ASHINGTON, Oct. 9 — No member of the Supreme Court had a good word to say today for the 1998 law that added 20 years to all existing copyrights. But that did not make the job any easier for Professor Lawrence Lessig of Stanford Law School, who faced an uphill battle to persuade the justices that the extension, which Congress adopted at the behest of the Walt Disney Company and other powerful corporate copyright holders, was not only bad policy but unconstitutional.
Hadn't Congress granted copyright extensions numerous times since the country's earliest years, the Justices wanted to know. Didn't this challenge to the latest extension necessarily call into question the validity of the major rewriting of federal copyright law in 1976? Wouldn't the result of accepting Professor Lessig's theory mean "chaos" in the world of intellectual property, Justice Stephen G. Breyer asked.
That was possible, Professor Lessig conceded.
"Maybe we ought to find another theory," Justice Breyer responded.
Before the court opened this morning, the line of people hoping to get a glimpse of the most important copyright argument in years was already around the block. The lucky few who got in witnessed a fast-moving tutorial in which the justices clearly came prepared to listen and learn. Although they had many questions for Professor Lessig and Solicitor General Theodore B. Olson, who argued in defense of the law, they uncharacteristically appeared to go out of their way to permit the lawyers to answer with a minimum of interruptions.
The basis for Professor Lessig's challenge to the Copyright Term Extension Act is the text of the clause in Article I, Section 8 of the Constitution authorizing Congress "to promote the progress of science and useful arts" by issuing copyrights for "limited times." The first federal copyright law, enacted in 1790, provided for a 14-year copyright, renewable for another 14 years. The new law extends individual copyrights to 70 years after the creator's death and copyrights held by corporations to 95 years.
Not only is this the functional equivalent of a perpetual copyright, Professor Lessig argued, but extending existing copyrights fails to serve the constitutional purpose of promoting creativity. His role in organizing the lawsuit on behalf of a coalition of Internet publishers and others seeking access to the public domain has given this former Supreme Court law clerk (1990-1991) a kind of cult status as a cyberspace guru. An article in the current Wired magazine proclaims him "the great liberator" who is "about to tell the Supreme Court to smash apart the copyright machine."
