Eldred et al. v. Ashcroft, Attorney General

Background & Context

Eric Eldred ran a website called Eldritch Press, where he posted public domain works of literature — books whose copyrights had expired — in free digital form. He was preparing to add a new batch of works from the 1920s when Congress passed the Sonny Bono Copyright Term Extension Act in 1998. The law added 20 years to all existing and future copyrights: new works now received protection for the author's life plus 70 years, and works already under copyright were extended by another 20 years. Works Eldred had been counting on entering the public domain — including early Disney films and Robert Frost poems — stayed locked up for two more decades. The law was called the "Mickey Mouse Protection Act" by critics, because the Walt Disney Company had been among its most aggressive lobbyists. Mickey Mouse cartoons from 1928 were scheduled to enter the public domain shortly before the extension passed. Eldred, along with other publishers and academics, sued the government arguing that the retroactive extension of existing copyrights violated both the Copyright Clause and the First Amendment. The Copyright Clause grants Congress the power to give authors exclusive rights for "limited Times." Eldred's legal team, led by Lawrence Lessig, argued that "limited" was not being honored when Congress simply kept extending copyrights retroactively — effectively making them permanent. They also argued that extending copyrights on existing works served no incentive purpose, because those works had already been created, and that the First Amendment protects the free flow of information that the public domain enables.