The New Republic

Imagine this: while interviewing students for a documentary about
inner-city schools, a filmmaker accidentally captures a television
playing in the background, in which you can just make out three
seconds of an episode of "The Little Rascals." He can't include the
interview in his film unless he gets permission from the copyright
holder to use the three seconds of TV footage. After dozens of
phone calls to The Hal Roach Studio, he is passed along to a
company lawyer who tells him that he can include the fleeting
glimpse of Alfalfa in his nonprofit film, but only if he's willing
to pay $25,000. He can't, and so he cuts the entire scene.Today every American who wants to use copyrighted material on his or
her personal website--even in passing--is in the same position as
the documentary filmmaker. And if the Supreme Court upholds the
Copyright Term Extension Act of 1998, or the CTEA, these
restrictions on free speech on the Internet will continue for
decades to come. The act extended the copyright term for original
works by 20 years--from the life of the author plus 50 years to the
life of the author plus 70 years. This makes a vast number of
films, photographs, and books from the 1920s and 1930s unavailable
to the public for another generation. And this dramatic
constriction of the public domain comes at a time when the Internet
is making possible an explosion of creativity, as digital archives
put film clips, MP3 files, and text on the Web. The Internet
converts every reader into a potential publisher, enabling
scholars, historians, or interested amateurs to put together
innovative presentations about, for example, the politics and
culture of the New Deal using clips of FDR and Woody Guthrie. If
the CTEA remains in place, however, none of these clips can be
posted unless their copyrights are cleared--an impossibility for
the average Internet publisher, given the prohibitive expenses of
tracking down each of the original copyright holders. The CTEA also
prevents scholars from quoting works from the '20s and '30s on the
Web because of the difficulty in obtaining permission. "If we lose,
the burden on creating and restructuring content on the Internet
will be extremely high for another generation," Stanford Law
School's Lawrence Lessig told me after arguing the copyright case
before the Supreme Court last week.

During oral arguments the Supreme Court seemed to understand that
the CTEA was a naked giveaway to the heirs of Walt Disney, who had
persuaded Congress to extend copyright terms for their own private
benefit. In 1998, after heavy lobbying by the Walt Disney
Company--which feared the imminent return of Mickey Mouse and other
copyrighted Disney icons to the public domain and with it the loss
of lucrative licensing fees--Congress extended the copyright term
for an additional 20 years. That's bad enough on its face. But
before the Supreme Court, Lessig argued that upholding the CTEA
would grant Congress the power to pass future retroactive copyright
extensions to benefit wealthy special interests--making it possible
for Disney's copyrights to be extended and re- extended
perpetually. This, he argued, violates the plain language of the
copyright clause of the Constitution, which grants Congress the
power "to promote the Progress of Science" by securing authors the
exclusive rights to their writings "for limited Times."

But although they recognized it as a bad law, Chief Justice William
Rehnquist and his colleagues expressed skepticism about the
constitutional basis for striking down this flamboyant piece of
special interest legislation. "We've said there was a general
grant" of power to Congress "and that Congress was free to run with
it in many respects," Rehnquist told Lessig in an uncharacteristic
burst of deference to Congress. In fact, the constitutional
arguments against the CTEA are the same ones Rehnquist has made the
centerpiece of his judicial legacy: that the Constitution grants
Congress limited powers, which may only be exercised for carefully
enumerated purposes. Seen in this light, the case for striking down
the CTEA is actually stronger than the case for striking down the
Violence Against Women Act, the Brady Bill, the Gun-Free School
Zones Act, and other federal laws that Rehnquist and his
conservative colleagues have held exceed Congress's enumerated
powers. If the Court upholds the CTEA while continuing to strike
down far less objectionable statutes in the name of limited federal
government, Rehnquist's crusade to limit Congress's power will be
clearly revealed to be based not on devotion to constitutional text
and history but on the political and economic interests that a given
law serves.

Lessig (who is my friend and has written for this magazine) argues
that the copyright clause, as originally understood, authorized
Congress to grant an exclusive monopoly to authors and writers for
a specific purpose: to promote creativity. The terms must be
limited, the framers insisted, because they recognized that
perpetual monopolies over creative works could inhibit creativity
by preventing works from entering the public domain. (In contrast
to today's life-plus-70-years copyright term, the original term in
1790 granted copyrights for only 14 years with the possibility of
one optional 14-year extension.) At the Supreme Court argument, the
justices seemed to agree that the CTEA will almost certainly
inhibit far more creative speech than it promotes. By definition,
as Justice Sandra Day O'Connor recognized, a retrospective
copyright extension such as the CTEAcan't encourage the creation of
new works since it applies to works already in existence. And a
prospective copyright extension that adds 20 years--long after the
death of the author-- adds only the most remote additional
incentive for him to create during his lifetime: As Justice Stephen
Breyer noted, for an 80-year-old composer like Verdi, the
prospective of a few more pennies in royalties "an extra twenty
years way down the pike" won't make a noticeable difference in
spurring him on to finish Otello.

