reasonable; the vision of "forever minus one day" copyright terms
is just fine with these people. The interpretation of "limited time" is
left entirely to the discretion of Congress; the courts have nothing to
In sum, we find that the CTEA is a rational enactment; we are not
at liberty to second-guess congressinoal determinations and policy
judgement of this order, however debatable or arguably unwise they
There was also, according to the majority, no restraint to free
expression to be concerned about. End of case.
Justice Stevens wrote a
dissent arguing that the extension of existing copyrights can not be
constitutional. He pointedly does not look at the more general issue of
copyright extension, arguing that is not the case that the plaintiffs
He also points out that, in the last eighty years, the
only work to enter the public domain is that which was copyrighted in
1923. He concludes:
By failing to protect the public interest in free access to the
products of inventive and artistic genius - indeed, by virtually
ignoring the central purpose of the Copyright/Patent Clause - the
Court has quitclaimed to Congress its principal responsibility in
this area of the law. Fairly read, the Court has stated that
Congress' actions under the Copyright/Patent Clause are, for all
intents and purposes, judicially unreviewable. That result cannot
be squared with the basic tenets of our constitutional structure.
separate dissent was written by Justice Breyer, who took a much greater
interest in the issue of whether copyright extension actually serves to
"promote the progress of science" as specified in the Constitution. He
doesn't believe that copyright extension will cause more works to be
The extension will not act as an economic spur encouraging authors
to create new works.... No potential author can reasonably believe
that he has more than a tiny chance of writing a classic that will
survive commercially long enough for the copyright extension to
matter....What monitarily motivated Melville would not realize that
he could do better for his grandchildren by putting a few dollars
into an interest-bearing bank account?
Justice Breyer also takes a look at the first amendment (freedom of
expression) arguments, and finds them worthy of rather more consideration
than they got from the Court majority.
His conclusion is clear and straightforward:
This statute will cause serious expression-related harm. It will
likely restrict traditional dissemination of copyrighted works. It
will likely inhibit new forms of dissemination through the use of
new technology.... It is easy to understand how the statute might
benefit the private financial interests of corporations or heirs
who own existing copyrights. But I cannot find any
constitutionally legitimate, copyright-related way in which the
statute will benefit the public. Indeed, with respect to existing
works, the serious public harm and the virtually nonexistent public
benefit could not be more clear.
Unfortunately, two voices of relative reason were not sufficient to sway
the Supreme Court, and copyright extension remains the law of the land.
There can be no doubt that those behind this law (and various other
expansions of intellectual property rights) will push for more in the
future. It also seems clear that there will be no help from the courts in
fighting this push. As far as the courts are concerned, Congress can do
what it wants in this area.
That leaves only one option open for those who would fight for the
intellectual commons - trying to talk some sense into the legislative
branch. There are signs that the general awareness of the problematic side
of copyright expansion is growing.
This case, even in defeat, has been a step in the right direction.
Lawrence Lessig did an outstanding job in arguing the case before the
Supreme Court; as a result, far more people know (and care) about copyright
issues now than before.
With a redoubled effort, it should yet be possible to put an end to the
unending expansion of copyright power.
It will not be easy, though, to say the least.
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