Supreme Court Upholds CTEA in Eldred v. Ashcroft

January 15, 2003. The Supreme Court issued its opinion [89 pages in PDF] in Eldred v. Ashcroft, upholding the constitutionality of the Copyright Term Extension Act, which retroactively extended the maximum duration of copyrights. Justice Ruth Ginsburg wrote the opinion of the Court, in which Kennedy, O'Connor, Rehnquist, Scalia, Souter, and Thomas joined. Both Breyer and Stevens wrote dissenting opinions.

Justice Ginsburg wrote that the Copyright Clause delegates to the Congress the authority to set the terms for copyright protection, and the Supreme Court will defer to the Congress' determinations. She also wrote that the First Amendment does not limit the Congress' power to extend copyright terms. She wrote "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them." Such safeguards, wrote Ginsburg, include fair use, and the principle that copyright protects expressions, but not the ideas or facts contained in expressions.

Background. The 105th Congress passed the Copyright Term Extension Act (aka CTEA) to extend the maximum duration of copyrights from 75 to 95 years. The late Rep. Sonny Bono (R-CA) introduced HR 1621 for this purpose in 1997. However, it was the Senate version, S 505, which ultimately was passed by both the House and Senate on October 7, 1998. President Clinton signed this bill on October 21, 1998. The Act applies retroactively. (See, P.L. 105-298, 112 Stat. 2827. It amends 17 U.S.C. § 304(b).)

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. However, the suit was brought by a group of activist law professors, including Lawrence Lessig, Charles Nesson, and Jonathan Zittrain. At the time the lawsuit was filed, all worked at The Berkman Center for Internet & Society at Harvard Law School.

Proceedings Below. On January 11, 1999, the plaintiffs filed a complaint in U.S. District Court (DC) against Janet Reno, in her capacity as Attorney General. The Second Amended Complaint contains three counts. The first alleges that the CTEA is unconstitutional because the term is too long. The second alleges the "public trust doctrine." The third asserts that the CTEA restricts plaintiffs' freedom of speech. The District Court action also involved the No Electronic Theft Act. However, the only issues before the Supreme Court were "whether the CTEA's extension of existing copyrights exceeds Congress' power under the Copyright Clause; and whether the CTEA's extension of existing and future copyrights violates the First Amendment." On October 27, 1999, the District Court ruled that the CTEA does not violate the Constitution. See, Memorandum of the Court.

On February 16, 2001, the U.S. Court of Appeals (DC) issued its opinion affirming the District Court. Chief Judge Douglas Ginsburg wrote the opinion; Karen Henderson joined; and David Sentelle dissented. The Court of Appeals denied plaintiffs' petition for rehearing en banc on July 13, 2001. Sentelle and David Tatel dissented. See, opinion. The Supreme Court then granted certiorari.

See also, Berkman Center case summary and TLJ summary of the proceedings before the District Court

Copyright Clause Challenge. The Constitution, Article I, Section 8, provides that "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 ..."

Judge Ginsburg, writing for the seven Justice majority, stated that "the Copyright Clause empowers Congress to prescribe ``limited Times´´ for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future." She continued that "Petitioners contend, however, that existing copyrights extended to endure for that same term are not ``limited´´. Petitioners. argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever ``fixed´´ or ``inalterable.´´ The word ``limited,´´ however, does not convey a meaning so constricted."

She then reviewed that history of Congressional legislation extending the terms of copyright and patent terms. "History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime."

She added that prior Courts had no problem with extending the term of either copyrights, or applying the extended terms to both new and existing copyrights. Hence, Ginsburg concluded that the CTEA complies with the "limited terms" component of the Copyright Clause.

Next, she enquired whether enactment of the CTEA was a "rational exercise of the legislative authority conferred by the Copyright Clause." In response, she wrote, "On that point, we defer substantially to Congress. ... The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain." She found it particularly significant here that the EU had already established the terms enacted by the CTEA.

"In sum," wrote Ginsburg, "we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA -- which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes -- is an impermissible exercise of Congress. power under the Copyright Clause."

Ginsburg next addressed the petitioners argument that applying the term extension retroactively failed to "promote the Progress of Science and useful Arts". To this, Ginsburg responded, "We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives."

First Amendment Challenge. Finally, Justice Ginsburg rejected the argument that the CTEA violates the First Amendment. In doing so, she rejected any argument that the Copyright Clause and the First Amendment are in conflict with each other.

She wrote that "The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression."

She elaborated that "In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. ... First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. ... Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication."

Ginsburg added that "Second, the ``fair use´´ defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances."

She wrote too that "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them."

In conclusion, Justice Ginsburg wrote that "As we read the Framers' instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause. ... (Congress may ``implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim´´. (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA's long terms. The wisdom of Congress' action, however, is not within our province to second guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals."

Reaction. Rep. John Conyers (D-MI), ranking Democrat on the House Judiciary Committee, stated in a release that "I am not surprised that the Court upheld the prerogative of Congress to promote and protect authorship. Copyright protection is the main incentive that content owners have to create and distribute their creations; if Congress does not act pursuant to its constitutional responsibilities to update that protection as technology advances, we will take away that incentive and lose what is this country's number one export. This decision demonstrates this country’s commitment to encouraging authorship and free expression."

Representatives of industries that hold copyrights praised the Supreme Court's opinion. Ken Wasch of the Software & Information Industry Association (SIIA) stated in a release that "SIIA is pleased that the Supreme Court confirmed Congress' ability to legislate in areas of intellectual property and deferred to Congress' judgment in this important area of public policy. We are also very pleased with the Supreme Court's analysis of the First Amendment issues involved in the case. The Court recognized that First Amendment considerations are contained within copyright law. Separate First Amendment legal action is thus unwarranted in traditional copyright challenges."

Jack Valenti of the Motion Picture Association of America (MPAA) wrote in a release that "We are pleased that the Court has reaffirmed the absolute authority of Congress to set copyright terms. We have always maintained and the law has long-recognized that copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest. That is why this ruling is a victory not solely for rights holders but also for consumers everywhere."

Cary Sherman of the Recording Industry Association of America (RIAA) stated in a release that "This is a decisive and important victory for creators and consumers. The Supreme Court has affirmed the importance of the copyright system and the authority of Congress to adapt it in response to evolving markets and international developments. The Court also recognized, once again, that copyright and the First Amendment are completely compatible, noting that our copyright system contains “built-in free speech safeguards.”

In contrast, Gary Shapiro of the Consumer Electronics Association (CEA) stated in a release that "We are disappointed the Court has decided to uphold the Constitutionality of the extension of copyrights. With this ruling, copyrights are now protected for up to a century. The Constitutional mandate that copyright terms be restricted to 'limited terms' becomes almost meaningless as Congress yielded to Hollywood's extension request."