Copyright and the Court’s Right

This week, the Supreme Court will listen to oral arguments in Eldred v Ashcroft. I don’t blame you if you haven’t heard about it; the case has not been publicized much outside the tech press. Nonetheless it’s a landmark case that will decide the future of intellectual property. Most notably it will decide whether Mickey Mouse will remain the exclusive property of the Disney Corporation, or whether that happy rodent’s snout will appear–royalty free–on the walls of every daycare center in the world. It will also be very interesting to see how the conservatives on the Court will vote, especially Antonin Scalia and Clarence Thomas.

The Constitution grants Congress the power, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Right after the Constitution was ratified, “limited Times” for copyright was set at 14 years. If an author was still alive after that period, he could get another 14 years, and that was it. After that your work would fall into the public domain and could be reprinted freely by anyone.

This isn’t as strange a concept as it may sound. Today, if you get a copy of a Shakespeare play off the Internet, and then produce it in your community theater, you wouldn’t expect to have to pay a penny in royalties to Shakespeare’s descendants. The founders–especially Thomas Jefferson–were wary of monopoly grants. Before the Statute of Anne in 1710, the British crown could grant a particular printer the copyright on, say, the Bible. Only that printer, could publish the Bible, and if you wanted a copy you had to pay his price.

Jefferson also believed that you couldn’t exclude people from having and expressing the same ideas as you–especially once you had published those ideas. He famously wrote, “He who receives an idea from me receives [it] without lessening [me], as he who lights his [candle] at mine receives light without darkening me.” But Jefferson, like the other founders, knew that material rewards fueled artistic creation. They therefore sought to encourage creation by giving Congress the power to grant a time-limited monopoly to creators.

This is why the Constitution’s Copyright Clause is one of the few that in granting Congress a power also limits the end to which that power can be employed. That is, only “to promote the Progress of Science” does Congress have the power to grant copyright “for limited Times.”

Unfortunately, Congress has ignored the limitation to its copyright power by continuously extending the term of copyright from the original 14 years to the present term of “life of the author plus 70 years.” The Sonny Bono Copyright Term Extension Act of 1998 is the latest of 11 consecutive congressional measures to expand “limited Times.” It is also the law that’s being challenged in Eldred.

We have the Disney Corporation to thank in large part for this law. In the late 1990′s, Disney panicked at the prospect of its flagship character, Mickey Mouse, falling into the public domain. With the help of the entertainment industry lobby–which handed out more than $6 million in campaign donations that year–Disney was able to keep its mouse caged. The Sonny Bono Act retroactively extended copyright for another 20 years.

The key word is retroactively. A term extension for all future works wouldn’t have done Disney much good–it had to reach back and cover Mickey. So, unlike previous term extensions, the Sonny Bono act also grandfathered-in existing works. Ernest Hemingway’s “Three Stories and 10 Poems” was about to enter the public domain, but now won’t until 2019. Although it restricts the public’s free access to his works for another couple of decades, the Bono Act can’t give Hemingway much more incentive to write.

The plaintiffs in Eldred argue that copyright terms can’t be extended unless the extension serves as an incentive. They also aim to establish that “limited Times” means limited times and not perpetuity in 20-year increments.

After losing at the trial court and appellate levels, the very fact that Eldred was taken up by the Supreme Court bodes well for the plaintiffs. It could mean that after 11 term extensions, the Supreme Court thought it was time it was heard on the issue. In a 1970 Harvard Law Review article, Justice Stephen Breyer wrote that “we should … hesitate to extend or strengthen” copyright. But how will Scalia and Thomas come out?

One indication might be how another conservative, Judge David B. Sentelle, decided the issue. He was the sole dissenter when the D.C. Circuit Court of Appeals ruled against Eldred. In true federalist form, he admonished the court to “follow the lead of the United States Supreme Court in United States v. Lopez and “start with first principles.’” If one takes enumerated and thus limited powers seriously, Sentelle wrote, the Sonny Bono Act was at the “outer limits” of the Copyright Clause in the same way the Supreme Court had found the Gun-Free School Zones Act at the outer limits of the Commerce Clause in Lopez.

Another clue is that both of Scalia and Thomas are textualists when it comes to the Constitution. This means that they interpret the document not by modern, changing standards, but instead seek to understand what the text meant at the time it was adopted. If they stick to this principle, it’s hard to see how they could interpret “to promote the Progress of Science” in any way that would not show the Bono Act’s retroactivity to be unconstitutional.

Textualism cuts both ways, however. With regards to the “perpetuity on the installment plan” side of the case, the government will argue an extreme form of textualism. Namely that because the Bono Act fixes the length of time for which creators are granted a monopoly. If the time is fixed, it is limited and thus passes constitutional muster–even if that fixed time was 12,000 years.

This is going to present a problem for Scalia and Thomas. Although the text of the Constitution clearly calls for a reasonable time limit–and the only honest interpretation of that limit is short of 12,000 years–they aren’t going to want to arrogate to the court Congress’ power to decide how long is long enough. Although they will likely reaffirm that copyright terms must be limited in time, they probably won’t pass judgment on the Bono Act’s “life of the author plus 70 years” term. Despite the continuous extensions, Congress will have to get pretty ridiculous before the high court finds it has crossed the “limited Times” line.

The irony that Disney is behind the Bono Act has not gone unnoticed. That company made much of its fortune using royalty-free characters and stories from the public domain. These include Alice in Wonderland, Snow White and the Seven Dwarves, Pinocchio, Cinderella, The Hunchback of Notre Dame, and The Jungle Book.

Eldred v. Ashcroft is the first case to challenge a term extension and ask the court to define “limited times.” The government recognizes the importance of the matter. It’s sending Solicitor General Theodore Olson himself to take on former Scalia clerk, and present Stanford professor, Lawrence Lessig, before the Court on Wednesday. If the appellate decision is reversed, a future creator may make a fortune with Mickey Mouse 2.0.

Jerry Brito is editor of Brainwash and a student at George Mason University School of Law. His Web site is

Post author