A Public Policy Report

Second edition, revised and updated, © 2003. With additional updates in 2004 (html version only).  

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                                                    PREVIOUS: FOUR FREE EXPRESSION SAFETY VALVES 

II. FREEZING THE PUBLIC DOMAIN: THE BATTLE OVER THE SONNY BONO LAW

The Politics of Copyright Extension
Defending the Public Domain: Eldred v. Ashcroft
Eldred in the Supreme Court
The "Difficult Balance" Revisited: What is a "Limited Term"?

The Politics of Copyright Extension

The Sonny Bono law was the result of strenuous lobbying by the copyright industry. Often called the "Mickey Mouse Law" because of the Walt Disney Company's central role in urging its passage, it prevented the original image and character of Mickey, who made his screen debut in 1928 in the film Steamboat Willie, from entering the public domain in 2003. Disney and other film companies pushed aggressively for term extension, smoothing the way, as one journalist noted, with "well-targeted campaign contributions."51

During the three years it took to pass the Sonny Bono law, media companies and their political action committees (PACs) gave more than $6.5 million in campaign contributions to members of Congress. Representative Howard Coble, a co-sponsor of the law, received $63,000 in individual and PAC contributions. Senate co-sponsor Orrin Hatch received $50,000 from large donors, including the major movie studios, the Motion Picture Association of America (MPAA), and ASCAP.52

Senator Patrick Leahy, who publicly forgoes PAC contributions, received nearly $20,000 from individual Disney employees. (He was the ranking minority member of the Senate Judiciary Committee that passed on the bill.) Time Warner employees gave Leahy $36,000. Disney chairman Michael Eisner flew to Washington to meet with Senate Majority Leader Trent Lott, who then signed on as a co-sponsor. Journalist Daren Fonda noted: "That day, Lott's campaign committee received a check from Disney for $1,000 and 11 days later, Disney donated $20,000 in unrestricted 'soft money' to the National Republican Senatorial Committee."53

Given all this industry largesse, it is fitting that the Sonny Bono law bears the name of an entertainer-turned-politician. Mary Bono, who succeeded to her husband's seat in Congress after his death, explained: "Sonny wanted the term of copyright protection to last forever," but "I am informed by staff that such a change would violate the Constitution." She suggested that Congress consider the proposal of the MPAA's Jack Valenti, for "forever less one day."54

Defending the Public Domain: Eldred v. Ashcroft

The effect of the Sonny Bono law was to prevent more than 400,000 works from the 1920s and '30s from entering the public domain.55 Most of them were obscure creations without commercial value, though often with considerable historical interest. But many famous works also had their copyrights extended – among them, F. Scott Fitzgerald's The Great Gatsby, Ernest Hemingway's The Sun Also Rises, Thomas Mann's The Magic Mountain, the iconic American film The Jazz Singer, the book and score to the musical Show Boat, songs by Cole Porter, and the children's classic Winnie the Pooh.56

As the briefs filed in the legal case that challenged the Sonny Bono law attested, the effects were dramatic. The College Art Association, in a friend-of-the court (or amicus curiae) brief joined by the National Humanities Alliance and other groups whose members study visual art, explained that scholars assembling texts and databases often cannot locate the owners of copyrights in educationally valuable letters, songs, photos, and other documents. Indeed, most authors have neither the time nor the financial resources to do this gritty work of tracking down copyright permissions - though publishers generally expect them to. Without permissions, most publishers won't include the materials.

As a result, said the College Art Association, there are "gaping holes" in such documentary compilations as The Video Encyclopedia of the Twentieth Century, a resource popular with researchers and teachers, and "Who Built America?," an award-winning CD-ROM series for high school and college students containing primary sources from the 1930s. The compilers of "Who Built America?" had great difficulty finding copyright owners, and those they found sometimes wanted large fees even where the works in question had no commercial value. Thus, they were forced to omit the Depression Era demagogue Huey Long's campaign song, "Every Man a King," as well as many clips from popular films of the time. They substituted government documents or other works in the public domain, but the result was an unbalanced picture of the era.

