Supreme Court Hears Copyright Challenge

No member of the Supreme Court had a good word to say today for the 1998 law that added 20 years to all existing copyrights. But that did not make the job any easier for Professor Lawrence Lessig of Stanford Law School, who faced an uphill battle to persuade the justices that the extension, which Congress adopted at the behest of the Walt Disney Company and other powerful corporate copyright holders, was not only bad policy but unconstitutional.

Hadn't Congress granted copyright extensions numerous times since the country's earliest years, the Justices wanted to know. Didn't this challenge to the latest extension necessarily call into question the validity of the major rewriting of federal copyright law in 1976? Wouldn't the result of accepting Professor Lessig's theory mean "chaos" in the world of intellectual property, Justice Stephen G. Breyer asked.

That was possible, Professor Lessig conceded

[New York Times: Technology]

All Eldred, All The Time The most complete coverage of today's Eldred hearing is at Copyfight, including an in-person account.

With due respect to this viewpoint, it seems that at least two rationales, the first being the harmonization with Europe argument, and the second being the fact that there have been previous copyright term extensions which would implicitly be unconstitutional if this one is, will likely provide the basis for upholding this term extension.

However the arguments Lessig provides now will likely make this the last term extension ever (Lessig and Hilary Rosen will be in their 60's, Jack Valeniti will be in his 100's, when Congress considers the issue again). [The Trademark Blog]

The mainstream press coverage of the Supreme Court hearing on the Eldred copyright term extension case illustrated here with a cnn.com piece.

The man whose only tool is a hammer sees nothing but nails and I see nothing but the trademark ramifications of copyright expiration. [The Trademark Blog]

It's the place where great ideas go to rest until somebody figures out a new way to use them. But strict copyright laws are making it harder for works to enter the public domain. By Brad King. [Wired News via The All Electric Media Weblog]

BBC: "The number of users taking advantage of illegal file-sharing on the net is on the rise, according to new figures from analyst firm Jupiter Media." Illegal? [Scripting News]

Editors of the Lawmeme blog who attended the Supreme Court Eldred hearing this morning have already blogged their first impressions of the arguments.

Justice Breyer was particularly hard on the government's position. He brought in a number of economic arguments. Basically, he made the point that the expected value of the extended copyright was so small as to be virtually zero. He also asked whether the governmen could re-copyright Ben Johnson. The government did not say "no." Justice Stevens appeared skeptical of the government's arguments. The government made much of the inequities of not providing retroactive and prospective extension together. Scalia questioned whether the inequities argument could be turned around. J. Breyer, in essence, answered "yes" by claiming that existing copyright owners get all the benefit and, inequitably, prospective copyright owners get very little benefit. . . .

I'm told that people started lining up for tickets to the Eldred hearing yesterday at suppertime; only 60 non-ticketed members of the public were admitted. Maybe they should move the Supreme Court to a football stadium. [Donna Via Boing Boing Blog]

Fencing Off the Public Domain. It's the place where great ideas go to rest until somebody figures out a new way to use them. But strict copyright laws are making it harder for works to enter the public domain. By Brad King. [Wired News] [The All Electric Media Weblog]

Congressman James Sensenbrenner was interviewed for NPR's story on the Eldred case, which is being argued in the US Supreme Court today. He explained one reason for Congress' extensive support for the Sonny Bono Copyright Extension law was a desire to make the term of United States copyright the same as European terms.

Sorry, but I'm not buying that. . . . even if the Bono act was passed to make the US laws "similar to European laws" it misses the constitutional point. Our Constitution says Congress can pass laws related to copyrights and patents to "promote the useful arts and sciences" but only for "limited terms." European countries, I gather, are not similarly constrained. …

[Ernie the Attorney]