Showdown between copyright, First Amendment turns into sideshow

Thursday, October 10, 2002

The case of Eldred v. Ashcroft was billed as a major confrontation between two parts of the Constitution that rarely clash in any arena: the copyright clause and the First Amendment.

The issue: whether Congress' latest 20-year extension of copyright terms for existing and new works violates the First Amendment by limiting the growth of the public domain, where formerly copyrighted works are free and accessible to all.

But the confrontation largely fizzled yesterday during oral arguments before the Supreme Court in Eldred, as the justices focused almost entirely on the other main issue in the case: whether Congress overstepped its constitutional authority under the copyright clause in enacting the Sonny Bono Copyright Term Extension Act of 1998. The Constitution gives Congress power to protect creative works with copyright for “limited times,” but challengers claimed the 1998 law — the 11th extension in 40 years — amounted to no limit at all.

Critics say the law was passed under intense lobbying from Disney and other media giants to give them a few more decades of exclusive use of highly profitable 1920s era creations like Mickey Mouse.

Stanford Law School professor Lawrence Lessig, the driving force behind the challenge to the law, seemed to shun the First Amendment for much of his half hour of argument. Lessig may have made the strategic decision to emphasize the argument that Congress exceeded its copyright clause powers, because the current Court in other contexts has been willing to rein in Congress. “This case is about limits to enumerated powers,” he said.

Midway in the argument, Justice Anthony Kennedy inched toward the First Amendment argument by asking whether Lessig had any “empirical evidence” of harm caused by the copyright law.

Lessig said he was not making an empirical claim, and that his “only argument” was against what he saw as the law’s virtually limitless extension of copyright protection.

Kennedy then expressed surprise. “I thought the whole thrust of your argument was that there is a great First Amendment force here that’s being silenced,” he said.

Lessig agreed that “the opportunity to build upon works within the public domain is a fundamental First Amendment interest.” But he quickly sought to move the discussion back to the copyright clause. Justice Ruth Bader Ginsburg later tried to get Lessig to connect the two issues, but again Lessig did not dwell on the First Amendment issue.

The only time Lessig voluntarily cited the First Amendment came when Ginsburg asked whether the copyright extension could be justified on the grounds of harmonizing U.S. copyright law with that of other countries “in this expanded world of ours.”

Lessig said he had “no quarrel with harmonization,” except to note that if, for example, France passed a law prohibiting copyright protection for hate speech, “we could not harmonize” because of First Amendment free-speech protections in the United States.

On the main issue in the case, the claim of congressional overreaching, it was difficult to predict the outcome. “I can find a lot of fault with what Congress did here,” said Justice Sandra Day O’Connor. “But does it violate the Constitution?” Solicitor General Theodore Olson said the law was within congressional authority and served legitimate purposes such as combating piracy and bringing the United States into line with the longer copyright terms of the European Union.

The fact that the First Amendment receded as a major issue in the case may mean that the intersection of copyright and First Amendment law will again go unexplored by the Court. That would be unfortunate, according to Erik Jaffe, a First Amendment litigator who watched the oral argument yesterday. “The jurisprudence on interaction between the copyright clause and the First Amendment is sorely in need of clarification and improvement,” said Jaffe last night in a posting on a Supreme Court blog.

Ever since the Supreme Court’s 1985 ruling in Harper & Row Publishers v. Nation Enterprises, courts have generally not subjected copyright laws to First Amendment scrutiny. The theory is that the two legal regimes operate in different but compatible realms — the First Amendment protecting ideas and copyright protecting forms of expression. In the Eldred case, the lower court said in fact that copyright laws are “categorically immune” from First Amendment scrutiny.

A decision in Eldred could come anytime before the end of the term next June or July.

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