The brief described an art historian who was refused permission to use a photo of Pablo Picasso and his daughter because the copyright owner disagreed with the historian's analysis of Picasso's work. A publisher that planned a new critical edition of Cane, by the Harlem Renaissance author Jean Toomer, in part to counterbalance the bias against Toomer reflected in the only available edition, could not go ahead because of the copyright term extension on Cane. "In the past," the brief said, "researchers could anticipate and plan on new material becoming available for unrestricted use on a constant and continuing basis." But the law's 20-year "moratorium on the public domain" upsets those expectations and penalizes scholars, museums, teachers, and historians. All this in the interest of further enriching a relatively few copyright owners "who already have received significant value from their ownership under the preexisting term."57

The suit challenging the Sonny Bono law started with a small online publisher named Eric Eldred. He began the nonprofit Eldritch Press in 1995, "inspired to help his triplet daughters wade through the antique prose of [Nathaniel Hawthorne's] The Scarlet Letter, which they were assigned to read in middle school."58 Eldred searched for Internet resources to assist them, including accessible, comprehensible, and reader-friendly copies of the text. As his lawyer Lawrence Lessig tells the story, what Eldred found online "was essentially unusable."59 The Web versions had typos, relied on outdated texts, or were crudely scanned.

Beginning with Hawthorne, Eldred began to provide easily readable texts of other public-domain works, by such major-league authors as Joseph Conrad, Anton Chekhov, and Henry James. The daily "hit count" on his Web site grew to 20,000. In 1997, the National Endowment for the Humanities recognized Eldritch Press's Hawthorne site as "one of the 20 best humanities sites on the Web."60

Eldred was set to add a Sherwood Anderson story collection and a book of Robert Frost poems, among other works whose copyrights were about to expire, when the Sonny Bono Act delayed their entry into the public domain by 20 years. He began to complain publicly, and one news story caught Lessig's attention. With Harvard Law School's Berkman Center for Internet & Society, Lessig framed a legal challenge to the Sonny Bono law.

They had three legal arguments. First, by freezing the public domain, the Sonny Bono law violates the right to free expression and access to ideas, as embodied in the First Amendment. Next, by extending copyright for already-created works, the law violates the Copyright Clause requirement of limited times. Finally, the law does not "promote the progress of science and useful arts," as required by the opening words of the Copyright Clause, because there is obviously no need to provide further motivation for authors to produce works that already exist.

Other plaintiffs in the case that became known as Eldred v. Ashcroft included a publisher of books on genealogy and local history, a church choir director, a classical sheet music company, the American Film Heritage Association, and Dover Publications, famous for quality reprints of public domain works. Before copyright extension, Dover planned to reprint Kahlil Gibran's The Prophet, originally published in 1923. The choir director, who limits her selections to public domain works because of the high cost of copyrighted sheet music, planned to perform work by Ralph Vaughn Williams and Edward Elgar. The classical sheet music company was preparing to publish compositions by Bela Bartok, Maurice Ravel, and Richard Strauss, which were about to enter the public domain, and distribute them to school and community orchestras.61

This was the first time anyone had brought a legal challenge to copyright extension, and the lower courts made quick work of Lessig's claims. A federal judge dismissed the suit, and in February 2001, the U.S. Court of Appeals, by a 2-1 vote, affirmed. The judges in the majority ruled that neither the opening words of the Copyright Clause nor its reference to "limited times" prevents Congress from extending copyright as often as it likes. The one dissenting judge pointed out that repeatedly extending copyright is fundamentally equivalent to creating a perpetual, unlimited - and therefore clearly unconstitutional - term.62

Eldred in the Supreme Court

By this time, news of both the Sonny Bono law and the Eldred case had spread. Librarians, scholars, activists, and many others grew concerned about copyright's continuing impoverishment of the public domain. "Free Mickey" became the rallying cry of those supporting Eldred.63 After the Supreme Court agreed to review the case, a large coalition of law professors, library associations, archivists, writers, computer professionals, arts and humanities alliances, and media centers weighed in with amicus curiae briefs on Eldred's behalf.

In all, fourteen amicus briefs on Eldred's side were submitted, with a total of 141 signers. They included groups ranging from the National Writers Union and the College Art Association to the Association of American Physicians & Surgeons and Computer Professionals for Social Responsibility. Their aim was to bring home to the Supreme Court justices the real cultural costs of ever-longer copyright terms, and consequent freezing of the public domain.

