So there's an extraordinary (and extraordinarily interesting) range of reporting about the argument before the Court. As I was on the front line, let me add a bit more. My hope in doing this is to put this in a bit of context, and to highlight at least what we should be looking for. (EV predicts a 6-3 victory, which is significant, because he and I have a bet, and he took the other side.)
Aaron reports Brewster's statement to him that "it was a dance for which I don't know the steps." That's close. I think the better analogy for someone viewing an oral argument for the first time is the first time you see a cricket match. There are some moves you are certain you know are bad (a swing and a miss); but there's lots that plays into something you can't quite get till you know the context of the game. Here, then, the context of the game, as well as the moves from last Wednesday.
Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress's power -- the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress's power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that "affects" interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez, the Court said we need a different interpretation of "commerce" that actually recognizes limits. Limits, not control of Congress's discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.
We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government's interpretation of that clause, "limited times" has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term "limited" (limited as in limited edition print) that would also produce an effective limit on Congress's power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham, "court favorites," but instead to create an incentive for "new" creativity only).
Now that strategy was controversial from the start, especially because some of our natural allies (Stevens, Souter, Breyer) were so strongly opposed to the Lopez line of cases. But our call early on in this case was that they could be brought around to see that even if they oppose the results in Lopez, there was no reason to oppose the same reasoning in this case. Indeed, they could use this case to show why they were right in Lopez: They could argue that unlike the Copyright Clause, the Commerce Clause has no express limitation built into it; unlike the Copyright Clause, the limit the Court has found is wholly implied; thus, they could say, it is not appropriate to imply limits where not expressed. But, they could also say, where a limit is plainly express (as it is in the copyright clause, which is one of only six clauses in Article I, sec. 8 (the part of the constitution with the core grants of power to Congress) that expressly limits a grant of power (the others are clauses 1, 12, 15, 16, 17)), then it is appropriate for the Court to find a way to enforce those limits. In other words, they could write, "for the reasons given in Lopez, you were wrong in Lopez, but it would be right to limit Congress here."
The greatest fear we had about this strategy (beyond the backfiring point) was that it all presupposed that the Court got it. It presupposed that the Court understood the problem with extensions of existing terms; that it understood the harm that would do to the internet, and the ability of people to build on the internet; that it saw the law as useless. And before the argument we struggled over and over again with how best to focus the Court on the costs, if in fact they didn't get it.
(1) The most important first indication that was absolutely clear from the argument is that our fear was misplaced. The Court clearly got it. Though the other side had written literally 300 pages trying to show all the good CTEA did (and pronounce it like it is a disease -- sateeeya), the Court hadn't bought any of it. Congress was not acting to promote progress, it was acting to reward "court favorites." The only question the Court was struggling with is whether it has the power to do anything about it.
Now pause for a second to think about how important and good this struggle is. First: It is a rare but valuable exercise for any branch of government to worry about the scope of its own power. And the greatest virtue the Court exercises is the virtue of self-restraint. This is a reason to respect the Court, not criticize it (though how they exercise their restraint, or where, can be criticized, as I suggest below). But the general idea that it will restrain itself, despite believing a law is stupid, is a feature, not a bug in our constitutional tradition.
And second: that they are struggling with this question of restraint means they clearly get the problem. They are motivated to do the right thing; they are resisting the right thing for the right reasons. Both sides are good.
(2) Though it took some hammering, they clearly understood by the end of my argument the dynamic of the argument that we were making. I said, over and over again, that we were advancing an interpretation of "limited times" that had the virtue of actually imposing limits, because otherwise the clause would have no limits. The aim, and I think effect, was to repeat this idea so many times that they had in their heads a simple picture: There was a way to read "limited" so that Congress would not have unlimited power.
Thus, for example, when I said that limited should be read like "limited edition print," Justice Souter interrupted to say that this was a different kind of case (not a contract, etc.), and I said, yes, but we are simply showing you that there is a plain meaning of the term "limited" that actually produces a limit. He's a very careful justice; he got the point, as did the court by the end. That's not to say he bought it, but he clearly gets the dynamic of the argument: if you believe you must impose a limit on Congress's power, here's a way to impose that limit.
(3) The government then helped us immensely by simply confirming what we had said: under their theory of the case, there was no constitutional limit on Congress's power to extend terms; it was always a matter of Congress's discretion. Congress could perpetually extend existing terms; it could even extend a copyright to works within the public domain.
