On Wednesday, October 9, the US Supreme Court heard oral arguments in Eldred v. Ashcroft, a fascinating case that could have important implications for the future of copyright law in this country.

In short, Congress has gotten in the habit of extending the term of copyrights – most recently in 1998, when it extended the term for another twenty years. Copyright owners got an additional twenty years to exploit their protected creations, as nothing can pass into the public domain until at least 2019.

The extension was granted because the copyright on Mickey Mouse was about to expire. Disney’s clout in Congress – and its lavish contributions – were the direct cause of the extension of the copyright law.

This was the eleventh extension of the copyright law, stretching the term of a copyright from its original 14 years to the current term in excess of a hundred years. It is clearly Congress’ intent to protect corporate copyright owners and never allow anything to pass into the public domain again – ever.

Lawrence Lessig, author of The Future Of Ideas, and others challenged the latest extension, arguing that copyright terms are limited by the US Constitution, and unlimited extensions are unconstitutional for several reasons. Here is an article that discusses the case background and the constitutional arguments.

The most important result for consumers is that granting extensions for ideas that have already been created means that nothing new will ever enter the public domain, and creativity based on existing works will be inhibited for no purpose other than enrichment of the Disney company and its like. Take a single example: there are thousands of books available for free download from the Internet. Here’s a list of places for downloads, and here’s a particularly good collection for PocketPCs and Palms. The direct result of the copyright extension is that there will be nothing added to those collections from the 20th Century. It’s just not right.

The challenge to the copyright extension lost in the trial court and in the appeal court – but the US Supreme Court agreed to review it, much to the surprise of many court watchers. Lawrence Lessig argued against the law last week. The newspaper reporting about the oral argument was shallow and inaccurate. Lessig has written his thoughts about the Supreme Court argument and the prospects for winning. It’s a fascinating read, especially for lawyers.

Share This