Supreme Court debates N.H. man's case

By Max Heuer

WASHINGTON, Oct. 09, 2002--Supreme Court Justice Sandra Day O'Connor said Wednesday that a 1998 law extending copyrights by 20 years was not sound policy, but she questioned whether the act was unconstitutional.

"I agree in terms of policy [that the law] flies in the face of what the framers had in mind," O'Connor said during oral arguments before the Court. "But does it make it unconstitutional?"

New Hampshire Internet publisher Eric Eldred's attorney presented the oral argument against the Sonny Bono Copyright Term Extension Act, which lengthened copyright terms from 50 years after the author's death to 70 years after.

While the Court's decision will have major consequences for media giants and other publishing companies that could stand to lose millions if deprived of important copyrights, the Court focused on whether Congress has exceeded its constitutional power to grant copyrights "for limited times."

The international community also has an important stake in the decision; the act has harmonized U.S. law with a European Union directive and avoided potential copyright discrepancies abroad.

Eldred's lawyer, Stanford University Law School professor Lawrence Lessig, argued that the act gave Congress more power than the Constitution had vested in the legislative branch. Lessig also argued that extending copyright terms violated First Amendment free-press rights.

Several justices pointed to past copyright extensions as precedents for the 1998 law and debated the validity of any First Amendment argument because of ambiguities in the case before it.

The case, Eldred et al v. Ashcroft, is the first time the Supreme Court has heard a challenge to Congress's power to extend copyright term limits, despite its long history of exercising the provision. Copyright protections, first granted in 1790, were extended in 1831, 1909 and 1976 as well as in 1998.

Justice Stephen Breyer said "chaos would ensue" if the 1998 extension was declared unconstitutional on grounds that would also make unconstitutional the 1976 law, which first extended the copyright protection to 50 years.

Justice Ruth Bader Ginsburg said there is no "clear line" in the First Amendment that determines who gets its benefits.

O'Connor questioned whether Lessig's two completely different arguments in opposing the 1998 law could be used at the same time.

"I don't think there are examples [where the] Framers seem to have adopted these two [arguments]," she said. "I think there are not examples where you examine [the case] under copyright law and if that doesn't work [use the] First Amendment."

Other Justices prodded U.S. Solicitor General Theodore Olson, who was defending the 1998 statute on the government's behalf, on whether the constitutional copyright laws were currently limiting anything.

Justice John Paul Stevens asked Olson if he thought the constitutional clause really imposed limitations on Congress at all.

The solicitor general said he didn't think "there were any substantive limitations" in the clause.

Breyer challenged the government's assertion that the act promotes creativity and artistic creation through added protection.

The Copyright Act of 1790 "originally was to encourage invention," Breyer said, asking Olson if the 1998 act served only to regulate dissemination.

"If we have to ask [whether the] most plausible [intent of the act is] to reward invested interest or stimulate new works… it's probably the former," O'Connor said.

"Limited time doesn't mean anything unless once [a time is set], that's that," Justice Antonin Scalia told Olson.

Olson responded that Congress has been extending copyright protections since the first law, in 1790. He said the precedent in the Supreme Court has been to uphold laws that have been "consistent and unchallenged for over a century."

"The issue is only whether once Congress [makes] a judgment it can change it," Olson said.

"I can find a lot of fault with what Congress did here, because it takes a lot of things out of the public domain," O'Connor said. "It's longer than one would think desirable, but is it not limited?"

Published in The Manchester Union Leader, in New Hampshire.