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20-Year Extension of Existing Copyrights Is Upheld
NYT January 16, 2003
By LINDA GREENHOUSE

WASHINGTON, Jan. 15 - The Supreme Court today upheld the
20-year extension that Congress granted to all existing
copyrights in 1998, declaring that while the extension
might have been bad policy, it fell clearly within
Congress's constitutional authority.

The 7-to-2 decision came in the court's most closely
watched intellectual property case in years, one with
financial implications in the billions of dollars. A major
victory for the Hollywood studios and other big corporate
copyright holders that had lobbied strenuously for the
extension, the ruling had the effect of keeping the
original Mickey Mouse as well as other icons of mid-century
American culture from slipping into the public domain.

Justice Ruth Bader Ginsburg's majority opinion methodically
dissected and rejected the arguments that a coalition of
Internet publishers and other users of noncopyrighted
material had marshaled against the Copyright Term Extension
Act. The dissenters were Justices John Paul Stevens and
Stephen G. Breyer.

The named plaintiff in the case was Eric Eldred, who wanted
to publish some Robert Frost poems. Other plaintiffs
included a church choir director; an orchestral sheet music
company; a company that restores old films; and Dover
Publications, a publisher of books that have passed into
the public domain.

Organized by a Stanford Law School professor, Lawrence
Lessig, who argued the case before the court in October,
the plaintiffs did not attack the duration Congress chose
for new copyrights: the life of the creator plus 70 years
for individual works and 95 years from publication for
copyrights held by corporations.

Rather, they argued that retroactive application of the
20-year extension to existing copyrights was a giveaway
that violated the sense if not the literal words of the
Constitution's grant to Congress of authority to "promote
the progress of science" by issuing copyrights for "limited
times." Extending existing copyrights would not promote new
creativity, the plaintiffs argued, and a duration that is
virtually perpetual in effect violates the meaning of
"limited times."

But Justice Ginsburg said that history refuted the
plaintiffs' argument. Going back two centuries, she noted
that every time that Congress extended the duration of
copyrights, which began with a 14-year renewable term in
1790, it granted the new terms to existing copyrights as
well as to new works. This practice reflected a
Congressional judgment that all copyright holders should be
"governed evenhandedly under the same regime," Justice
Ginsburg said.

In any event, she said, "the wisdom of Congress's action,
however, is not within our province to second- guess"
because the Constitution itself gave Congress broad
discretion and the court only a very limited role in the
area of intellectual property.

"As we read the framers' instruction, the copyright clause
empowers Congress to determine the intellectual property
regimes that, over all, in that body's judgment, will serve
the ends of the clause," she said, adding, "We are not at
liberty to second-guess Congressional determinations and
policy judgments of this order, however debatable or
arguably unwise they may be."

Paying something of a back-handed compliment to the
plaintiffs, Justice Ginsburg said that "beneath the facade
of their inventive constitutional interpretation" they were
basically arguing that "Congress pursued very bad policy."

Justice Breyer spent much of a 29-page dissenting opinion
explaining how bad, in his view, the policy was. The
extension's "practical effect is not to promote, but to
inhibit, the progress of `science' - by which word the
framers meant learning or knowledge," he said. And while
the Constitution speaks of a grant of copyright to
"authors," he continued, the effect of the extension "is to
grant the extended term not to authors, but to their heirs,
estates or corporate successors."

Noting that the majority appeared to find the statute at
worst unwise, but not unconstitutional, he said: "Legal
distinctions, however, are often matters of degree, and in
this case the failings of degree are so serious that they
amount to failings of constitutional kind." He added, "I
cannot find any constitutionally legitimate,
copyright-related way in which the statute will benefit the
public."

Justice Stevens, in his dissenting opinion, called the
extension a windfall for current copyright owners. "Members
of the public were entitled to rely on a promised access to
copyrighted or patented works at the expiration of the
terms specified when the exclusive privileges were
granted," he said, while copyright holders have no reason
to complain if they do not receive more protection than
they were originally promised.

Justice Stevens said the decision left Congressional action
in the copyright area "for all intents and purposes
judicially unreviewable," adding, "That result cannot be
squared with the basic tenets of our constitutional
structure."

In quoting Chief Justice John Marshall's famous words from
the Marbury v. Madison decision in 1803 - "it is
emphatically the province and duty of the judicial
department to say what the law is" - Justice Stevens may
have been tweaking the majority in the series of federalism
cases in which he has been a consistent dissenter as the
court has invalidated numerous acts of Congress. Chief
Justice William H. Rehnquist and his allies in those
decisions have frequently quoted the line from the Marbury
decision as justification for the court's active role in
policing the federal-state boundary.

Professor Lessig himself cited the federalism cases last
year as part of his effort to persuade the court to hear
his appeal, Eldred v. Ashcroft, No. 01-618, after two lower
federal courts here had earlier rejected his attack on the
1998 law. The court should take the same skeptical stance
toward Congress's exercise of its copyright authority as it
has toward other congressional actions, he argued then.

Expressing his disappointment today, Professor Lessig said,
"The impossible thing is, How do people on that court
believe Congress's power is so constrained sign onto an
opinion that says Congress's power is not constrained?"

Jack Valenti, president of the Motion Picture Association
of America, said the ruling was "a victory for consumers
everywhere" because "copyright, whose aim it is to provide
incentive for the creation and preservation of creative
works, is in the public interest."

In her majority opinion, Justice Ginsburg insisted that the
proper stance for the court toward Congress in this context
was a deferential one. The law, formally known as the
Copyright Term Extension Act, "reflects judgments of a kind
Congress typically makes, judgments we cannot dismiss as
outside the legislature's domain," she said.

The court noted that the extended term made the United
States consistent with the copyright policy of the European
Union.

The plaintiffs had also challenged the law under the First
Amendment as a suppression of free expression, but the
majority rejected that argument as well. Copyright law
"contains built-in First Amendment accommodations," Justice
Ginsburg said, including the concept of "fair use" that
permits copyrighted material to be reproduced for
scholarship and other purposes.



In a web-exclusive column, Linda Greenhouse answers
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http://www.nytimes.com/2003/01/16/business/media/16BIZC.html