The brief from online archiving projects, for example, described how Internet public-domain publishing has revived countless forgotten or hard-to-find works. Archiving projects now "digitize and distribute millions of out-of-copyright books, movies, and music ... materials that commercial publishers, distributors, and rights-holders have effectively abandoned." While media companies that own the copyrights "often let these films decay and books disappear, this material is invaluable to scholars researching our history, artists developing new art forms, and anyone seeking to explore our culture."

To reclaim these works, they must be in the public domain. Finding and paying copyright owners is untenable, given the millions of documents involved. And in any case, the vast majority of works affected by the Sonny Bono law – published more than 70 years ago – "are not available from copyright owners at any price" because the owners cannot be found.

The brief offered as one example the Steven Spielberg Digital Yiddish Library, with about 12,000 digitized works, which "has helped turn a dying literature into 'the most in-print literature on the planet.'" This online archive "brings both a literature and an enriched understanding of the Yiddish culture to people across the globe."

By contrast, "other parts of our culture and heritage remain obscured behind the wall of copyright." Early issues of The New Yorker, Time, Readers Digest, and other magazines "provide an unparalleled window into early 20th century American life and culture." But unlike the Yiddish treasures in the Spielberg archive, few of these magazines can be found online because they are still under copyright. Until they fall into the public domain, the process of clearing rights for each article, drawing, and photograph makes digital archiving practically impossible.

The archives' brief also pointed to movies, that "rare medium of full immersion," with unmatched power "to transport us to distant times and places." Film "literally allows us to bear witness," whether to the police violence inflicted on civil rights era protesters, Martin Luther King, Jr.'s leadership of the 1965 march on Selma, Alabama, or countless other historical events. But as the public domain recedes, teachers, students, scholars, and the rest of the public are unable to see these images.64

Other support for Eldred came from First Amendment lawyers, copyright lawyers, writers, libraries, and economists. The writers, among them William Gass, Peter Matthiesen, Eva Hoffman, and Ursula Leguin – all, of course, copyright owners themselves – argued that a growing, healthy public domain is the necessary source for new creation. They pointed out that Disney, which worked so hard to freeze the public domain by pushing for the Sonny Bono law, nevertheless took advantage of it many times in creating animated versions of Snow White, Cinderella, The Hunchback of Notre Dame, and other classics. Indeed, Disney's Steamboat Willie was a parody of the classic Buster Keaton movie, Steamboat Bill, Jr.65

The economists' brief argued that copyright extension produced no economic benefit – virtually no additional incentive to create new works, and significantly higher costs for "derivative works" such as adaptations and performances. And as with any monopoly, the elimination of competition increased costs to consumers.66

Finally, a brief from the American Association of Law Libraries, the Medical Library Association, and other library groups had particular relevance for scholarship and culture. These are the institutions that preserve literature, art, science, journalism, and other products of human creativity, and make them available to all, regardless of wealth. The brief described Documenting the American South, an electronic collection sponsored by the University of North Carolina, which provides no-fee access to more than 1,000 publications and manuscripts. This archive includes Confederate imprints, Southern literature, materials on the African American church, and about 160,000 pages of slave narratives, of which, in many cases, only a few hard copies exist. Before digitization, hardly anyone got to see them. Now they are accessed by 15-20 people per day – well over 5,000 per year. The project would be impossible without the public domain.

The librarians' brief also addressed a limited exemption in the Sonny Bono law that allows them to reproduce and distribute works that are in their final 20 years of copyright – but only if the works are not currently profitable for their owners, and if copies cannot be obtained "at a reasonable price." The exemption is so narrow, said the librarians, that it "may ultimately do little" to "mitigate the substantial burdens" of the law.67

The Department of Justice and the copyright industry countered the outpouring of briefs attacking the Sonny Bono law with powerful arguments of their own. The government's brief emphasized how novel Eldred's claims were: Congress has been extending copyrights on existing works for 200 years, and no one before had brought a legal challenge arguing that "limited times" cannot be extended or that the opening words of the Copyright Clause ("to promote the progress of science and useful arts") mean that laws not shown to encourage new creations are beyond Congress's power. In any event, they argued, the longer term would spur media companies to invest in restoring and distributing old works, and although not creative, these activities also promote "science and useful arts."

