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Stanford Law School professor Lawrence Lessig lost round two in a legal battle to overturn a federal statute adding 20 years of protection to copyrighted works. In a 2-1 decision, the U.S. Circuit Court of Appeals for the District of Columbia upheld a lower court’s ruling that Congress acted within the bounds of the Constitution in passing the Copyright Term Extension Act of 1998. Lessig had argued on behalf of Web site operator Eric Eldred and several other plaintiffs that the statute violates the First Amendment and is inconsistent with the constitutional requirement that copyrighted works be original and that copyright be secured for “limited times.” In the Friday decision in Eldred v. Reno, 99-5430, the appeals court rejected arguments that an extension violated First Amendment rights and basic copyright rules on originality. But its primary focus was on the Constitution’s copyright clause, which says copyrights endure only for “limited times.” Writing for the majority, Judge Douglas Ginsburg said the legislation was intended to match U.S. copyrights to the terms of copyrights granted by the European Union rather than as a step toward making copyrights perpetual. Judge David Sentelle dissented, saying “it is impossible that the framers of the Constitution contemplated permanent protection, either directly obtained or attained through the guise of progressive extension of existing copyrights.” Lessig could not be reached for comment. But Jonathan Zittrain, a professor at Harvard Law School who joined Lessig on the appellants brief with four other attorneys, said they are deciding whether to appeal to the full circuit court or directly to the Supreme Court. I. Fred Koenigsberg, a partner with New York’s White & Case and general counsel for the American Society of Composers, Authors and Publishers, said the statute was supported by “every group of creators and copyright owners who you can imagine.” ASCAP, the Motion Picture Association of America and the Association of American Publishers signed a brief supporting the legislation.
Copyright Law in the New Millennium. March 20-April 2.

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