High Court Hears Copyright Arguments

The Supreme Court justices sounded divided and uncertain Wednesday about whether they should overturn Congress’ power to extend the copyrights on old books, plays, films and songs.

They debated a multibillion-dollar case that pits the entertainment industry, which wants to protect its creative works from the 1920s and 1930s, against Internet activists and librarians who seek to make them freely available to all.

But the hourlong oral argument focused on an even older work. The Constitution says Congress can give authors and inventors the exclusive rights to their works “for limited times.”

The first Congress said copyrights and patents extended for 14 years. In the 20th century, however, lawmakers repeatedly extended the copyright terms so that films, plays and books from the 1920s remain protected.

“A ‘limited’ time that can be extended and extended is not limited. It’s the functional equivalent of unlimited,” said Justice Antonin Scalia, who voiced the challenger’s argument.

“How does it promote progress to extend the terms?” asked Justice John Paul Stevens, because the creators of the original works are dead.

Scalia, Stevens and Justice Stephen G. Breyer said they were troubled that Congress’ repeated extensions of copyright terms ignored the words and purpose of the Constitution.

“This flies directly in the face of what the framers of the Constitution had in mind,” said Justice Sandra Day O’Connor, agreeing in part.

But she quickly added she was not convinced that Congress had gone so far as to violate the Constitution. She and others said they were wary of unraveling the law.

“Don’t we run the risk of upsetting previous extensions?” O’Connor asked.

The Sonny Bono Copyright Extension Act of 1998 added 20 years to copyrights, both old and new. If the court were to strike that down, O’Connor said, would the ruling also apply to the Copyright Act of 1976 that also extended most copyrights for about 20 years?

Chief Justice William H. Rehnquist said he saw no reason to upset the 200-year-old American tradition that Congress, not the courts, decide on the proper terms for copyrights and patents.

He emphasized that the Constitution gives this power to Congress.

“It’s a general grant [of power] and Congress is free to run with it. Most people thought there was no basis for challenging this,” Rehnquist told Stanford law professor Lawrence Lessig, who represents the Internet activists.

Nonetheless, the Supreme Court--or at least four of nine justices--voted to take up Lessig’s challenge to the copyright extension.

Wednesday’s argument squarely posed the dilemma for the justices. On the one hand, most of them seemed to believe the phrase “limited times” must have concrete meaning. On other hand, how do they decide what limited means?

The two competing attorneys, Lessig for the challengers, and Solicitor General Theodore B. Olson for the government, stuck strictly to their basic arguments.

“This case is about limits,” said Lessig, who once clerked for Scalia. If the entertainment industry can persuade Congress to extend the limits whenever old works are about to enter the public domain, “then there are no limits,” he said.

Olson said the limits are a matter for Congress alone.

“The authority is vested in Congress, not the courts, to make the judgment,” Olson said. “It’s a very broad grant of power” to elected lawmakers to decide the proper balance between creators and consumers of cultural works.

The lead plaintiff, Eric Eldred of Derry, N.H., scans books onto his Web site. He said the 1998 extension prevented him from adding novels and poems from the 1920s.

A ruling in Eldred vs. Ashcroft might not occur until June.

If the court strikes down the 1998 law, it would void copyright protection for most “works for hire” that appeared in the 1920s. The 1998 law extended the copyrights for those works to 95 years from 75.

For individual works, the copyright term was extended to 70 years after the death of the author.

Although the dispute has been called a true Mickey Mouse case, the ruling is unlikely to affect Walt Disney Co.’s favorite mouse because he is protected by trademark law.