Law Professors Challenge Copyright Laws

(January 17, 1999)  A group of Harvard Law School professors filed a lawsuit in federal court in Washington DC on January 11 challenging the constitutionality of the Copyright Term Extension Act (CTEA), and seeking an injunction of enforcement of the No Electronic Theft Act (NET Act) against violators of the CTEA.

The nominal plaintiff.is the Eldritch Press, a website which republishes literary works that are not protected by copyright.  However, the suit is being brought by a group of activist law professors at Harvard's Berkman Center for Internet & Society: Charles Nesson, Lawrence Lessig, and Jonathan Zittrain.

The Complaint filed by the trio seeks to have the CTEA declared unconstitutional on two grounds.  First, they allege that the CTEA's new maximum copyright term of 95 years is too long.  Second, they argue that extending the term of copyrights violates the "public trust doctrine."   This is an obscure principle which applies to the transfer of federally owned land.   They also seek a preliminary and permenant injunction barring enforcement of the NET Act against violators of the CTEA.

The 105^th Congress passed the Copyright Term Extension Act (aka CTEA) to extend the maximum duration of copyrights from 75 to 95 years.  The late Rep. Sonny Bono (R-CA) introduced HR 1621 for this purpose in 1997.  However, it was the Senate version, S 505, which ultimately was passed by both the House and Senate on October 7, 1998. President Clinton signed this bill on October 21, 1998. The Act applies retroactively.  It amends 17 USC 304(b).

The 105^th Congress also passed the No Electronic Theft Act (aka NET ACT) to extend the protection of copyright law to the Internet.  It amends federal copyright law to define "financial gain" to include the receipt of anything of value, including the receipt of other copyrighted works. It sets penalties for willfully infringing a copyright: (1) for purposes of commercial advantage or private financial gain; or (2) by reproducing or distributing, including by electronic means, during any 180-day period, one or more copies of one or more copyrighted works with a total retail value of more than $1,000. It also provides that evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.  The House passed HR 2265, sponsored by Rep. Bob Goodlatte (R-VA), on November 4, 1997.   The Senate passed the bill on November 13, 1997.  President Clinton signed the bill on December 16, 1998.  It amends 17 USC 506(a).)