The U.S. Supreme Court last week announced that it would hear arguments in a suit challenging copyright extension, surprising many observers and putting publishers in a difficult position.
The case, Eldred v. Ashcroft, challenges the Sonny Bono Copyright Extension Act of 1998. That law extended copyright from life of author plus 50 years to life of author plus 70.
A coalition of publishers and Web sites, including the well-known reprint house Dover, is arguing that Congress did not have the authority to enact the extension. The plaintiffs, represented by intellectual property expert Lawrence Lessig, maintain that in an age of digital archiving, the extension violates free speech. They also say that it effectively renders the idea of copyright limits moot, and that it doesn't promote the "progress of science and useful arts" on which they say the justification for copyright stands.
The government has defended the law by saying that it is consistent with past copyright extensions and that overturning the limit could discourage content creators—that is, would impede the progress of science and useful arts.
The case provokes divided loyalties for the publishing community. On one hand, houses such as Simon & Schuster, which owns old copyrights like A Farewell to Arms and Tender Is the Night and would like to continue exploiting them, have been strong supporters of the law. On the other, public-domain presses and sites that make archived material available would hope to see the extension eliminated.
Publishing's internal conflict over the law is clearest in the case of the AAP. The group chose not to take a position on the legislation when it was first being drafted. It eventually filed an amicus brief in support of the government, but not, as AAP's Alan Adler explained, because it necessarily thought the law made good policy, but because the question before the court was whether Congress had a right to enact the extension in the first place. He reasoned that if the court finds that Congress didn't have the authority in this case, it could set a high standard that would limit it from enacting other laws to protect publishers in the future. "It raises a whole set of issues," said Adler. "That same argument can be used to challenge the Digital Millennium Copyright Act or legislation about electronic theft."
At the Author's Guild, officials are torn between sympathizing with the estates of authors that could benefit from an extra 20 years and the many historians and biographers who rely on material in the public domain to do their work. The Guild's Paul Aiken said his group is still formulating its position, and may file an amicus brief.
The Court's decision didn't just surprise the case's observers—it shocked the plaintiffs themselves. "To us, the case was an academic exercise. We didn't think it had a chance," admitted John Grafton, senior reprint editor at Dover. The Supreme Court will likely take up the matter in the fall.
