It looks like Disney got everything they wanted in today's 7-2 Supreme court verdict in the Eldred v. Ashcroft case. The Sonny Bono CTEA has been referred to as the "Mickey Mouse Protection Act" by many of its critics, as Disney has been the biggest backer of it, to keep the early Mickey Mouse animations copyrighted. The problem with this is, in my opinion, is the collateral damage to the realm of human knowledge. Think of how many books that have been published since 1923 that aren't in print any longer, and never will be again, yet it's illegal to create a digital archive of those works, as they're still under copyright, though the person who created them is probably dead, they'll never be published again, and no one even knows who to ask for permission to duplicate them. To me, this is the modern equivalent of the burning of the library of Alexandria, in terms of the amount of human learning that will be lost, all so that Time-Warner and Disney can continue to charge people to view materials created and paid for before their grandparents were even born.
At what point does something deserve to enter the public domain? If it were technologically possible, media companies would like to charge you for singing Happy Birthday at your next party, you did know that by doing so you technically violated a copyright, didn't you? Did you ever notice that they sing "For He's a Jolly Good Fellow!" at parties an awful lot in movies and on TV, but you never hear it in real life? That's because "Happy Birthday" is copyrighted, and a studio would have to pay to include it in their show, even though the melody was written clear back in the 1880s.
Are we, as Americans, doomed to never having a culture of our own, simply because nothing belongs to the public, it all belongs to mega-corporations?
But, enough of my rantings, here's the intro to Breyer's dissent:
The statute before us, the 1998 Sonny Bono Copy-
right Term Extension Act, extends the term of most ex-
isting copyrights to 95 years and that of many new copy-
rights to 70 years after the author's death. The economic
effect of this 20-year extension, the longest blanket ex-
tension since the Nation's founding is to make the copy-
right term not limited, but virtually perpetual. Its pri-
mary legal effect is to grant the extended term not to
authors, but to their heirs, estates, or corporate succes-
sors. And most importantly, its practical effect is not to
promote, but to inhibit, the progress of Science;by
which word the Framers meant learning or knowledge, E.
Walterscheid, The Nature of the Intellectual Property
Clause: A Study in Historical Perspective 125;126 (2002).
And, here's a nice bit from Stevens' dissent:
Indeed, Congress has apparently indulged in
those assumptions for under the series of extensions to
copyrights, only one year's worth of creative work, that
copyrighted in 1923; has fallen into the public domain
during the last 80 years. But as our cases repeatedly and
consistently emphasize, ultimate public access is the
overriding purpose of the constitutional provision. See,
e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions
of existing copyrights, unsupported by any consideration
of the public interest, frustrate the central purpose of the
Clause.
and
By failing to protect the public interest in free access to
the products of inventive and artistic genius;indeed, by
virtually ignoring the central purpose of the Copy-
right/Patent Clause;the Court has quitclaimed to Con-
gress its principal responsibility in this area of the law.
Fairly read, the Court has stated that Congress; actions
under the Copyright/Patent Clause are, for all intents and
purposes, judicially unreviewable. That result cannot be
squared with the basic tenets of our constitutional struc-
ture. It is not hyperbole to recall the trenchant words of
Chief Justice John Marshall ;It is emphatically the prov-
ince and duty of the judicial department to say what the
law is; Marbury v. Madison, 1 Cranch 137, 177 (1803). We
should discharge that responsibility as we did in Chadha.
I respectfully dissent.
Stevens claims that the court shot themselves in the foot by limiting their own power to review Congressional acts on this matter, when the provision is clearly in the Constitution, clearly making it within the Court's realm of power. You can bet there are movie and record executives high-fiving eachother in Hollywood tonight, knowing that they can continue to profit off past works nearly forever.
