[DMCA-Activists] USA Today: Justice O'Connor on Eldred

[Seth Johnson]

(Forwarded from DVD Discussion list.  Article text pasted
below.  -- Seth)

-------- Original Message --------
Date: Wed, 9 Oct 2002 10:35:56 -0700 (PDT)
From: Bryan Taylor <address@hidden>
To: address@hidden

"I can find a lot of fault with what Congress did," Justice
Sandra Day O'Connor said. "This flies directly in the face
of what the framers of the Constitution had in mind, but is
it unconstitutional?"

> http://www.usatoday.com/tech/news/techpolicy/2002-10-09-net-copyright_x.htm

I would tend to view the above as somewhat positive,
although clearly it doesn't shut the door. O'Connor is often
the swing vote on 5-4 decisions.

I'm really curious to hear what Scalia thought. As a
textualist, I would hope he would be able to see that
allowing one retro-active extension would also allow
repeated retro-active extensions which would allow unlimited
duration which is facially invalid.

----

> http://www.usatoday.com/tech/news/techpolicy/2002-10-09-net-copyright_x.htm

Supreme Court hears arguments in landmark copyright case

WASHINGTON (AP) — The Supreme Court debated Wednesday
whether Congress was wrong to block public access to Mickey
Mouse and other classics. 

In a case with appeal for many people, the court is
considering whether it was unconstitutional for Congress to
give writers and other creators a 20-year copyright
extension. Hanging in the balance are huge profits for
companies, like The Walt Disney Co. and AOL Time Warner,
which benefit from copyrights. 

Some justices seemed bothered by the retroactive extension,
enacted in 1998, which delayed the release of many old books
and movies. But they seemed equally concerned about their
standing to intervene. 

"I can find a lot of fault with what Congress did," Justice
Sandra Day O'Connor said. "This flies directly in the face
of what the framers of the Constitution had in mind, but is
it unconstitutional?" 

The extension protected some depictions of Disney's Mickey
Mouse, along with hundreds of thousands of books, movies and
songs that were about to be released into the public domain. 

"If this (extension) is permitted, then there is no limit,"
Stanford Law School professor Lawrence Lessig argued on
behalf of a New Hampshire Internet publisher who challenged
the law. 

Solicitor General Theodore Olson told justices that while
they may personally disagree with the law, Congress had
authority to pass it. "That is where the framers invested
the responsibility," he said. 

The court's eventual ruling will determine if the books, art
and music will become freely available over the Internet or
in digital libraries soon — and whether people could use
them without paying licensing fees. 

The Constitution allows Congress to give authors and
inventors the exclusive right to their works for a "limited"
time. The Supreme Court is considering if the latest
extension can apply retroactively. 

Congress has repeatedly lengthened the terms of copyrights
over the years. With the challenged 1998 extension, the
period is 70 years after the death of the creator. Works
owned by corporations are now protected for 95 years. 

The 20-year extension, included in the Sonny Bono Copyright
Term Extension Act, brought U.S. rules in line with those of
the European Union. It was supported by Disney and other
companies with lucrative copyrights. 

Hundreds of groups have filed arguments with the court in
this case, some supporting the Bush administration and
others on behalf of publisher Eric Eldred. 

AOL Time Warner said if the extension were struck down, it
would threaten copyrights for some of its movies, including
Casablanca, The Wizard of Oz and Gone With the Wind. 

Songs that would come into the public domain are Stardust,
Yes! We Have No Bananas, and Yes Sir! That's My Baby, the
Songwriters Guild of America told the court. 

The court's ruling will not affect trademarks, like the one
Disney has for Mickey Mouse. 

Erik S. Jaffe, a Washington attorney who filed a
friend-of-the-court brief, said Congress could keep
extending the copyright protection forever, even though
creators have been adequately paid for their inventions. 

"It's like the last mortgage note is to be paid, and the
bank says, 'No, you've got another 20 years,'" Jaffe said. 

Olson told the court in a filing that Congress has been
conservative with its extensions. 

The case is Eldred v. Ashcroft, 01-618.