The Washington Post Technology Site Daily Technology E Letter Daily Technology E-LETTER
Eldred v. Ashcroft: A Primer

Wednesday, January 15, 2003

The U.S. Supreme Court today ruled 7-2 that Congress was within its rights when it passed legislation to extend copyright terms, shooting down an argument by independent online booksellers and other groups who believed repeated extensions are unconstitutional.

Justice Ruth Bader Ginsburg said Congress has "wide leeway" to interpret copyright law as set out by the U.S. Constitution. Justices John Paul Stevens and Stephen Breyer were the lone dissenters, saying that extending copyright terms repeatedly denies Americans "free access to the products of inventive and artistic genius."

Case Background

In 1998, Congress passed the Copyright Term Extension Act, sponsored by late Congressman and singer-songwriter Sonny Bono (R-Calif.). The law adds 20 years to the term of all copyrights -- authors of copyrighted works (and their estates) now hold a copyright up to 70 years after the author's death, while owners of so-called work-for-hire copyrights (typically corporations) now hold copyrights for 95 years.

What's at stake: The entertainment industry's lucrative copyrights on Mickey Mouse, Winnie the Pooh, the song "Yes! We Have No Bananas" and lots of other products. As the copyright protections near an end for these products, media giants face the possibility of losing the steady and lucrative revenues they provide. Groups that oppose the extension have much to lose as well, primarily the ability to spread works of art to wider audiences and ability to use such works in unrestricted ways.

The Eldred argument: Online publisher Eric Eldred and Stanford University professor Lawrence Lessig think that Congress violated the Constitution when it passed laws that let copyright owners renew the ownership rights to their works.

The government and entertainment industry argument: The Constitution allows copyrights for a "limited" period and does not preclude Congress from extending the terms of existing copyrights. Lower courts have backed this point of view. The Walt Disney Co., the Motion Picture Association of America and the Recording Industry Association of America are among the groups opposing the Eldred/Lessig argument.

For more background on specific arguments for and against the case, see "Determining The Life of Corporate Copyrights" (The Washington Post, July 4, 2002).

Documents (From FindLaw)

• Decision -- Eldred v. Reno, Feb. 16, 2001
• Decision on Petition for Rehearing, July 13, 2001
• Court Docket: Eldred v. Ashcroft

Eldred and his supporters:

Eldred runs the Eldritch Press, a nonprofit group that publishes literature on the Internet. The press publishes only those works that are in the "public domain," i.e. any applicable copyrights are expired.

Lawrence Lessig argued Eldred's case before the Supreme Court. Lessig has a comprehensive Web site ( with a wealth of information on his side of the Eldred vs. Ashcroft case. His blog ( also includes information on the case, and even gives some regard -- though never any ground -- to his opponents. (Read Post profile of Lessig).

Other pro-Eldred sites include:
The American Library Association
Openlaw: Eldred vs. Reno (now Ashcroft) -- run by Harvard Law School's Berkman Center for Internet & Society at the Kennedy School of Government. See also
Jonathan Zittrain, the Berkman co-director, is a co-counsel on the case

Other petitioners on Eldred's side

Higginson Book Co. - specializes in genealogies
Luck's Music Library Inc. - sheet music publisher
Edwin F. Kalmus & Co., Inc. - sheet music publisher
Moviecraft Inc. - rare and out-of-print film dealer
Dover Publications Inc. - discount-price classic literature, language grammars, other rare and obscure subject

The government and its supporters:

The U.S. Department of Justice takes the lead on defending laws under legal review. The Eldred case was originally filed under the Clinton administration but is now designated at Eldred v. Ashcroft. Under Solicitor General Theodore Olson, the government's other attorneys on this case are Robert D. McCallum Jr., Lawrence G. Wallace, Jeffrey A. Lamken, William Kanter and John S. Koppel.

The Walt Disney Co. is one of the most vocal supporters of copyright extensions, especially for the earliest incarnations of Mickey Mouse, such as 1928's rodent prototype, "Steamboat Willie." Its chief lobbyist is Preston Padden.

The Motion Picture Association of America, which devised the nation's movie ratings system, also is a fierce defender of intellectual property in the arts world. Chief Jack Valenti says that the Internet is a frontier rife with opportunity, but that a lack of copyright protection and fears of piracy threaten the survival of the entertainment industry. The MPAA Web site contains a link to the lobby group's amicus brief in support of the government.

The Recording Industry Association of America (RIAA) represents both the largest music corporations and smaller, independent labels. It supports the ability of Congress to extend copyright terms on the same basis as the other organizations, and as part of a broader effort against digital piracy.

The American Society of Composers, Authors and Publishers (ASCAP) also supports the Copyright Term Extension Act. ASCAP was founded in 1914 to collect and distribute royalties based on the public performances of members' copyrighted works.

Reactions to the Oct. 9 Supreme Court hearing

Miriam Nisbet, legislative counsel, American Library Association:

On the Justices' questions for Solicitor General Theodore Olson:

"I have to say that it was a very vigorous argument, and the solicitor general certainly got some very good and very sharp questioning from some of the justices."

On why the Copyright Term Extension Act hurts the flow of information on the Internet:

"We see the Internet as a way of expanding the accessibility of information for people, [and] information that may have been only available to a few people. We hate to see that potential limited in such a way."

On why the Act only helps the entertainment industry:

"It just takes [copyrights] so far into the future that the balance that you're talking about seems to be entirely in favor of the creators and leaving out any benefit to the public."

Jack Valenti, president and CEO of the Motion Picture Association of America:

On Lawrence Lessig and the First Amendment:

"[Lessig] said copyrights on existing works shouldn't be extended, that it violated the First Amendment. I think his First Amendment argument fell on totally deaf ears. Copyright laws are not restrictions on freedom of speech because they protect the form of expression and not the ideas expressed. I think his First Amendment argument was asphyxiated the moment it was presented."

On films and the public domain:

"[Lessig] made it appear as if a picture goes into the public domain ... [as if it were] going into paradise with 72 vestal virgins escorting this film around ... If nobody owns the film, who's going to restore it? That costs $25,000 to $100,000. I don't think Mr. Eldred himself is going to spend that kind of money to restore a film that he doesn't own."

On Congress' passage of the Copyright Term Extension Act:

"I guess if the voters don't like it they ought to elect new congressmen."

On the importance of films, and why putting them in the public domain would hurt America.

"They represent over 5 percent of the gross domestic product of this country. They're creating new jobs at three times the rate of the new economy. They bring in more international revenues than agriculture, aircraft, automobiles and auto parts. The movie industry alone has a surplus balance of trade with every single country in the world, so we are an important nourishing element. And if you disrupted it, you'd be lacerating the U.S. economy. I'm not going to speculate, but I don't think Congress would want to do that."

-- Interviews and case background by Robert MacMillan

Back to Home

2002 The Washington Post Company

Techway Events: Techfast Live | Fast 50
Company Postings: Quick Quotes | Tech Almanac
About | Advertising | Contact | Privacy
My Profile | Reprints | Subscribe to print edition | Personalbytes | Syndication

Search Options