01/31/2012 08:55 pm ET Updated Apr 01, 2012

Constitution Check: When the Internet Went Dark, What Was the Constitutional Meaning?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: constitutional limits on federal regulation of the Internet.

The statements at issue:

"Washington is waking up to the new reality: Politics as usual is not compatible with the Internet age, especially when it comes to laws and regulations governing the Web.... Without a major upgrade, this political system will keep on producing legal code that is Internet-incompatible."

-Rebecca MacKinnon, a senior fellow at the New America Foundation, "Why doesn't Washington understand the Internet?" published in The Washington Post on January 20, commenting on the closing down of many Internet sites on January 18 in protest pending bills in Congress to regulate the Internet. (The New America Foundation is a research and advocacy organization that issues publications and holds events on a wide range of current public policy issues.)

We checked the Constitution, and...

Politics, indeed, may be changing as Ms. MacKinnon suggests, but law could be another matter. In an awesome display of Digital Age political power, the shuttering of major parts of the Internet in protest on January 18 had an almost instant impact in Congress, stopping in its tracks a strong push to pass new laws to shut down websites suspected of stealing copyrighted movies, music and books. But, on the same day, in the calm of the Supreme Court's chamber, the Internet lost -- and lost big -- in the pursuit of perhaps its most-desired constitutional goals.

Thus, January 18 may well go down in history as the dawn of a new age of First Amendment-shielded political agitation via the Web, but at the same time as the twilight of constitutional protection for "the public domain" -- that universe of creative writings, film and music that is open to anyone to use and perform as they see fit, free of charge.

It was pure coincidence that these two developments came on the same day, but it also was a coincidence that both involved the law of copyright.

Copyright, of course, is the constitutionally guaranteed grant of monopoly control to authors and composers over their creative works, with a clear right to gather royalties from those whom they license to use them.

In Congress, the legislation seeking to protect copyrighted works from digital piracy is based upon the Constitution's Copyright Clause and its authorization of Congress to grant exclusive rights for "limited times." In the Supreme Court, that same Clause in recent years has been interpreted to give Congress truly sweeping authority to decide what "limited times" means.

For the past few decades, there has been an accelerating effort among those favoring a truly open Internet to widen "the public domain," so that works once protected by copyright emerge promptly from under that umbrella and become available, without royalties, to the public as a whole. The advocates have argued that, if the world is ever to have a useful digital library, the public domain must be preserved and expanded.

The Berkman Center for the Internet and Society at Harvard University, through its "Openlaw" forum, has been in the front rank of that movement, claiming that Congress's moves over 40 years to extend copyright terms has threatened "the rich and diverse public domain guaranteed by the Constitution."

The source of the claim that the Constitution does guarantee a public domain is, of course, the Copyright Clause itself, and particularly the word "limited" as a guarantee that copyrights will at some point run out.

That argument lost in the Supreme Court in the 2003 decision in the case of Eldred v. Ashcroft, with the Court upholding Congress's latest extension -- adding 20 years to the life of still-running copyrights. At stake were many major works that were close to, but had not yet entered, the public domain.

It was a sequel to the Eldred decision -- in the case of Golan v. Holder -- that the Supreme Court decided on January 18. It went much further. This time, the Court upheld a 1994 law that pulled works by foreign authors and composers out of the American public domain, and put them under copyright, to last as long as the exclusive rights remain in effect in the creators' home countries. That law was estimated to have withdrawn millions of works from public access.

What made the decision more important, however, was the Court's flat declaration for the first time that the public domain is not "a category of constitutional significance." In six pages of reasoning expanding on that thought, the Court went far toward scuttling the notion that the public domain is a check upon Congress's authority to expand copyrights.

Thus, on January 18, politics worked one way, and law worked in the opposite way.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.