Eternal copyright to be challenged in high court

The US Supreme Court is scheduled to hear arguments in Eldred v. Ashcroft this week, in which the Copyright Term Extension Act of 1998 will be challenged.

The legislation, which extended existing copyrights an additional twenty years, was originally conceived by talent powerhouse Sonny Bono and is coplloquially known by his name, and also as the "Mickey Mouse Act" because of the intense lobbying pressure Disney brought to bear on Congress in getting it passed just as old Mick was set to pass into the public domain.

The good fight is spearheaded by Stanford University law professor Lawrence Lessig, who believes that the US Constitution meant to ensure that copyrights would expire in a reasonable time as much as it meant to protect them. The Evil Empire contends that Congress, which it can buy, not the Constitution, which is not for sale (yet), is entitled to the last word in the matter. And unless my copy of the Constitution contains a typo, it says quite clearly that, "Congress shall have 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."

One would think that if the framers had meant to quantify 'limited times' they'd have done it. It certainly looks as if Congress gets to make the call on how long is too long. And for the life of me I can't find a single word in the Constitution extolling the obvious social benefits of swift copyright and patent expiration. An 'original intent' argument is going to have to be an absolute masterpiece to succeed under the circumstances.

However, it's possible that an argument showing excessive copyright extension as a burden on free speech might cut some ice more easily with the current bench, which has delighted in frittering away individual rights with that one exception.

The court will entertain arguments Wednesday and issue its ruling at some point within the next eight months. ®

The actual grant of power to Congress is "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." So it's clearly about promoting science and technology, not about promoting art (as in "art for art's sake") and literature.

Perhaps, though some people may feel music is useful. Certainly advertisers do.

That being said, copyrights and patents serve a societally-beneficial purpose of encouraging people to author and invent things, but they also have a significant stifling effect. Copyright law, properly written, will balance these factors.

Unfortunately, I don't see any real constitutional argument against extending copyrights on new works to 95 years. It's a bad idea, but it still would pass a "rational basis" test. On the other hand, I see no rational basis for extending copyrights on existing works (other than via renewal period whose terms and conditions were already spelled out when the original copyright was obtained).

BTW, I suspect once the Court strikes down retroactive copyright extensions there's not going to be any more push for excessive copyright terms. Disney et al. aren't interested in having copyright on their present works 95 years from now. What they're really interested in is keeping copyright on their decades-old works. If extending copyright won't let them do the latter, I doubt they'll bother with the former.

Perhaps, though some people may feel music is useful. Certainly advertisers do.

Music is not "useful" in the context of that clause - it's clearly a reference to its usefulness to the entire society, not just a few special interests. And it may have benefits to society, but none that were contemplated by the Constitution by any natural reading of it.

BTW, I suspect once the Court strikes down retroactive copyright extensions...

Based on what authority? (assuming, now, that copyrights for entertainment purposes are constitutional to begin with) What in the Constitution prohibits retroactive grants for anything? In the early days, before a patent office was established and general patent legislation enacted, Congress itself granted patents by special legislation in individual cases. That sounds "retroactive" to me.

Yes, but such grants would have (1) been for genuinely finite terms, and (2) would have encouraged inventors to invent more by demonstrating that their future inventions would likely be protected like their current/recent ones. In other words, they would have passed both the tests that the current copyright EXTENSIONS fail.

BTW, part of the notion of something being for a finite term is that there must be a predictable date by which one can guarantee that the term will end. If Congress is allowed to extend copyrights indefinitely, there is no way to make such a prediction.

Also, it should be noted that all of mankind's notable achievements are built up upon the works of those who have gone before; endless copyright/patent extensions either prevent such building or make those who would build perpetual slaves of their predecessors. One of liberals' goals in academia is to wipe out the past, at least for the masses, so they have nothing on which to build. While this is sometimes done in the name of "freedom" [e.g. encouraging artists to eschew the bonds of following in others' footsteps] the reality is that shackles those who fall for the philosophy. Endless extension of copyright helps to further the liberals' goal in this arena.

Consider, for example, what would have happened if today's 95-year copyrights were applicable to late nineteenth-century oil paintings. By the time it became legal for anyone to produce any works that were significantly derivative of the nineteenth-century masters', there would likely be almost nobody alive who would have the technical knowledge to do so effectively. The masters' techniques, close enough to oblivion as they are even without such copyrights, would be totally gone.

Copyright and patents laws pose a difficult trade-off. They can very severely stifle creativity and expression, and yet if they didn't exist in some measure few people would make the effort to create. Unfortunately, the endless extensions increase the stifling effect while providing little if any extra incentive to would-be creators.

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