Oral argument in the Supreme Court for href="http://eldred.cc/">Eldred v. Ashcroft is scheduled for
October 9. For those who have forgotten,
Eldred v. Ashcroft is the case that seeks to overturn the href="http://www.loc.gov/copyright/legislation/s505.pdf">Sonny Bono
Copyright Extension Act. Since the href="http://www.monkeyspeak.com/articles/2002/05/25/63/">last time I
checked, several more href="http://eldred.cc/legal/supremecourt.html">amicus briefs have
been filed for both sides, so I spent part of last night reading through
The primary argument of the Petitioners--those against the copyright
extension--has been that the Constitution's Copyright Clause defines a
specific goal ("to promote the progress of science and the useful
arts") and a specific limitation ("for limited Times"), and that the
copyright extension violates the limitation while also failing to promote
the goal. These failures are most obvious in the Act's retroactive
term extension, which (Petitioners argue) can't possibly promote the
creation of new works, since it applies to works which already exist.
Opponents (those in favor of the term extension--Congress, Disney, and friends) claim that retroactive extensions can promote creation of new works, because Congress's tendency to extend copyrights may itself be incentive for creators. That's a bit of a circular argument, and questionable besides: would the prospect of a longer term, fifty or seventy years from now, affect your decision to create content today? Of course not.
Unfortunately, it's hard to prove that, and it's
hard to know just how limited "limited Times" should be. Opponents know
this, and so their arguments attempt to muddle the issue with definitional
quibbles and suggestions that previous term extensions provide sufficient
precedent for the current one. ("We got away with it before, why
shouldn't we now?" is an underlying theme in Opponents' arguments.)
The thing that bugs me most about Opponents' arguments, though, is that
they don't spend much effort trying to justify the Act on the basis of its merits; instead,
they justify it on the basis of Congress's authority to have passed
it. In other words, they don't offer compelling reasons why the
the term extension is a good thing, they just argue that it's
within Congress's power to pass. (It's obvious why they're doing
this: the only real benefit of the Act is its value to the wealthy
copyright holders who lobbied for it in the first place. Opponents
understandably downplay this aspect, since it suggests corruption on
Last night, though, I read an argument in favor of retroactive extensions that actually seems, on the face of it, compelling. That argument came in an href="http://eon.law.harvard.edu/openlaw/eldredvashcroft/supct/opp-amici/drseuss.pdf">amicus
brief filed by the estates of Dr. Seuss, E.B. White, and Ludwig
Bemelmans--all authors of famous childrens' books. Their brief provides several concrete examples of works that (they claim) would not have been created if it weren't for long copyright terms. They cite movies, plays, multimedia CD-Roms, and other works which they (the copyright holders) have adapted from their own earlier works. (Think Jim Carrey as The Grinch or Michael J. Fox as Stuart Little.) These works have artistic, technical, and educational merit (in theory), and so they justify continued copyright protection as incentive for their creation.
It's hard not to sympathize with their claim,
particularly when you have fond memories of the works in question. Their arguments are misleading, though. Original authors aren't the only ones capable of creating worthy adapatations--Disney didn't originally create Snow White and Cinderella, after all. Further, there's reason to believe that
the exclusivity of copyright promotes regurgitation rather than adaptation. (Another re-release of Pinocchio? How many times can they re-release the same movie?)
Seuss and friends want us to believe that adaptation should be the permanent exclusive right of original authors. To convince us, they point out that some authors use public domain
characters "to glorify drugs or create pornography". They mention this as part of their argument against the importance of the public domain, apparently trying to portray the public domain as a realm of debauchery--as opposed to the basis of our heritage and the primary source of our creative inspiration that it is.
It's ridiculous that these companies have exploited the public domain that existed prior to their works, but (now that they're established) want the public
domain after their works to be suppressed. It's even more depressing that Congress doesn't seem to understand (or chooses to ignore) that hypocrisy.
To underscore the lack of perspective that characterizes the Opposition, consider a quote from Sonny Bono's widow (who finished his term when he died, and who originally presented the bill):
Actually, Sonny wanted copyright to last forever.
I am informed by staff that such a change would violate
the Constitution. I invite all of you to work with me
to strengthen our copyright laws in all ways available to
us. As you know, there is also Jack Valenti's proposal
to last forever less one day. Perhaps the committee may
look at that next Congress.
Ah, yes. Good trick. Infinity minus one. Clever.