The Court clearly did not like this answer. They had bought the idea that the Constitution intended there to be a limit; the government's interpretation meant that this was a limit that was solely a matter of legislative grace. (Compare: "Under our written Constitution the limitation of congressional authority is not solely a matter of legislative grace.") They were not comfortable with the idea that they would simply say that though the constitution expressly limits Congress's power, it is Congress that gets to say what that limit is.
(4) This gave me the opening I wanted in the rebuttal to say: On the government's view, the Copyright Clause means Congress has total discretion; but that is plainly inconsistent with 125 years of Supreme Court authority. The very first time the Supreme Court ever struck down a law of Congress because it exceeded a particular grant of power in Article I, sec. 8, was in 1879 in a Copyright Clause Case. Since that time, the Court has repeatedly and unanimously imposed limits on Congress's power in the name of Copyright Clause. All of those limits so far have been implied limits. The Court has held that of all the "authors" and "writings" that might be granted copyright, only those that are "original" are allowed copyright; and it has held that of all the inventions or writings that can get patent or copyright protection, only works that are not in the public domain can get the benefit of the copyright and patent clause protection. Both of these limits are implied. Yet here, with the only express limit on Congress's Copyright Clause power, the government was arguing that in effect, the limit was limitless. This, I argued, is fundamentally inconsistent with this 125 year history, and shows the government must be wrong in its view.
(5) Finally, the government's repeated invocation of the "delicate balance" that Congress has struck became too much to ignore by the end. My final point before the Court is ultimately the most compelling politically, though not directly relevant to the constitutional argument: Under the current term of 95 years, under the most conservative assumptions about royalty income and interest rates, the current term gives authors 99.8% of the value of a perpetual term. Put differently, the current "delicate balance" between author and the public is 99.8% to the author, .2% to the public. (Check out footnote 6, page 6 of the economists' brief if you want to do the numbers.)
after thoughts and advice on interpretation (read: clues on the game)
Lots of people have made tons of noise about what the court asked questions about and what it did not ask questions about. In my experience, this is not an indicator of anything. One hour is an extraordinarily small amount of time to consider the issues in this case. They ask question about things that need to be discussed. They let go things that they get from the briefs. When I clerked, oral argument was irrelevant to 90% of the cases; that is because they do their work based on the writing, and unlike most branches of government, they actually do their work.
That said, there was lots I was unhappy we didn't get more of a chance to discuss. Here's an enumeration of what's open and what we've got to win.
(1) 1790 Act: We lose if they are not careful about the interpretation of the 1790 Act. We need the originalists; we therefore need to defeat the government's claim that "CTEA = the 1790 Act." The arguments here are not even close if you pay attention to the history. It is simply and absolutely false to say that the 1790 Act "undoubtedly extended existing terms" as the government says. The 1790 Act (1) did not extend any term (since there was no federal term before 1790); (2) it did not, on balance, effectively extend existing terms (because the law at the time included both state common law and statutory law granting copyrights, and while it may have extended the term of the works protected by the state statutes, it shortened the term of works protected under the common law); and finally (3) even for works protected under the state statute, 3 states expressly stated they didn't mean their statute to displace the common law. Thus, it is more likely the 1790 Act shortened, not lengthened, terms.
That conclusion is supported by the numbers reported by William Maher. He actually counted the number of copyrights granted to works published before 1790. Of the 21,000 works published between 1790 and 1800, we have record of just 699 copyrights. Of the 699 copyrights, only 12 are for works published before 1790. Of the 12, 5 are for works protected by state statute. The remaining 7 were presumptively protected by the common law. Thus, of the records we have, the majority of terms were plainly shortened, rather than lengthened. And the clearest reading of what the framers thought they were doing was simply moving to a new federal regime, and ending the continuing effect of the old state regime.
We need to win this point. Of all the arguments in this case, it is the only one that I am 100% certain of (the rest I'm at 99.8%). But it wasn't discussed much, which creates lots of anxiety.
(2) The Lopez-Eldred link: The other point that seemed lost on the Chief Justice was that this was a Lopez case -- or more importantly, it was a Lopez-plus case. If the Commerce Clause must be interpreted to imply limits, then the Copyright Clause must be interpreted to give effect to express limits. There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. Yet the Chief Justice (author of Lopez and this line of authority) didn't seem to recognize the link. If it is not made, then again, we lose. Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.
