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A Case to Define the Digital Age

By Jane Black So far, there's little doubt who's winning the digital copyright wars. In the courts, the Big Five record labels have squashed Napster and copycat file-sharing services Aimster and Audio Galaxy. On Capitol Hill, Hollywood has launched a lobbying assault to pass two bills, one that would mandate copyright protection in all new consumer electronics and another that would permit copyright owners to hack into consumers' personal computers if the copyright holders suspect illegal activity. Their strategy is straightforward: Follow our rules, or we destroy you.

In theory, that could all change on Oct. 9, when the U.S. Supreme Court will hear the case of Eldred v. Ashcroft. It's a challenge to the controversial 1998 Sonny Bono Copyright Term Extension Act (CTEA), which lengthened copyright terms by 20 years, stretching them to 70 years after an artist's death.

KILLING FROST. A Supreme Court ruling against the CTEA would be the first major victory for digital-rights activists, who want more books, music, and images to enter the public domain. And it would be a grand defeat for corporations, which claim they would forfeit billions in lost revenues.

The Eldred case is being portrayed as a battle between greedy corporate interests and the little guys who want information to be free. In reality, it's not quite that simple. Eric Eldred, the lead plaintiff in the case, is a New Hampshire computer administrator who posted public-domain books online for high school students. His plan to post a selection of Robert Frost poems in 1998 was stymied when the CTEA prevented them from entering the public domain.

As is customary in a Supreme Court case, the nine justices will be considering a narrower legal question. That issue is whether Congress has the right to extend copyright law if the change does not promote the "progress of science and useful arts" as stated in Article 1, Section 8 of the U.S. Constitution.

DEAD MEN'S GOLD. The challengers, led by Stanford University cyberlaw guru Lawrence Lessig, argue that Congress should tinker with copyright statutes only if the change is aimed at promoting new creative works. Measures like the CTEA, they claim, don't promote progress since great artists, such as George Gershwin, whose work would gain continued protection, are dead and no longer create new works (see BW Online, 5/13/02, "Lessig: The 'Dinosaurs' are Taking Over").

The government counters that the 1998 Act promotes the arts by protecting their economic value, thereby fostering greater incentives to create. Moreover, it contends that the Constitution grants Congress, not the courts, the right to make judgments about copyright.

The case is a crucible, not only for the CTEA, but for all future copyright laws. And Lessig's strategy is both bold and fraught with risk. "What the Supreme Court must answer is whether the intention of copyright is to protect economic value or to promote science and the arts," says Peter Jaszi, a professor of copyright law at American University Law School. If the court overturns the law, it could call into question a host of other unpopular laws, especially the Digital Millennium Copyright Act. But if the law is upheld, it will be a huge setback for digital-rights activists.

"CULTURAL COMMONS." Lessig & Co. says the 20-year extension is a land grab by greedy corporations, especially Disney (DIS), which fear that they'll lose billions of dollars if popular characters like Mickey Mouse enter the public domain. According to Lessig, Congress has extended copyright terms 11 times since 1962, each just as the copyright on the first Mickey Mouse film, Steamboat Willie, was set to expire.

In fact, opponents of the law have taken to calling the CTEA, the "Mickey Mouse Preservation Act." Without the 20-year extension, Steamboat Willie would have passed into the public domain in 2003. What galls Lessig most about Disney is what he perceives to be its hypocrisy. After all, Disney built its empire by retelling other people's stories. The Little Mermaid was written by Hans Christian Andersen. Cinderella and Snow White are fairy tales by the Brothers Grimm.

"Disney could do this because [we had] a cultural commons, where people could freely take and build [new works]," Lessig told an enthusiastic audience on Aug. 15 -- his last public appearance before hunkering down to prepare for his Supreme Court arguments. "No one can do to Disney what Walt Disney did to the Brothers Grimm. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because, now, culture is owned."

ARISTOTLE'S COPYRIGHT? The rise of the Internet makes such incursions all the more threatening, according to Lessig. That's because, technically speaking, every download is a copy, which can be tracked and restricted by the copyright holder. So while you can photocopy a chapter of author George Eliot's 1873 novel Middlemarch and give it to a friend, that's not true for newer file formats.

For example, if you try to print or copy sections of Middlemarch on an Adobe eBook Reader, you'll be informed that Adobe allows users to copy only 10 sections every 10 days. Readers of Aristotle's Politics, which as far as anyone knows was never copyrighted, aren't permitted to copy or print any text.

Defenders of the CTEA say threats to fair use are being overblown. According to the government's brief, the Constitution confers the right to make copyright law on Congress, not the courts. And they rightly point out that Lessig's oft-repeated claim that Congress extends copyright terms willy-nilly is misleading.

"FREE MICKEY MOUSE." Nine of the 11 updates that Lessig cites were short, interim extensions while Congress battled from 1962 to 1976 about how to amend copyright. The reasoning: It was unfair to deny an extension to works on the cusp of entering the public domain because of legislative bickering.

Moreover, the CTEA's backers say, the question of whether the law is good policy is entirely different from whether its action is constitutional. When has it ever been illegal for Congress to pass bad laws? In short, while the CTEA opponents' rallying cry to "Free Mickey Mouse" is culturally appealing, it's not the legal basis for a constitutional challenge, says Scott Martin, vice-president for intellectual property at Paramount Pictures and a former professor of copyright at University of Southern California Law School.

In the end, the battle is much larger than Mickey Mouse. "The real concern isn't that Mickey or Happy Birthday [enter the public domain] but all the other stuff -- classical music, little-known films -- that gets incidentally restricted in order to protect a few valuable, perennial works," says American University law professor Peter Jaszi. This case is about what's fair game in the Digital Age. So far, what's fair has been dictated by the entertainment Goliaths. Black is a technology reporter for BusinessWeek Online in New York

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