Copyright Challenge Heads to Court
October 9, 2002
By LINDA GREENHOUSE
WASHINGTON, Oct. 9 - No member of the Supreme Court had a good word to
today for the 1998 law that added 20 years to all existing copyrights.
that did not make the job any easier for Professor Lawrence Lessig of
Stanford Law School, who faced an uphill battle to persuade the justices
that the extension, which Congress adopted at the behest of the Walt
Disney Company and other powerful corporate copyright holders, was not
only bad policy but unconstitutional.
Hadn't Congress granted copyright extensions numerous times since the
country's earliest years, the Justices wanted to know. Didn't this
challenge to the latest extension necessarily call into question the
validity of the major rewriting of federal copyright law in 1976?
the result of accepting Professor Lessig's theory mean "chaos" in the
world of intellectual property, Justice Stephen G. Breyer asked.
That was possible, Professor Lessig conceded.
"Maybe we ought to find another theory," Justice Breyer responded.
Before the court opened this morning, the line of people hoping to get a
glimpse of the most important copyright argument in years was already
around the block. The lucky few who got in witnessed a fast-moving
tutorial in which the justices clearly came prepared to listen and
Although they had many questions for Professor Lessig and Solicitor
General Theodore B. Olson, who argued in defense of the law, they
uncharacteristically appeared to go out of their way to permit the
to answer with a minimum of interruptions.
The basis for Professor Lessig's challenge to the Copyright Term
Act is the text of the clause in Article I, Section 8 of the
authorizing Congress "to promote the progress of science and useful
by issuing copyrights for "limited times." The first federal copyright
law, enacted in 1790, provided for a 14-year copyright, renewable for
another 14 years. The new law extends individual copyrights to 70 years
after the creator's death and copyrights held by corporations to 95
Not only is this the functional equivalent of a perpetual copyright,
Professor Lessig argued, but extending existing copyrights fails to
the constitutional purpose of promoting creativity. His role in
the lawsuit on behalf of a coalition of Internet publishers and others
seeking access to the public domain has given this former Supreme Court
law clerk (1990-1991) a kind of cult status as a cyberspace guru. An
article in the current Wired magazine proclaims him "the great
who is "about to tell the Supreme Court to smash apart the copyright
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