Free Mickey Stanford Law Professor seeks to overturn the Sonny Bono Copyright Extension Act
Hal Plotkin, Special to SF Gate
Thursday, September 26, 2002
Opening arguments are set to begin early next month in Eldred vs. Ashcroft, a landmark U.S. Supreme Court case that will decide the future of copyright law, including how and when artists and writers can build upon the work of others.
At issue is the constitutionality of the Sonny Bono Copyright Term Extension Act, which was enacted in 1998 with strong support from Hollywood’s politically powerful studios. The law extended the length of copyrights for an additional 20 years (or more in certain cases) and gave new protections to corporations that own copyrights.
Opponents — which include dozens of the nation’s leading law professors, several library groups, 17 prominent economists, and a coalition of both liberal and conservative political action groups — say it serves no legitimate public purpose, violates the clear intentions of our nation’s founders regarding copyrights and is unconstitutional.
To heighten public awareness of the importance of the case an Internet bookmobile is set to depart San Francisco next Monday on a trip that will bring it to the steps of the Supreme Court building in Washington, D.C., before arguments wrap up. The van, which will be stopping at schools, libraries and senior centers along the way, is equipped to provide free high-speed access to thousands of literary and artistic works that are already in the public domain.
Tens of thousands of additional books would have come into the public domain (meaning their copyrights would have expired) over the next few years, but now they won’t thanks to the Sonny Bono law.
The U.S. Constitution states:
“The Congress shall have 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.”
So when Congress passed, and President Clinton signed, what turned out to be the latest of 11 consecutive extensions to the length of copyrights, it raised a very important question: Exactly what does the phrase “for limited times” mean?
It’s this long overdue question that is about to get a hearing before the high court, with Stanford Law School’s professor Larry Lessig, co-founder of Creative Commons and author of “The Future of Ideas,” representing the lead plaintiff in the case, Eric Eldred.
Eldred operates the Eldritch Press, which offers free online access to a staggering array of published material already in the public domain. Visitors to his site, which include students from around the world, can download everything from English translations of works by Russian writer Anton Chekhov to an early “Introduction to Zoology” written by the father of science in Great Britain, T. H. Huxley. Eldred is suing the federal government to obtain access to the material that would have come into the public domain were it not for the Sonny Bono Copyright Extension Act.
The public derives obvious benefits from sites such as Eldred’s. Further extending copyrights, on the other hand, enriches copyright owners but offers no discernable benefits to the rest of us. That lack of symmetry forms the heart of the case. The U.S. Constitution specifically prohibits Congress from limiting freedom of speech unless doing so serves a clear and important public purpose (preventing pranksters from yelling “fire” in a crowded theater is the classic example).
To be sure, writers and artists need and deserve continued copyright protection. But Eldred’s legions of backers maintain that the framers of our constitution never intended to extend that protection to the grandchildren of writers and artists. They add that it’s also pretty unlikely that struggling artists would decide not to create something today because their heirs 100 or more years in the future won’t be able to keep selling it.
What’s really happened, they say, is that corporations that outlive artists and creators have won legal protections that are hurting everyone else.
The original decision made more than 200 years ago to limit the length of copyrights was deliberate and carefully considered. The goal, which was expressed at the time in letters written by Thomas Jefferson and others, was to allow newcomers to build on and improve works produced by others, but only after the original creators of those works were compensated fairly for their efforts. The reason: Human progress builds upon itself.
Take, for example, the invention of the wheel. It led to countless other innovations: gears, flywheels, wheelbarrows, bicycles and cars, to name just a few. Although the wheel was an invention, copyrighted literary and artistic works hold the same potential for creating derivative works that benefit the public. In the time since Frances Hodgson Burnett’s classic children’s book “The Secret Garden” entered the public domain in 1986, for example, it has, among other products, spawned a movie, a musical, a cabaret adaptation, a made-for-TV movie, a cookbook, a CD-ROM, a second musical adaptation, a stage play, a radio program, a reader’s guide and a video, according to a list compiled by Arizona State University law professor Dennis Karjala. And that’s just one public domain property.
Little if any of the creative and economic activity those productions unleashed would have taken place if artists, writers and producers were not free to use, embellish and improve upon the original.
So then, if the public domain is such a good thing, what led to the latest extension in the length of copyrights?
In two words: Mickey Mouse.
In the late 1990s The Disney Corporation was panicked because the copyright on its famous rodent was about to expire. So Disney assembled a group of heavy hitters in the entertainment industry, including Time Warner, DreamWorks SKG, the Recording Industry Association of America and Sony Corporation, which poured more than $6 million into congressional campaign coffers. Congress returned the favor by passing the new law, which it absurdly named after the pop-singer ex-Cher-partner-turned-politician who had just died after crashing into a tree while skiing stoned on Vicodin and Valium.
What makes this sorry tale even more ironic is that the Disney Corporation’s fortune was itself built largely from commercially successful animated reproductions of free public domain works from the 19th century, including Alice in Wonderland, Snow White and the Seven Dwarfs, Pinocchio, Cinderella, The Hunchback of Notre Dame, and The Jungle Book. So what we have is a company that got rich off the works of others that now doesn’t want to let anyone else play by those same rules.
Unfortunately, when it comes to copyrights, changing the rules is par for the course.
In 1790, when copyrights were first enacted, they lasted 14 years and could be extended for 14 more if the writer was still living. The latest extension, in 1998, boosted that term by 20 additional years for works copyrighted after January 1, 1923, while works produced by individuals after 1978 got copyrights for the life of the author plus 70 years (up from the previous 50). Meanwhile, intellectual properties made by or for corporations were given 95 years of protection.
Based on actuarial tables, that means a new work produced today by a 25-year-old would not fall into the public domain until about 2127 (80-year life expectancy, plus an additional 70 years).
What’s even more mind-boggling is to think about what might have happened if this same law had been in effect during the last century. How many good ideas that we now take for granted would not have been developed, how many shows would never have opened, how much recent social, artistic, literary and scientific progress would not have occurred?
To take it a step further, just imagine if the idea was extended to patents as well, as some have suggested. Humanity would have had to wait an additional century or longer for the advent of commercial television because it was based, in part, on ideas originally developed for radio. Likewise, airplanes might still be on the drawing board, held back in development because some inventor’s grandchild tied up access to an essential component they had no role in creating.
The argument that professor Lessig will be making next month is that what is at risk is nothing less than society’s right, embodied in our constitution, to continue to develop and grow by building upon the works of previous generations.
Regrettably, Congress has repeatedly shown that it is willing to erode those rights in exchange for campaign contributions.
Now, it’s up to the Supreme Court. Let’s hope that at least five of the justices have taken time to read the constitution they are sworn to uphold.
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