In Congress, defenders of the CTEA came up with only one argument
for how the act might promote creativity. They testified that the
act could encourage major studios to digitize hit films from the
'20s and '30s by extending their economic value. But this argument
is not convincing. As the head of The Hal Roach Studio--the leading
restorer of Laurel and Hardy and other films from the '20s and
'30s--argued in a principled brief that clashed with his financial
interests, the CTEA extends the copyright for 19,000 films made
between 1923 and 1942. Of these, only 5,000 continue to earn
royalties, which means that the remaining 14,000 have little
economic value but are of great historical interest. Many of these
are "orphan" films whose copyright holders are very difficult to
track down today. The CTEA makes restorations of such films
economically prohibitive by requiring nonprofit restorers to hire
private detectives to track down the lost copyright holders for the
music, the credits, and so forth. As a result, the orphan films
will continue to rot unwatched in the Library of Congress. And even
if the CTEA actually did increase the incentive to restore these
films, as Congress unconvincingly concluded, the preservation of
14,000 films hardly justifies the removal of more than 400,000
other creative works--books, poems, songs, and photographs--from the
public domain.

In the hope of appealing to the conservative justices, Lessig argued
that the text and original understanding of the copyright clause
suggest that the CTEA is exactly the kind of special interest
monopoly the framers of the Constitution meant to prohibit. The
framers wanted to forbid the practice of sixteenth- and
seventeenth-century English monarchs, who granted indefinite
publishing monopolies to court favorites not to publish new works
but to print existing classics--such as Shakespeare and
Milton--that had long been enjoyed by the public. Like the Disney
act, this raw political patronage suppressed speech that should be
in the public domain. Parliament broke up these monopolies in 1710
by imposing term limits on copyrights; when the Constitution was
drafted, the framers looked to the English example in specifying
that copyrights could only be granted "for limited Times."

But far from being persuaded by Lessig's argument, Chief Justice
Rehnquist suggested it was unprecedented. "Every morning," Lessig
recalls, "I wake up with an image of the Chief Justice in my head
saying, `Well, counsel, maybe the fact that nobody raised this
question for one hundred fifty years indicates that there is no
issue here.'" But there are, Lessig notes, several reasons that no
one has challenged retrospective copyright extensions in the past.
In the eighteenth century "exclusive rights" in intellectual
property meant only the right to print and publish. Today, by
contrast, thanks to a vast expansion of copyright protections in
1976, a single copyright includes the right to control derivative
works, public performances, and display rights. When copyright only
regulated commercial publishers, there was no reason to object to a
retrospective copyright extension because publishers, on balance,
benefited from the extension more than they were harmed by it. By
contrast, in the Internet age, every citizen is a potential
publisher, and every publication on the Internet runs the risk of
clashing with the tangle of rights that copyright law now protects.
Today, a retrospective copyright extension benefits a handful of
commercial publishers who hold the most valuable copyrights--such
as Disney and AOL--but it harms the millions of citizens, scholars,
librarians, and students who want to use historical material in
ways that aren't commercially viable.

Another reason that nobody "raised this question" until now is
Rehnquist's own judicial legacy. From the New Deal until 1995, the
Supreme Court almost never struck down an act of Congress as
exceeding Congress's constitutional powers. But beginning in 1995,
thanks to Rehnquist's vision of limited federal government, the
Supreme Court has dramatically switched course, striking down as
many as 26 laws for exceeding Congress's enumerated powers. Many of
these opinions were written by Rehnquist, such as the case in 1995
where he said that Congress had no power to pass the Gun-Free
School Zones Act because it didn't "substantially affect"
interstate commerce. In this and other opinions, Rehnquist was
openly contemptuous of the very claim that the government is now
pressing in the CTEA case: that Congress should have broad
discretion to decide the limits of its own power.

Taking Rehnquist at his word, Lessig argues that the case against
the CTEA is far more powerful than the case for invalidating the
Gun-Free School Zones Act or the Violence Against Women Act. The
reason the Supreme Court got out of the business of striking down
acts of Congress in the mid-twentieth century was that it presumed
that economic interests could ordinarily fend for themselves in the
political process. And there is no claim that champions of gun
rights or opponents of federalizing state criminal law can't defend
their own interests in Congress. But there is an undeniable case
that the public interest isn't adequately represented in the
political process when rich donors like Disney lobby Congress to
milk their own copyrights for as long as possible. The CTEA is
precisely the kind of special interest monopoly that judges
throughout American history have invalidated as favoring private
interests over the public interest.

By the same token, liberal justices such as Breyer and David Souter,
who are ordinarily (and properly) skeptical of imposing limits on
Congress's power, could vote to strike down the CTEA while
continuing to object to the Court's decision to strike down federal
laws under the commerce clause. The commerce clause of the
Constitution has no explicit limits at all--it gives Congress the
power to "regulate Commerce ... among the several States"--while the
copyright clause has explicit limitations: It gives Congress the
power to grant exclusive rights "for limited Times" for the purpose
of promoting creativity. Breyer and Souter could write an opinion
saying that the Court should only enforce limits on Congress's
power when the Constitution is explicit about those limits, as in
this case.

Decades from now Rehnquist and his conservative colleagues will be
remembered above all for their decisions restricting Congress's
power. These decisions have been legitimately criticized for being
based more on an abstract devotion to states' rights than on the
text and history of the Constitution. Now the Court has before it a
law that is constitutionally offensive on every level: It clashes
with the explicit limits on Congress's power set out in the text
and original understanding of the copyright clause, it represents a
naked transfer of wealth to a handful of greedy heirs of
pop-culture icons from the '20s, and it threatens to constrict
public domain on the Internet for generations to come. If the Court
sets limits on Congress's power in the context of commerce but not
in the context of copyright, the only difference would be one of
political perspective. If there ever were a case in which it makes
sense to hope that the conservatives are true to their purported
strict constructionist principles, this is it.

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