- The Washington Times - Thursday, January 16, 2003

The Supreme Court yesterday upheld a 1998 law extending copyrights for 20 years, a ruling worth billions of dollars to businesses such as the Walt Disney Corp., whose early copyrights on Mickey Mouse otherwise would have expired this year.
The names of William Shakespeare, Ernest Hemingway and Herman Melville echoed among the justices' opinions and, despite windfalls to Hollywood producers, a dissent scoffed that such masters would not be moved to write by the prospect of future earnings for their estates.
The 7-2 decision rejected legal and constitutional challenges to the power of Congress to repeatedly lengthen the copyright term to protect songs, books and cartoon characters. Copyright protection allows owners to collect royalty payments and control use of their products.
"The wisdom of Congress' action is not within our province to second-guess," said the opinion written by Justice Ruth Bader Ginsburg.
The appeal filed by Eric Eldred, who operates a Web site that publishes books whose copyrights are expired, and others who profit from public domain material contended that the change violated their speech rights and the Constitution's requirement that copyrights and patents be issued for "limited times."
Others pursuing the reversal of the 1998 law included libraries, bands and musicians, Internet operators, and reprint publishers seeking to avoid royalties on items in the public domain.
The court said Congress acted rationally by deciding that the extended protection would encourage more authors to write. Several members of the court are authors with copyrights affected by the decision.
The 1998 law extended unexpired copyrights and all new copyrights until 70 years after the author's death and extended corporate copyrights until up to 125 years from the work's creation.
Justice Ginsburg was joined in the majority opinion by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas. Justices John Paul Stevens and Stephen G. Breyer dissented.
Among the key items on the verge of expiration were early Mickey Mouse portrayals such as the 1928 "Steamboat Willie." Other intellectual property that would have fallen into the public domain includes works owned by Dr. Seuss Enterprises and the George Gershwin Family Trust.
Time Warner Inc. said a contrary ruling also would have jeopardized movie copyrights for "Casablanca," "The Wizard of Oz" and "Gone With the Wind."
Disney spokeswoman Michelle Bergman would not discuss the value of the Mickey Mouse trademarks or the overall financial effect for the entertainment conglomerate.
"We are pleased with the court's ruling, which ensures copy owners the proper incentive to originate creative works for the public to enjoy," she said.
In announcing the ruling from the bench, Justice Ginsburg rejected contentions that the change of law removed all limits and said the revision protects First Amendment rights rather than infringing on speech, as the appeal argued.
"Free speech in this area is not one-sided," she said, calling "copyright itself an engine of free expression."
Throughout the centuries, the Supreme Court never ruled directly on whether four copyright extensions granted since 1790 violated the Constitution's restriction of protection to "limited times." Yesterday, the court said the law is within that boundary.
Justice Breyer who during the Oct. 9 argument disparaged the law as "perpetual copyright" attached to his dissent an economic analysis that said 2 percent of copyrights between 55 and 75 years old generate royalties.
It also said the 1 percent likelihood of earning $100 annually for 20 years, starting 75 years in the future, is worth less than 7 cents today.
"What potential Shakespeare or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?" Justice Breyer asked.
Justice Stevens said the court failed to protect free public access to "products of inventive and artistic genius" and provided "a gratuitous transfer of wealth from the public to authors, publishers and their successors."
Intellectual-property lawyer William Heller of Newark, N.J., said the ruling bodes well for the extension of patent and trademark protection to 20 years.
"The court sent a very strong signal that they're going to protect intellectual-property rights such as these," said Mr. Heller, who said some justices telegraphed their decisions during the argument with hostile comments, such as, "What you really want is to copy the works of others."


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