High Court Scene of Showdown on Copyright Law

The Supreme Court for the first time this week will take a hard look at one of the most important powers in the original Constitution, under which Congress “for limited times” can give authors, inventors and other creators the exclusive right to their works.

How the court reads that phrase will decide who owns and controls the films, books and songs that were created in the 1920s and 1930s.

“This is about the movies from the Golden Age of Hollywood, and the beginnings of American popular music,” said Tyler T. Ochoa, a copyright law expert at Whittier Law School. “There are literally billions of dollars at stake here.”

This big-money Hollywood fight is not being waged by agents and lobbyists. Instead, it involves historians and scholars of “intellectual property” law.

They say that Congress has lost sight of the original purpose of the Constitution’s copyright clause.

“Their hope was that the government might help spur learning and innovation,” said Stanford Law School professor Lawrence Lessig, referring to the authors of the Constitution. “Monopolies were to be allowed, but only ‘to promote progress’ ... and only for limited times,” he said in his brief to the court.

In the first copyright and patent acts, Congress in 1790 gave authors and inventors a 14-year monopoly. After 14 years, living authors could seek a 14-year extension of their copyrights, for a total of 28 years.

However, since the advent of the film industry in the 20th century, Congress has extended the terms of copyrights repeatedly.

In 1998, Congress with little debate added 20 years to all copyrights. Now, works created by groups of people, such as films, are protected for 95 years. Copyrights for individual works, including books, extend for 70 years after the author’s death.

As a result, books, magazines, poems, films and songs that appeared in the 1920s remain under copyright protection, even if these works are long forgotten and have no commercial value.

Between 1927 and 1931, 66,947 books were published in the United States. Only 646 of them, fewer than 1%, remain in print, according to the American Library Assn.

Internet archivists say they could make such material easily and freely available. For example, the New Yorker magazine from its early days in the 1920s could be revived for a new audience, but Internet publishers say the extended copyrights block them from adding such material.

Until this year, it was assumed the proper term for copyrights was a matter for Congress alone. After all, the Constitution says, “The Congress shall have the power to ... promote the progress of science the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

But under Chief Justice William H. Rehnquist, the Supreme Court has cast a skeptical eye at Congress.

Rehnquist and his colleagues regularly repeat a line written in 1803 by Chief Justice John Marshall in Marbury vs. Madison, that the “powers of the legislature are defined and limited.” The Rehnquist Court is happy to add the limits to Congress’ power when lawmakers exceed them.

In recent years, for example, the justices have struck down federal laws on gun possession and violence against women on the grounds that these had nothing to do with the regulation of commerce. Congress can regulate interstate commerce, Rehnquist said, but a sexual assault is not commerce.

In February, the court surprised copyright experts and entertainment industry lawyers when it took up a broad challenge to Congress’ power to extend copyrights.

The challengers say this extension of copyrights for older works does not promote progress. It simply enriches the heirs of earlier creators.

But film industry leaders and the families of famous composers and authors have fought back, arguing that they have the greatest commitment to reviving old works for today’s audience.

Lawyers for the Motion Picture Assn. of America point to the economics of restoring old movies.

“Films are chemically fragile,” they said in a brief to the court. “They are very costly to preserve and restore, and yet they have the potential--particularly because of recent technologies such as cable television, videocassettes and DVDs--to remain commercially valuable for many decades after they were originally released.”

“Extended copyright terms give [studios] the incentive to bear the expense” of restoration, they argue. And therefore, Congress was correct in thinking it would “promote progress” in the arts to extend the copyrights for the films of the 1920s and 1930s, they conclude.

Some film archivists say the reverse is true, that extended copyrights are blocking new entrepreneurs and film buffs from restoring forgotten works.

“For those who care about film preservation, this [copyright extension law] is a disaster,” says Duke Law School professor James Boyle.

He filed a brief on behalf of Michael Agee and Hal Roach Studios, which has restored the early Laurel and Hardy films.

“The vast majority of the films that are 75 years old are orphans. No one is watching over them. And because they are locked up by the copyright extension, film buffs can’t restore them,” Boyle said.

Another brief on behalf of children’s authors, including Dr. Seuss and E.B. White, argues that old characters can have a new life, thanks to the commitment of the author’s heirs.

Dr. Seuss’ “How the Grinch Stole Christmas” was published in 1957. Two years ago, it became a feature film hit during the Christmas season. Similarly, E.B. White’s lovable mouse, “Stuart Little,” was the star of two recent films.

“These works have extended well beyond the lives of the author,” says San Diego attorney Karl ZoBell. “And without the copyright protection, it wouldn’t have happened.”

He argues that the heirs can preserve the special character of an earlier creation. “If you have T-shirts with the Cat in the Hat smoking dope, it would destroy the attractiveness of the character,” he said. Copyright owners can forbid such uses of the character.

ZoBell also does not see why the “Internet crowd” should be given a free right to make money on the creations of others.

“Mr. Eldred hasn’t created anything,” he said, referring to Eric Eldred, a retired computer programmer from Derry, N.H., who became the lead plaintiff in the lawsuit.

When his daughters were struggling with a homework assignment involving “The Scarlet Letter,” Eldred decided to scan several of Nathaniel Hawthorne’s books on to a Web site. He added helpful bits of information as well.

“It began as an experiment, and then it became a hobby,” Eldred said. But when he turned to short-story writer Ring Lardner, Eldred ran into potential copyright troubles.

“It’s impossible to find out who owns the copyright when the author is dead,” he said.

So, Eldred, a literary buff, became the plaintiff in the lawsuit attacking the copyright extension.

On Wednesday, the Supreme Court will hear arguments in the case of Eldred vs. Ashcroft.

U.S. Solicitor General Theodore B. Olson will be defending the law and Congress’ right to decide the proper terms for copyrights.

In 1998, lawmakers moved to bring U.S. copyrights into line with the longer terms that were standard in the European Union, and their judgment should be upheld, Olson argues.