WASHINGTON -- The Supreme Court's decision on Wednesday to uphold a controversial law extending copyrights for 20 years came as a blow to public-domain advocates.
The 7-2 ruling (PDF) in Eldred v. Ashcroft gives Congress free reign to hand out copyright extensions as long as media companies are around to lobby for them -- all while rejecting most arguments brought by the plaintiffs to the contrary.
"Litigation is not the path anymore," acknowledged Joe Kraus, co-founder of DigitalConsumer.org, a consumer rights group that focuses on digital copyright issues. "The pressure needs to now turn toward our elected officials in Congress.... The domain just got taken off the table. Now all we have is fair use."
Plaintiffs had hoped to convince the court that the Copyright Term Extension Act of 1998 violated the Constitution's copyright clause, which allows granting of copyrights only for a "limited time." Congress' ability to infinitely extend copyright, they argued, effectively makes copyrights permanent and erodes fair-use rights under the First Amendment.
Eric Eldred, who publishes rare books online, filed the suit in January 1999 with a handful of other plaintiffs.
But media companies, which faced the prospect of losing control of early copyrighted works featuring iconic characters such as Mickey Mouse, had argued that they needed the extension to compete globally, exploit new technologies not envisioned when Congress last set copyright terms in 1976 and maintain incentives to restore old works.
"The question was, how many extensions are too much?" asked Robert Corn-Revere, a constitutional lawyer at the Washington firm Hogan & Hartson. "The seven-justice majority said that it was a question for Congress."
At the same time, he said the court found that the copyright clause "doesn't compel Congress to necessarily make the right decision."
Whitney Broussard, a music attorney and partner at Selverne, Mandelbaum & Mintz in New York City, said the court's message was more blunt: "The message is: 'If people are concerned with copyright issues, they need to address it through Congress. We're not going to protect people from themselves,'" he said.
Nonetheless, the court's opinion stated that citizens already enjoy "considerable latitude" for fair use of copyrighted materials.
Gigi Sohn, president of public interest advocacy group Public Knowledge, said the ruling could fuel fair-use debates over the Digital Millennium Copyright Act, digital-rights management systems and the regulatory mechanisms surrounding them.
"Some of the technological mandates being sought in Congress and at the FCC would put fair use in grave jeopardy," she said.
To counter some of those bills, Reps. Rick Boucher (D-Va.) and John Doolittle (R-Calif.), are pushing the Digital Media Consumers Rights Act, which would bolster many fair-use rights diluted by the DMCA.
Media interests don't seem worried.
Jack Valenti, president of the Motion Picture Association of America, said he was "pleased that the court reaffirmed the absolute authority of Congress to set copyright terms."
Broussard, however, noted that the decision could someday haunt copyright owners because it clarifies that Congress is the ultimate forum for copyright law. If Congress someday took away terms now enjoyed by copyright owners, he said, it might be more difficult to argue that it's an act of "taking away" under the Fifth Amendment.
"That seems to be the other edge of this decision," he said.
While the lobbying strength of media companies makes such prospects unlikely any time soon, the future balance of power may depend on the success of grassroots efforts.
"It's my hope that there's actually good to come out of this decision," said Kraus of DigitalConsumer.org. "It's a wake-up call. It's a rallying cry."
