Monday, April 9, 2001

LOGGING IN WITH . . . Eric Eldred One Man's Challenge to Copyright Restrictions on Online Publishing By ANDREA L. FOSTER Eric Eldred, an online publisher of classic literature, challenged the Sonny Bono Copyright Extension Act of 1998, which keeps copyrighted works out of the public domain for an additional 20 years. The law allows copyright holders to maintain exclusive ownership of their artistic works for up to 95 years. Lawrence Lessig, a Stanford Law School professor who argued the case for Mr. Eldred, said the copyright-extension bill is unconstitutional for three reasons: It fails to protect freedom of expression under the First Amendment; because it is retroactive, it violates the original intent of copyright law; and Congress has limited authority to extend copyright protections. In February, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled against Mr. Eldred in the case (Eric Eldred v. Janet Reno). In a 2-to-1 decision, the court sided with the government, which argued that retroactive term extensions are within Congressional authority under the copyright clause, and that the 20-year extension does not violate the First Amendment. He is seeking a rehearing of the case by the full bench of the Court of Appeals. His Web site features works by authors including Nathaniel Hawthorne and Henry James. Mr. Eldred was a Unix systems administrator, but is now on workers' compensation for a repetitive-stress injury. Q. Have you had to remove some literary works from your Web site because of the copyright-extension bill? A. I've removed three works. One was The Wayside: Home of Authors [about Hawthorne's home]. I made a mistake in my copyright research. I thought the book was in the public domain, but the author [Margaret Lothrop] renewed it just before she died. I was able to find an heir that owned the copyright, and he gave me permission. So I put the book back up. The second book I removed was Canoeing the Adirondacks With Nessmuk: The Adirondack Letters of George Washington Sears. It was in the public domain, but the Adirondack Museum claimed to own the rights to it, and we got into a dispute. But eventually, I took it down because the museum said the book supported its activities, and I felt bad about that. The third work was a pamphlet about Paul Revere, about his famous ride. It was definitely in the public domain. There was no dispute about that. ... High-school and junior-high students accessed it a lot on the Web. ... But I took it down because I couldn't figure out who owned the copyright to a couple of the illustrations in the work. The illustrations themselves may or may not have been under copyright. But I was intimidated, because if someone claimed to own the copyright to them, I could be in serious peril, and my Web site would be in danger. Q. Why does keeping copyrighted works out of the public domain for an extra 20 years matter in the life span of a book? A. I'm 57 years old, and I don't know if I'll live for another 20 years, or if the Internet is going to exist then. I'd like to make available new works every year. I don't think that it's beyond belief to think that term [20 years] will be extended forever. It's time to start lobbying right now. Q. Why haven't more scholars rallied in support of your lawsuit? A. It occurred to me back in October '98, when this law was passed, that I was exposing myself to quite a lot of legal risk. I could go to jail for several years. ... I could also lose my connection to the Internet and have all my computers taken away if I made a mistake in my copyright research. At that point I wanted to kind of fade away, and give whatever I had done over to some library or academic who maybe could do it better. I'm just an amateur. But I felt that they're not really interested in doing a lot of work with reading and giving it away. I'm not too sure exactly why academics are not doing this themselves. I understand that higher education is starting to be run like a business now, and you have to justify any kind of expenditure ... Publishing on the Internet so far has not received much acclaim as a way of professional advancement in higher education, although it should. Q. Why didn't you appeal the decision to the Supreme Court? A. The Supreme Court doesn't have to take the appeal. ... It's a gamble. One way to make the odds better [for the court to take up the case] is to have a difference of opinion between two different district courts. ... What we're thinking of is an Eldred II, with different players in a different district. ... We'd be looking for somebody else who has reason to complain about the copyright-extension bill. Easy-to-print version E-mail this article

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