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No one’s going to be able to lay a glove on Mickey Mouse or numerous other American icons any time soon: In a ringing victory for current and future copyright holders, the U.S. Supreme Court in January ruled that Congress had acted constitutionally in 1998 when it extended copyright protection from a period of life plus 50 years to life plus 70 years. The Court’s 7-to-2 ruling in Eldred v. Ashcroft was immediately attacked on Internet sites, where online publishers had fought hard to break copyright protection and place more materials into the public domain. Critics of the law had argued that Congress passed it as a favor to powerful media companies, including the Disney Corporation, owner of the Mickey Mouse copyright. Plaintiffs attorney and Stanford Law School professor Lawrence Lessig had a more basic complaint: “The constitutional question is not even close,” he lamented on his online blog, minutes after the Court’s announcement. “To have failed to get the Court to see it is my failing.” Lessig had 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 argued that the 1998 Sonny Bono Copyright Term Extension Act violated two parts of the Constitution: the copyright clause, giving 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 plaintiffs’ policy preferences. “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy” in enacting the law, Ginsburg wrote. “The wisdom of Congress’s action, however, is not within our province to second-guess.” Ginsburg called the extension a rational use of congressional power, which, among other things, will bring U.S. copyright law into line with that of the European Union. The Court also criticized Eldred’s argument against the part of the law that extended copyrights for existing works, not just future ones. Since those works are not new, Eldred argued, the law does not encourage future creativity. Ginsburg further rejected Lessig’s concept that the Framers saw the copyright power as a “bargain” between Congress and creators: In exchange for exclusive rights for a limited time, creators would give the public the benefits of their work thereafter. Ginsburg responded that such a quid pro quo applied to patents, not to the disputed creative material. In dissent, Justice Stevens wrote that the majority had abdicated the Court’s role of interpreting congressional enactments. Breyer, meanwhile, asserted that the majority had improperly ratified Congress’s authorization of “virtually perpetual” copyrights. Breyer’s opposition was no surprise: As a young law professor, he wrote a 1970 Harvard Law Review article on copyright that was cited in four amicus briefs by Eldred’s side. Commenting on the decision, David Byer, of Boston-based Testa, Hurwitz & Thibeault, called it “a stalking-horse for issues much more contentious than copyright that are going to develop in the next few years”: specifically, Internet music and movie distribution. Added Byer, a partner in his firm’s patent and IP group: “We’ll look back at [this ruling] as being in and of itself not as important as issues that need to be resolved over the next few years.” — Tony Mauro A version of this article originally appeared at law.com, an online service of American Lawyer Media.

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