LA Times on the copyright case before the Supreme Court:
- The Supreme Court for the first time this week will take a
hard look at one of the most important powers in the original
Constitution, under which Congress “for limited times” can give authors,
inventors and other creators the exclusive right to their works.
How the court reads that phrase will decide who owns and controls the
films, books and songs that were created in the 1920s and 1930s.
“This is about the movies from the Golden Age of Hollywood, and the
beginnings of American popular music,” said Tyler T. Ochoa, a copyright
law expert at Whittier Law School. “There are literally billions of
dollars at stake here.”
This big-money Hollywood fight is not being waged by agents and
lobbyists. Instead, it involves historians and scholars of “intellectual
property” law. They say that Congress has lost sight of the original
purpose of the Constitution’s copyright clause.
“Their hope was that the government might help spur learning and
innovation,” said Stanford Law School professor Lawrence Lessig,
referring to the authors of the Constitution.
“Monopolies were to be allowed, but only ‘to promote progress’ … and
only for limited times,” he said in his brief to the court.
In the first copyright and patent acts, Congress in 1790 gave authors
and inventors a 14-year monopoly. After 14 years, living authors could
seek a 14-year extension of their copyrights, for a total of 28 years.
However, since the advent of the film industry in the 20th century,
Congress has extended the terms of copyrights repeatedly. In 1998,
Congress with little debate added 20 years to all copyrights. Now, works
created by groups of people, such as films, are protected for 95 years.
Copyrights for individual works, including books, extend for 70 years
after the author’s death.
As a result, books, magazines, poems, films and songs that appeared in
the 1920s remain under copyright protection, even if these works are
long forgotten and have no commercial value.
Between 1927 and 1931, 66,947 books were published in the United States.
Only 646 of them, fewer than 1%, remain in print, according to the
American Library Assn.
Internet archivists say they could make such material easily and freely
available. For example, the New Yorker magazine from its early days in
the 1920s could be revived for a new audience, but Internet publishers
say the extended copyrights block them from adding such material.
Until this year, it was assumed the proper term for copyrights was a
matter for Congress alone. After all, the Constitution says,
“The Congress shall have the power to … promote the progress of
science the useful arts, by securing for limited But under Chief
Justice William H. Rehnquist, the Supreme Court has cast a skeptical eye
at Congress. Rehnquist and his colleagues regularly repeat a line
written in 1803 by Chief Justice John Marshall in Marbury vs. Madison,
that the “powers of the legislature are defined and limited.” The
Rehnquist Court is happy to add the limits to Congress’ power when
lawmakers exceed them.
In recent years, for example, the justices have struck down federal laws
on gun possession and violence against women on the grounds that these
had nothing to do with the regulation of commerce. Congress can regulate
interstate commerce, Rehnquist said, but a sexual assault is not
In February, the court surprised copyright experts and entertainment
industry lawyers when it took up a broad challenge to Congress’ power to
extend copyrights. The challengers say this extension of copyrights for
older works does not promote progress. It simply enriches the heirs of
earlier creators. But film industry leaders and the families of famous
composers and authors have fought back, arguing that they have the
greatest commitment to reviving old works for today’s audience. Lawyers
for the Motion Picture Assn. of America point to the economics of
restoring old movies…..