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 Computer Law

The Internet, Property Rights
and the Public Domain
April 2002


Bill Wood is an Assistant City Attorney, in the San Antonio City Attorney's Office. He practices real estate and technology law for the city .

Over the course of my lifetime the value of intangible property has soared. The monetary value that is. That is not to say that the value of ideas is a new concept. All you have to do is look at religion and governmental systems to understand that mankind has been willing to fight and die for ideas for a very long time.

In our Constitution the value of ideas even receives constitutional protection. Article I, Section 8, Clause 8 of that basic document granted Congress the powers to enact laws, 

“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.”

But in the last fifty years things have changed. In our society the value of copyrights, patents and trademarks has skyrocketed. I’ve heard stories about drug makers fighting to protect and extend patents on drugs and on challenges to the length of copyright protection. Recently I was researching the stock price on a pharmaceutical company. I found that the price was falling because of concern that the patent on its highly profitable drug was about to expire and the company was scrambling to develop a replacement. For comparison, The San Antonio Express-News carried a story about Schering-Plough which makes the drug Claritin. According to the article that one product provided 31 percent of sales for the entire company. When the company decided to switch the medicine to non-prescription sales over the counter, its stock dropped five percent. Claritin world-wide sales for 2001 were estimated at $3.1 billion. Although the decision didn’t involve patents or copyrights, it does indicate how much money is at stake.

That is not unlike the debate in 1998 about the extension of the copyright period. The holders of major intellectual property rights persuaded Congress to extend the period by twenty years. A work of an individual may be protected for 70 years after the person’s death. A work “created” by corporate authors (actually works created by employees or a work made for hire under a contract with the corporation) is 95 years. For instance, without the extension it was argued that the Disney copyright on Mickey Mouse would expire in 2003. (Just to keep it in perspective, Disney’s rights to Mickey Mouse is not entirely based on copyright law. The rights to use the Mickey Mouse character would also involve trademark issues.) 

In case anyone didn’t understand the impetus for the legislation, it was dubbed the Sonny Bono Copyright Term Extension Act. (Pub. L. No. 105-298, 112 Stat. 2827 (1998) ) which can be found at 17 U.S.C. § 304. Yes, it was named for the late Congressman who became famous as half of the Sonny and Cher duo. 

I’m sure you realize that the current court fights over Napster and the other music swapping Web sites aren’t about the sharing of the songs. The copyright holders want there to be millions and millions of copies — licensed copies — for which the company has been paid. That income would contribute to the profitability of the company and help support the celebrity lifestyles. 

Not everybody agrees that the purposes behind the constitutional provision are to protect the income of the owner. Recently a counter argument has surfaced and the United States Supreme Court has agreed to hear a constitutional challenge to the Sonny Bono Act. (In legalese: it granted a writ of certiorari in the case Elred v. Ashcroft.)  In effect, the plaintiffs in the case are arguing that enough is enough. Their contention is that the drafters of the Constitution had something else in mind. 

They argue that the purpose was to foster an exchange of ideas. The provisions were supposed to restrict the work for only a limited time. In part they argue that extending the term on existing copyrights stifles creativity and that nothing is gained by increasing the time after the author’s death. Consequently, they are asking the Court to rule that Congress has exceeded its authority by the extension. The Berkman Center for Internet & Society at Harvard Law School has an excellent site devoted to the case . The site provides an interesting analogy that if a child prodigy such as Mozart writes a piece at age five and then lives for, say 85 years, his works would not have been in the public domain for 150 years.  (The Berkman Center is actively supporting the Plaintiffs in the suit.)

The plaintiff’s petition to the Supreme Court contains this statement of the case. I’ve deleted the citations but the entire document can be found  online

“The power at issue in this case is also and likewise constrained. Congress’ power to grant ‘exclusive right[s],’ incident to the power ‘To promote the Progress of Science,’ is expressly limited by the text of the Copyright and Patent Clause. It is expressly limited by the First Amendment. And it is impliedly limited to works that are “original.” 

“These limitations were established by the Framers to assure a rich public domain, and to avoid the temptation to corruption that state-backed monopolies . . . as the Framers understood copyrights to be   inevitably invite. They thus effected a regime that requires that monopolies over speech only be granted as a quid pro quo for producing something new — as this Court described it, for producing something that “add[s] to the sum of useful knowledge.” 

“The question in this case is whether this same power to grant monopolies as a quid pro quo for creating original works can also be used to grant monopolies to ‘something already in existence.” The court below held that it can, finding that extensions of subsisting terms were constitutional so long as each extension is limited.”

The plaintiffs have also challenged the Court to rule that the statute violates the First Amendment. 

“Petitioners have raised a First Amendment challenge to both the retrospective and prospective aspects of the CTEA. They argue that both aspects are content neutral regulations of speech and the press, and therefore subject to intermediate scrutiny. Under intermediate scrutiny, petitioners submit neither the retrospective nor the prospective extension of the copyright term ‘advances important governmental interests’ without burdening ‘substantially more speech than necessary.’ ”

The adoption of computers and the internet has made it easy for widespread exchange of information. The forthcoming ruling by the Court in the Elred case will determine how much of that information will be in the public domain and what will be subject to license fees.


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