THE SUPREME COURT last week upheld the Sonny Bono Copyright Term Extension Act of 1998, the most recent in a long series of congressional handouts to some very generous campaign contributors: copyright holders. The Constitution gives Congress the 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." Over the years, Congress has taken no end of liberties with the phrase "limited times." While copyrights at first protected works for no more than 28 years, they now extend 70 years beyond the life of the author -- and 95 years for corporate copyright holders. Far from promoting creativity, this has turned whole categories of American national culture into heritable assets owned by people who had nothing to do with their creation. It has inhibited free expression, notably the borrowing and parody of ideas and stories. So Mickey Mouse remains the property of Disney, and the estate of "Gone With the Wind" author Margaret Mitchell can hold up publication of a parody of the work more than 50 years after the author's death.
By a 7 to 2 vote, the Supreme Court declared these unhealthy policies to be within the lawful bounds of Congress's power. While retroactive extensions of "limited times" may render copyright protection unlimited if strung together often enough, the current law does formally provide for a limit. And it would have been a stretch under those circumstances for the court to conclude that the Constitution had been violated. Congress is mangling the document's intent and purpose without technically violating its terms. So the court felt bound to defer. As Justice Ruth Bader Ginsburg put it for the majority, "we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be."
Others are not so bound. The copyright system, though constitutional, is broken. It effectively and perpetually protects nearly all material that anyone would want to cite or use. That's not what the framers envisioned, and it's not in the public interest. Congress could easily fix the problem; this is another case where the choice lies between the public interest and the campaign contributors.