Man Without Qualities

Sunday, April 21, 2002

Update: The Dead Hand of Sonny Bono

Max Power and Jane Galt have interesting posts on the Bono Act.

The Dead Hand of Sonny Bono

The “Sonny Bono Copyright Extension Act”, signed by Bill Clinton in 1998, extends the term of the copyright monopoly by 20 years. Previously the monopoly persisted until 50 years after an author died, and “works for hire” (Bugs Bunny, Mickey Mouse) created for a corporation were protected for 75 years. The Bono Act extended the term of both categories by twenty years. The Supreme Court has now agreed to hear a case challenging the Constitutionality of the Bono Act, which is creating a lot of fuss in some quarters.

The plaintiffs trying to overturn the Bono Act have a fairly straightforward argument: They point out that the “copyright clause” of the Constitution allows Congress to pass 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.” Then they argue that the Bono Act’s extension of the term of copyright protection to existing works isn’t authorized by this clause of the Constitution because the "progress of science and useful arts" is just not even arguably promoted by paying more to authors to create works that have already been created. With respect to future yet-uncreated works, the Bono Act isn’t Constitutionally authorized because the additional 20 years just doesn’t provide any significant amount of additional incentive to authors since the entire additional 20 years occurs so far in the future. Put another way, because of the time value of money, a dollar to be received more than 50 years in the furture is just not worth that much as an author's incentive today. As one plaintiff put it: “We actually went to the trouble of getting an amicus brief from … a professor of economics at Berkeley, and he made the calculations and found that it would only be a few cents difference in royalties between 50 years after an author died, which is how the law has been since 1978, and 70 years after the author died.”

The Bono Act’s supporters basically seem to say that the “copyright clause” allows Congress to determine what the appropriate “limited time” should be given to authors for their copyright monopoly. The copyright laws have always been construed that way, and the Courts should continue to defer to Congress – or risk being labeled as “activist.”

In any event, Congress also has a separate Constitutional power under the “commerce clause” that authorizes Congress to pass laws “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” If the “copyright clause” doesn’t authorize the Bono Act, then the Act could be justified under the “commerce clause” with respect to copyrighted works in “interstate commerce.” That’s essentially everything. In fact, the federal trademark laws are expressly legislated under the “commerce clause.” So the plaintiff’s “copyright clause” argument seems to be essentially a dead end – which, oddly, doesn’t settle the case. In fact, the plaintiffs will probably win – but not on the basis of this argument.

The problem with the “courts should defer to Congress” argument offered by the Bono Act supporters is that copyright laws implicate First Amendment rights. Simply put, the holder of a copyright can get a court to say to an infringer: “you can’t speak or write that way because it's copyrighted.” In fact, copyright infringement is now a criminal offense, and an infringer risks going to jail for five years or a $500,000 fine. Generally speaking, the First Amendment seriously restricts the government’s right to tell anybody “you can’t speak or write that way” – especially where the speaker or writer is charged with a criminal act. And the Federal courts do not – and probably will not in this case - defer to Congress when it comes to protecting First Amendment rights. The issues that the Court has agreed to hear are very broadly phrased, and one of them is whether the Copyright Act is "categorically immune" from First Amendment attack. So the Court definitely seems to be on the First Amendment track.

The Bono Act supporters argue that any copyright period raises the same First Amendment issue. If the Bono Act were overturned, then the copyright period would still last until 50 years after the author died. At any time in that period the copyright owner can get a court to tell an infringer: “you can’t speak or write that way.” So, the supporters’ argument goes, the Bono Act raises no new issue in this respect.

The Bono Act supporters are just wrong. The First Amendment and the copyright clause are just not inconsistent with each other in the way the supporters suggest, and the Court doesn't need to "defer" to Congress to effect a reconcilliation. Generally stated, the purpose of the First Amendment is to allow the free flow of information. That policy is exactly served by the copyright clause, since the author of information-bearing materials is given an incentive to create and publish them by the grant of the copyright monopoly. For example, newspapers can inform the public because the copyright monopoly makes publishing newspapers a viable and profitable business.

But as the life of the copyright monopoly gets longer, its marginal additional positive incentive effect on information dissemination diminishes. At some point the life of the copyright monopoly will get so long that the copyright is a net restriction on the creation and flow of information through the society. The First Amendment authorizes the Court to make it’s own calculation of when that point is reached – without any deference to Congress. If the Court finds that the new extended period created by the Bono Act is so long that net information flow is restricted, then the Bono Act violates central First Amendment policies and should be struck down. Moreover, if the Court finds that the old 50-year period does not create a net restriction on information flow, then the old period will not violate the First Amendment.

The above discussion is certainly not intended to be a complete Constitutional argument, and I do not mean to minimize the difficulty of the Court’s tasks. I have tried to outline general policies. To actually create coherent rules from these policy considerations will be no easy task. And you can't even say we pay the Justices the big bucks to do it - so at least give them a hand for trying.

Justice Louis Brandeis, especially, was fond of referring to the “marketplace of ideas” in connection with the First Amendment. In that sense, one might view the First Amendment as a kind of antitrust act, which protects the “marketplace of ideas” the way the Sherman Act protects the marketplace of the economy. The Court’s Sherman Act jurisprudence was essentially an incoherent, contradictory mess until it was more or less rationalized by (quasi-) acceptance of the principle that the Sherman Act stood for maximizing consumer economic welfare. Despite the frequent references to the “marketplace of ideas,” the Court has never articulated a definite quantity analogous to “consumer economic welfare” that the First Amendment is intended to maximize. One might imagine a model of the First Amendment that contemplates maximization of “potentially politically relevant information” or the like. In practice, such a project appears very hard.

But the current Bono Act case suggests that such a project can probably not be avoided any longer. The law of intellectual property forces the marketplaces of ideas and the economy to intersect violently. Deference to Congress in this area would be an abdication of the Court’s First Amendment responsibilities that would simply be intolerable.

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