High court to sort out tangled web of Mickey Mouse, Congress and copyright

Wednesday, February 20, 2002

Is Mickey Mouse safe?

That is one of a bundle of questions the Supreme Court may answer this fall when it takes up a major case that will examine the effect of copyright laws on First Amendment rights.

The high court agreed yesterday to decide Eldred v. Ashcroft, a challenge aimed at a law passed by Congress in 1998 to extend existing copyrights by 20 years, from 75 to 95 years.

The law, known as the Sonny Bono Copyright Term Extension Act, was passed after intense lobbying from companies like Disney. The law took effect just as Disney’s original 1928 copyright on Mickey Mouse was nearing an end. Another provision of the law gives copyright protection to newer works for 70 years after the death of the author.

A group of individuals and companies who use and benefit from material that is in the public domain — works whose copyright protection has expired — claim the law violates their freedom of expression and exceeds the bounds of congressional power.

Many in the field of intellectual property law doubted the high court would take the challenge seriously. But the justices listed the case on the agenda of four separate conferences at which they consider new cases — a sign that the case was generating debate or at least more-than-ordinary internal deliberations. Cases are usually disposed of by the court after appearing on its agenda only once.

The Constitution grants Congress authority to give copyright protection to creative works “for limited times,” but Stanford University law professor Lawrence Lessig says repeated extensions — Congress has extended copyright terms 11 times — have made a mockery of that constitutional provision.

The framers placed limits on Congress, Lessig wrote in a brief, “to assure a rich public domain, and to avoid the temptation to corruption that state-backed monopolies… inevitably invite.” The Internet, he suggested, is especially well-suited to take advantage of works in the public domain. The Bush administration argues that Congress was acting properly.

Lessig, a leading thinker on intellectual property issues, represented the plaintiffs in the case led by Eric Eldred, who publishes public domain works on the Internet.

A federal appeals court panel in Washington D.C. last year rejected Lessig’s arguments, finding that neither the First Amendment nor the copyright clause prevented Congress from passing the 1998 copyright extension law.

The appeals panel invoked the Supreme Court’s 1985 decision in Harper & Row Publishers v. Nation Enterprises, in which the high court said that The Nation magazine had no First Amendment right to infringe on the copyright of Gerald Ford’s memoirs. The appeals court in the Eldred case said the Harper & Row decision means that “copyrights are categorically immune from challenges under the First Amendment.”

Lessig says this interpretation of Harper & Row is “mistaken” and symbolizes the “confusion” that the ruling has caused in lower courts. He asked the high court to use the Eldred case to clarify the relationship between the First Amendment and copyright.

The court’s decision to grant review in the case was applauded by groups whose members would benefit from more works entering the public domain.

“The Supreme Court will effectively decide whether people will have access to information, education and entertainment from creators long since deceased or whether a few large companies will be allowed to choke off access by future generations,” said Gary Shapiro, president and CEO of the Consumer Electronics Association, which represents a wide range of audio, video and communications technology companies.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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