Putting Robert Frost on Ice

James H. Johnston, Legal Times (Feb. 22, 1999)

Whose words these are I think I know.
His house is in the village though;
He will not see me stopping here
To watch his words fill up with snow.

                    -- With apologies to Stopping by Woods on a
                    Snowy Evening (1923) by Robert Frost

     Words, and pictures and sounds, are the stuff of the
Internet. Many of the good ones are subject to copyright.

     Eric Eldred got the bright idea of adding Robert Frost's New
Hampshire to the electronic books on his Eldritch Press Web site.
Eldred figured it would be available since the copyright on the
original 1923 edition was set to expire at the end of 1998.

     But that was before Congress passed the seemingly obscure
Sonny Bono Copyright Term Extension Act (CTEA) which added 20
more years to existing copyrights.

     Eldred is suing. Charles Nesson, Lawrence Lessig, and
Jonathan Zittrain from Harvard's Berkman Center for Internet &
Society represent him in federal court in Washington, D.C., in
the unusual case of Eldred v. Reno seeking a declaration that
CTEA is unconstitutional.

     They argue, among other things, that Article 1 Section 8 of
the Constitution authorizes Congress to award copyrights for a
"limited term." It does not authorize repeated extensions of
that term, as the CTEA and earlier laws have done. What's more,
they say, the purpose of copyright is to provide an incentive to
creativity. But extending the term for existing copyrights, many
years after the creative juices flowed, provides no such
incentive.

     To paraphrase the Constitution, Congress has authority to
promote the progress of useful arts by securing for limited times
to authors the exclusive right to their writings.

     Thus, copyright law allows authors, artists, poets, and
cartoonists to hold tight to their creativity for a period of
years, to collect royalties from those who wish to make copies,
and on death to will their intellectual property to heirs. But
the law also allows individuals to get a lump sum reward by
selling their copyrights to major corporations that market
creativity in a big way.

     Indeed, Robert Frost was not much on Congressional minds
when the CTEA was enacted. Mickey Mouse was. Witness the words
that Disney President Michael Eisner recently wrote shareholders:

          Toward the end of the year [1998], action was taken in
     Washington that should help us further protect and build on
     our heritage. Congress passed and the President signed an
     extension of the copyright law, assuring that Mickey Mouse's
     home will continue to be exclusively at The Walt Disney Co.
                               ***
          Creativity gave birth to the Content we call Mickey
     Mouse.... Now Mickey is encountering the opportunities of
     the Internet.

     But don't portray this as a fight between poor starving
authors and giant media corporations. The questions are more
narrow. Do these copyright extensions promote the arts or the
lobbyist? And, how long should intellectual property remain
private property in the information age?

     The original copyright statute passed in 1790 limited the
term of copyright to 14 years with a 14 year renewal period. In
1831, the term was extended to 28 years with a 14 year renewal.
And in 1909, the renewal period was extended to 28 years, making
56 years the longest time anyone could control a copyright.

     Beginning in 1962, however, Congress began to stretch out
the term in existing copyrights with almost yearly extensions --
until 1976 when an apparently exhausted Congress stopped at a
total term of 75 years.

     But, in 1998 Congress revisited the matter. The CTEA
extends the term of existing copyrights to 95 years. Mickey
Mouse and Robert Frost will stay locked up until 2018, and longer
if there is another extension.

     Nesson, Lessig, and Zittrain have their work cut out for
them in making the legal case that CTEA is unconstitutional.

     Undeniably, these repeated extensions of copyright terms are
windfalls to a few lucky copyright holders. The price paid an
author for his copyright in 1995, for example, did not reflect
the value of the 20 year extension that the CTEA added in 1998.

     Indeed, before passage, 50 law professors signed a
memorandum opposing the law. But the Supreme Court traditionally
has given Congress great leeway in tinkering with copyrights.

     Still, the litigation helps spotlight the issue of how
copyright laws can be used to limit Web content. Internet gurus
used to say that the World Wide Web was too big for anyone to
control its content. That is not true. For example, Swiss
authorities, acting on the request of copyright holders, recently
seized an Internet computer server containing the lyrics to
thousands of songs.

     The free database was a good idea since there never had been
a compendium of lyrics before the rise of the Internet. This
story may ultimately have a happy ending; the copyright owners
reportedly are considering the possibility of putting the
database back in service, for a fee.

     The Internet is a very different medium for expression than
mankind has ever had. A cartoonist in Africa doesn't need The
Walt Disney Co. to distribute his art around the world. Were he
alive today, Robert Frost could sell his poems by the millions
through his own Web site. And someone else may offer a search
engine that provides links to all the authors, poets, and artists
on the Web.

     If anything, the Internet makes Congress' constitutional
authority to promote the progress of the arts through copyrights
more important than ever. But taken to an extreme, that
authority can be used to promote greed rather than creativity and
to lock up beautiful words.

     This brings us back to Mr. Eldred. His Eldritch Press is
not a commercial venture. In fact, the "press" is just a
computer connected to the Internet from Eldred's house. He isn't
trying to put book publishers out of business or to steal food
from the mouths of heirs of Robert Frost. Eldred is merely
trying to make good, old words available to readers on the Web.

     But for now, Eldred watches Frost's words fill up with snow.
He has miles to go before he sleeps.

_____________________
James H. Johnston, a solo practitioner in Washington, D.C., may
be contacted at jimjohn@erols.com.

Reprinted with permission of Legal Times, 1730 M St., N.W. Suite
802, Washington, D.C. 20036. Phone: 202-457-0686. Copyright,
1999.

Berkman Center for Internet & Society