Supreme Court downplays First Amendment argument in copyright ruling

Thursday, January 16, 2003

The Supreme Court’s ruling yesterday in support of the federal law that extended existing and future copyrights by 20 years was praised — and damned — as the most significant copyright decision in years.

But the 7-2 decision in Eldred v. Ashcroft also made significant First Amendment law, which also was applauded and criticized yesterday.

The case was brought by Eric Eldred, an Internet publisher who claimed that the copyright extension violated the Constitution and deprived him of the ability to place copyrighted material in his online library.

While most of the lengthy opinion focused on how the Sonny Bono Copyright Term Extension Act squared with the Constitution’s copyright clause, it also dealt with the First Amendment aspect of Eldred’s challenge to the law: that by extending existing copyrights, it infringed on the First Amendment rights of those who want to make use of creative works in the public domain.

Justice Ruth Bader Ginsburg, writing for the majority, flicked away that argument somewhat sarcastically. “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech,” Ginsburg wrote. “It bears less heavily when speakers assert the right to make other people’s speeches.” (Incidentally, those words echoed, but did not cite, similar sentiments voiced by Ginsburg’s daughter Jane, a copyright scholar at Columbia University Law School.)

In its earlier ruling on the case, the U.S. Court of Appeals for the D.C. Circuit found that copyrights were “categorically immune” from attack under the First Amendment. It invoked earlier Supreme Court rulings that found copyright to be “the engine of free expression.”

Ginsburg, writing for the majority yesterday, said the appeals court “spoke too broadly” when it immunized copyrights completely from First Amendment challenges. But, she continued, “when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

That is likely to discourage any future First Amendment challenges against any aspect of copyright, says Charles Sims, lawyer for the Association of American Publishers. “Copyright owners will be better able to enforce their rights in court,” he said.

Many First Amendment practitioners — including publishers and moviemakers — praised the decision yesterday and said it would encourage and protect creativity and expression.

Ginsburg noted that the copyright clause and the First Amendment “were adopted close in time. This proximity indicated that, in the framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

She also noted that as copyright law has developed, it has “built-in First Amendment accommodations,” among them the idea/expression dichotomy and the fair-use doctrine. Under the first doctrine, specific expressions can be copyrighted, but ideas cannot. Under the second, copyrighted materials can be used by others for news reporting, criticism, research and even parody. Those safeguards, Ginsburg said, are “generally adequate” to accommodate First Amendment concerns about copyright protections.

Ginsburg also rejected a key concept advanced by Eldred’s attorney, Stanford University law professor Lawrence Lessig, namely that the Constitution’s framers saw the copyright power as a “bargain” between Congress and writers and authors: In exchange for giving creators exclusive rights for a limited time, the public would gain the benefits of the work thereafter. While that quid pro quo may operate in the context of patents, Ginsburg said, “one cannot extract from language in our patent decisions … genuine support for petitioners’ bold view.”

In dissent, Justice Stephen Breyer — not usually counted as a strong First Amendment defender — said the law “will cause serious expression-related harm. It will likely restrict traditional dissemination of copyrighted works. It will likely inhibit new forms of dissemination through the use of new technology.” Breyer said the extension would serve to make copyrights “virtually perpetual.”

Justice John Paul Stevens also dissented, criticizing the majority for abdicating its role of interpreting congressional enactments. “By failing to protect the public interest in free access to the products of inventive and artistic genius, indeed by virtually ignoring the central purpose of the Copyright/Patent Clause, the Court has quitclaimed to Congress its principal responsibility in this area of the law.”

Other critics of the ruling outside the Court also viewed the decision as a tool that would be used to restrict free expression. “This is simply a disastrous opinion for free speech, and the Court should be ashamed of the shoddy job it’s done in this case,” said Yale Law School professor Jack Balkin. “If you make copyright too strong, you shrink the public sphere and damage public discussion.”

Balkin asserted that the other doctrines cited by Ginsburg as accommodating First Amendment concerns — fair use and the contrast between ideas and expression — have been narrowed in recent years, in large measure because big media organizations have clout with legislators that enables them to secure protective legislation.

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