Judge Upholds Constitutionality of Copyright Term Extension Act

(November 21, 1999) U.S. District Court Judge June Green ruled that the Copyright Term Extension Act does not violate the copyright clause or the First Amendment of the Constitution. The Plaintiffs in the case, Eldritch Press v. Reno, intend to file their notice of appeal on Wednesday, November 24.

Related Pages
Tech Law Journal Summary of Eldritch Press v. Reno.
Copyright Term Extension Act.
Opinion of Judge Green, 10/27/99.

Lawrence Lessig and other professors at the Harvard Law School's Berkman Center filed a suit in the U.S. District Court in Washington DC in January seeking to have the Sonny Bono Copyright Term Extension Act (CTEA) held unconstitutional. The law extended the maximum duration of copyrights to 95 years.

The original Plaintiff of record is Eric Eldred, the proprietor of the unincorporated Eldritch Press, a website which republishes the works of others which are not protected by copyright.

The CTEA extended the maximum duration of copyrights from 75 to 95 years, thereby delaying the entry of many interwar books, films and musical compositions from entering into the public domain.

The Constitution
Article I, Section 8

"Congress shall have the Power... To regulate Commerce ... 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 ... To make all Laws which are necessary and proper for carrying into Execution the foregoing Powers ..."

The Defendant is Janet Reno, Attorney General of the United States. She was sued solely because she is ultimately responsible for the enforcement of all federal laws. In addition, several copyright holders, and groups which represent copyright holders, filed a friend of the court brief in support of the CTEA. They are represented by their own famous Harvard law professor, Arthur Miller.

The Court's opinion, written by Judge June Green, was unusually blunt. She found no weighty constitutional issues upon which to elaborate.

The plaintiffs had argued that the CTEA violated their rights under the First amendment's freedom of speech clause. However, Judge Green dismissed this argument in a solitary paragraph:

"The Plaintiffs' first claim, that the CTEA violates the First Amendment, is not supported by relevant case law. Pls.' Mem. at 35-58, 69-87.  The District of Columbia Circuit has ruled definitively that there are no First Amendment rights to use the copyrighted works of others.  United Video v. F.C.C., 890 F.2d 1173, 1191 (D.C. Cir. 1989); see Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985).  Therefore, the Court rejects Plaintiffs' First Amendment claim."

"We would have liked to have won," Geoffrey Stewart told Tech Law Journal. Stewart, is an attorney with Jones Day, and local counsel for the plaintiffs.

"[The opinion] did not address some of the issues that we would have liked the Court to address." Stewart emphasized that, "there is a profound First Amendment issue here."

Stewart added that a Notice of Appeal will be filed with the U.S. Court of Appeals for the District of Columbia on Wednesday the 24th, and that if necessary, the plaintiffs will seek review by the U.S. Supreme Court.

The plaintiffs had also advanced several arguments that the CTEA's retrospective extension of copyright terms is beyond Congress's enumerated power under the copyright clause. However, Judge Green rejected them all.

For example, the Plaintiffs had argued that a 95 year term violated the "limited Times" phrase of the copyright clause. Judge Green quipped in a footnote that "any fixed term is a limited time because it is not perpetual."

Finally, the Plaintiffs had argued that the CTEA violates the public trust doctrine. The court wrote this brutal and short rejection:

"Under the doctrine, the states hold title to navigable and tidal waters within their boundaries in trust for their people. Insofar as the public trust doctrine applies to navigable waters and not copyrights, the retroactive extension of copyright protection does not violate the public trust doctrine." (citations omitted)

Eldritch Press v. Reno is just one of several recent cases in which parties have argued that free speech rights should take precedence over copyright law in cyberspace. However, to date, the free speech camp has not prevailed.

In a related case, the Los Angeles Times v. Free Republic, U.S. District Court Judge Margaret Morrow issued a tentative opinion on November 8 that the First Amendment does not protect a bulletin board web site from suits for copyright infringement when it posts copyrighted news articles for the purposes of political discussion.