MICKEY MOUSE VERSUS WIRED MAGAZINE:
The Supreme Court Considers Whether A Law Extending The Copyright Term Is Constitutional

I suppose it is no surprise to learn that that paragon of hipness, Wired Magazine, is the adversary of Mickey Mouse.

Mickey Mouse (or more precisely, his owner, Disney Studios) is the one who persuaded Congress to extend copyright protection in the Sonny Bono Term Extension Act. The Act adds another 20 years to the current copyright term, making it 70 years plus the life of the author.

I'm afraid Mickey has the better of the argument.

Copyright Term Extension Is Bad Policy

Make no mistake: the copyright term is now too long, if one judges the question from the perspective of the academic or artist or author who needs public domain fodder to draw upon, and cannot afford to license every work he or she needs to create the new works necessary for this culture.

The current term--life plus 70 years--means that an entire generation or two may not have the power ever to use a work freely, because they will likely die before it falls into the public domain. If the author creates his or her work at 30 and dies at 80, then the copyright will be protected for a staggering 120 years. That's ridiculous - and bad policy for a free society that needs the raw materials found in the public domain to generate the "new" that refreshes perspectives and challenges the status quo.

That is not to say, however, that term extension is unconstitutional. And indeed the Court will probably hold that the term extension Act is perfectly valid.

Copyright Term Extension, However, Will Probably Be Held Constitutional

The core question raised in the Mickey Mouse case is who should decide whether copyright duration is too long--the Court or Congress.

The Constitution's Copyright Clause - Article I, section 8, clause 8--declares that Congress may enact a federal copyright law for only a "limited Term." But what does that mean? As long as the term is for a certain number of years, and not eternity, has Congress complied with the clause? Is there any other point at which the Court can intervene and say: This term is so long, it is no longer meaningfully limited?

Those challenging the law, led by Stanford Law Professor Lawrence Lessig, would have the Court declare that Congress has exceeded its power: the term is too long.

At oral argument, it seemed clear that many of the Justices were on the side of Lessig and the other challengers from a policy perspective - but from a constitutional perspective, they seemed more on the side of the Mouse.

"Limited," the Court suggested at oral argument, simply means "not infinite." That is surely correct - for otherwise how could the Court draw the line? Its judgment, for instance, that a 100-year term is limited, but a 101-year-term, or even one lasting 110 years, is not would be arbitrary. This is the sort of line-drawing that is Congress's job, not the Court's, and the Court made that clear at oral argument.

It would be one thing if there were good constitutional history showing that "limited" meant a particular duration of years, or decades. But there is no such history. Indeed, there is so little history relating to the Copyright Clause that any argument from original intent is doomed from lack of information.

Given that fact, the only thing the Court can really do is look to the language of the Clause itself - and the clause does not set a particular, maximum term of years, just a limit less than eternity.

The First Amendment Probably Won't Help the Term Extension Challengers

The challengers also have attempted to ask the Court to strike down the Bono term extension act on the ground that it violates a First Amendment "right to information." But few precedents support a right to information of any kind, and none are in the copyright arena.

The decision in Feist Publications v. Rural Tel. Serv. Co. established a sort of "right to information" when it held that no copyright can be asserted in the phonebook white pages. But that holding depended on the importance of facts - that is, the names and numbers listed - to the market for knowledge.

The phonebook did not create the names and addresses it lists, and even if it technically created the phone numbers, they are hardly a work of original expression. In contrast, the Bono Act protects original expression in a fixed medium. Everyone who claims copyright protection either created the work, or acquired a right to it from its creator. A movie or book is very different from a mere 10-digit number that is organized via the garden variety organizational tool, alphabetization.

Feist never held that an individual has a cut of the copyright ownership of another in order to access expression (as opposed to information) that he or she has withheld. My survey of copyright opinions in the Supreme Court gives little sustenance for anyone attempting to move beyond Feist's freedom for facts to the Eldred theory about freedom of original expression. While I have argued that data protection is likely unconstitutional under Feist, the same argument cannot be extended to original expression.