(3) Which Bright Line: Justices Souter and Scalia were trying to figure out which bright line made most sense: that Congress can't restore copyright to works in the public domain, or that Congress can't extend the term of existing copyrights. The obvious question which no one asked is: Why do we expect works will be allowed to pass into the public domain again? Look at the pattern:
The effect of term extension is to toll (stop) the passing of works into the public domain. In the first 100 years of the republic, the public domain was tolled like this for only 14 years (14%). In the next 50 years, the public domain was tolled for 14 years again (28%). But when CTEA expires, the public domain will have been tolled for 39 out of 55 years, or 70% of the time since 1962. If the Supreme Court says ok to this, then why would anyone expect 70% won't become 100%? The line that says Congress can't restore copyrights to works in the public domain may be bright, but it is in a very dim world indeed.
I am obviously extremely happy with where we are. The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law.
I am obviously also unhappy with those "swings-and-a-miss" that happened in the argument. As I said before the argument, if we win it will be because 4 years of activism by many many people have changed the public's view about the importance of these issues. But as someone who believes this the rare case where the law, properly and carefully read, yields one right answer, there is no way I will ever be able to escape the thought that if we lose, it is because I am not the advocate that some could have been. It is the particular hell for lawyers that after an argument, we live in the purgatory of constantly reliving the argument. Every night since Wednesday I have awoken in the middle of the night, to spend the rest of the night reanswering Justice Ginsburg, or asking Chief Justice Rehnquist just how he could distingiush Commerce from Copyright. The kind words of so many notwithstanding, I know and have always known I am not Larry Tribe, or Kathleen Sullivan. And if, after getting this so close to the right result, I have lost this by not being them, then I am not quite sure how I will live with that fact. So please, no more of the bullshit about "rockstars" or "visionary." I've lived this struggle every moment of the last 4 years; it will take a long time for me to escape it, especially if we don't prevail. I want to turn my head elsewhere, and my heart elsewhere too. So I apologize if I don't follow up on this, or the arguments this might begin. Please, in the spirit of the best of this sphere, carry these argument along, and correct the many mistakes I have made. But I need a night when the limits of this lawyer don't keep this lawyer awake. I am grateful to an extraordinary number of people, most importantly, Eric Eldred, but also the hundreds who have worked on this case, the people, like Lisa, who slept out at the court to watch this argument, and Brewster who drove across the country to teach the lessons -- too many to count. If we have won, it is your work that has made this happen. That the press chooses to focus differently does not change that fact. At least this space can speak the truth about this fact. Peace, quiet, and may terms be limited.
October 13, 2002 7:08 AM - alex
Thank you for the impassioned write up and the passionate fight.
Sometimes I wish I were not an atheist.
God be with you.
October 13, 2002 7:53 AM - Aaron
Sleep well professor. Everyone who worked on this is greatly appreciated.
October 13, 2002 8:41 AM - Brad Patrick
Perhaps you are not aware of your own grace under pressure. I did not have the benefit of seeing you in The Show, but from one lawyer to another, you owe it to yourself to listen to what your loved ones, friends, colleagues, and even random folks like me are telling you - you have fought the good fight; you have run the race. You, as much as, or perhaps more than, any other former Supreme Court clerk know that you have given the Court the last best chance to understand its options. As you said Thursday, you have drawn the line as clearly as you could from point a to point b. Be proud.
I believe (not just think) but believe you are right, and believe you owe it to yourself to allow those who love you and honor you to give you respite after your battle. Let them. Breathe. Slowly. The rocket-powered-windmills-hopped-up-on-adrenaline of your mind will subside. Hell, you might even squeeze out a victory. 8)
October 13, 2002 9:32 AM - Joe Brockmeier
No matter what the outcome, you can be proud of what you've done and all of the effort that you've expended on behalf of the rest of us... many thanks, and sleep well.
October 13, 2002 9:43 AM - Matthew Gifford
Thank you, Professor Lessig. Your hard work has inspired a great many people.
October 13, 2002 11:29 AM - Eric Rolph
You are tremendous fighter, no matter.
October 13, 2002 11:52 AM - John Kenneth Fisher
Many of us understand what is at stake in this fight, and we're all very thankful, and even a bit proud, of how hard you've worked to put this right. No matter how this turns out, you've have more than earned my respect.
October 13, 2002 12:03 PM - Paul Brigner]
I've been very inspired by your work on this case and your two great books. I'm a 2E at Georgetown, and I plan to practice cyberspace law. Your work will certainly have a tremendous impact on my career. Thank you!
October 13, 2002 2:29 PM - Karl Davis
In my mind you have already won. I believe in your fight, and I know that you were the best man to take that fight before the court. The knowledge that the objective you were fighting for was unequivocally right made your argument more eloquent than Tribe or Sullivan ever could have been.
