[DMCA-Activists] Eldred: Online Challenges to CTEA

[Seth Johnson]

(Citation from CyberTelecom Newsletter.  -- Seth)

> http://siliconvalley.internet.com/news/article.php/1478821 


Online Challenges to Copyright Extension Law 

By Gretchen Hyman 
October 8, 2002


The U.S. Supreme Court will hear arguments Wednesday in the
case of Eldred v. Ashcroft which will ultimately determine
whether to overturn the Sony Bono Copyright Term Extension
Act (CTEA). 

The 1998 law gave many large media companies like AOL Time
Warner (Quote, Company Info, News), The Walt Disney Co.
(Quote, Company Info, News), and the Motion Picture
Association of America (MPAA) a 20-year extension on
profitable, world-famous media properties. 

Members of the MPAA, which include Sony (Quote, Company
Info, News), Disney, MGM, and Paramount, produce and
distribute approximately 90 percent of filmed entertainment,
television, and home videos in the U.S. 

Each MPAA member owns thousands of copyrights, according to
the MPAA. 

The U.S. Constitution grants Congress the power to create a
federal copyright system and to "promote the progress of
science and useful arts" by securing for "limited times"
copyright protection to authors and inventors. 

The MPAA's argument is that the CTEA encourages the
preservation and restoration of older works that might
otherwise be lost, notably older films such as the classics
of Hollywood's golden age, and brings the U.S. copyright
term more in line with the term in European Union countries. 

"The CTEA keeps creators and copyright owners in this nation
on even footing with their counterparts in other parts of
the world and provides incentives for the creation of new
works and the continued preservation and restoration of
older ones," said Jack Valenti, president and CEO of the
MPAA. 

Over the past forty years, Congress has extended the length
of existing copyrights 11 times, and many advocates against
the CTEA argue that Congress has acted in favor of corporate
interests by stopping the flow of creative material into the
public domain as original copyright law deemed they should. 

One of the questions at issue is whether Congress acted
unconstitutionally in granting extended copyright protection
and keeping famous properties like early Mickey Mouse
cartoons, the movie "Gone with the Wind," and books by
Tennessee Williams and Ernest Hemingway out of the hands of
the public and in the hands of media monopolies. 

Additionally, the Supreme Court will have to construe the
meaning of "limited times" and whether the 1998 copyright
extension law violates the copyright clause of the
Constitution. 

Eldred v. Ashcroft also asks whether the current copyright
term violates free speech rights provided by the First
Amendment by delaying the time until works are in the public
domain, essentially making many copyrighted works under the
Copyright Extension Law "perpetually owned, privately." 

"On the one hand, everyone agrees that congress should be
able to generate copyright law, but they should not be
allowed to give copyright an extended layaway plan that
works indefinitely under the auspice of 'limited times,'"
said Fred von Lohmann of the Electronic Frontier Foundation,
a San Francisco-based civil liberties advocacy organization.

The lead plaintiff in the case is Internet publisher Eric
Eldred who argues that the copyright extension act was put
in motion by powerful media conglomerates that are unwilling
to part with intellectual property which has served, in some
cases like AOL Time Warner and Disney, as the foundation of
their companies. 

"The biggest supporters of these laws are individuals and
corporations with extremely valuable copyrights that are
about to expire (for example, Mickey Mouse)," states the
Eldred contingency. "The biggest effect of these laws is to
make unavailable an extraordinary range of creative material
for next generation's creators." 

Eldred, who is represented by lead attorney Lawrence Lessig,
a Stanford Law School professor and leading opponent to
extended copyright law, is owner of Eldritch Press which
publishes public domain American, French, Russian, and
English literature online. 

Other plaintiffs in the case include the Higginson Book
Company, Jill A Crandall, Luck's Music Library, the American
Film Heritage Association, Moviecraft Inc., and Dover
Publications, Inc. 

The issue is also intensified by the advent of digital media
and the Internet, which now serves at the forefront of free
speech and free exchange. 

Eldred and his supporters, who have filed dozens of
friend-of-the-court briefs, feel that public domain material
serves as the foundation and inspiration for future
generations of creative minds. 

Eldred is an advocate of public domain and is one of the
founders, along with Lessig, of the Creative Commons, the
brainchild of a group of Stanford University law and
technology scholars from the Berkman Center for Internet &
Society at Harvard Law School who think copyright laws are
getting too restrictive. 

Creative Commons is a nonprofit, copyright free zone where
artists in search of free creative material can search for
public domain or donated creative material that won't get
them a Cease-and-Desist order in their mailbox the next day. 

"The important thing is that with the rise of the Internet,
the public domain has become more useful and needed than
ever before," said von Lohmann. "For the first time we live
in a moment where everyone has the potential to have cheap
access to the public domain. Getting access to public domain
works is as easy as one click on the Internet." 

But many works are being held back, said von Lohmann, under
the umbrella of those works that still generate revenue for
media companies and copyright holders, which according to
von Lohmann, only account for one percent of copyrighted
works in existence today. 

"Many of those works are not even being published anymore,
and there is a good chance those works will be lost forever
just to protect profits," said von Lohmann. "It's an
incredibly bad deal for the public." 

The Eldred case contends that there are only a few valuable
copyrights that the CTEA protects. 

"This case is about freeing the vast majority of creative
work still under copyright that no one seeks to protect,
indeed, work which the current copyright owner doesn't even
know he or she owns," the plaintiffs state. "Many films from
the 1920s and 1930s are decaying in vaults because current
copyright holders cannot be identified. Many books and songs
published in the early part of the century are unavailable
because the cost of finding the copyright owner is just too
high. Congress sacrificed all these works, just to protect a
few valuable copyrights." 

In a brief amicus filed in the Supreme Court in August, the
MPAA contends that petitioner's arguments against the
extended copyright law are both "doctrinally and empirically
ill-founded." 

"We are confident that the Supreme Court of the United
States will recognize and apply the unambiguous language of
the Copyright Clause, which gives power to Congress to make
judgments about copyright terms," said Valenti. "The CTEA is
a law that is in all of Americas interest, both as an
incentive to invest and create and also as an engine to
drive our nation to even grander creative heights." 

Wednesday's hearing marks only part of a very long journey
for Eldred and Lessig who sued Attorney General Janet Reno
in 1999 over the same challenges to the CTEA. The suit was
overturned and then revisited in May 2002.