What struck me about the about the article was that although I enjoy the net and am pretty aware of the media, plus I’m an attorney, and I generally do pay attention to privacy / speech type issues, was that I had never really heard about this. Or the 1998 extension of copyright. Or the fact that copyright has been extended 11 times in the last 40 years. It’s almost like there’s this huge lock-up of IP occurring without most people in the public being aware. I realize many on this board will be very alert to these issues but I thought I was too :).
Anyhow, this is an interesting case. The plaintiff has some interesting legal arguments based on the Constitution. I am very curious as to how this will come out. If the past 40 years is any indicator, he will lose at the Supremes and media won’t pay attention. Then in the near future, we’ll see yet more copyright extensions :(.
The court won’t overturn the copyright extension. They won’t use the chainsaw. But they will take the chainsaw out of the garage and make sure its fuel tank is full. Its opinion will mean, “Congress, there are some limits, somewhere, to your copyright power.” It will mean, “Disney, you’ve bought your last copyright extension.” It will mean, “Congress, next time find someone more serious than Sonny Bono to lead the issue.” It will mean, “We’re not going to tell you where the line is exactly–that would be dicta, and we hate dicta, except when we don’t–but we are telling you that if you move to extend copyright again, you first need to ask yourselves the Clint Eastwood question: ‘Do you feel lucky?’”
I’m not sure whether he will be joining the majority (but writing seperately, of course) or dissenting, but I’m expecting a nice “framers’ intent” opinion out of Scalia. My fingers are crossed that the Court will blow out the Bono extension.
Thanks for the tip to the DeLong article, that was a pretty interesting read as well. I have to say, I agree with him about the takings clause arguement: I definitely see locking up IP indefinitely (which is the trend if they keep handing out extensions) out of the public domain as a taking. However I don’t think DeLong’s focus on the copyright clause restriction vs the commerce clause grant of power is necessarily dispositive. There is a rule in statutory construction that the specific trumps the general. One could make an argument that the commerce clause is a general grant of power and the the copyright clause is a more narrowly focused restriction, which means that the specific provision of the copyright clause takes precedence over the general grant of the commerce power, in the narrow area of copyright. I do agree with DeLong that the Supremes will brandish their power in this decision, and send out a warning shot to Congress about the limits of its power under the copyright clause.
Obviously I do believe in copyright for a limited time so that creators can benefit from their creation. But when the Constitution was written that time was 14 years plus another 14 if the creator was still alive. Nowadays I believe the time is at least 95 years, regardless of the death of the creator. IP can be locked up for decades after the death of the creator, which just seems downright foolish to me.
What disturbs me about this was the fact that the 98 extensions was unanimous in the Senate - NOBODY thought to debate whether this was wise? Also the fact that there have been 11 extensions in the last 40 years is a very very disturbing trend. It seems that essentially what’s been happening is that the public domain is being completely foreclosed and not many people have been paying attention. Oh well, its not a sexy issue, and it doesn’t hit the voting public in the wallet (yet), and it doesn’t have the kind of moral outrage, sleaze-factor or controversial fascination that would generate much attention in the media. But given the close interaction between creativity and derivation from older sources, if we continue this trend we are going to end up straight-jacketing our creativity, and depriving the public of the incredible resources of materials in the public domain.
Hollywood has a lot of money to throw around, and no interest group to oppose it on stuff like this. Well, other than the EFF, but they don’t have money.
“I’m expecting a nice “framers’ intent” opinion out of Scalia.”
Uh, no.
He proved he isn’t some sort of judicial purist in the last election. He will be arguing that megacorps like Disney should have unlimited extension of copyright, because he is a political hack who favors the haves over the have nots. Pretty simple prediction.
Mostly agreed as to that prediction and its basis, but I think even Scalia will agree that copyrights should eventually be limited. The point of unconstitutionality just hasn’t been reached yet. Although Scalia, Thomas, and Rehnquist talk about original intent and following the text of the Constitution, the truth is that their conservatism is more in the nature of seeking to preserve property rights. Copyright preserves intellectual property, which is a form of property right. This concern for property rights will trump any originalist adherence to the obvious framers’ intent that copyright protections be limited to something less than the one hundred years (more or less) of protection that currently exists.
I wouldn’t be surprised if Scalia supports copyright extension ad infinitium; he hasn’t exhibited a real love of public rights in the past, which is what limited copyright is.
You’re missing my point, Roberta. Get out of the hot tub and let’s think like justices for a minute. It would be easy enough to delve into the drafting of the Constitution and find a limit on copyright extensions implied by the Framers. The LATimes article has a brief discussion of the roots of the limit. On the other hand, it would also be easy to focus on the plain language of the Constitution & argue that despite the historical evidence, the framers intended not to include a specific limit and left it up to the Congress. Purposeful omissions frequently are held up as evidence of legislative intent. Regardless of which line of argument you choose and for whatever reasons you choose it, you still get to work in a discussion of your pet subject.
