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Friday, Jul 3, 2009
How an antiquarian bookseller and a Nathaniel Hawthorne fan ended up before the Supreme Court.
Feb 21, 2002 | Neither Eric Eldred nor Laura Bjorklund intended to become warriors in the battle over copyright. They simply wanted to publish old books; Eldred's Web site has hosted versions of old Nathaniel Hawthorne novels and Robert Frost poems since 1995, while Bjorklund's tiny Massachusetts publishing company focuses on genealogy texts and out-of-print histories.
But on Oct. 27, 1998, President Clinton, urged on by a Disney Corp. mindful that its Mickey Mouse copyright was about to expire, passed a law that extended copyright protection for an additional 20 years. Eldred and Bjorklund were outraged. In their view, the Sonny Bono Copyright Extension Act harmed the public by retroactively taking information from the public domain and putting it back under the control of copyright holders. Corporations would benefit, but small publishers and the general public, they argued, would suffer.
Lawrence Lessig, then a law professor at Harvard, heard their call and took on the case pro bono. Eldred and Bjorklund became the first two plaintiffs in a suit aimed at overturning the copyright extension. On Feb. 19, after nearly four years of litigation, the Supreme Court agreed to hear the case.
At issue is whether Congress -- with the constitutional authority to issue copyrights and patents "for limited times" to "promote the progress of science and useful arts" -- overstepped its bounds in this case. The previous law, passed in 1978, protected an author's work for 50 years after an author died, while works for hire -- those created for a corporation, like Mickey Mouse -- were protected for 75 years. The Bono Act extended both categories by two decades.
Those who favor the law argue that Congress should be allowed to determine the definition of "limited times" and that the Bono Act simply puts the U.S. on equal footing with European intellectual property laws, which offer a similar degree of protection.
Eldred and Bjorklund vehemently disagree. In their first joint interview since the Supreme Court decided to review the case, they exuberantly explained why in a conference call with Salon.
What was your reaction when you heard that the Supreme Court agreed to hear your case?
Bjorklund: Yikes! My husband is an attorney and he kept telling me that the delay probably meant that someone was writing a dissent to a decision to not take the case. Larry Lessig and all the lawyers I know seemed to think this was a bad sign. So [when I found out], I was over the moon.
Eldred: It was hard to believe. We expected it to be turned down and we really weren't too sure whether the Supreme Court would agree with all the points that we raised or whether they would just take one of them and throw out the others or what, so when they finally accepted all of them, it was really quite a surprise.
Why is it important for the Supreme Court to hear this case?
Bjorklund: I think it's important because I'm particularly concerned with "retroactivity." I don't think it is constitutional for copyrighted works to be retroactively protected. People creating content in 1950 thought they had 50 years of protection and it was fine with them. Tying up additional material, decade after decade, in copyright is robbing the public.
Eldred: I thought of a nice analogy. I don't know if you watched the Super Bowl, but think of how the fans would be outraged if the officials tried to move the goal posts in the last seconds of the game.
Bjorklund: I had a shelf of material from 1924 that was going to be reprinted a couple years ago and now it's not going to be reprinted until we win our case.
What books were on that shelf?
Bjorklund: Our material is inherently uninspiring sounding, but the people that want it really want it. We had a history of Lawrence, Mass., a history of Idaho, quite a few family histories and a couple more general history books.
What about you, Eric?
Eldred: Well, I don't claim that I own all this stuff. It's in the public domain and that's the important thing. Everybody has the right to make their own stuff out of it -- reuse it, make derivative works, set it to music, make operas. And that's what people will be allowed to do if works go into the public domain. But what this law is all about is stopping the flow of works that go into the public domain.
Did you actually have to take anything down from your Web site?
Eldred: At first I thought it would be a good idea to test the law with a civil disobedience test case but the lawyers talked me out of that. So I did take a few things down that I wasn't absolutely certain about. I'll give you one example. As Laura will point out, it's very difficult to find the copyright owners of old books. It's almost impossible. And I had a book that was written by a couple of prep school English teachers about how to write a summary, a pricis. It had quotations from a whole bunch of newspapers and poems and other stuff. As far as I could see all those things were in the public domain, but I couldn't really be too sure and if I kept it up on my Web site, I'd risk going to jail for five years or a $500,000 fine if someone pointed out that I was violating their copyright.