The government stressed that Congress, not the courts, is the appropriate branch of government to decide what policy best serves art and culture. Indeed, it insisted, for the courts to wade into this area would require reviewing a multitude of congressional judgments – among them, that longer copyright protection, not the public domain, advances film preservation, and that the media industry, if it receives additional profits, will invest in more new creations. The government's lawyers warned the Supreme Court that if it starts subjecting copyright term extensions to First Amendment scrutiny, it will end up in the impossible position of second-guessing Congress's judgments on "each and every feature" of copyright law.68

As if to outdo Eldred's supporters, those on the government's side filed a total of 18 amicus curiae briefs. Several came from the copyright industry – the MPAA, AOL Time Warner, the Recording Industry Association of America (RIAA). Others came from celebrated copyright holders or their estates – George Gershwin, George Balanchine, and David Mamet (among others who signed on to a brief from the Association of American Publishers); the Songwriters Guild of America; and AmSong, Inc. (an "organization dedicated to the protection of musical copyrights," whose members include Bob Dylan, Carlos Santana, Don Henley, and Thelonious Monk, Jr.).

The common themes of these briefs supporting copyright extension were the financial and proprietary interests of creative artists and their heirs. They also argued that copyright holders make good use of already-created works through adaptations and movie deals. But they failed to acknowledge the even greater use that would occur if the works were allowed to enter the public domain.

A brief that was particularly aggressive (and humorless) came from Dr. Seuss Enterprises, the heirs of E.B. White (author of the timeless Stuart Little and Charlotte's Web), and Madeleine and Barbara Bemelmans (heirs of Ludwig, the author of the Madeline books). They argued that enriching the public domain was not a purpose of the Copyright Clause at all, and in fact that allowing works to enter the public domain has pernicious effects. "While in no way seeking to disparage" Eldred and his fellow plaintiffs, they said, "others having access to works through the public domain make use of well-known characters to glorify drugs or to create pornography. These uses, especially for children's works, demean and dilute the original works and discourage their continued popularity."69

The assumption of these copyright owners was that cultural icons like Dr. Seuss should be immune from irreverent or scandalous uses. But this misapprehends the role of mockery and cultural quotation in a system of free expression. These writers' estates seemed unwilling to accept that the fame of works like The Cat in the Hat or Charlotte's Web makes them natural targets for take-offs and parodies. They should no more have immunity from such critiques or humor than the Walt Disney Company should be able to suppress the famous "Disneyland Memorial Orgy," a cartoon created by Mad magazine illustrator Wally Wood and published as a poster by The Realist magazine in the 1960s.70 The "Orgy" depicts Mickey, Minnie, and other Disney characters in sexually suggestive situations. Although Disney has tried over the years to stop distribution of the "Orgy," it remains an important wry comment on the sexlessness of "Disneyfied" American culture.

Another common argument of those defending the Sonny Bono law was that the copyright system, by recognizing fair use and the idea/expression dichotomy, already accommodates First Amendment rights. The government's brief elaborated on this theme. Just as in the Nation case, it said, where the Supreme Court rejected an argument that the public interest in Gerald Ford's memoirs required a new exception to copyright, free speech safeguards such as fair use already "protect First Amendment interests and render further judicial intervention unnecessary."71

Finally, the government and its supporters emphasized the need for "harmonization" of U.S. copyright law with Europe's. They said Congress was right to decide that in the interests of international trade, and of protecting America's number two export, popular culture, U.S. copyright holders should not have any less protection abroad than their foreign competitors. Under the Berne Convention, countries need only give the same copyright protection to a foreign work that it has in its country of origin. Hence, without the Sonny Bono law, U.S. copyrights would be protected in Europe for the life of the author plus 50 years (as provided by the 1976 Copyright Act) rather than life plus 70 – the term in European Union countries.72

But the Sonny Bono law did not in fact make U.S. copyright terms consistent with Europe's. European Union countries give 70 years for works owned by corporations. The Sonny Bono Act gives corporations 95 years from the date of publication or 120 years from the date of creation, whichever expires first – that is, at least 25 years longer than many countries in Europe.73

Moreover, most European countries don't have an equivalent of the U.S. "work for hire" doctrine, which gives corporations the copyright in works created by their employees. In Europe, the life of the author – or multiple authors in the case of movies – is often used to calculate copyright terms for works by corporate employees. Hence, the goal of harmonizing U.S. and European copyright law is stymied at the outset by a major difference in the treatment of works by corporate employees. The U.S. Register of Copyrights admitted to Congress before passage of the Sonny Bono law that the 20-year extension would not make American law consistent with Europe's.74

On October 9, 2002, the case of Eldred v. Ashcroft was argued before a packed audience in the Supreme Court. Several of the justices seemed incensed by the Sonny Bono law. Sandra Day O'Connor said the law "flies directly in the face" of the "very short term" of copyright that the framers of the Constitution had in mind. But she wondered whether this necessarily made it unconstitutional. Justice Ruth Bader Ginsburg had a variant on the same question: should there be any judicial review of Congress's decisions in this area, she asked Lessig; and if so, what standard should apply?

