Justices OK Copyright Extension

WASHINGTON -- The Supreme Court gave Hollywood studios a big victory Wednesday when it upheld a law that extends the copyrights of movies, songs and books that appeared in the 1920s and ‘30s.

The stakes for the film industry were huge. It could have lost an estimated $400 million a year in revenue, according to Justice Stephen G. Breyer. It also could have lost control of thousands of old movies and films that now stand to have new lives via DVDs and other new technology.

The 7-2 ruling is a setback for scholars and the Internet industry, which had hoped to make available hundreds of books and articles, many of them obscure and out of date.

Under pressure from Hollywood, Congress has repeatedly extended the copyrights of creative works that were about to go into the public domain. The most recent such law, the 11th in the last 40 years, was the Sonny Bono Copyright Term Extension Act of 1998, named for the late singer and House member from Palm Springs. It added 20 years to all copyrights, both old and new.

Films are now protected for 95 years after their release. Works by individuals are protected for 70 years after the author or composer’s death.

Had Congress not acted, Disney’s cartoon characters, including Mickey Mouse and Donald Duck, such classic movies as “The Wizard of Oz” and “Gone with the Wind” and music such as George Gershwin’s compositions all could have soon lost their copyright protection.

Entertainment industry lawyer Carey Ramos said that if the decision “had come down the other way, it would have been a cannonball through the side of the ship. We’re breathing a sigh of relief.”

For most of American history, copyrights lasted for a period of years, but they could be renewed by a living author. For example, the nation’s first copyrights lasted for 14 years, but they could be renewed for 14 more years.

But the new law automatically extends all copyrights, even though the vast majority of books, magazines, poems, movies and songs from the 1920s and 1930s are long forgotten and have no commercial value.

This copyright shield prevents Internet archivists and scholars from scanning those books and articles on to Web sites, where they could be used freely.

These scholars and archivists are not especially interested in books such as “The Great Gatsby” by F. Scott Fitzgerald or “A Farewell to Arms” by Ernest Hemingway. These literary classics of the 1920s remain in print and can be easily obtained.

However, copyright experts said only about 1% of the books of that era remain in print, and many have all but disappeared.

In 1930, for example, 10,027 books were published in the United States. Only 174 of them remain in print.

Not surprisingly, however, the congressional debate focused on the creative works of the early 20th century whose commercial value has been retained -- or has grown.

Leaders of the movie and music industries defended the 1998 law and said that it furthered a laudable principle. If creative works from the past continue to earn money, it is only fair that the royalties are paid to the heirs of the original creators, they said.

The movie industry also argued that the extended copyright protection gave it the incentive to undertake the costly task of restoring some film classics.

“We are pleased that the court has reaffirmed the absolute authority of Congress to set copyright terms,” said Jack Valenti, president of the Motion Picture Assn. of America. Extended copyrights “provide incentive for the creation and preservation of creative works in the public interest.”

But some independent film studios said old films would more likely be restored if the copyrights expired. Film buffs would then be free to renew and reprint these movies.

Had Congress not acted, films and other creative works that appeared before 1928 would become public property this year.

Under current law, those 1928 works will not lose their copyright protection until 2023.

Wednesday’s ruling was also applauded by creators and performers in the film industry.

“Artists in the entertainment community have a clear stake in the protection of copyright. We believe the extension is good for artists and the industry,” said a statement by the Writers Guild of America, the Directors Guild of America, Screen Actors Guild, the American Federation of Musicians and the American Federation of Television and Radio Artists.

For its part, the Supreme Court majority ignored the larger debate over who is helped or hurt by extending old copyrights. Instead, the justices stressed the issue was for Congress to decide.

“We are not at liberty to second-guess congressional determinations of this order, however debatable or arguably unwise they may be,” said Justice Ruth Bader Ginsburg, whose opinion for the court sidesteps discussion of the movie industry or the Internet.

The legal dispute focused on the words of the Constitution. It says, “Congress shall have the Power ... to promote the Progress of Science and useful Arts by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Those words are considered to be the source of the patent and copyrights law. Where Congress has strictly limited patents, it has an “unbroken practice” of extending copyrights, Ginsburg said.

Those who challenged the law said Congress had exceeded its power by ignoring the phrase “limited times.”

In practice during the 20th century, the “limited times” for copyrights became unlimited monopolies, Stanford University law professor Lawrence Lessig told the court.

He also argued that it would not “promote science” and learning to extend the copyrights for works whose creators are long dead.

Lessig, an expert in the new field of Internet law, was representing Eric Eldred, a semi-retired New Hampshire man who had scanned literary works onto a Web site that could be used by students and other readers.

The high court battle also featured some odd couplings. Hollywood’s interests were represented by John Ashcroft, the Bush administration’s conservative attorney general, whose job includes defending acts of Congress.

In Eldred vs. Ashcroft, Ginsburg said the court had never questioned Congress’ definition of “limited” copyright term. While 95 years is a long time, it is not unlimited, she said.

Moreover, the court had never said that copyrights of old works cannot be extended along with the protections for new works, she added.

“We cannot conclude the [1998 law] -- which continues the unbroken congressional practice of treating future and existing copyrights in parity -- is an impermissible exercise of Congress’s power,” she concluded.

The lopsided outcome is somewhat surprising, because at least four justices voted to take up the broad challenge to the copyright law last year.

The oral argument in October hinted at the outcome, however. Several justices said they were dismayed by what Congress has done, but they were not convinced it was unconstitutional.

Justices John Paul Stevens and Breyer filed long dissents.

Stevens called copyrights, like patents, a “monopoly privilege” that should not be extended.

“Retroactive extensions ... of copyrights result in a gratuitous transfer of wealth from the public to authors, publishers and their successors in interest,” he said.

Breyer said the nation as a whole will be poorer, not richer, by locking up hundreds of thousands of old works.

“The potential users of such works include not only movie buffs and aging jazz fans, but also historians, scholars, teachers, writers, artists, database operators and researchers of all kinds -- those who want to make the past accessible for their own use or that of others,” Breyer wrote.

Rather than opening up these creative works for use by a new generation, he wrote, the ruling condemns “the cultural content of early 20th century history to a kind of intellectual purgatory.”