Sleep well. You deserve it.
October 14, 2002 12:47 AM - Autrijus Tang
I live in Taiwan, and it is to my great joy that I learned that the Eldred case has played a significant role in helping Taiwan to reject USA's demands of exporting the Sony Bono act here.
As a technology hacker and participant in the free software community, this has profound effect on my livlihood.
I recall vividly of your argument during this year's Open Source Conference, of which that it pays more to solve the unbalanced 'Intellectual Property' expansion at its roots (the U.S.), because it would help activists in other countries to resist U.S.'s unreasonable demands, perhaps more so than direct lobbying in such countrie's governments. Indeed, the Taiwan case has proved this line of reasoning.
Our local EFF-like activist group, The Elixir Initiative, may be translating The Future of Ideas in the near future. I hope we can make the translated renderings as fair as possible, and your stellar work on this case and EFF would be my continuous inspiration.
October 14, 2002 1:53 AM - Chris Nandor
On your after thoughts:
(1) I find it interesting that you say you are "100% certain" about the 1790 Act, yet you write "it is more likely the 1790 Act shortened, not lengthened, terms." "More likely" isn't very certain language. Perhaps this should be accounted to fatigue? :-)
(2) IANAL, and I did not hear your arguments, but it seems odd to me that Rehnquist himself would not "recognize" the link between this case and Lopez. Your argument seemed pretty simple to me; and while it does require a slight leap, it is a leap that he should easily recognize before taking. Or did you mean "recognize" in the sense of "agreement"? If so, I can understand what you mean, but you seem to mean that he didn't understand the point you were trying to make, which seems a bit incredible to me, unless Rehnquist is growing senile (is that what you meant to imply? :-).
(3) I think the main point here should be that there is no substantive distinction between restoring copyright to public domain works, or extending the terms of existing works. Yes, that we should not expect works to pass again to public domain is a good one, but as to the distinction being drawn, I see none, insofar as this case is concerned. I'd think that an extension on copyright term is, in essence, granting/restoring copyright to a work in the public domain, since public domain is the default position of all works (until a law, common or otherwise, grants copyright). And whether that work previously had copyright, or currently has copyright, the point is that on e.g. Jan 1 2003, a given work will be public domain unless Congress does something to grant copyright to it. I just don't see a substantive distinction, but maybe that's just me.
October 14, 2002 1:58 AM - Chris Nandor
Oh, and one more thing: feel free to turn your head elsewhere and not follow up. :-) You've been an inspiration to all of us, and even if you don't prevail, that in itself is important "enough." Many people have made a difference not now, but down the line, and even if things don't change today, they will change tomorrow, or the next day, or the day after that, in part because of the hard work -- not brilliance, not vision, not genius, but hard work coupled with passion -- that you've put forth.
I'll cease genuflecting soon, just give me a moment.
There, all done.
October 14, 2002 2:49 AM - J. Bechhoefer
I'm curious that the copyright law does not seem to be viewed as an implicit contract. Couldn't one claim that the American People, in a contract to stimulate creativity, award limited-term rights (copyrights)? If so, would not the retroactive extension of those rights violate that contract. In other words, whatever one thinks about limits -- and I believe that they are indefensibly long at present -- the RETROACTIVE extension would in effect rewrite existing contracts and, hence, should not be admitted. More intuitively, how can a retroactive grant of rights enhance creativity? Although this does not address the extension of limits, if the reasoning is accepted, it might drain some of the intense motivation for pressuring Congress to make such limits.
October 14, 2002 4:21 AM - Anonymous
the public is blessed to have a person of your abilities to argue this case, I doubt any other person could have done a better job. The fact that you worry so much about this case is one of the many reasons that you are the best person to argue it.
October 14, 2002 4:59 AM - Anonymous
A blawg troll?
I thought I'd seen it all...
October 14, 2002 6:07 AM - Adina Levin
- Thanks very much for the explanation; it helped to provide a better understanding of the legal issues and the Court's thinking.
- Thank you truly for fighting for all of us. This battle's over, so sleep well.
- This is just one battle in a long war; with battlefields in the courts and congress and the press and the public.
If the Justices understand the problem, that's one step forward. If technologists understand the problem, that's a step forward. If a few politicians start to understand the problem, that's another step forward. If the mainstream press starts to understand the problem, another step forward.
Patience, courage, and patience.
We'll be waiting for a decision in the spring and hope it comes out well.
