THE SUPREME COURT'S COPYRIGHT EXTENSION DECISION:
A Mickey Mouse Ruling

Honesty requires that I begin this column with an embarrassing admission: I am now 0 for 1 in predicting the outcome of Supreme Court cases.

Last March, I wrote a column for this website predicting that the Supreme Court, in Eldred v. Ashcroft, would strike down the Sonny Bono Copyright Term Extension Act (CTEA). The CTEA, enacted in 1998, extended by 20 years the duration of both future and subsisting copyrights.

On January 15 of this year, the Court upheld the Act, 7-2. (Justice Ginsburg wrote for the majority; Justices Stevens and Breyer filed separate dissents.)

Not only is the result, in my view, erroneous, but the opinion that reached it is deeply flawed. It also bodes ill for the future, for it is yet another step in the direction of complete privatization of our culture, at the expense of the public domain.

The Two Arguments the Court Rejected

The CTEA was challenged by a group of plaintiffs led by Eric Eldred, whose Eldritch Press offers free on-line access to public domain works. They made two arguments; both were rejected by the Court.

First, they argued that the CTEA exceeds Congress's power under the Copyright Clause to grant exclusive rights for limited times for the purpose of incenting creation of new works. Second, they argued that the statute violates the First Amendment by substantially burdening speech without advancing any important governmental interest.

In rejecting these two arguments, the Court committed several errors.

The Court Allows Congress To Define "Limited Times"

The Copyright Clause requires that Congress grant exclusive rights only for "limited Times." Eldred argued that repeated extensions of the term for subsisting copyrights made a mockery of the requirement. The upshot of Congress's repeated extensions of existing copyrights is that over the last 80 years, only one year's worth of creative work - works copyrighted in 1923 - has fallen into the public domain.

Nevertheless, the Court refused to second-guess Congress. It was up to Congress, it held, to determine at what point the copyright period exceeded the limited time allowed in the Copyright Clause.

It doesn't take a cynic to realize that the Court has allowed the fox to guard the henhouse: Congress will always be lobbied by, and have incentives to listen to, wealthy copyright industries seeking extensions. The forces lobbying in favor of works moving into the public domain are far less powerful.

So what reasons did the Court give for allowing Congress such great discretion?

The Court noted that, beginning with the first copyright statute in 1790, "[h]istory reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime."

But that's not correct. In fact, the 1790 Act did not extend existing federal copyrights. Instead, it replaced state and common law rights - some of which were perpetual - with a limited federal right. The result was, in some cases, to shrink, not expand, existing rights.

Anyway, what does it matter if Congress has repeatedly interpreted the Copyright Clause to let it extend existing copyrights? Isn't that akin to consulting the fox on the subject of henhouse rights? The Court, not Congress, is the Constitution's ultimate interpreter. As Justice Stevens noted in his dissent, "the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify [the Court's] duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case."

The Court Ignores the "Promote . . . Progress" Language

Even if Congress gets to define the "limited Times" requirement, what about the additional requirement that copyright grants "promote . . . Progress"?

Extending copyrights for past creative works hardly encourages progress. After all, creators need no incentive to create in the past; incentives only work for the future. Indeed, extension of existing copyrights impedes progress, since other creators face an impoverished public domain, and must pay to use these prior works.

Petitioners argued that because copyright rules implicate free speech interests, the CTEA should be subject to heightened First Amendment scrutiny. The Court rejected this argument, holding that ordinary rational basis review applied, and that the CTEA passed this undemanding test. The Court set out two principal reasons for finding that Congress had acted rationally:

First, it claimed that the CTEA harmonizes US and EU copyright periods to "avoid competitive disadvantages vis a vis foreign rightsholders." But in fact, as Justice Breyer notes in his dissent, this point applies only to individuals' post-1977 works. The CTEA actually creates disharmony with respect to the majority of copyrighted works - including "works made for hire" (that is, works created for employers) and pre-1978 works.

The Court also noted in passing that there was at least one incentive left for creators of past works: They can be incentivized to "invest in the restoration and public distribution of their works."

In response, however, Justice Stevens notes that if Congress really wanted to encourage preservation, it could have offered extended copyright in exchange for preservation. For instance, those who digitized their work and deposited it in an electronic archive (such as the non-profit Internet Archive) could be rewarded.

Justice Breyer mounts an even more fundamental attack: The structure of the Copyright Clause, he says, is directly inimical to the purported justification:

Justice Breyer's critique is trenchant: Nothing will get works into the public domain faster than removing copyright after a reasonable period. Creators will have the incentive to disseminate to beat the copyright clock; afterwards, broad public access will ensure dissemination.

The Court Underestimates The First Amendment Concerns Created By Copyright Extension

The Copyright Clause is framed as a delicate balance between creation and dissemination, intellectual property and free speech. Congress and the Court have now sawn off one arm of that balance.

To add insult to injury, in giving the CTEA its blessing the Court analyzed the issues as if the copyright regime had not changed since the Founding. The Court stated that in the Framers' view, "copyright's limited monopolies are compatible with free speech principles." Thus, "when . . . Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."

