Supreme Court Upholds Pork for Disney

When valuable Disney copyrights were on verge of expiring, Congress extended copyright duration for an astounding twenty (20) additional years. Entitled the 1998 Sonny Bono Copyright Term Extension Act (CTEA), this was the eleventh extension in the last forty years.

The Copyright Clause states that “Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, § 8, cl. 8. The repeated extension in copyright duration for Disney and others is not “limited” in a meaningful sense, nor does it promote “progress” to extend protection of works created as long ago as 1925.

Many small publishers challenged the CTEA in Eldred v. Reno, later captioned as Eldred v. Ashcroft. But the district court upheld the CTEA, and plaintiffs appealed.

A divided D.C. Circuit upheld the constitutionality of the CTEA. It even declared that copyrights to be “categorically immune from challenges under the First Amendment.” 239 F.3d at 375.

But conservative judge David Sentelle dissented by stating that Congress exceeded its power in extending copyright duration on old works. Copyright is for promoting the creation of new works, and extending duration on works created up to 70 years ago hardly meets that purpose.

Then the Supreme Court stunned everyone by accepting this case for its review, suggesting that it might reverse the appellate decision. Because the consent of four justices is necessary for the Supreme Court to accept this type of case, many predicted a sweeping revision of copyright law.

It was not to be. Plaintiffs’ counsel, Professor Lawrence Lessig, eschewed the conservative arguments and proceeded to alienate the entire right side of the Court.

Professor Lessig insisted that copyright is merely a “quid pro quo,” whereby an author obtains special protection now in exchange for creation of a community right later. This approach implies communal property, or a “commons”, having rights to be balanced against individual property rights.

It was frightening to Chief Justice Rehnquist at oral argument, and only the most liberal Justice on the Court, Stevens, embraced it. Justice Breyer also sided with plaintiffs, but on economic grounds, while the other two unidentified Justices who voted for certiorari apparently switched sides.

The Court only agreed with plaintiffs that the D.C. Circuit erred in trying to eliminate the First Amendment. The Copyright Clause is not, of course, “categorically immune” from the First Amendment, nor any clause be. But the Court then clung to its traditional view that current statutory exceptions to copyright ameliorate First Amendment concerns, postponing for another day the inevitable free speech disruption of copyright.

Though the Court rejected a new property right for the commons, it did little to explain how copyright extension on existing works could satisfy the purpose of the Copyright Clause “to promote the progress.” Instead, the Court resorted to its catch-all substitute for reasoning: “a page of history is worth a volume of logic,” quoting Justice Holmes. Congress extended copyright duration before, and thus it can do it again.