- Adina Levin
October 14, 2002 9:37 AM - Lars Gaarden
heaps of thanks.
As others have mentioned, this is just one skirmish in the war to put copyright back on the right track.
Even if you and Eldred lose this battle (which I believe you won't, the briefs are excellent), know that you have fought the good fight and that others have been inspired by you.
October 14, 2002 9:47 AM - Michael Jennings
This is, as Adina says, one battle in a long war. If we win this one, then it is perhaps the Battle of Midway that we have won, but there is a long way to go yet. The war can be won in Congress, and some parts are going to have to be won in Congress. I feel that the copyright industry is so rapacious and so anti-consumer that the higher the profile the copyright wars become, the more cetain it becomes that we will ultimately win. (The best way to discredit the RIAA is to get them into court and force them to talk about their business practices). Even if we lose this case, our profile is a lot higher because of it. This is good.
Thank you Professor Lessig. You gave it everything. We are grateful
October 14, 2002 10:14 AM - Serge R.
While you may not be Laurence Tribe or Kathleen Sullivan, you've done something that neither of them have done- argue the most important case of the new millenium thus far before the Court, and, because of your knowledge of the subject, argue it better than either of them would have.
As a 1L at Michigan who's very interested in IP law, of course I hope you prevail, but even if you don't, this is just the first of many cases the Court will consider on similar topics in the near future- and I sincerely hope you'll argue the rest as well as you've argued this one.
On behalf of everyone following this case, thank you from the bottom of my heart for taking it on.
October 14, 2002 10:36 AM - Jerrod Hansen
I am just a normal guy casually interested in technology, society, and government. I just wanted to thank you for doing what you have done. Win or lose, you've fought a fight that needed fighting, and its something that many of us wouldn't have been able to do. You are an inspiration, and I thank you deeply.
October 14, 2002 11:00 AM - Gary
Thanks for your hard work!
October 14, 2002 11:44 AM - David Moynihan
Thanks for taking the shot. Me and the dog believe.
October 14, 2002 12:07 PM - moof
Many, many people greatly appreciate your efforts.
I daresay that a fair amount of them - myself included - are very curious to see what you set your mind to next.
October 14, 2002 12:29 PM - Mark Finnern
Thanks for fighting the fight. You opened up my eyes for what is at stake with your lectures, books and now in front of the supreme court.
We covered 'The future of Ideas' at one of our Bay Area Futurist Salons too:
You make a big difference to a lot of people, as these comments prove.
October 14, 2002 12:31 PM - Tony Giaccone
Few people have the opportunity to make a difference in this world. To be able to find a cause worth fighting and stand up and be effective in supporting it. You Sir, are an example to us all of someone who saw the issues, understood the importance and had the skills to do something about it. That you did all you could do, that you gave it your best effort, that you understood the importance of the cause and stood up as only you could do is what matters.
The outcome isn't the most important part, because any one outcome can be changed. I expect your arguments to carry the day, however if they don't, should the courts find not find persuasion in your arguments and rule against us, it will be a set back. In fact it might even be the kind of set back that will further galvanize the will of those who oppose unrestricted copyright extensions to redouble our efforts to gain back control of the outcome.
Prof. Lessig, what does matter is that you've made the points clear, brought us all to understand the significance of the issue. You have given voice to so many of us who don't know how to speak.
Thank you for your hard work and your efforts on the part of what is right. We are all in your debt, even if the court doesn't agree with our position. You showed us what had to be done, and that we can all make a difference. We'll win this war in the end because people like you will help us understand how to make it happen.
Thank you again,
October 14, 2002 12:48 PM - Franklin Frage
Lar -- What are the "ugly reasons" for implying limits to protect Federalism and not to protect the public domain? What are you trying to infer with that loose language?
October 14, 2002 1:32 PM - Stephen Gilbert
If the case is lost, it will not be because of you. Thank you for taking up this battle. Sleep well.
October 14, 2002 1:49 PM - Mike Cotton
Sleep the sleep of the just, Professor, for certainly you have earned it.
Rehnquist will get it. And we will see one of most interesting majorities in years. When was the last time Rehnquist, Scalia, Stevens, Souter and Breyer were on the same side of anything?
October 14, 2002 5:08 PM - Chris Riddoch
I'm very pleased that you had the insight, focus, interest, and knowledge to argue this case.
I'm not a lawyer, but I've read your books and followed this case carefully and with interest. Thanks for your great work, you've done an incredible job.
