In defense of copyright

A top intellectual property lawyer argues that the Supreme Court's decision to review the Sonny Bono Copyright Extension Act is plain wrong.

By Damien Cave

April 15, 2002 | Morton David Goldberg's name is hardly a household word for technology geeks worried about the corporate drive to take ownership of intellectual property to unprecedented heights. But Goldberg, a partner at Cowan Liebowitz and Latman in New York, has spent nearly 50 years working as a copyright attorney. He's also lectured at Stanford, served as president of the Copyright Society of the U.S.A. and advised the World Intellectual Property Organization.

His profile is also set to rise. Goldberg has become the unofficial point man for a movement within the American Bar Association to defend the controversial Sonny Bono Copyright Extension Act. Even before Bill Clinton signed the 1998 law -- which extended the terms of copyright by 20 years -- critics complained that it would harm the public by retroactively taking information from the public domain and putting it back under the control of copyright holders. A pair of online publishers later filed suit against the government, asking that the law be struck down. On Feb. 19, the Supreme Court surprised nearly everyone involved by agreeing to hear the case.

At issue is whether Congress -- with the constitutional authority to issue copyrights and patents "for limited times" to "promote the progress of science and useful arts" -- overstepped its bounds by passing the Bono Act. The previous law, passed in 1978, protected an author's work for 50 years after an author died, while works for hire -- such as Mickey Mouse, which was created for a corporation -- were protected for 75 years. The Bono Act extended both categories by two decades.

Foes of the copyright extension see the problem as primarily one of policy -- the extension of copyright, they argue, harms the public. Goldberg's stance, however, avoids policy, and focuses primarily on legal strategy. Overturning the Bono Act, he argues, would create a dangerous precedent by shifting power away from Congress and toward the judiciary. Goldberg and a handful of other lawyers -- most of whom represent the motion picture, music and publishing industries -- are therefore encouraging the ABA to endorse a so-called friend-of-the-court brief that defends the law as constitutionally valid.

In a notice sent to the ABA's intellectual property section, Goldberg was quoted as saying, "The case could present a field day for those who have an anti-IP sentiment -- those who say information wants to be free, less protection is necessarily better, the public domain promotes the progress of science and useful arts better than IP, and when technology advances, IP rights must be cut back."

The ABA votes on the issue April 14. [UPDATE: The ABA declined to support the brief.] Goldberg spoke with Salon by phone to explain his position in more detail.

You've said that this case could be one of the most significant copyright cases in decades, if not centuries. Why?

The issues that the court has agreed to hear are very broadly phrased. [One of] the questions is whether the Copyright Act is "categorically immune" from First Amendment attack. That's setting up such a straw man. Categorically immune: That's frightening. It's an invitation for the court to say, "Oh, the very constitutionality of the Copyright Act and each of its provisions is questionable under the First Amendment and should be reviewed -- and copyrights and copyright infringement suits should have a First Amendment analysis by the courts in all copyright cases."

The broader and even more dangerous question is related to the issue of whether Congress has the power to extend the term of copyright. If Congress does not have the power to do that, then there are a lot of other things that it has done, under the Copyright Clause [of the Constitution], that it would not have the power to do. Putting it in context, historically and contemporaneously, there have been a dozen or more statutory enactments from the 1790s down to now, in which Congress has extended the term of subsisting copyrights and subsisting patents. If those enactments are unconstitutional, then we're in a state of chaos as it relates to those works that are still under copyright. It's also even more disastrously a case of chaos as to what the limited scope of congressional power really is. What is the meaning of constitutional power? That's really what's at stake here.

But the case could also be seen as far more narrow -- a challenge not to the entire system of checks and balances but rather to the definition of "limited time." Isn't it possible for the court simply to rule that the Bono Act's 20-year extension cuts against the Founding Fathers' original definition of "limited"?

Yes, but if that is done, then what is to preclude the court from making other determinations contrary to the determinations that Congress has made? This doesn't happen very often. The last interpretation of the Patent and Copyright Clause that [the Supreme Court] struck down was in the middle of the 19th century, where the Court said that it was unconstitutional to enact trademark legislation because trademarks were not writings of an author.

The argument is that 20 years is too long of an extension; well, should it be within the power of the court, the judicial branch, to say that's too long, or should it be within the power of Congress? Bear in mind that Congress, from 1790 down to now, has had all of these extensions of copyright and patent duration within this "limited time" fabric. And the court, in another case from the 19th century -- there was a claim that a circus poster was not original, because originality is a requirement of the Constitution -- has said in effect, "Look, we're talking about a congressional statute that was first enacted by the framers of the Constitution. It's entitled to very great weight and when it's undisputed for such a long period of time -- that long period of time being then a little bit less than one century -- it's almost conclusive."

Judicial history says that the court should be very reluctant, No. 1, to adjudicate a constitutional issue if it doesn't have to; and secondly, if it does get into a constitutional issue, it should be exceedingly reluctant to overturn something that has been the view of Congress, undisturbed, for two centuries.

Next page: "Even a revolutionary change does not create a constitutional issue"