Figured I ought to post it here, so we can preserve it for future examination:

Copyright Craziness

Friday, August 17, 2001; Page A22

THE U.S. COURT of Appeals for the D.C. Circuit last month declined to reconsider an earlier ruling that Congress has essentially unchecked authority to extend copyright protections. The Constitution gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Over the nation's life, the phrase "limited times" has proved almost infinitely elastic. Copyrights were initially granted for 28-year periods, but Congress has serially extended protection so that it now extends 70 years beyond the life of the author.

This degree of protection -- under which works from 1923 are still owned privately -- does little to promote science or art, but it does protect copyright holders who make big campaign contributions. Unfortunately, it also serves to keep material out of the public domain long after the public's interest in its free exchange outweighs any value served by continued protection. This problem was dramatically illustrated earlier this year when a court blocked the publication of a parody of "Gone With the Wind," whose author had died more than 50 years ago. The decision was later reversed and the parody was published, though the estate's copyright on the original work was undisputed.

The case before the D.C. Circuit challenged the constitutionality of the latest extension of copyright protection -- an additional 20-year gimme Congress doled out in 1998. The plaintiffs, a group of companies and individuals who distribute public domain materials, argued that the latest extension burdened free speech and offended the Constitution's requirement that copyrights be valid only for limited periods. A three-judge panel of the court earlier this year disagreed. And, more recently, the full court declined to reconsider.

Dissenting Judges David Sentelle and David Tatel, however, argued that there had to be some bounds to Congress's ability to extend protection. The judges all agreed that Congress could not create permanent copyright protections, but if Congress can create endless extensions, then there is no way to make sure that protection is, in fact, of limited duration. The case is difficult legally, because the Constitution so clearly and sweepingly gives Congress, not the courts, power over copyrights. As a policy matter, however, it isn't difficult at all. Vast quantities of creative material shouldn't be perpetually owned privately, and Congress's repeated extensions of protection to copyright holders have shredded any meaningful limit. The plaintiffs plan to ask the Supreme Court to examine the issue. It would be well worth the justices' time.

© 2001 The Washington Post Company