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GWEN IFILL: Authors, songwriters and the U.S. Government squared off against Internet publishers and purveyors of other new technology before the court today. At issue: What power does Congress have to extend copyright protections for films, books, music, and other entertainment? Here, as usual, to take us inside the court is NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune.
So, Jan how did the case get to the court?
JAN CRAWFORD GREENBURG: Well, in 1998 Congress passed a law that extended the terms for existing copyrights. Before it passed the law, an individual who held a copyright, that copyright would last for as long as the author was alive plus 50 years, the new law extended that to 70 years, for corporations it extended the length of copyright from 75 to 90 years.
Now, as you said, a group of Internet based publishers, small businesses even a choir director sued to block this law. They argued that it’s unconstitutional under the Constitution’s copyright clause.
GWEN IFILL: Why is there a copyright clause in the Constitution?
JAN CRAWFORD GREENBURG: Well, the framers of the Constitution recognized there was an important reason to give authors and writers an incentive to create and to spur creativity, and to do that, they authorized Congress to grant copyrights for — this is the important words in the Constitution, for a limited time and in order to promote the progress of science and the useful arts.
The thinking behind that and has the Supreme Court has later explained, was that individuals have an enormous cost up front to write or to write a play or a book or create a musical score. And they would never recover those costs if someone could just go out and copy them. It’s different than if you were going to make a car, a house or a building. The subsequent copycats would have to expend an enormous amount of money to duplicate those things so –.
GWEN IFILL: The particular law that is being challenged today, the 1998 copyright extension, is this unique? Has it ever been done before?
JAN CRAWFORD GREENBURG: It has never been challenged but Congress has certainly extended copyright before, eleven times in the last 40 years, and a lawyer for the government today said that right there showed that no one had thought that was a problem, that Congress certainly was within its authority under the copyright clause to extend copyright terms, and that Congress could decide what would be a limited time or what would be limited times for copyrights.
GWEN IFILL: So help us distill who is on which side here. We are talking about the government, which is on the side of say big movie companies or companies like Disney against individuals who want to, say, scan a text into — onto the Internet and make it available for everybody?
JAN CRAWFORD GREENBURG: That’s right. And they argue that there were an enormous numbers of works that were created around the World War I era that were getting ready to go back into the public domain and that they could take those works and publish them on the Internet or make them more freely available to the public.
Let me give you an example. One of the people challenging the law – as I said — was a choir director at a church in Atlanta, and she had looked forward to using some of this music that was going to be moving into the public domain because it’s obviously much cheaper. She can’t afford at her church to go and get this copyrighted music to rent it. It’s just too expensive.
So there are people like that who challenged this law and argue that these works and that Congress should not be able to keep these works forever out of their reach, and that the framers of the Constitution certainly never intended for that to happen.
GWEN IFILL: But some of the people defending the law are some of the most familiar names, for instance in children’s literature like the estate of Dr. Seuss with The Cat and the Hat.
JAN CRAWFORD GREENBURG: Right. And AOL/Time Warner..
GWEN IFILL: And Mickey Mouse.
JAN CRAWFORD GREENBURG: That’s right, because the stakes are enormous, these companies are trying to protect books and movies and characters and in the case of Disney early images of Mickey Mouse were getting ready to move into the public domain.
That is why Disney was right there urging Congress to extend the term of copyright because they get valuable licensing fees and royalties. So hundreds of millions of dollars are at stake every year for these companies.
GWEN IFILL: Good old Steamboat Willy in the public domain, right? So take us inside the court today. What were the arguments like?
JAN CRAWFORD GREENBURG: Well, the attorney that was representing the challengers, the opponents of the law, emphasized that the framers never intended to give Congress this broad grant of power and that Congress had exceeded its authority when it extended copyright terms for existing copyrights for works that already had been created.
His point was what incentive does that give to somebody to create a new work? It’s already out there. It has already been created, but it has no additional benefit and it comes at great public cost. And I think that he got a pretty sympathetic audience in several justices. Justice O’Connor, Justice Breyer, Justice Stevens, all seemed very sympathetic to those claims that Congress was acting outside the public interest and perhaps looking to the arguments of a few powerful companies when it extended copyright terms.
GWEN IFILL: Do I hear a but coming?
JAN CRAWFORD GREENBURG: Yes, but and it’s a very big but because the Solicitor General, Theodore Olson, very persuasively argued at least several justices indicated that the Constitution gave Congress a very, very broad grant of power, that it was up to Congress to decide what is a limited time and that that was something that was just a quintessentially legislative decision.
And even the justices who seemed sympathetic to the Internet companies and to the choir directors seemed very hesitant to go the next step and embrace those arguments that this extension violated the Constitution and the Constitution’s copyright clause.
GWEN IFILL: Was there an argument made that the public, regular people and individuals would be affected by the outcome of this case?
JAN CRAWFORD GREENBURG: Oh, of course. I mean that was, in fact, that was the bulk of the attorney, a professor at Stamford Law School had made, that this had enormous cost to the public. It was keeping this material away from the public and in this Internet age, this extension imposes even greater costs particularly for people who want to be able to post these works on the Internet and make them more freely available for everyone.
GWEN IFILL: And the Internet age is something the founding fathers probably never took into account.
JAN CRAWFORD GREENBURG: That’s true, because, you know, this case is really interesting because it goes to show that the Supreme Court and other courts are always having to look at sometimes old laws and constitutional issues and apply them to modern technology.
GWEN IFILL: Jan, thanks a lot for joining us again.
JAN CRAWFORD GREENBURG: Thank you. You’re welcome.