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Larry and the Supremes

By Scott Bradner

I am not a person that thinks that copyrights are evil, but I also do not think they should be forever. The "copyright industries," as Jack Valenti, president of the Motion Picture Association of America quaintly describes the multi-billion dollar conglomerates that control most intellectual property in the world these days, agrees. But they would be quite happy with forever minus one day. Maybe, just maybe, the US Supreme Court is about to say that this would be a bit excessive.

On February 19th the Supreme Court announced that it would hear the appeal of Eric Eldred, who runs a small organization dedicated to putting public domain literature on-line (http://www.eldritchpress.org/), against the Sonny Bono copyright extension act. Very few observers expected the Supreme Court to accept the appeal since there were not conflicting opinions in the lower courts, a common reason to accept appeals, and since the Supreme Court generally does not go out of its way to plow new ground. At least four of the Justices had to have felt that there was an issue of substance to be decided so there is a hope that they will overturn at least part of the Sonny Bono Act. More information about the case can be found at http://eon.law.harvard.edu/openlaw/eldredvashcroft/.

The concept of copyright protection is in the US Constitution -- the creator of a work should be given exclusive control over most uses of their creation "for a limited period" so that they can directly benefit from its creation and will be encouraged to produce other things. Although the "limited period" in the original copyright law was 14 years, with the ability to get another 14 years of the author was still alive, the period has been extended 11 times in the last century and, before the Sonny Bono Act, was life of the authors plus 50 years or 75 years for "corporate authors" such as this paper.

The Sonny Bono Act extended both of these by 20 years, and made the extension apply to already existing works. The specific appeal that the Supreme Court accepted is on applying the extension to existing works. It's hard to see what additional inducement to create would come out of an additional 20 years of copyright protection when you already had 50 or more years.

Why is this important to us Internet geeks? The Internet has become THE reference tool. Any time that more material can be added to such a tool we all benefit. If endless extensions to the "limited period" mean that nothing more goes into the public domain then almost all published material will be lost effectively forever. As a data point, only 1.7% of the books published in 1930 are still in print.

I personally hope that the Court goes further than just ruling the extension for existing materials unconstitutional , as Larry Lessig, the lead lawyer for the plaintive is asking, but will also define the term "limited" to be something closer to what the framers of the Constitution would have thought to be reasonable.

disclaimer: I'm joining lots of Harvard people who have expressed opinions on this case but, as far as I know, the University itself has not.