October 14, 2002 7:08 PM - Eivind Kjorstad
I hope we win. Notice I said "we", not "you". This case is for all of us. You have done your part, and done it well. You should know there's thousands, or more likely millions of us rigth here behind you.
October 14, 2002 10:14 PM - David Bell
Been following your arguments for a while now, just wanted to express my support for what you're doing. I don't understand the legal arguments, but I do understand the implications of what you're trying to do. Thank you.
October 15, 2002 1:08 AM - Ian Osmond
Thank you for your work. The part of the Bono act which horrified me most was the restoration of copyright to works in the public domain. I thought of that as theft, frankly. I felt like the Congress stole from me to give to Disney. And, I want to thank you for doing what you can to get me my stuff back.
October 15, 2002 1:27 AM - Wah
Thanks for arguing for us. And by "us" I mean the American people, and by extension, the people of the world. Whether or not we win this time is immaterial, the fight has been joined and many, many more people will not rest until it is won.
You can rest now, you've done your part and I, for one, thank you for it.
I still don't see how anything can have "limited" protection which extends beyond my life span. Ah well, it's taken copyright nearly 100 years to get truly screwed up, it will take us at least a quarter that long to straighten it out. After all, we have computers and the Internet now.
Thanks again, enjoy the day.
October 15, 2002 4:03 AM - Jeff Zugale
Just want to say thanks for getting up there and fighting for, simply, the good of the people and the advancement of humanity. Thanks for your incessant and impassioned work. I sincerely hope it works out - for both altruistic and selfish reasons. I might be able to get my songs back! And have some power to hold onto my copyrights (instead of being forced to give them up as work-for-hire) when trying to pitch my comics and other projects to media companies. :)
October 15, 2002 7:11 AM - Lawrence Kestenbaum
I know it's redundant at this point, but many, many, many thanks!
I agree, too, that you deserve to set your mind at ease and move on, but I know exactly where you're coming from, and how anxious you feel. The stakes are colossal. A bad decision in this case would be destructive beyond belief. My own heart will be in my throat for the next several months.
On one hand, if it's just up to Justice Rehnquist, I don't think we'll like the result. On the other hand, I can easily imagine a near-unanimous Court ruling for limits to copyright, bringing together the Lopez and anti-Lopez Justices together in exactly the way you outlined.
I'm just a county commissioner, but I am one politician who "gets it", and I hope to fight and argue and campaign on behalf of the public domain for a long time yet.
October 15, 2002 7:33 AM - Sean Abrahams
October 15, 2002 8:47 AM - Deven Corzine
First, let me add to the voices here to tell you that you've done an outstanding job; you deserve a rest. Apart from that...
Is this purely a post-mortem analysis, or is it still possible for you or others to file a written brief with the court to respond to issues raised during oral arguments?
Anyway, in my mind the "bright line" is very clear. The purpose of the "copyright bargain" is to offer a limited monopoly as an incentive to create works, which is a valid public purpose justifying limiting the rights of the public until copyright expires. The purpose is not to enrich copyright holders, the opinions of Congress and the content industry notwithstanding.
Therefore, the "bright line" that I see is simple, and threefold: (1) Congress may not retrospectively extend copyrights beyond the author's reasonable expected length of protection at the time of creation (since a retroactive incentive is clearly ineffective) and (2) Congress may not alter copyright law in any way without explicitly weighing the public's interest in the "copyright bargain" in accordance with the preamble to the copyright clause and (3) once public domain, always public domain; Congress may never extend copyright protection to any work in the public domain.
If Congress had respected this "bright line", this case never would have been necessary, and the need for all three parts (but especially the first) is fairly obvious from the context of the Constitution, given an understanding of the "copyright bargain" involved.
It concerns me that the court wants to distinguish 1998 from 1976 and invalidate 1998 without disturbing 1976. I think this is a grave error; every retrospective extension since 1790 should be struck down. Just because nobody made the effort to challenge it in 1976 or earlier doesn't make it any more or less constitutional -- it just means that Congress got away with exceeding its authority for many years.
As for the 1790 act itself, it need not be viewed as a retrospective extension, since most works that were retroactively included were already protected under state statute or common law. Most importantly, there was no previous term of federal copyright to extend at all, so it was an establishment of the federal copyright regime -- as with the definition of U.S. citizenship, certain irregularities had to be accepted in the initial stages. (It wouldn't do for the only U.S. citizens to be those born after 1776 or 1789, for example.)