Meanwhile, as if this were not bad enough, there is also another element--beyond the Supreme Court arguments--that bodes ill for the challengers.

When Congress passed the Sonny Bono Term Extension Act, it harmonized American copyright law with that of the European Union - which also has a copyright term equivalent to the life of the author plus 70 years. Now the challengers are asking the Court to interfere with that policy.

The result would be that many works that are still copyrighted in Europe would be public domain in the U.S. - a recipe for piracy, and resulting international tension, if there ever was one. Striking down a law that strikes an international balance is not something any court could or should feel very comfortable doing, especially on the slender reed of the argument that "70 plus life" is, in effect, no longer "limited."

In sum, I hold out little hope that the Supreme Court can save the United States from an overly long term of duration. Mickey Mouse won in Congress and will win at the Supreme Court. The most the challengers can expect by way of victory is for the Court to make some rather clear noises about the fact that the term is getting awfully long and there must be a stopping point somewhere - even if not at life plus 70.

What's Next After Eldred: Not the Eradication of Copyright, One Must Hope

If the Court holds as I have predicted, what will happen next? There are two tacks that can be taken.

First, some argue that copyright should be eradicated altogether because of its excesses. This is the "Information wants to be free" view. But that's ridiculous and dangerous to this free society: Copyright is a fundamentally important system that permits creative individuals to receive remuneration for independent works that positively contribute to freedom. Without it, every movie could be openly and legally copied and sold by its first projectionist, with the creators never seeing a penny. Every novel could instantly be copied and sold at a fraction of its price, undercutting the market for the original. Who will support the arts and original expression, if not the free marketplace? The answer from history is the government, with its political agendas and its inevitable instinct to control content.

The alternative to a copyright system, it is important to remember, would be a system of patronage--which would mean the government, or wealthy private individuals, would hold the power to veto content, since they would literally give the author his or her food and shelter. Read the history books; it is not a recipe for freedom or independence. (One might argue readers, listeners or viewers could also be patrons, making voluntary contributions, but that hasn't worked very well so far: Just look at Napster.)

Obviously, a patronage system would be highly undesirable. It would make criticism of the government - or the favored beliefs of the individual patrons - effectively impossible.

Is There A Chance of Congress Fixing the Copyright Term Problem Itself?

Copyright eradication, then, would be a disaster even if the highly unlikely event that it could be made law. So what is the solution? The Supreme Court will surely urge Congress to reconsider the copyright term, or at least not extend copyright any further. Is there any chance Congress will listen, given the power of copyright-owner lobbyists such as Disney? Though many at this stage would say "no," I think the answer may be "yes."

Congress has a long history, in the copyright arena, of ignoring the public interest, and asking only what the industries desire. That, of course, is why Mickey and Sonny got their extra 20 years. This is the dark heart of copyright law.

But recently the members have taken note of the increasing roar of Internet-savvy young people, including their own teen-age and young adult children. Many of these people want to live in the world Wired and others have painted for them: a world of free, first-rate creative works, available at the click of a button.

Consider that Congress decided, for instance, to hold hearings on Napster, at which they listened to teenagers speak about the "right" to download music from the Web. They listened, and they clearly saw that this was a new generation of voters with a new perspective. These voters had discovered the bounds of current copyright law, and they did not like what they found.

The members are now between two hard places: the industries and this unhappy-with-copyright generation of voters. Hallelujah!

The upshot, I predict, will not be the demise of copyright at all - it will be a modification of copyright in which for the first time, more than industry interests will be taken into account, and more voices than industry's alone will be heard. Congress, one must hope, will turn from gift-wrapping presents for only one side, to making sausages out of these conflicting agendas. After all, that kind of compromise is its job, yet in this area, it's been too long in coming.

Because of the harmonization with the E.U., I do not hold out a great deal of hope that the current copyright term duration will shrink. But other progress might be made: We may have seen the end of extension. And it is possible Congress could provide a shorter duration for copyrights on particular types of works, such as computer programs.

The result of this clash in the legislative process is that the Information Era radicals will not be happy, and the industries will not be happy either. That is a very good result for the rest of us.