I think the fact that Disney et al are arguing that they need to
bring US copyright law in line with European law presents an
opportunity for the plaintiffs: Europe also has no protection for
free speech. (ie "thick" protection and "no free speech" go
- - - - -
February 20, 2002
Case Could Shift Balance in Debate on Public Domain
By AMY HARMON
In the annals of the digital copyright wars, major media companies
facing the threat of Internet piracy have so far triumphed decisively
over their challengers, who argue that the public's interest is being
sacrificed to provide copyright holders with greater control.
But legal experts said the Supreme Court's decision yesterday to hear
a case challenging the constitutionality of a 1998 law that extended
the term of copyrights by 20 years may serve to realign the balance
in favor of those who want more works in the public domain.
Even if the court ultimately upholds the law, the case is likely to
focus public attention on a debate that has broad implications for
the way creative work is produced and consumed, but that has so far
been largely limited to lawyers and business executives.
"Merely the fact that the court will hear and decide on this case is
of huge importance," said James Boyle, an intellectual-property
professor at the Duke University School of Law. "It will crystallize
the concerns over the state of the public domain."
At first glance, the case, Eldred v. Ashcroft, appears to have little
to do with the perils and promises of distributing copyrighted works
over the Internet. At issue is whether Congress overstepped its
authority to grant copyrights "for limited times" to "promote the
progress of science and useful arts."
In 1790, the maximum copyright term was 28 years. Now it can last
more than 100 years.
But Lawrence Lessig, a Stanford Law School professor who represents
the plaintiffs, said the issue had greater significance today because
of the Internet. The medium would make possible a broad range of
creative expression, he said, if people did not have to track down
and pay for the rights to material that could be freely available to
"Before the Internet, a creator's ability to put new works out there
all depended on commercial publications, because only they could
afford the cost," Mr. Lessig said. "But at this stage, it becomes
important to establish the principle that the public domain is here
and meant to be perpetually fed by works passing into it after a
limited copyright protection."
It is hard to gauge the economic impact that overturning the law
would have on copyright holders. The Walt Disney Company is often
singled out as an example of a business that profited from public
domain ó drawing on works like Victor Hugo's "Hunchback of Notre
Dame" and Hans Christian Andersen's "Little Mermaid" to make movies
that enriched both the modern culture and its shareholders ó and now
profits from closing it off.
But a spokesman for Disney said that it supported the law primarily
because it brought the United States into conformity with European
copyright law. "The things we used from the public domain are
centuries old," said John Dryer, a spokesman for Disney. "If this law
is upheld, which we fully expect it will be, it doesn't place a
burden on anyone."
In any case, Disney is pressing its case on other copyright fronts at
The term-extension battle is being waged amid a larger fight that
pits copyright holders against the spread of technology that allows
almost anyone to easily copy and distribute almost any work online.
Disney's chairman, Michael D. Eisner, is expected to testify before
the Senate Commerce Committee next week in favor of a draft bill that
would mandate that anti-copying technology be built into computers
and consumer electronics to safeguard digital television broadcasts.
Disney is also one of several other major media firms that has filed
copyright-infringement suits against several successors to Napster,
the Internet music-swapping service that has been hobbled by court
The major movie studios are also seeking an injunction against
SonicBlue, the maker of the Replay digital video recorder, because
its most recent model allows consumers to send TV programs they have
recorded over the Internet.
And the studios are continuing to prosecute a case against a magazine
that published a computer program that could be used to circumvent
the copy controls on DVD's.
A federal appeals court panel found the magazine violated the terms
of another 1998 copyright law, the Digital Millennium Copyright Act,
by publishing and linking to the program.
The magazine, 2600, has appealed the case to the full Court of
Appeals for the Second Circuit.
It is in the broader context of these copyright battles that some
legal experts and public advocates are greeting the Supreme Court's
decision to hear the Eldred case as a potential shift in the
judiciary's treatment of copyrights.
"If those who defend the public interest in copyright can win this
battle," said Siva Vaidhyanathan, an assistant professor of
information studies at the University of Wisconsin, "that means the
Supreme Court will have once again clearly defined that copyright is
supposed to work for the public and not a small set of corporations."
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