[DMCA-Activists] BW Online on Eldred vs. Ashcroft

[Seth Johnson]

Capsule snippet:

Lessig's strategy is both bold and fraught with risk. "What
the Supreme Court must answer is whether the intention of
copyright is to protect economic value or to promote science
and the arts," says Peter Jaszi, a professor of copyright
law at American University Law School.

> http://www.businessweek.com/technology/content/sep2002/tc20020927_7367.htm

A Case to Define the Digital Age

By Jane Black 
September 27, 2002


A Supreme Court ruling on a 20-year extension of copyright
protection could decide much of what Web surfers get to see,
hear, and share 

 
So far, there's little doubt who's winning the digital
copyright wars. In the courts, the Big Five record labels
have squashed Napster and copycat file-sharing services
Aimster and Audio Galaxy. On Capitol Hill, Hollywood has
launched a lobbying assault to pass two bills, one that
would mandate copyright protection in all new consumer
electronics and another that would permit copyright owners
to hack into consumers' personal computers if the copyright
holders suspect illegal activity. Their strategy is
straightforward: Follow our rules, or we destroy you. 

In theory, that could all change on Oct. 9, when the U.S.
Supreme Court will hear the case of Eldred v. Ashcroft. It's
a challenge to the controversial 1998 Sonny Bono Copyright
Term Extension Act (CTEA), which lengthened copyright terms
by 20 years, stretching them to 70 years after an artist's
death. 

KILLING FROST.  A Supreme Court ruling against the CTEA
would be the first major victory for digital-rights
activists, who want more books, music, and images to enter
the public domain. And it would be a grand defeat for
corporations, which claim they would forfeit billions in
lost revenues. 

The Eldred case is being portrayed as a battle between
greedy corporate interests and the little guys who want
information to be free. In reality, it's not quite that
simple. Eric Eldred, the lead plaintiff in the case, is a
New Hampshire computer administrator who posted
public-domain books online for high school students. His
plan to post a selection of Robert Frost poems in 1998 was
stymied when the CTEA prevented them from entering the
public domain. 

As is customary in a Supreme Court case, the nine justices
will be considering a narrower legal question. That issue is
whether Congress has the right to extend copyright law if
the change does not promote the "progress of science and
useful arts" as stated in Article 1, Section 8 of the U.S.
Constitution. 

DEAD MEN'S GOLD.  The challengers, led by Stanford
University cyberlaw guru Lawrence Lessig, argue that
Congress should tinker with copyright statutes only if the
change is aimed at promoting new creative works. Measures
like the CTEA, they claim, don't promote progress since
great artists, such as George Gershwin, whose work would
gain continued protection, are dead and no longer create new
works (see BW Online, 5/13/02, "Lessig: The 'Dinosaurs' are
Taking Over"). 

The government counters that the 1998 Act promotes the arts
by protecting their economic value, thereby fostering
greater incentives to create. Moreover, it contends that the
Constitution grants Congress, not the courts, the right to
make judgments about copyright. 

The case is a crucible, not only for the CTEA, but for all
future copyright laws. And Lessig's strategy is both bold
and fraught with risk. "What the Supreme Court must answer
is whether the intention of copyright is to protect economic
value or to promote science and the arts," says Peter Jaszi,
a professor of copyright law at American University Law
School. If the court overturns the law, it could call into
question a host of other unpopular laws, especially the
Digital Millennium Copyright Act. But if the law is upheld,
it will be a huge setback for digital-rights activists. 

"CULTURAL COMMONS."  Lessig & Co. says the 20-year extension
is a land grab by greedy corporations, especially Disney
(DIS ), which fear that they'll lose billions of dollars if
popular characters like Mickey Mouse enter the public
domain. According to Lessig, Congress has extended copyright
terms 11 times since 1962, each just as the copyright on the
first Mickey Mouse film, Steamboat Willie, was set to
expire. 

In fact, opponents of the law have taken to calling the
CTEA, the "Mickey Mouse Preservation Act." Without the
20-year extension, Steamboat Willie would have passed into
the public domain in 2003. What galls Lessig most about
Disney is what he perceives to be its hypocrisy. After all,
Disney built its empire by retelling other people's stories.
The Little Mermaid was written by Hans Christian Andersen.
Cinderella and Snow White are fairy tales by the Brothers
Grimm. 

"Disney could do this because [we had] a cultural commons,
where people could freely take and build [new works],"
Lessig told an enthusiastic audience on Aug. 15 -- his last
public appearance before hunkering down to prepare for his
Supreme Court arguments. "No one can do to Disney what Walt
Disney did to the Brothers Grimm. There is no such thing as
the public domain in the minds of those who have produced
these 11 extensions these last 40 years because, now,
culture is owned." 

ARISTOTLE'S COPYRIGHT?  The rise of the Internet makes such
incursions all the more threatening, according to Lessig.
That's because, technically speaking, every download is a
copy, which can be tracked and restricted by the copyright
holder. So while you can photocopy a chapter of author
George Eliot's 1873 novel Middlemarch and give it to a
friend, that's not true for newer file formats. 

For example, if you try to print or copy sections of
Middlemarch on an Adobe eBook Reader, you'll be informed
that Adobe allows users to copy only 10 sections every 10
days. Readers of Aristotle's Politics, which as far as
anyone knows was never copyrighted, aren't permitted to copy
or print any text. 

Defenders of the CTEA say threats to fair use are being
overblown. According to the government's brief, the
Constitution confers the right to make copyright law on
Congress, not the courts. And they rightly point out that
Lessig's oft-repeated claim that Congress extends copyright
terms willy-nilly is misleading. 

"FREE MICKEY MOUSE."  Nine of the 11 updates that Lessig
cites were short, interim extensions while Congress battled
from 1962 to 1976 about how to amend copyright. The
reasoning: It was unfair to deny an extension to works on
the cusp of entering the public domain because of
legislative bickering. 

Moreover, the CTEA's backers say, the question of whether
the law is good policy is entirely different from whether
its action is constitutional. When has it ever been illegal
for Congress to pass bad laws? In short, while the CTEA
opponents' rallying cry to "Free Mickey Mouse" is culturally
appealing, it's not the legal basis for a constitutional
challenge, says Scott Martin, vice-president for
intellectual property at Paramount Pictures and a former
professor of copyright at University of Southern California
Law School. 

In the end, the battle is much larger than Mickey Mouse.
"The real concern isn't that Mickey or Happy Birthday [enter
the public domain] but all the other stuff -- classical
music, little-known films -- that gets incidentally
restricted in order to protect a few valuable, perennial
works," says American University law professor Peter Jaszi.
This case is about what's fair game in the Digital Age. So
far, what's fair has been dictated by the entertainment
Goliaths. 


Black is a technology reporter for BusinessWeek Online in
New York
Edited by Beth Belton