In Cinderella fashion, the Court swept aside the free speech argument as well. "Copyright's purpose is to promote the creation and publication of free expression," Ginsburg wrote, adding that "copyright law contains built-in First Amendment accommodations" Supreme Court Extends Disney Magic into Never Land;
The Constitutionality of the Sonny Bono Copyright Term
Extension Act

Like the immortal Peter Pan, copyrights may never grow old or expire following the United States Supreme Court's ruling this week that gave Congress the right to repeatedly extend copyright protection. In a big victory for Walt Disney Company and other copyright holders of characters, songs, books and creations, the Supreme Court ruled that the Sonny Bono Copyright Term Extension Act of 1998 was neither overreaching by Congress, nor a violation of free-speech rights.

The Constitution allows Congress "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." Originally protected for 14 years, Congress has lengthened copyright 11 times in the past 40 years, with the late entertainer-turned-Congressman Sonny Bono, R-Calif., sponsoring the 1998 law that extended copyright protection to 95 years for most existing copyrights and 70 years after the death of the author for most new ones.

Undertaking a Herculean task, Eric Eldred, a book dealer who makes public domain works available over the Internet, brought the case, charging that Congress had exceeded its power by ignoring the phrase "limited times." Represented by Stanford Law School professor Lawrence Lessig, Eldred was joined by other independent scholars, publishers and Internet archivists in battling the extension as violative of free-speech rights.

Affectionately referred to as the Snow White and the Six Dwarfs decision, Justice Ruth Bader Ginsburg authored the 7-2 majority opinion that effectively keeps the 1928 cartoon Steamboat Willie in the Disney vault, soon to be joined by many other original works. "The [law] reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain," Justice Ginsburg wrote. Always full of surprises like Mary Poppins, the Court surprised many followers by noting that while the extension is constitutional, it might not be good policy. "We find that the [extension] is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be," the majority opinion read.

In Cinderella fashion, the Court swept aside the free speech argument as well. "Copyright's purpose is to promote the creation and publication of free expression," Ginsburg wrote, adding that "copyright law contains built-in First Amendment accommodations" such as the "fair use" doctrine, which permits limited reproduction of copyrighted material by journalists and scholars.

With a goofy twist of allegiances, Justices Stevens and Breyer issued lengthy dissenting opinions, vehemently siding with the challengers and sounding like modern-day Robin Hoods. In his dissent, Justice Breyer wrote about how copyright holders stand to collect about $400 million more a year from older creations under extension and that "[t]he serious public harm and the virtually nonexistent public benefit could not be more clear." The 20-year extension made copyright "not limited, but virtually perpetual ...[with the practical effect] not to promote, but inhibit, the progress of 'science,'" added Justice Breyer. In his dissent, Justice Stevens wrote "Retroactive extensions ... of copyrights result in a gratuitous transfer of wealth from the public to authors, publishers and their successors in interest."

The case, Eldred v. Ashcroft, was widely viewed as the most important intellectual-property case to come before the court in years. "Mirror, Mirror on the Wall does this decision spell trouble for recording industry pirates, after all?"

January, 16 2003
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