“The Congress shall have 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” — Article I, Section 8, United States Constitution

Fundamental to the idea of “intellectual property” in the United States is the power of Congress to grant an exclusive monopoly to purveyors of creative works, all with the tacit condition that when such a monopoly expires, the creative work becomes property of the general public at large, i.e., “public domain.” It is through this process that the framers intended to strike a balance between encouraging innovation (by ensuring rights of artists and inventors) and the rights of the public at large, who foot the bill of any government-sanctioned monopolies.

Yet since the time of its inception, this “limited monopoly” (backed by the threat of governmental force) has ballooned from 14 years (with the ability to renew the copyright once for another 14 years) at the inception of the republic to its current term of 75 years after the life of the creator for individuals and 95 years for corporations in the present day, rendering the term “limited time” to be a tremendous hoax.

The Supreme Court is hearing a challenge to Congress’ latest extension of copyright terms, the Sonny Bono Copyright Term Extension Act of 1998, which extended the term on all existing copyrights by 20 years.

The case, Eldred v. Ashcroft, challenges the idea that Congress may retroactively extend copyright terms ad infinitum, constitutional provisions which bar ex post facto laws notwithstanding. The case involves archivist Eric Eldred, who maintains a Web site of classic works of literature which can be freely obtained by visitors. Eldred filed the lawsuit after the latest copyright extension, which kept many classic works that would have come into the public domain copyrighted for another 20 years.

Opponents of limited terms have resorted to disingenuous rhetoric in their case, with copyright lawyer Karl ZoBell (who is representing the estates of several children’s book authors, including Dr. Seuss and E.B. White) remarking, “If you want to buy these books for your children, they are available. There is nothing the public can’t have, although there is some price to be paid. Mr. Eldred would like you to get them from him instead of through Random House or some other publisher.”

Solicitor General Theodore Olson (representing Congress) goes even further, noting in his brief that Congress granted the extension to current copyright holders rather than to “allow indiscriminate exploitation by public domain copyists.”

What both of these gentlemen overlook is the flip side of the governmental protection bestowed upon copyright holders — that for the price of governmental protection of creative works, those works will eventually be turned over to the public. The matter at hand isn’t greedy or unscrupulous “public domain copyists” as Mr. Olson calls them (and Mr. ZoBell implies), but rather members of the public rightfully claiming what is theirs per the bargain authors and inventors signed onto by receiving governmental protection to market their works exclusively.

What may sound like a Faustian deal is in reality the only way the public ever sees its fair side of the bargain in bestowing privileged status to creators of original works. Emphasizing this point is Erik S. Jaffe, who contends that for Congress to make retroactive extensions of copyrights effectively places no limit on the time a copyright can exist. In a friend-of-the-court brief, he states, “It’s like the last mortgage note is to be paid, and the bank says, ‘No, you’ve got another 20 years.'”

What should be stressed here is that copyrights in and of themselves do serve a useful function to society — by allowing inventors and artists to profit from their works, they ensure a continual stream of new products and works of art. Yet this must be balanced against the benefit the public receives from granting a temporary monopoly to these individuals — if copyrights are extended until the end of time, the works never enter the public domain, ultimately denying the public their end of the deal.

Jennifer Urban of the Samuelson Law, Technology, and Public Policy Clinic at Berkeley Law School concurs,”Whatever ‘limited time’ means, it wasn’t the framers’ intention to extend and extend and extend the copyright term. For practical purposes, the public never gets the benefit of the bargain.”

Fundamental to this case as well is the retroactive nature of this copyright extension, which skirts the ex post facto clause of the Constitution (“No bill of attainder or ex post facto law shall be passed”). Indeed, if extending the duration of a copyright after it has been granted does not constitute ex post facto lawmaking, what does?

It is this after-the-fact nature of the Bono Act which causes this case to take on a special nature.

While Mr. Olson is correct to assert that “there is no basis for the courts to second-guess Congress’ determinations” as to the merits of copyright terms that run for over a century, the Supreme Court most certainly has the authority to review whether retroactively extending these terms violates the terms of “limited times.”

While the Supreme Court mulls over whether Congress has the power to modify copyrights ex post facto, it is ultimately up to voters to determine whether Congress should be allowed to abuse their constitutional powers for the select interests of a powerful few (i.e. media moguls).

Choose wisely.

Steve Skutnik

is a graduate student in nuclear physics from Ames.