I don’t think I have told this story here, but forgive me if I have. When I was in law school, I took a class on judicial decision making that was taught by a sitting member of the 9th Circuit. During the class, the 9th had an abortion rights case come before it. Our instructor explained to us that the author of the decision was going to be a judge that was married to the head of Planned Parenthood of California. Our instructor also said that the decision could be a single paragraph, citing the binding authority of Roe v. Wade as dispositive. However, given the author’s likely bias and an opportunity for a bully pulpit, our instructor predicted a decision between 40 and 50 pages that essentially sang the praises of Roe v. Wade before relying on Roe as binding authority. When the decision came out, he was exactly right. 46 pages (IIRC) about the strength and validity of the Roe v. Wade line, and then reliance on Roe.
Same thing here. Scalia might write with the majority or the dissent, but he will write, and he will use the bully pulpit to talk about his views on framers’ intent.
I’ve just read the Supreme Court briefs and, as usual, the press has the case completely wrong. The only arguments made are (1) the copyright extensions should not be retroactive to works already existing and (2) extending copyrights violates the First Amendment. As to (1), however, copyright extensions have historically always been retroactive, without any court challenge, on the ground Congress should act evenhandedly to protect both past and future authors and, as to (2), why would a restriction existing during the first day of the extended copyright period violate the First Amendment but a restriction existing during the last day of the original copyright period not violate the First Amendment? After reading the briefs, I’ll predict a 9-0 victory for the government in favor of the statute’s constitutionality, and I say this as one who is unsympathetic to the government’s position.
To me, the best and most obvious argument is that 100 years of protection after the author’s death is too long. It is inconsistent with the Constitution’s statement that copyright periods should be limited and inconsistent with the framers’ intent regarding what those limits should be. This is what the press thinks is being argued. For reasons not apparent to me, however, this argument is not being made in this case.
‘After reading the briefs, I’ll predict a 9-0 victory for the government in favor of the statute’s constitutionality, and I say this as one who is unsympathetic to the government’s position.’
Then why the heck did they take the case, out of the blue?
[quote=“Kross”]I’ve just read the Supreme Court briefs and, as usual, the press has the case completely wrong. The only arguments made are… [quote]
Hmm, did you read the complete briefs? What about the briefs previously submitted at the Circuit Court level, and at the trial court level? Aren’t those all part of the case file that goes to the Supremes? IIRC, you can make arguments at each level and they all go up for consideration. Or maybe what you read were supplemental briefs.
If those are in fact the sole and only issues then this case is much stranger (and much weaker) than I thought. Given the ideas discussed by the main advocate in his speeches and interviews, it seems inconsistent that he would not raise those issues. Perhaps the materials you were able to access were incomplete?
Dan, I read the briefs here. If you look at page i of the Petitioners’ brief, you’ll see the two questions presented – (1) retroactivity and (2) First Amendment. Petitioners’ brief on page 14 expressly eschews any argument that the Court should say how long is too long.
I can say with a high degree of confidence that the Court will not rule on questions which are not presented directly to the Court and which the Petitioners expressly chose not to raise.
I had the same question Jason. I’ll speculate that the Court may use this case to set a framework for future debate about the Copyright Clause. The most important question is probably the standard of review. How much deference should and will the Court give to Congress when it reviews Congressional determinations on copyright issues? Nonlawyers have no idea how important the standard-of-review issue is. In addition, I’ll speculate that the Court is giving a signal to Congress that the Copyright Clause is a meaningful part of the Constitution and that Congress should think hard before it extends the copyright period again. Obviously, Congress hadn’t given any thought to the constitutional dimension before, because, for the last extension, not even one member of the Senate cast a negative vote.
Another interesting question is why the lead advocate, Lessig, chose to limit his issues this way. I dunno. Perhaps, he thinks as a matter of tactics that the Court won’t want to act as a legislature by determining the maximum term of years that a copyright should last and that, tactically, the best chance of victory is to attack retroactivity – an attack which allows the Court to act in absolute terms rather than like a legislature. In addition, Lessig is a Stanford law professor and a former Supreme Court law clerk. Professors of law can be more interested in their ideas than in their clients. Lessig may personally believe that the Court “shouldn’t” get involved in determining the appropriate length of years for a copyright term, and he structured his arguments in accordance with his personal views, although his clients might want him to make all available good arguments, which is what I would have done.
The two that stood out to me as very strong arguments against the copyright extension were:
the Law Professor brief (making a very strong 1st amendment argument):
2)The Economist brief submitted on behalf of Milton Friedman et al (making a very strong economic argument)
I noticed that the Copyright Profs, as well as another group of ConLaw Profs both submitted Amici during the Petition for Cert process, which may explain why Cert was granted. The main Petition does raise fairly narrow issues but the strong constitutional arguments raised in the Amici briefs may have caught the Court’s attention.
Arguments are on 10/9. This should be interesting.
Apparently the RIAA is trying to get Verizon to disclose user information.
Well, guess the RIAA think they’re above the law. If Verizon discloses info, then you can damn well bet that all above-casual users will dump it as their ISP. Who could be far behind disclosing info then?
The RIAA is really getting ridiculous. Our government even worse for allowing them to exist.
(Yes, I realize this thread isn’t about the RIAA, but it pertains to intellectual property)