Now, it may be that in the process of striking down the unconstitutional retrospective extensions, it would be procedurally necessary to strike down the entire laws, including prospective extensions and other copyright changes as well. (This seemed to be the source of the reluctance to tamper with 1976, or am I reading between the lines incorrectly?)
This is clearly a major concern -- we wouldn't want to suddenly invalidate most copyrights, since registration hasn't been required for copyright protection since 1976. This would represent the public reneging on its end of the "copyright bargain" after the author had already fulfilled his end. That would be extremely disruptive, and as unjust to the copyright holders as the CTEA is to the public.
However, I have a solution to this. The court could strike down all copyright laws after 1790 which retrospectively extended the term of copyright as unconstitutional, but stay the effect of their ruling (much as Judge Jackson did with the Microsoft breakup order), until Congress can pass a new copyright reform bill (respecting the "bright line" described above) to remedy the situation. (A hard deadline would be necessary to motivate Congress, perhaps 1-3 years hence; otherwise Congress could simply refrain from modifying copyright law for 20 years, when the retrospective extensions will be moot.)
Then, in the time allotted, Congress would need to explicitly weigh the public's interest in the "copyright bargain" in determining the new copyright policy, hopefully coming up with new prospective terms which aren't 99.8% weighted in the favor of the copyright holder over the public's interest.
To be most fair, they should then retrospective extend all existing copyrights to the prospective terms in effect at the time of creation (since that was the actual incentive), unless that term is deemed contrary to public policy, in which case it might be shortened to something more reasonable. (In particular, the 20-year CTEA power grab would be worth reversing.) This would not be crossing the "bright line" despite being retrospective in nature, as it would not be retroactively offering more incentive than the author was actually expecting at the time.
The unconstitutional copyright laws (including 1976) would then remain in effect only until this new reform bill retrospectively replaces all of the formerly prospective provisions of the earlier laws being struct down. (Obviously, some of the extensions may already be moot and not need to be replaced.)
This approach would solve all the problems. It would strike down the retrospective extensions which increase the "incentive" after the fact (sounds distressingly like a prohibited ex post facto law, does it not?), without disrupting the content industry with an unintended voiding of copyrights secured in good faith. It would also expand the public domain enormously (with all the works that should have expired long ago), which will be fodder for Disney and others to grow rich from, mining the richer public domain that we should already have...
I believe this is the light at the end of the tunnel, if only the court can see it. Is it too late to tell them, so they can consider it?
October 15, 2002 10:11 AM - paradoxiq
Thank you, good sir. Thank you.
October 15, 2002 1:58 PM - Ernest Svenson
Great explanation! Thanks for sharing that with us, and --more importantly-- thanks for being at the forefront of the charge, and for selflessly giving credit to the others that work with you. I think you are wrong about one thing though. If the Eldred case is affirmed it won't be because of some small omission or because Larry Tribe didn't argue the case; it will just be that it was a really difficult case to win. But if they do reverse then you can silently accept the fact that only by your tireless efforts, and the efforts of others that you inspired and worked with, was victory attained.
October 15, 2002 2:15 PM - David Wood
Nothing could deepen my surprise at seeing this case reach the heights it has, both in the courts and the public's awareness, but these are the joys of a cynical man. To read your accounts here is to lose that surprise; one finds a sense of principle, perspective, intellectual audacity, and effortless, literary comfort with the daunting architecture of law. You, sir, are a gentleman and a scholar, in the best American tradition.
Eldred's loss would be the court's failure, not your own. I can only urge you to consider, if you choose to go another round for the public interest, the problems which led us to the point where we now stand. CTEA did not arrive to consume the last 4 years of your life via a healthy democratic process. Whether or not the court gives Congress a fish today, I think the moral of this story is that tomorrow, our legislature needs the fishing lesson of reform.
October 15, 2002 2:33 PM - Stuart Clark
Thank you for bringing this fight to the Supreme Court. The cause is just -- I can imagine that Hamilton and Jefferson would pause in their eternal political debate to endorse your view. Intellectual property has strayed far from the vision of the founders, and I am glad that you have applied your formidable gifts to challenge it. Best wishes.
October 15, 2002 7:46 PM - Tres
October 15, 2002 11:37 PM - John J
Good work on a historic case (even thought I didn't think so much of Code).
October 16, 2002 2:45 AM - Ben Evans
Thank you. Have a nice break.
October 16, 2002 3:18 AM - Buddha Buck
Thank you for fighting this fight.