But didn't the CTEA change the "traditional contours of copyright protection" - especially since it came as the capper to a whole line of earlier extensions that together eviscerate the "limited times" and "promote...progress" language? Not according to the Court.

Despite all the extensions, there are "built-in free speech safeguards" that remain, the Court claimed. The fair use doctrine - which allows limited unauthorized use of protected works for commentary, criticism and parody - still exists. So does the idea/expression dichotomy - the principle that copyright protects only particular expression, and not underlying ideas.

While the fair use doctrine may still exist, however, it has been crippled by the Digital Millenium Copyright Act. That is because - as I noted in a prior column - the Act imposes civil and even criminal penalties for access to and copying of protected works without regard to fair use, making fair use much less effective. (Indeed, Yale Law Professor Jack Balkin has argued on his weblog that the Court's opinion in Eldred suggests that the DMCA is actually itself unconstitutional because it decimates fair use).

In addition, while the idea/expression dichotomy still exists, it too may soon be narrowed or even destroyed. The various "database protection" proposals before Congress would extend copyright to cover mere facts and ideas, not just expressions of them.

In any event, the "traditional contours" of copyright encompassed much more than the "fair use" and "idea/expression" doctrines. They also encompassed a relatively short copyright term that terminated with the work moving into the public domain.

Again, looking at the 1790 Act is instructive. The Act granted a 14 year copyright term, renewable once if the author survived (which was far less likely than it would be today, given Eighteenth Century lifespans). This is a far cry from the life-plus-70 term applicable to most copyrights under the CTEA.

The Court's claim that copyright today shares the "contours" of the right with which the founders were familiar is thus highly unpersuasive.

The Commerce Clause Versus the Copyright Clause: Why The Contrast?

So what happened? Why did seven Justices sign on to an opinion that invites Congress to enact seriatim copyright extensions that, for all practical purposes, will result in precisely what the Framers meant to prohibit - a perpetual copyright term?

Deference to Congress's determination of the scope of its enumerated powers - a longstanding judicial doctrine - could provide one explanation. But the Court's conservative majority has hardly exhibited similar deference when it comes to, say, the Commerce Clause, as Eldred and the other plaintiffs argued both in their briefs and at oral argument.

Earlier Courts thought Congress could interpret the Commerce Clause to allow it to do pretty much anything it wanted. The current Court, however, takes seriously the idea that courts have a role in confining Congress to the proper scope of its commerce power.

It has accordingly increased the degree of scrutiny it applies in Commerce Clause cases. For instance, in Lopez v. United States, it struck down a ban on firearms in school zones as beyond Congress's power, because no commerce was involved. And in United States v. Morrison, it struck down the Violence Against Women Act on the same rationale. In both cases, the Court made clear that statutes that would remove enforceable limitations on the commerce power would be rejected.

Clearly, the Court does not believe it is Congress's sole prerogative to determine the ambit of its commerce power. Then why is it Congress's sole prerogative to say what is limited, and what is not, when it comes to copyright?

Both clauses are located within the congressional powers enumerated in Article I, Section 8 of the Constitution. Both should be subject to the same degree of scrutiny - or, if anything, Copyright Clause issues, as Justice Breyer noted in his dissent, deserve more intense scrutiny due to their free speech significance.

So what happened to the conservative five: Chief Justice Rehnquist and Justices Scalia, Kennedy, Thomas, and O'Connor? If these Justices had acted consistently with their Commerce Clause jurisprudence, the Court would have reached the precisely opposite result that it did: that is, it would have invalidated the CTEA 7-2. It is not surprising that Justice Ginsburg wrote the opinion she did - she has never adhered to the Lopez/Morrison line. What is surprising, however, is that she (and Justice Souter) were not writing in dissent.

Why did the conservatives stay silent in Eldred? Can it be because the CTEA, rather than liberal federal meddling in affairs best left to the states, is just another wealth transfer to rich corporations? Are the conservatives willing to police Congress only when it acts in ways they don't like?

Some may argue that the Commerce Clause cases are different, because there the conservative majority was acting to protect federalism - i.e., to prevent Congress from arrogating power to itself at the expense of the states. But the absence of federalism concerns shouldn't make a difference: In our system of constitutionally limited legislative powers, if the Court is willing to apply a more searching review to Congress's exercise of one power, so it should to all. To do so only for the Commerce Clause would vault a structural element of the Constitution - federalism - over explicit textual constraints on other enumerated powers, including the copyright power.

In any event, one is reminded of another recent decision in which states' rights precedents were cast by the wayside. It is, of course, Bush v. Gore, in which the conservative Justices suddenly took the view that federal interference with Florida was actually a good thing.

The accusation that the conservative Justices are results-oriented sounds crude and political, but the evidence in its favor is piling up. Consider, for instance, the recent decisions in University of Alabama v. Garrett and Kimel v. Florida Board of Regents, in which the five conservative justices employ a textually-insupportable Eleventh Amendment state immunity analysis to limit Congress's ability to remedy age and disability discrimination, respectively.

With Eldred, the case that ours is an era of conservative judicial activism - in which law is trampled by conservative politics even on the Supreme Court - only gets stronger.