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Wednesday, January 15, 2003

The Mouse That Roared

Today the US Supreme Court in Eldred v. Ashcroft handed down a 7-2 ruling in favor of the constitutionality of the Disney Giveaway…er…Sonny Bono Copyright Extension Act of 1998. You can also read this Washington Post article on the subject.

What this means for Mickey Mouse is that he’s still going to be copyright protected for 20 more years – at least. (He could still be protected by trademark if his copyright ran out, but that’s a whole other story.) Since the first appearance of Mickey Mouse as a character, in 1928’s Steamboat Willie, was due to expire this year until Congress stepped in back in 1998 to extend the copyright term an additional 20 years.

I wrote about this case in October and my mind hasn’t changed. I’m disappointed by the ruling but not surprised by it in the least. I was slightly surprised, however, that the blogging community mostly seems to agree with my slant on the case, even people who don’t normally agree with me on much.

As I had written in October, the First Amendment arguments petitioners made went nowhere. The majority dismissed them out of hand, and the two dissenting opinions did not address any First Amendment-related claim.

A footnote in the opinion makes reference to the recognition that, yes, perpetual copyright would be unconstitutional, and the legislative history suggests that decision makers in Congress were aware of such constitutional limitations. Of course Congress is generally not going to pass something that is obviously unconstitutional on its face. If you were a lobbyist for Disney or AOL, or a sympathetic Congressman, would you propose something you know would get struck down? Of course not. But the majority predictably gave no hints as to what a de facto perpetual copyright might look like, or even if one could exist at all. Could Congress extend the copyright term another 20 years? Another 50 years? How about a million years? Others suggested that an extra 20 years would be “a good start.” Is it the case that Congress can extend the term as far into the future as it can contemplate, just as long as it doesn’t make the mistake of using “perpetual” or “permanent” or some similar magic word anywhere in a copyright extension statute?

Heck, there is at least some legislative history that suggests that perpetual copyright is exactly what Congress intended. The man for whom this latest extension is named, the late Sonny Bono, wanted the copyright term to last forever. Another Southern California Congressman with ties to the entertainment industry, Howard Berman, suggested a “permanent moratorium” on copyright expiration.

There is some indication that the majority found increasing the harmonization of American copyright law with that in Europe to provide a sufficient “rational basis” for the law. This of course doesn’t provide much guidance for what to look for with regards to future changes to copyright term, either prospectively or retroactively. This is not unusual behavior for the Supreme Court, especially since any “bright line” rule in this case would smack of “judicial activism.” But there’s nothing in here that suggests they would pay any attention to the basis of any future statutes along these lines. (On the other hand, looking on the bright side, there’s nothing here that would serve as iron-clad precedent against judicial review the next time Congress gives away another chunk of the public domain in exchange for campaign money from the entertainment industry.)

The key phrase of the enabling constitutional clause “to promote science and the useful arts” that expresses the purpose for intellectual property protection is important to keep in mind. The majority seems to regard it as little better than surplus verbiage. On the other hand, Justice Stevens duly notes that “ex post facto extensions of copyright result in a gratuitous transfer of wealth to authors, publishers, and their successors in interest” that could not possibly have any effect on the incentive to create what has already been created. In short, they are getting something for nothing. Justice Stevens also made the argument that a retroactive copyright extension affects the rights of parties contracting to trade in public domain materials by in effect snatching material due to enter the public domain and handing it back to copyright holders without any consideration.

The majority argued that it made more sense not to “punish” an author for having sold a work a week too soon (i.e. a week before the extension was passed) and that Congress had regularly granted retroactive copyright extensions every time it amended copyright laws. This argument would carry more weight if copyright law weren’t already written in such a way that no author would ever live to see his or her work pass into the public domain. If there is any “punishment” related to timing, it’s minimal at best. And, of course, “we’ve always done it” is not necessarily dispositive, as the dissenters pointed out by citing INS v. Chadha.

I spent a good deal of time on the political science angle of this debate in my previous essay, and while analyzing a court decision is a different matter, I took note of something. Justice Stevens remarked that “only one year’s worth of creative work, that copyrighted in 1923, has fallen into the public domain during the last 80 years.” The majority opinion approvingly quotes language saying “it is not our role to alter the delicate balance Congress has labored to achieve,” but I don’t detect much balance here. I see only one extension after another. No one’s standing up for the public interest here.

There are certainly worse injustices that have befallen our nation.

However, there are consequences. Our schools and libraries will be deprived of valuable educational and cultural resources. This decision will mean no new songs for youth or community orchestras or church choirs to perform without having to track down and pay off an entity that has monopoly power over their distribution and reproduction. This will mean no new plays for school or community theater groups to put on without having to track down and pay off an entity that has monopoly power over their distribution and reproduction. This entity isn’t going to be the author, and probably isn’t the author’s children either.

Furthermore, as Justice Breyer notes, “the older the work, the less its likely commercial value,” and the more trouble people will have to go through to find the copyright holder. Works old enough to be protected only by virtue of the 1998 extension dates from the 1920s and 1930s, and the vast majority of it lacks commercial value. Wouldn’t it be better if anyone could take the initiative with regards to bringing a long-forgotten book, photograph, song, or film back from the dead, rather than reserving that power to one entity alone? (You could make the opposite argument, I suppose, but if the work in question has vanished from the public eye, what good does it do to allow the holder who has allowed it to vanish thusly to be able to sit on it another 20 years?)

It’s not that I don’t recognize the value of protection of intellectual property. However, American law has always been suspicious of monopoly power. Common law dating before America was even founded feared “dead hand” control of property. (In a line of reasoning that will amuse only law students and lawyers, Justice Breyer suggests that Congress has created a system of copyright that, if applied to real property, would violate the infamous “rule against perpetuities.”) I don't see any reason to change those fundamental principles of law, and I fear they are threatened here.

As always, there’s lots of stuff on this case at How Appealing, Howard Bashman’s blog dedicated to appellate litigation. Whenever a decision is handed down anywhere, you can count on his site to have lots of stuff about it. Thanks to my friend Edmund, for giving me the heads up on this decision. I’m sure you won’t need to look far in cyberspace for a discussion of it.


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