‘Limitless’ Copyright Case Faces High Court Review

The Supreme Court announced Tuesday that it will hear a major challenge to Congress’ power to extend the copyrights of films, books and songs that first appeared in the 1920s and 1930s--a move that could result in hundreds of thousands of classic and forgotten works becoming freely available via the Internet.

Films such as “Gone with the Wind” and “The Wizard of Oz,” the music of the jazz era and the compositions of George and Ira Gershwin, novels such as “The Great Gatsby” and “The Sun Also Rises,” even Mickey Mouse and Donald Duck--all would have passed into the public domain had Congress in 1998 not extended their legal shield by 20 years.

But this challenge to the copyright extension is not just about the classic books, music and movies that are well-loved today. Opponents of the extension say that if all the works published decades ago--and then forgotten--were in the public domain, many would have a second chance at popularity, thanks to Internet archivists who would make them easily accessible.

Under pressure from Hollywood studios and music publishers, Congress has extended the period of copyright protection 11 times over the last 40 years.

The result, say scholars and librarians, is “to transform a limited monopoly into a virtually limitless one.”

The copyright laws are intended to encourage creativity by allowing authors, composers and filmmakers to profit from their works. But under the recent extension, the legal monopoly continues for 70 years after an individual author’s or composer’s death.

“How can you say you are creating incentives for authors who are long dead?” asked Jessica Litman, a law professor at Wayne State University in Detroit, one of 21 copyright law experts who urged the Supreme Court to take up the issue.

“Without some check on congressional power, it is unlikely that any of the cultural and historical works of the first half of the 20th century will ever enter the public domain,” added UC Berkeley law professor Mark Lemley.

In a statement issued by his office, Jack Valenti, the president of the Motion Picture Assn. of America, said he had “absolute confidence that the Supreme Court will uphold the decision” of a lower court and “the wisdom of the Congress . . . in extending the term of copyright protection by 20 years to maintain parity with the European Union and other nations.”

In their appeals, the scholars and Internet entrepreneurs said the copyright extensions have the unfortunate and unintended effect of burying works that could be resurrected.

The Gershwin tunes and “The Great Gatsby” will live on, they noted, and the copyright laws will determine only who profits from their existence.

But the same is not true of most original works. “Millions of copyrighted works are created every year; yet after 75 years, few remain in circulation,” the copyright scholars said. In 1930, for example, 10,027 books were published in the United States. Only 174 remain in print today.

“Thousands of old movies sit in shelves deteriorating because the companies that hold the copyright make no efforts to restore them or make them available, while their copyright status prevents others from preserving these works,” according to a brief filed on behalf of librarians and archivists.

To illustrate their point, they cited Frank Capra’s 1946 film “It’s a Wonderful Life,” which had a second life when its copyright was allowed to lapse because of an oversight. This forgotten movie “lay gathering dust in a movie studio until the early 1970s,” when its copyright expired.

Once it passed into the public domain, several public broadcasting stations aired it during the Christmas season. Within a few years, the forgotten film became a classic and a Christmas tradition.

And now, thanks to digital technology and the Internet, millions of such works can be restored and made available to the public, the librarians and archivists told the court.

The justices considered the appeals for several weeks before voting to grant the case, known as Eldred vs. Ashcroft, 01-618.

Its lead plaintiff, Eric Eldred, runs an Internet library that posts works in the public domain. But perhaps more important, his appeal was filed by Stanford law professor Lawrence Lessig, one of the foremost legal experts on the Internet and the law.

His appeal challenges the Sonny Bono Copyright Term Extension Act of 1998, which added 20 years to most copyrights. Because of that law, “an extraordinary range of creative invention will be blocked from falling into the public domain at least until 2019--or longer if Congress extends the copyright term again,” Lessig said.

This, he argues, is unconstitutional.

First, he says, the Constitution gives Congress a limited power to protect copyrights. It says Congress can “promote the Progress of Science” by granting “exclusive rights” to authors for “limited times.”

Lessig argues that Congress has violated this clause by “creating in practice an unlimited term” for copyrights.

The nation’s Copyright Act in 1790 protected written works for 14 years, after which authors could seek a renewal for 14 more years. This 28-year limit continued until 1909, when Congress doubled the limit to a possible 56 years.

Since 1962, Congress has repeatedly extended the maximum term, usually under pressure from movie producers and the music industry.

“The real beneficiaries of this are big media companies, because they own the copyrights,” said Washington lawyer Daniel H. Bromberg. “The 1998 bill was snidely referred to as ‘The Mickey Mouse Extension Act’ because it was seen as protecting Disney’s characters.”

Before Congress, proponents of the extension argued that creators of works that remain valuable deserve to profit from them.

And Tuesday, underscoring the importance of traditional characters, Walt Disney Co. executives trotted out Mickey Mouse, Peter Pan and “Beauty and the Beast’s” Belle at the company’s shareholder meeting in Hartford, Conn.

These Disney characters are “extraordinary assets,” Disney President Bob Iger said. “They are among the reasons the Disney brand is so incredibly strong by any measure.”

Under the law being challenged, works for hire, including films, are protected for 95 years after their release. Works by individual authors or composers are protected for 70 years after their deaths.

In their appeal, Lessig and his colleagues also say the extended copyright monopolies violate the 1st Amendment’s guarantee of freedom of speech. Usually, the government should not limit free speech more than necessary, and a 95-year shield for some works is well more than necessary, Lessig argues.

Last year, the U.S. Court of Appeals in Washington rejected a challenge to the copyright extension on a 2-1 vote. Its judges said only Congress could determine a reasonable time period for a copyright. Moreover, the appeals court said old films and books are more likely to survive if their copyright value is preserved.

“Extending the duration of copyrights on existing works would, among other things, give copyright holders an incentive to preserve older works, particularly motion pictures in need of restoration,” the judges wrote.

U.S. Solicitor Gen. Theodore B. Olson said he agreed and urged the court to reject the challenges to the law. There is “no 1st Amendment right to exploit the work that Congress has purported to protect,” Olson said.

The American Library Assn., the Internet Archive and dozens of legal experts filed briefs in recent months urging the high court to rethink that presumption.

So far, however, the Supreme Court has heard only from those groups that oppose the copyright extension. They will file their legal briefs in several months, and the case will not be heard before the high court until the fall.

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Times staff writer Richard Verrier, in Hartford, Conn., contributed to this story.

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