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Supreme Court Grants Certiorari, February 19, 2002

News Reports:
As a result of the court's action, a challenge to the Sonny Bono Copyright Term Extension Act that many had regarded as fanciful suddenly emerged as potentially the most important copyright case in decades.
Supreme Court to Intervene in Internet Copyright Dispute, Linda Greenhouse, New York Times, 2/19/2002
Contacts: Lawrence Lessig, Charles Nesson, Jonathan Zittrain, Geoffrey Stewart.
Earlier News:

Plaintiffs File Petition for Certiorari to Supreme Court, October 11, 2001 (PDF)

Eric Eldred and fellow plaintiffs asked the Supreme Court to hear arguments in the case and to rule that the First Amendment requires greater constitutional scrutiny of copyright law.

Government brief opposing Supreme Court review (PDF) (HTML)

Petitioners' Reply Brief, December 20, 2001 (PDF)

Supreme Court docket sheet for Eldred v. Ashcroft cert petition >> Professor Jaszi attached this chart illustrating the stunted growth of the public domain.

See also Prof. Dennis Karjala's Opposing Copyright Extension website

and Prof. Malla Pollack's What is Congress Supposed to Promote?, interpreting the Constitution's "Progress Clause"

Editorial support for Eldred v. Ashcroft:

Term Limits for Copyrights, Steve Forbes,, April 2002
It is fitting and proper that your creations be protected by law for your lifetime and a reasonable period afterward. But there is no justification for what Congress has been doing: transforming a limited monopoly into an unlimited one. Creativity and culture are enhanced by having works ultimately become public domain, particularly with the advent of the Internet.... The high court would be right to rule that enough is enough and should knock down that 1998 law.
Drawing a line on copyright, St. Petersburg Times, August 21, 2001
[T]he founders included the term "for limited times" to alert Congress that copyright protection is not permanent. The public at-large has an interest in gaining access to, enjoying and building on the works of artists, authors, scientists and inventors.
Copyright Craziness, Washington Post August 17, 2001
As a policy matter, [Eldred v. Ashcroft] isn't difficult at all. Vast quantities of creative material shouldn't be perpetually owned privately, and Congress's repeated extensions of protection to copyright holders have shredded any meaningful limit. The plaintiffs plan to ask the Supreme Court to examine the issue. It would be well worth the justices' time.

Golan v. Ashcroft Challenges Taking of "Restored Copyrights" from the Public Domain

Conductors Pose First Challenge to Copyright Law, National Law Journal, Nov. 27, 2001
Conductor challenges music law, Rocky Mountain News, October 2, 2001
See the Golan v. Ashcroft site for more details on this case.

Eleventh Circuit Issues Opinion on The Wind Done Gone, October 10, 2001

The Eleventh Circuit Court of Appeals, which had already lifted the injunction against Alice Randall's parody of Gone With the Wind, explained its ruling in an opinion. The opinion presents "protection of the public domain" as one of the chief goals of American copyright law.
The Copyright Clause was intended "to be the engine of free expression." Harper & Row Publishers, Inc. v. Nation Enters. To that end, copyright laws have been enacted [to] achieve the three main goals: the promotion of learning, the protection of the public domain, and the granting of an exclusive right to the author.


The second goal of the Copyright Clause is to ensure that works enter the public domain after an author's rights, exclusive, but limited, have expired. Parallel to the patent regime, the limited time period of the copyright serves the dual purpose of ensuring that the work will enter the public domain and ensuring that the author has received "a fair return for [her] labors." This limited grant "is intended to motivate the creative activity of authors . . . by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired." The public is protected in two ways: the grant of a copyright encourages authors to create new works, ... and the limitation ensures that the works will eventually enter the public domain, which protects the public's right of access and use.

D.C. Circuit Denies En Banc Rehearing, July 13, 2001

Judges Sentelle and Tatel dissented.

Eleventh Circuit Lifts Injunction From Wind Done Gone

The Eleventh Circuit Court of Appeals lifted the injunction on The Wind Done Gone, calling the copyright injunction an ``extraordinary and drastic remedy'' that ``amounts to an unlawful prior restraint in violation of the First Amendment.'' See the Eleventh Circuit's Order (PDF).

So, the First Amendment constrains copyrights in the Eleventh Circuit, while in D.C., "copyrights are categorically immune from First Amendment scrutiny." Eldred v. Reno

  • Houghton Mifflin website with additional materials on The Wind Done Gone.

    Extended Copyright Used to Block Parody and Social Commentary: The Sense Done Gone

    The estate of Margaret Mitchell is using the extended copyright on Gone With the Wind in an attempt to block publication of Alice Randall's The Wind Done Gone, a novel written from the perspective of Scarlett O'Hara's slave-born half-sister. Under the 56-year copyright term in effect when Mitchell wrote the book, the world of Tara should have become public domain in 1993.

    Plaintiffs File Petition for Rehearing en Banc, April 2, 2001

    Eric Eldred and fellow plaintiffs filed a petition for rehearing and suggestion for rehearing en banc (PDF) April 2, asking the entire D.C. Circuit to rehear, and reverse, the decision of the three-judge panel. They argue that the panel neglected the constitutional obligation to protect the public domain, mis-construed the First Amendment, and improperly failed to consider the arguments of amici.
    With the change of administration, the case is now captioned Eldred v. Ashcroft.

    Read the brief. (PDF)

    D.C. Circuit Denies Appeal, Affirming District Court, Feb. 16, 2001

    In an Opinion written by Circuit Judge Ginsburg, the Court held that the 20-year extension of the copyright term for both existing and newly-created works did not exceed Congress's power or constitutional limits. The Court rejected our First Amendment, originality, and "limited times" arguments. Circuit Judge Sentelle, dissenting in part, would have overturned the extension for pre-existing works: "The government has offered no tenable theory as to how retrospective extension can promote the useful arts."

    Local copy, with links to Supreme Court citations.

    Earlier news:
    The United States District Court for the District of Columbia granted defendant's summary judgment motion, Oct. 28, 1999. We appealed and Prof. Larry Lessig argued the case before the D.C. Circuit on Thursday, Oct. 5, 2000.


    Earlier Legal Documents

    We're still building a section of the argument: Help show the value of the public domain.

    • How many publishers were granted monopolies by the original copyright act in 1790?
    • What works might never have been created if they couldn't draw from a rich public domain?
    • Examples collected here.

    Have artistic talent? We'd like to put together some works to counter the PR machinery of extension proponents, such as political cartoons and other media. One suggestion is to draw on the works of satirist Thomas Nast. Email openlaw or post thoughts to the discussion board.
    What's Jack Valenti really thinking? and doing?

  • Wendy Seltzer
    Berkman Center for Internet & Society