September 20, 2020

D-Day For Eldred

On Wednesday, the Supreme Court hears oral argument in Eldred v. Ashcroft, the lawsuit challenging the 1998 Copyright Term Extension Act, a law that added twenty years onto the life of every current and new copyright. Larry Lessig will argue for Eldred, and Ted Olson, the U.S. Solicitor General, will argue for the government.

The copyright term is an important issue, but it is of less direct relevance to technologists than to other kinds of creators. Software can be copyrighted, but software is so new that it will be years before any software enters the public domain through expiration of its copyright.

Despite this, Eldred should be of great interest to technologists, because it is the only chance the Supreme Court has had recently to opine on the proper scope of copyright law. Eldred puts several important questions before the Court. Can Congress do whatever it wants in the name of copyright, or must the copyright laws be designed for the advancement of art and science? Must Congress consider the effect of new copyright laws on the public domain and on public debate? How does free speech impact copyright?

The opponents of technological freedom wave the flag of copyright. The Eldred decision may well determine how far they can go. It may be the first step in reversing the tide of ever-expanding copyright and ever-shrinking technological freedom; or it may ratify their claim that copyright trumps free speech and technological progress.

Transcripts of the oral argument will be available in a week or so. The decision won’t be announced for months.

Is the term of copyright too long? You be the judge: under current law my heirs will own the copyright on this item until about the year 2112.