Justice Stephen Breyer was skeptical of the government's claim that Congress can legitimately promote "science and useful arts" not by encouraging creativity but simply by rewarding the distributors of already-created works. He asked the government's lawyer, Solicitor General Ted Olson, whether Congress could therefore pass a law granting copyrights for the Bible, Shakespeare, or Ben Jonson? The question was obviously rhetorical, but Olson was reluctant to say that even this would be unconstitutional.

Several other justices seemed uncomfortable with the law's extension of existing copyrights. But O'Connor asked Lessig whether invalidating it would not doom the 1976 Copyright Act, which also added to the term of existing copyrights. Breyer opined that invalidating the '76 law would produce "chaos" that would be "horrendous." Lessig responded that the Court could make a distinction because of the settled expectations created by the '76 Act.75

After the argument, Lessig reported that research on the books and movies whose copyrights were extended in 1976 indicates that the vast majority are no longer commercially available; hence, "a surprisingly small amount of work would be affected" if the '76 Act were invalidated.76

Nevertheless, this question about the vulnerability of the 1976 copyright law loomed in the justices' minds. On January 15, 2003, they upheld the Sonny Bono law by a vote of 7-2.

Justice Ginsburg's opinion for the Court made no mention of the ways that a stagnant public domain impoverishes art and culture, as the College Art Association and others had documented in their briefs. Instead, she condemned Justice Breyer, one of the two dissenters, for making "abundant policy arguments" instead of sticking to legal precedent. Breyer's impassioned dissent relied extensively on the briefs, noting for example that about 350,000 films, songs, and other works with little or no commercial value are still frozen in "a kind of intellectual purgatory" because of the Sonny Bono law.77

Ginsburg's opinion gave short shrift to the free-expression issue. The Copyright Clause and the First Amendment "were adopted close in time," she said – indicating that, "in the Framers' view, copyright's limited monopolies are compatible with free speech principles." Her opinion did not consider that those "limited monopolies" lasted quite a short time in the 18th century, or whether "limited" is even an appropriate description for a period that spans nearly a century, and often longer. But in any event, Ginsburg said, "copyright law contains built-in First Amendment accommodations" – in particular, the idea/expression dichotomy and the defense of fair use .78

What Ginsburg overlooked here, as law professor Jack Balkin soon pointed out, "is that the limitation of copyright terms is also a central important built-in feature of copyright law that protects free speech values." Balkin added: "In the Court's eagerness to get rid of the First Amendment claims in this case, it has created truly bad law that will cause problems for freedom of expression for many years to come."79

The Supreme Court's 2002 decision in Eldred v. Ashcroft gives Congress near-total discretion to decide what is an appropriate copyright term – to extend the "limited time" yet again for virtually any period. As Justice John Paul Stevens noted in a dissenting opinion, only one year's worth of creative works entered the public domain in the preceding 80 years. By allowing Congress to extend existing copyrights ad infinitum, Stevens said, the majority ignored "the central purpose" of the Copyright Clause.80

Justice Ginsburg was certainly right that copyright term extension is an issue of policy. Of course, this doesn't disqualify the courts from weighing in; they often consider policy arguments, especially in constitutional cases. As Justice Breyer said, "judicial vigilance" is necessary "if we are to avoid the monopolies and consequent restrictions of expression" that the Copyright Clause and the First Amendment were both intended to prevent.81

In an editorial, The New York Times agreed. Calling the public domain "the great democratic seedbed of artistic creation," the Times opined that the Supreme Court's decision "may make constitutional sense, but it does not serve the public well."82

The Difficult Balance Revisited: What is a "Limited Term"?

