Over the past 200 years, copyright protection has been steadily strengthened by the legislature, but has largely avoided the scrutiny of the justice system. Last week, copyright's big day in court finally arrived, and it came out only slightly battered.
In the lawsuit seeking to overturn the 1998 law that extended the term of copyright by 20 years, to 70 years plus life of authors and 95 years plus life for corporations, it was the public domain and its advocate, Stanford law professor Lawrence Lessig, who faced the harshest questions in the Supreme Court. Justices queried Lessig about everything from the intellectual property "chaos" that could result from a repeal of the law to the wording of the Constitution. For the government, however, the proceeding was by no means a cakewalk—some of the justices seemed to think the extension's benefits to authors were negligible, and almost all didn't seem to care for the original decision to pass the law—but Congress, represented by Solicitor General Theodore Olson, was not in obvious peril of having its work overturned.
Lessig brought the case on behalf of Eric Eldred, a Web site operator who distributes public-domain books on the Internet, as well as what Lessig said was the public interest, arguing, as one economist did in an amicus brief, that the extension benefits copyright holders 99.8% and the public only 0.2%.
After the hearing ended, Lessig sounded confident as he talked to reporters on the Court's front steps. "They didn't ask us anything we hadn't answered a thousand times before," he said. But to anyone who heard what happened inside, he sounded overly hopeful.
Justices jumped on Lessig from the start. Justice Sandra Day O'Connor opened by asking, "Don't we run the risk of upsetting previous extensions?" Justice Anthony Kennedy said he "didn't see any empirical evidence" that the latest extension was silencing the public's right to free speech. (A key in Lessig's argument is that by extending the waiting period for works to enter the public domain, Congress has violated the First Amendment.) Even Justice Stephen Breyer, who later seemed dubious about the government's argument that this extension would promote creativity and and be an incentive to authors, thought the "chaos... would be horrendous" if the law was overturned. It would, he said, call the 1976 law that established the previous standard—and the very notion of copyright—into question. The justices directed fewer tough questions toward Olson.
Lessig argued that the constitutional clause allowing copyright for a "limited time" is rendered "meaningless" if Congress can extend it at will. He said that this, combined with the fact that the Internet and technology have turned the public domain into a greater wellspring for creative content, makes the latest extension unconstitutional. To support this last point, he said in an interview after the hearing, only half-ironically, "Disney is my big hero. They take material from the public domain and improve on it all the time." Disney was one of the major backers of the copyright extension.
Many of the justices appeared to think that Congress had indeed made a bad decision in 1998 and unnecessarily rewarded corporations at the expense of the public—but didn't seem to think that they had the constitutional leeway to do anything about it. Justice O'Connor captured the mood when she said, "One wonders what was in the mind of Congress," but added that the decision may not have violated the Constitution. Indeed, observers felt an overturn would be a startling upset.
Many of the justices did agree with Lessig that the extension gives no incentive to authors who have already completed their works. Justice Breyer went further, saying that he didn't think it would make a difference to contemporary authors either. He described as preposterous the idea that someone who had not considered writing a book with the 50-year term would decide that, because of the extension, he now would. "I mean, who are these people who are going to be moved by this incentive?" he asked.
