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Commentary

The Delicate Balance Between Copyright and Free Expression

By Marjorie Heins

The unlikely subject of copyright is shaping up as the biggest First Amendment battle in the Supreme Court next year. The reason: recent legislation has put copyright law on a collision course with artistic and intellectual freedom.

The 1998 "Sonny Bono Copyright Term Extension Act" stretched what was already a very long term of copyright protection. It did so at the behest of Disney and other large media companies. Under existing law, such treasured icons as Mickey Mouse, who first appeared on the scene in 1928, would have lost copyright protection and entered the public domain in 2003. Wanting to profit from reproductions of Mickey and his pals just a bit longer, Disney and its allies persuaded Congress to extend copyright by another 20 years.

The first copyright law, in 1790, gave authors and publishers monopoly power over their works' reproduction and sale for 14 years. This was consistent with the copyright clause of the Constitution, which authorizes Congress "to promote Science, and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective writings and discoveries." The 1790 law made the "exclusive Right" renewable for a second 14-year term.

Copyright was extended only once in the next 100 years (in 1831), and again only once in the following 50 (in 1909). But since the 1960s, Congress has stretched the "exclusive Right" 11 times - creating what is now an almost perpetual monopoly power for the companies that control the writings, films, and other artworks that their employees have created. Under the Sonny Bono Act (named for the now-deceased entertainer turned congressman), most copyrights held by corporations now extend for 95 years, while copyrights held by individuals extend for the author's life plus 70 years. Novels like The Great Gatsby, movies like The Jazz Singer, and cartoon characters like Pluto would have entered the public domain in the next few years if not for the Sonny Bono law.

Why does this matter? After all, copyright protection is thought essential in motivating artists and writers to create new work, and thus keep our culture exciting, contentious, and alive. But the public domain is also vital to culture, as the remarkable array of organizations that have filed friend-of-the-court briefs in Eldred v. Ashcroft, the case challenging the Sonny Bono law, attest. This bevy of writers, historians, librarians, film preservationists, constitutional scholars, and cultural groups have given the Supreme Court numerous examples of how important it is to take seriously the constitutional requirement of a "limited term."

The brief from the College Art Association and others concerned with the study and preservation of visual art is typical. It explains that scholars and teachers assembling texts and databases often cannot locate the owners of copyrights in educationally valuable letters, songs, and photographs (most of them have neither the time nor the financial resources even to embark on such quests). Without copyright permission, publishers generally won't include these materials, for fear of legal liability. The result, according to the CAA, are "gaping holes" in such compilations as The Video Encyclopedia of the Twentieth Century, a resource used by many researchers and teachers, or "Who Built America?," a CD-ROM series containing primary sources from the Depression Era.

In other instances, copyright holders can be found, but they refuse permission to reproduce works for frankly censorial reasons. The estate of Lorenz Hart will not allow "any biographer who mentions Hart's homosexuality" to reprint his lyrics, according to the CAA brief.

Jack Valenti of the Motion Picture Association of America (the MPAA) pushed hard for the Sonny Bono law by arguing that extended copyright protection is needed not only to motivate artists and writers, but to spur the preservation of films and other perishable works. The factual basis for his claims was dubious. Authors by definition don't have much urge to create after they are dead; and it's hardly likely that when alive, they will be more motivated if they know that their heirs will profit from their work for 70 years instead of the previous term of 50.

As for preservation, the briefs in Eldred demonstrate that for the most part, it's not the corporate holders of copyrights but independent scholars and archivists who are most likely to take steps to preserve our artistic heritage. They generally can't do so, however, unless the works are in the public domain. Multiple editions of good books - at cheaper prices and with a variety of supplementary material - also quickly appear once copyright exclusivity ends.

Copyright is always a balancing act - there are free expression interests on both sides of the equation. "No man but a blockhead ever wrote except for money," Samuel Johnson claimed; and the authors of our Constitution apparently agreed that some limited time during which authors can profit from their works is needed to spur production. But "limited" is the key word here, because all creative work is derived in part from what came before; and artists, critics, and parodists need to borrow from existing works in order to build or comment on them.

Copyright law has traditionally balanced these competing free-expression interests. The law distinguishes between "ideas" and "expression," for example. That is, it's understood that nobody can own or restrict the dissemination of facts or ideas. Copyright law only prohibits direct copying of the words, images, plots, or characters created by others.

Similarly, the doctrine of "first sale" in copyright law allows purchasers of books, photos, or other copyright-protected items to give or sell them to another, thereby enhancing the spread of knowledge. The ongoing battle over Internet file-sharing implicates free expression because media companies have encrypted the digital versions of their works, thus preventing first sale. (They also persuaded Congress, in the 1998 "Digital Millenium Copyright Act" or DMCA, to criminalize de-encryption software; but that is a subject for another essay.)

