Lawrence Lessig's creative and at times quixotic fight against the Sonny Bono copyright extension law suffered a fatal blow last week when the Supreme Court ruled 7—2 to uphold the law. As per the 1998 statute, copyright remains 70 years plus life of author for rights held by individuals and 95 years for corporations.
In practical publishing terms, the ruling allows for a range of work in a 20-year window to remain with the copyright-holder. In legal and philosophical terms, the ruling empowers and perhaps emboldens Congress to pass copyright laws and could be a cue to lower courts to rebuff challenges to the Digital Millennium Copyright Act, which is another important battlefield for those who think information should be free and those who believe in the broad rights of license-holders.
"Had this been 5—4 or even 6—3, there would have been a lot more ambiguity in what the court was saying," said Allan Adler of the AAP. "But this is a big victory."
The publishing community had been divided on the issues—traditional copyright-holders ran into conflict with publishers and authors who rely on the public domain—but the AAP supported the government because it felt an overturn could weaken Congress's right to legislate copyright law, a right sacred to the AAP.
With the unambiguously worded majority decision, court challenges to laws that strengthen copyright will likely become more tricky, even as the cry for such challenges from the digital-rights camp is likely to get louder. Some observers speculated after the decision that while an unfavorable Supreme Court ruling was unlikely to help the cause of those in Lessig's camp, the profile it raised among average citizens could have implications beyond the courtroom.
The majority opinion, from Justice Ruth Bader Ginsburg, acknowledged the risks in extending copyright repeatedly, but denied the Court's place to intervene in these decisions. "Congress has not altered the traditional contours of copyright protection," she wrote, thus, "further First Amendment scrutiny is unnecessary."
Justice Stephen Breyer, who expressed the most skepticism about the statute during oral arguments, wrote in his dissent that Congress had indeed crossed a constitutional line, and that it was well on its way to copyright-in- perpetuity. Justice John Paul Stevens, the other dissenter, agreed that the law disproportionately benefited copyright-holders at the expense of the public interest and without any clear benefit to the promotion of science and the useful arts. He wrote: "By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed by virtually ignoring the central purpose of the copyright-patent clause—the court has quitclaimed to Congress its principal responsibility in this area of the law."