Copyright term extension is an issue that splits the worlds of art and culture. First Amendment experts disagreed on the constitutionality of the Sonny Bono law. Bob Dylan, Carlos Santana, and many other artists urged Congress to pass it. Since existing law already gave them copyright control for life plus 50 years, they were presumably concerned about the ability of their grandchildren and great-grandchildren to profit from their works. Understandably (but incorrectly), they thought of their creations as their permanent property.

The Eldred case was not an easy one as a matter of constitutional law. As the government argued, how is a court to decide what is an appropriate, or constitutionally permissible, "limited time"? This does seem essentially a judgment for Congress to make.

But if "limited time" can really mean hundreds of years, or can be extended by Congress indefinitely, then the public domain becomes a dead letter – which is certainly not the outcome intended by the drafters of the Copyright Clause.

The Supreme Court's failure to come to grips with the problem of the disappearing public domain suggests that this issue must be resolved in the public policy arena. And despite the disappointingly wooden Supreme Court decision in Eldred, the litigation may have had the salutary effect of taking the issue out of the legislative shadows and into the light of policy debate. As one journalist noted, public awareness might now persuade Congress to revisit the issue and, at the very least, allow copyrights to lapse "unless owners make an effort to renew them."83

Lawrence Lessig elaborated, arguing that it is not necessary to lock up all works created after 1923 in order to go on providing profits for the 2% of them that "continue to be commercially exploited." Just as patent holders must pay a fee every few years to continue their patents, "the same principle could be applied to copyright."84 Scholars, archivists, artists, and the reading and listening public could then at least use materials whose owners do not bother to renew.

As Lessig and many others have pointed out, the stakes are higher than ever. The Internet for the first time enables people the world over to read, view, and learn from works that in pre-digital times were buried in library stacks, private collections, attics, or basements. The immense promise of global communication, preservation, and intellectual exchange should not be squandered by the calcification of the public domain.

Update: In March 2004, a federal district court ruled that the Supreme Court decision in Eldred v. Reno did not bar a legal challenge to the Uruguay Rounds Agreements Act, pased in 1994, which restored copyright control for certain works that had already entered the public domain.84a

In April 2004, the Stanford Law School Center for Internet & Society filed a new lawsuit challenging the shift in copyright law over the previous 30 years from a "conditional system," in which copyright control only applies to works that are registered and whose copyright terms are renewed, to an "unconditional" system in which copyright is assumed, with the result that many thousands of works with no commercial value, which should be in the public domain, are automatically made unavailable for extremely long copyright terms. See New Lawsuit Spotlights Thousands of Copyright "Orphans."

NEXT: THE INS AND OUTS OF CIRCUMVENTION: THE DIGITAL MILLENNIUM COPYRIGHT ACT

ENDNOTES

51. James Surowiecki, "Righting Copywrongs," The New Yorker, Jan. 21, 2002, p. 27. Some say, however, that Mickey Mouse changed sufficiently after Steamboat Willie so that Disney's copyright on the image would not have expired in 2003. See Scott Martin, "The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection," 36 Loyola of Los Angeles Law Review, fall 2002, llr.lls.edu/volumes/v36-issue1/martin-original1.pdf (accessed 7/29/03), pp. 123-26. Martin also argues that even after term extension, Disney would not have lost its trademark rights to control uses of Mickey's image.

52. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, p. 12; Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), p. 33 n.10.

53. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, p. 12; Linda Greenhouse, "Justices to Review Copyright Extension," New York Times, Feb. 20, 2002, pp. C1, C6 ("[t]he 1998 extension was a result of intense lobbying by a group of powerful corporate copyright holders, most visibly Disney").

54. Statement of Mary Bono, in 144 Congressional Record H9946, 9952 (Oct. 7, 1998).

55. Brief for Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), pp. 7, 46, citing Edward Rappaport, "Copyright Term Extension: Estimating the Economic Values," Congressional Research Service Report for Congress (May 11, 1998), pp. 8-16.

56. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, p. 12; Brief of Amici Curiae the Internet Archive, Prelinger Archives, and Project Gutenberg Literary Archive Foundation Filed on Behalf of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), p. 12.

57. Brief of College Art Association, et al. as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 13, 7-10. The other signers of this brief were the Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers, and National Initiative for a Networked Cultural Heritage.

58. Andrea Foster, "A Bookworm's Battle," Chronicle of Higher Education, Oct. 25, 2002, p. A35.

60. Andrea Foster, "A Bookworm's Battle," Chronicle of Higher Education, Oct. 25, 2002, p. A35; Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, p. 12.

