Mickey Rattles the Bars: the Supreme Court Hearing of Eldred v. Ashcroft, October 9, 2002

from 144 Cong Rec H 9946

Actually, Sonny wanted the term of copyright protection to last
forever. I am informed by staff that such a change would violate the
Constitution. I invite all of you to work with me to strengthen our
copyright laws in all of the ways available to us. As you know, there
is also Jack Valenti's proposal for term to last forever less one day.
Perhaps the Committee may look at that next Congress.

—Mary Bono

The Case:

Today Eldred v. Ashcroft—a “case to define the digital age”—will be heard before the US Supreme Court. Launched on behalf of online publisher Eric Eldred in 1999, the case challenges the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA), which in 1998 extended the term of copyright by an additional 20 years.

Petitioners argue that Congress has overstepped its bounds in continually extending the term of copyright. The Constitution’s copyright clause states that Congress has the power to grant copyright “for limited times” and “in order to promote the progress of science and the useful arts”—but petitioners contend that Congress’s repeated extensions of copyright have made it effectively unlimited. They further argue that the current term of copyright, rather than providing an incentive for creation as originally intended, is (due to its excessive length) now stifling it.

The government, meanwhile, argues that the CTEA promotes the arts by protecting the economic value of currently copyrighted works. They also contend that Congress, not the courts, has the right to make judgments about copyright.

What’s at stake? "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," says Eric Eldred. "I call it marginalizing the library, diminishing the public domain, segregating our culture into what is economically important."

The People:


Counsels for the petitioner include Stanford law professor Lawrence Lessig and Harvard law professors Charles Nesson and Jonathan Zittrain. Government supporters include Harvard law professor Arthur Miller, who filed an amicus brief in the proceedings.

The Background:

In 1999 the Berkman Center for Internet & Society embarked on an unusual experiment that had onlookers scratching their heads: it launched an ambitious legal challenge to recent changes in copyright law using an entirely untested method. The case was Eldred v. Reno (now Eldred v. Ashcroft), a constitutional challenge to the Sonny Bono Copyright Term Extension Act (CTEA). The method was Openlaw, a system for crafting legal argument using the principles of open source code software development. The working hypothesis? The Berkman Center would match the considerable resources of CTEA proponents—including the deep-pocketed Walt Disney Co.—by mining an alternative resource: the Internet community itself. How? By "open sourcing" the Eldred case—that is, by posting case documents and briefs in an open, online forum and inviting Internet users to brainstorm ideas, critique drafts of briefs, and "debug" legal argument as necessary.

The move was controversial for two reasons: Not only was the Openlaw method untested, the case itself was considered a long shot. The issue of whether Congress's power to extend copyright is limited by the First Amendment or the Constitution's copyright clause had never before been directly litigated. In addition, the fight to allow copyrighted materials to re-enter the public domain seemed to have little resonance with the general public.

"Thanks to these extensions, for close to a hundred years people have just gotten used to thinking that intellectual property is just plain old property," explains Professor Jonathan Zittrain, a Berkman Center faculty co-director and one of counsels for the petitioner. "[It] makes no sense to imagine somebody after a certain time coming in and taking your rug or your chair and saying 'Sorry, your ownership expired.'" 

For the next two years, the courts appeared to agree, and the Eldred team—anchored by Stanford law professor Lawrence Lessig—lost a series of actions and appeals.

In February 2002, however, the US Supreme Court agreed to hear the case—a surprise decision that provoked a wide range of reactions. American University law professor Peter Jaszi told the New York Times that he was "flabbergasted and delighted" that the Supreme Court took the case, while Berkman Faculty Fellow Arthur Miller—who penned an amicus brief in support of the CTEA—said he thought the case was long dead. "My view on this was then and is now that this is a matter for Congress to decide," Miller said. "This is not a matter for courts to decide." Jack Valenti, head of the Motion Picture Association of America, echoed the sentiment, issuing a press statement asserting his "absolute confidence" that the Supreme Court will uphold "the decision of the US Circuit Court of Appeals and the wisdom of the Congress."

Oral arguments in Eldred v. Ashcroft take place today before the Court.

Online Resources:

Petitioner website: http://eldred.cc/

Oyez, Oyez, Oyez

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Press Contact (Berkman Center):

Donna Wentworth at donna@cyber.law.harvard.edu (preferred) or 617-495-0662.