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Mickey Mouse won. In a ringing victory for current and future copyright holders, the Supreme Court on Wednesday said Congress acted constitutionally in 1998 when it extended copyright protection from 50 to 70 years for most works. The court’s 7-2 ruling in Eldred v. Ashcroft, 01-618, was immediately attacked on Internet sites where online publishers and others had fought hard to break copyright protection and place more materials into the public domain. Critics of the law have also argued that Congress passed it as a favor to powerful media companies including the Disney Corp., the owner of a copyright on Mickey Mouse and other copyrights that were about to expire. “The constitutional question is not even close,” lamented Stanford Law School professor Lawrence Lessig on his online blog minutes after the decision was announced. “To have failed to get the court to see it is my failing.” Lessig argued against copyright extension on behalf of Eric Eldred, who publishes public domain material online. Only two justices, John Paul Stevens and Stephen Breyer, sided with Eldred. Lessig had argued that the extension violated two parts of the Constitution: the copyright clause, which gives Congress the power to grant copyright protection for “limited times,” and the First Amendment’s guarantee of free expression. Justice Ruth Bader Ginsburg, writing for the majority, dismissed both arguments as a mask for the plaintiff’s policy preferences. “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy” in enacting the law, wrote Ginsburg. “The wisdom of Congress’ action, however, is not within our province to second guess.” The case has been a lightning rod for the conflicting views about intellectual property rights. On one side are consumer advocates and scholars such as Lessig who argue that major content owners are unfairly trying to expand their ownership rights. On the other side, copyright owners, particularly the motion picture and recording industries, have pushed to protect or further their rights through legislative and technological means. The reaction to the court’s ruling reflected this divide. Michael Barclay, a partner at Wilson Sonsini Goodrich & Rosati, said the court did not address whether Congress could continue to extend copyrights indefinitely. “In 2018, Senator Arnold Schwarzenegger or someone else is going to get another 20-year extension,” Barclay said. “There’s nothing to suggest Congress does not have a free ride to keep doing this forever.” But Robert Schwartz, an entertainment partner at O’Melveny & Myers who submitted an amicusbrief on behalf of members of Congress, said the Supreme Court’s decision correctly affirms Congress’ authority to set copyright law. “It tells us that if Congress makes a decision in the field of copyright, it’s likely to be the law,” Schwartz said. Ginsburg said the extension was a rational use of congressional power, which will, among other things, bring U.S. copyright law into line with that of the European Union. The court was also critical of Eldred’s contention that the main flaw in the legislation was that it extended copyrights for existing works, not just future works. Giving added protection to existing works, Eldred’s side contended, does nothing to encourage creativity or progress. But the court noted that past copyright extensions have often covered both existing and new works, thereby “overwhelming” Eldred’s argument. Ginsburg also rejected a key concept advanced by Lessig, namely that the Constitution’s framers saw the copyright power as a “bargain” between Congress and writers and authors: In exchange for giving creators exclusive rights for a limited time, the public would gain the benefits of the work thereafter. While that quid pro quo may operate in the context of patents, Ginsburg said, “one cannot extract from language in our patent decisions � genuine support for petitioners’ bold view.” Charles Sims, partner in the New York firm Proskauer Rose, said that by “dispatching that argument to the bottom of the ocean,” the ruling will serve to strengthen copyright protection in future cases. “Copyright owners will be better able to enforce their rights in court,” said Sims, who authored a brief in the case for the Association of American Publishers. The court also made short shrift of the First Amendment challenge to the law, noting that the expression Eldred wants to advance amounts to reproducing the expression of others. “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech,” Ginsburg wrote. “It bears less heavily when speakers assert the right to make other people’s speeches.” Ginsburg’s First Amendment comment echoes, but does not cite, the views of her daughter Jane, a leading copyright scholar at Columbia University Law School. In an article cited by four amicus curiaebriefs defending the law, Jane Ginsburg wrote, “The First Amendment is certainly about the freedom to make your own speech. Whether it is about the freedom to make other people’s speeches again for them, I have some doubt.” In a 29-page dissent, Breyer focused on the economic impact of the copyright extension, which he said would be a boon not for the authors but for their heirs, estates and corporate successors, and costly to the public. “One might conservatively estimate that 20 extra years of copyright protection will mean the transfer of several billion extra royalty dollars to holders of existing copyrights — copyrights that, together, already will have earned many billions of dollars in royalty ‘reward,’” Breyer wrote. “The present extension will produce a copyright period of protection that, even under conservative assumptions, is worth more than 99.8 percent of protection in perpetuity.” Breyer’s opposition was not surprising. As a young law professor, he wrote a 1970 Harvard Law Review article on copyright that was cited in four amicusbriefs filed on Eldred’s side. Stevens was also critical of the ruling, saying the majority had abdicated its role of interpreting congressional enactments. Stevens contended that since Congress cannot expand the scope of a patent monopoly, it may not extend the life of a copyright beyond its expiration date. Tony Mauro is Supreme Court correspondent for American Lawyer Media and Washington, D.C., affiliateLegal Times . His e-mail address is [email protected].Recorder reporter Brenda Sandburg contributed to this article.

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