61. Daren Fonda, "Copyright Crusader Eric Eldred Says the Latest Copyright Law Goes Too Far," Boston Globe Magazine, Aug. 29. 1999, p. 12; Brief for Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., 2001 Term), pp. 3-5.

62. Eldred v. Reno, 239 F.3d 372, 375-76 (D.C. Cir. 2001), affirmed, 123 S.Ct. 769 (2003); id. at 381-82 (Judge Sentelle dissenting).

63. Emily Newburger, "The Year of the Copyright," Harvard Law Bulletin, spring 2003, p. 3.

64. Brief of Amici Curiae the Internet Archive, Prelinger Archives, and Project Gutenberg Literary Archive Foundation Filed on Behalf of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 3-5, 13-14, 22-23.

66. Brief of George A. Akerlof et al., in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002).

67. Brief Amici Curiae of the American Association of Law Libraries, et al., in Support of Petitiioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 19, 29-30. Other signers of this brief were the American Historical Association, American Library Association, Art Libraries Society of North America, Association for Recorded Sound Collections, Association of Research Libraries, Council on Library and Information Resources, International Association of Jazz Record Collectors, Midwest Archives Conference, Music Library Association, National Council on Public History, Society for American Music, Society of American Archivists, and Special Libraries Association.

The Sonny Bono law's library exemption is found in 17 U.S. Code §108(h). It added to a section of the existing copyright law that permits libraries to make limited copies for purposes of preservation or replacement, and allows patrons to make isolated, occasional copies as long as libraries post copyright warnings near the photocopy machines. 17 U.S. Code §108 (a)-(g).

68. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), p. 46.

70. Curator's notes, "Illegal Art" exhibit, sponsored by StayFree! magazine, CBGB 313 Gallery, New York City, Nov. 13-Dec. 6, 2002.

71. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), p. 40; Amicus Curiae Brief of the Songwriters Guild of America Concerning First Amendment Issues and in Support of Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 5, 2002), p. 15 ("First Amendment challenges to copyright laws have generally been rejected precisely because the ... idea/expression dichotomy adequately protects First Amendment interests").

72. Brief for the Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), pp. 37-38.

73. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus Books, 2001), p. 32 n.4; Council Directive 93/98/EEC, Articles 1(1), 1(3), 1(4), cited in Brief of Intellectual Property Law Professors as Amici Curiae Supporting Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), p. 17; Brief of Amicus Curiae International Coalition for Copyright Protection in Support of Respondent, Eldred v. Ashcroft, No. 01-618 (S.Ct., Aug. 2002), pp. 5-7.

75. Marjorie Heins notes, Oct. 9, 2002; Linda Greenhouse, "Justices Hear Arguments on Extension of Copyrights," New York Times, Oct. 10, 2002, p. C1; Michael Grebb, "Justices Doubt Free Speech Link," Wired News, Oct. 10, 2002
www.wired.com/news/politics/0,1283,55684,00.html (accessed 7/29/03).

76. Lessig Blog Archives, cyberlaw.stanford.edu/lessig/blog/archives/ cat_eldredcc.shtml (accessed 7/29/03).

77. Eldred v. Ashcroft, 123 S.Ct. 769; id. at 806 (Justice Breyer dissenting).

78. Eldred v. Ashcroft, 123 S.Ct. at 788-89.

79. Jack Balkin Blog, Jan. 15, 2003, "Mickey in Chains, Part II, or Why the Court Got it Wrong in Eldred v. Ashcroft," balkin.blogspot.com/2003_01_12_balkin _ archive.html (accessed 1/19/03).

80. Eldred v. Ashcroft, 123 S.Ct. at 800 (Justice Stevens dissenting).

81. Eldred v. Ashcroft, 123 S.Ct. at 812 (Justice Breyer dissenting).

82. Editorial, "The Coming of Copyright Perpetuity," New York Times, Jan. 16, 2003, p. A28.

83. Amy Harmon, "A Corporate Victory But One That Raises Public Consciousness," New York Times, Jan. 16, 2003, p. A24.

84. Lawrence Lessig, "Protecting Mickey Mouse at Art's Expense," New York Times, Jan. 18, 2003, p. A17.

84a. Golan v. Ashcroft, 2004 WL 615569 (D.Colo. 2004).