Michael Strickland

By Michael Strickland
Motions, University of San Diego School of Law
February 2003

Last month, the United States Supreme Court handed down its decision in the highly-publicized case of Eldred v. Ashcroft, upholding the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 in a 7-2 ruling. Under the Act, copyright terms were extended an additional 20 years, to a maximum of creator's life plus 70 years (or 95 years for works owned by corporations). At issue was whether this extension violated the "for limited Times" language of the Copyright Clause of the U.S. Constitution.

"To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
— U.S. CONST. art. I, § 8, cl. 8

The plaintiffs' lead counsel in Eldred, Stanford law professor Lawrence Lessig, asserted before the Supreme Court that these repeated extensions have made copyright virtually perpetual. "Just as a limited edition print is not limited if each time a customer comes in a new print is printed," he argued, "so, too, a limited term is not limited if each time copyright holders come to Congress they can extend the term."

In the majority opinion, Justice Ginsburg rejected the plaintiffs' arguments, saying they essentially amounted to a claim that "Congress pursued very bad policy." Furthermore, she argued that the Constitution gave considerable discretion to Congress—and very little to the Court—in the area of intellectual property. "The wisdom of Congress' action," she added, "is not within our province to second guess."

Opponents of the Act also contended that the 1998 extension violated the spirit of the Promotion Clause by protecting the interests of movie studios and other media conglomerates, rather than promoting "the Progress of Science and the useful Arts." The Act earned the epithet "Mickey Mouse Protection Act," since it perhaps most notably saved the earliest Mickey Mouse cartoons (including the seminal 1928 cartoon "Steamboat Willie") from entering the public domain.

In the Loyola Law Review's recent Eldred v. Ashcroft symposium, visiting USD professor Lawrence Solum (who also edited the symposium) commented that "Congress has been concerned most by the profits of those who created works in the past." Justice Kennedy seemed to echo Solum's words during oral arguments last October, when he said "...if we have to ask what's the most plausible explanation for [the copyright extension], to reward existing vested interest or to stimulate new works, it seems to me that it's probably the former."

Though Kennedy ultimately signed on to the majority's opinion, Justices Breyer and Stevens took up the reins of his sentiments. In his 29-page dissenting opinion, Breyer contended that the practical effect of the copyright extension "is not to promote, but to inhibit, the progress of 'science'...." Stevens focused his aim more squarely on his fellow justices, concluding that the Court had abrogated its duty of judicial review "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 Copyright/Patent Clause...."

Though they suffered a defeat in Eldred, Lessig and other so-called "copyfight" activists vow to continue the battle on other fronts. For now, however, Mickey Mouse remains a protected species.

Supreme Court Upholds Copyright Term Extension in Eldred v. Ashcroft