Devine Corzine's comments above address several of the issues regaring the 1976 law that I was concerned about, and I share his feeling that all past retrospective copyright extensions should be deemed unconstitutional. I can see, however, grave problems for creators of works after 1976 who toiled in expectation that their works would be protected for at least their own lifetime.
Has there been any research into how many works would enter the public domain if the retrospective effects of the CTEA are overturned? If the retrospective effects of both the 1976 Copyright Act and the CTEA were overturned? Or, assuming that the prospective and retrospecive provisions are inseparable, if both laws were overturned in their entirety?
I think it would be unfair for authors since 1976 to unexpectantly lose their copyrights earlier than expected, but I also see no principled alternatives.
October 16, 2002 3:30 AM - Deven Corzine
I gave an alternative -- overturn all the unconstitutional laws as necessary (even if that only leaves the 1790 law intact), but stay the order, so that the laws remain in force (though doomed) -- to give Congress a chance to pass a new law to extend copyright to all those works which should rightfully have it now.
For example, a work published in 1980, but never registered with the Copyright Office, is currently protected. Under the original 1790 law, registration would have been required, and the copyright would have expired in 1994 unless renewed. Since the 1976 law was the law of the land in 1980 when the work was created, and thereby set the expectations of the author by way of incentive, the work deserves the protection its author expected. In my vision, Congress would pass a copyright reform bill in 2003 (or maybe 2004) which would retrospectively extend copyright to all works under the prospective rules at the time of creation. This would retrospectively grant a copyright to that 1980 work, expiring in 75 years or life plus 50 years, as appropriate. After this new reform bill is enacted, the court could lift its stay on the ruling, striking the unconstitutional laws while continuously protecting those works which should not yet be public domain.
In my view, this would be constitutional, since the retrospective extension of copyright would be to meet the expectations of the authors at the time of creation, to fulfill the public's side of the "copyright bargain". This is very different from granting a windfall to Disney and others to grant terms longer than originally expected by the author at the time of creation.
October 16, 2002 4:39 PM - Luke
Thanks for all the hard work. You're an inspiration!
October 16, 2002 10:58 PM - Dan
Better one Lawrence Lessig who acts to correct a wrong
than a world full of Larry Tribes or Kathleen Sullivans who do nothing.
YOU are the one with the tenacity to get this far. What other lawyers would do is irrelevant.
October 17, 2002 3:50 AM - Jim Dompkowski
This case and your excellent book have inspired me to get involved. And although I am not a lawyer and don't understand all the nuancesof the argument, I can say, for myself, that whenever there is an issue where Milton Friedman and James Buchanan are on one side, and the MPAA and RIAA are on the other, I don't have to spend much time in deciding where my support should go.
October 24, 2002 12:55 PM - Marc Shepherd
I am not very optimistic. I've been praying for CTEA to be overturned, but it certainly didn't appear that five Justices were persuaded.
Both Rehnquist and Breyer seemed to be concerned about revoking a power that Congress has so often exercised.
The Chief Justice observed that if Congress has so often extended copyrights, and no one has ever challenged their right to do so, that must surely be significant.
And Justice Breyer observed that if CTEA is overturned, then by no principled argument could the 1976[?] Act survive, or indeed any prior extension that delayed already-copyrighted works' entry into the public domain. Justice Breyer referred to the "chaos" that would ensue.
And unfortunately, I think that some version of the Rehnquist/Breyer argument will prevail. Either the Court will hold that it is unwilling to revoke a power that, for over 200 years, no one has disputed that Congress had. Or, the Court will hold that overturning CTEA (and, as it must, any/all earlier extensions that are still in force) would unsettle too many long-held economic assumptions.
I still believe that Prof. Lessig is right on the law. But I don't think he persuaded five Justices. I expect a 6-3 defeat.
October 28, 2002 10:33 AM - nate
this is a test
November 19, 2002 4:41 AM - Jay R. Ashworth
I hope we win. Notice I said "we", not "you". This case is for all of us.
" 'God!' he cries, dying alone on Mars, 'We made it!' "
Indeed it is. And I was quite impressed by his exposition here. But even moreso by the tenor of (the majority of) the comments here, which, if I were him, I wouldn't have read. Understandable that he's nervous enough about how it goes. But even given that I'm struck by the framing and phrasing of the compliments here. Very nicely done, given his send off, folks.
November 19, 2002 4:43 AM - Jay R. Ashworth
Oh, and folo to Marc Shepard, on your last comment: perhaps the Supremes still remember Learned Hand's comments on precisely that issue... Let us hope they do, anyway.