Mouse Trap

by Jeffrey Rosen | October 28, 2002

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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