- The Washington Times - Thursday, October 10, 2002

Supreme Court justices took pains yesterday to explore how the newest federal copyright law might affect William Shakespeare, Mickey Mouse and "Moby Dick."
Among that group, only Mickey's owners are likely to benefit from the 1998 Sonny Bono Copyright Extension Act, which was challenged at yesterday's hearing.
The value of the law is estimated in the billions of dollars for Walt Disney Co., and far more for other owners of intellectual property that would otherwise fall into the public domain, including AOL Time Warner, which holds broadcast rights to "The Wizard of Oz" and "Gone With the Wind."
The 1998 law extended copyright protection to 70 years after the author dies, up from 50 years, and protects corporate copyrights for up to 125 years. After intense lobbying by Disney, whose Mickey Mouse copyright would have expired in 2003, the law was enacted to harmonize U.S. copyright protection with European Union law.
It seemed clear yesterday the law does not protect republication of works like Shakespeare's "Othello," "Moby Dick," whose author Herman Melville died in 1891, or more mundane material whose copyrights expired before extensions were granted.
A decision is expected by spring, and if the justices uphold the law, those who counted on using material whose copyrights were set to expire must wait that extra 20 years.
The law "favors the creators, as opposed to favoring those who wish to copy the creators," Solicitor General Theodore B. Olson said in the final words of his half-hour defense of the law.
Mr. Olson said every Congress since 1790 has interpreted the constitutional basis for copyrights in the same manner. He asked justices not to equate "limited times" with a period that cannot be changed. He said the courts should let Congress decide how to balance competing interests of copyright holders and those waiting for intellectual property to enter the public domain.
But Stanford law school professor Lawrence Lessig disagreed.
"Such a blanket extension exceeds Congress' powers. This case is about limits to an enumerated power," said Mr. Lessig, who represents Internet interests, libraries, archivists and others, including lead plaintiff Eric Eldred, whose Web site distributes formerly copyrighted material.
Mr. Lessig said the original 1790 copyright law had been extended to 28 years from 14 years, then a 28-year renewal period was added, then an extension to 50 years after the creator's death, before the latest extension to 70 years after death. Corporate copyrights are protected for 95 years after publication or 125 years after creation, whichever is shorter.
"Unless this court draws a line, there will be no limit," he said.
Mr. Lessig said that if the court agrees prior extensions were unconstitutional, existing copyrights need not be nullified if justices fear what Justice Stephen G. Breyer called "the chaos that would ensue."
Justice Breyer likened the current practice to "perpetual copyright."
Justice Anthony M. Kennedy expressed skepticism of Mr. Lessig's argument: "For all these years, the Act has impeded progress in science? I don't see it."
When Mr. Lessig minimized his clients' ambitions, he was challenged by Chief Justice William H. Rehnquist, whose own multiple book copyrights benefit from the law.
"You want more than that. You want the right to copy verbatim other people's books," the chief justice said.
Other published authors on the high court include Justices Breyer, Sandra Day O'Connor, Antonin Scalia and Ruth Bader Ginsburg.
Justices John Paul Stevens and David H. Souter said the framers of the Constitution expected copyrighted material would fall quickly into the public domain.
"It's longer than one might think desirable, but isn't it limited?" asked Justice O'Connor, who said she disputed policy considerations but not the constitutionality of the Bono law, named after the California Republican who introduced a similar bill seven times before his 1997 death.
The many dozens of interests defending the federal law include a roll call of publishers from Dr. Seuss Enterprises to the George Gershwin Family Trust, along with top names in music, movie studios, television, radio, photography and dance.


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