Copyright law also recognizes First Amendment values through the concept of "fair use," which allows copying for purposes of comment, scholarship, and parody. But it's often guesswork to predict where fair use ends and unlawful piracy begins; hence, such hotly fought battles as the recent litigation over The Wind Done Gone, novelist Alice Randall's sharply critical take on Margaret Mitchell's Gone With the Wind. The Mitchell estate would have refused Randall's borrowing even if she had asked permission, because it prohibits any works deriving from Gone With the Wind to mention homosexuality or interracial liaisons, and Randall's version does both. Although fair use eventually prevailed in Randall's case, it wasn't before a federal court ordered a halt to publication of The Wind Done Gone, and major sums were spent on lawyers' fees.

A fourth important safety valve for free expression in the world of copyright is of course the public domain. Which brings us back to Eldred v. Ashcroft.

Eric Eldred, the lead plaintiff in the case, began an online press in 1995 to publish all manner of public domain works and distribute them to a global audience as only the Internet can do. Had the Sonny Bono Act not extended copyright for another 20 years, Eldred would have published Robert Frost's "New Hampshire," Sherwood Anderson's "Horses and Men," and numerous other literary works when they entered the public domain in 1999 and the years immediately after.

Lawrence Lessig, a Harvard Law professor at the time, undertook to represent Eldred in challenging the Sonny Bono law. It was the first time a constitutional challenge had been brought to copyright extension, and the courts made quick work of Lessig's claims. In February 2001, the D.C. Circuit Court of Appeals ruled that neither the opening words of the Copyright Clause ("to promote Science, and useful Arts") nor the language of "limited term" restricted Congress in deciding how long a "limited term" could be. (Mary Bono, Sonny's widow, had quoted Jack Valenti as saying that the term should be "forever less one day.")

The D.C. Circuit also rejected Lessig's First Amendment challenge to the Sonny Bono law, arguing that nobody has a "First Amendment interest in a copyrighted work." Since the law extended the copyright term for the works that Eldred wanted to publish, by definition he had no First Amendment interest in them, according to the court's circular reasoning.

By this time, though, the movement for free speech online had grown to include calls for free copying, free software, and fierce attacks on recent copyright legislation. Many librarians, writers, artists, and scholars were coming to understand the threats posed by copyright expansions like the Sonny Bono Act and the DMCA. When Lessig et al. asked the Supreme Court to review the D.C. Circuit ruling, they had an unusual and diverse group of supporters - leading copyright and constitutional law professors, the American Library Association, and other major groups concerned with art and scholarship.

Of course, this is an issue that splits the worlds of media and publishing. Some authors' groups favor expansive copyright protection. But a movement has clearly taken hold, and the notion that the First Amendment has no application at all to anything Congress chooses to do in the area of copyright has become increasingly unsettling. On February 9, 2002, in a move that took the industry by surprise, the Supreme Court granted review in Eldred. The legal questions it wanted the parties to address were: whether the D.C. Circuit erred in ruling that Congress had the power to extend the term of existing (as opposed to future) copyrights; and whether copyright law is "categorically immune" from First Amendment challenge.

On May 20, the Supreme Court received the plaintiffs' brief from Lessig and his co-counsel - among them, Stanford Law School's dean, Kathleen Sullivan, Jonathan Zittrain of Harvard's Berkman Center for Internet & Society, and ex-Reagan Administration Solicitor General Charles Fried. Fourteen supportive briefs poured in, with a total of 141 signers ranging from the National Writers Union to the Association of American Physicians and Surgeons, from Computer Professionals for Social Responsibility to authors like William Gass and Ursula Leguin.

The government argues in defense of the law that the introductory words of the Copyright Clause are not a constitutional command. Likewise, it claims, Congress has discretion to decide what is a "limited term." And, on a less legalistic note, the Department of Justice says that the law is a justified effort to bring the U.S. copyright term into conformity with that of the European Union.

But all the Supreme Court needs to decide in Eldred is that the First Amendment applies to copyright legislation. It can then send the case back to the lower courts to determine if 95 years is so long that it defies any reasonable interpretation of "limited term" and in consequence, impoverishes free expression in the public domain.

June 3, 2002

Update: On January 15, 2003, the Supreme Court upheld the Sonny Bono Copyright Term Extension Act; see The Frozen Public Domain. For background on all the major copyright controversies, see FEPP's revised and updated "The Progress of Science & Useful Arts": Why Copyright Today Threatens Intellectual Freedom.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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