[DMCA-Activists] Why No Link of 1A + Limited Times Args in Eldred?

[Seth Johnson]

(Peter Junger gives his take on why Lessig didn't link the
First Amendment and Limited Times arguments in Eldred vs.
Ashcroft -- even after Souter encouraged him to, and to
O'Connor's dismay.  I was particularly dismayed that he
didn't do this.  From DVD Discussion list.  -- Seth)

-------- Original Message --------
Date: Thu, 10 Oct 2002 15:24:22 -0400
From: "Peter D. Junger" <address@hidden>
To: address@hidden

Bryan Taylor writes:

: 
: --- "James S. Tyre" <address@hidden> wrote:
: 
: >   Justice Antonin Scalia questioned why Congress needed
to
: > include existing works when it decided to beef up
copyright
: > laws. If the idea of copyright law is to encourage
artists
: > to produce new work, why should it also apply to works
: > created 70 years ago, he asked.
: > 
: > "Why is it inequitable if they get what they're entitled
to
: > at the time they make the work?" Scalia asked.
: 
: I think that is a good comment for us for two reasons.
One,
: it somewhat rebuts the "choas if we allow the 1976 law to
be
: questioned* concept. A small table that maps year of
creation
: to the formula for duration would quickly dispell the
chaos
: in a few lines. Second, it differentiates between
retroactive
: and prospective changes. Ginsberg evidently was perplexed
as
: to what the difference is and how it makes a difference
: regarding the First Amendment argument. One of the tests
: under intermediate scrutiny is "advances a substantial
: government interest", and this question makes it clear
that
: there is an important difference for works already
created,
: and that treating them differently is NOT a substantial
: government interest.
: 
: Evidently, Lessig didn't try to link his limited times
: argument and his first amendment argument (reportedly to
the
: great dismay of O'Connor). I find that amazing, because
they
: DO fit together well. Retroactive vs. Prospective
extension
: implicates every one of the tests:
: 1) The substantial government interest is to get **new**
: works created
: 2) The "within government powers" forces us to answer the
: challenge of whether a retrospective extension power that
: can be **repeatedly applied** is consistent with the power
: to make only "limited" durations. The repeatedly applied
: idea differentiates the 1976 Copyright Act which changed
: from 28+28 to life+50, and is not repeatable.
: 3) Narrow tailoring: including existing works is wholely
: unnecessary to promote creation of new works, which is the
: substantial government interest.
: 4) Even content neutrality, because the works created in
: the past and authors who benefit are enumerable and they
: clearly lobbied for their retroactive extension, so that
: retroactive extension is a subsidy for favored speakers,
: whereas prospectively.

I would suggest that Lessig's failure may be tactically
wise---very wise.  In the first place he had limited time,
and to try to cover both arguments might well have made
neither argument effective or coherent.

More importantly though, I gather from the reports that no
justice was happy with the extension act itself, a majority
at least being apparently convinced that what Congress did
was not what the Founders intended.  In those circumstances
it should be fairly easy for a majority to conclude that,
though the limited times requirement may not be
self-enforcing, it clearly does not justify the longer term,
and particularly not the retroactive extension.

And that leaves the First Amendment argument as the reason
for striking down the retroactive extension.  I suspect that
the Justices are as capable of making that argument as
Lessig is.  They have already recognized, for example, that
fair use is a constitutionally required limitation on
copyright.  On the other hand, it would be hard to cite
anything squarely in point; and they do have the briefs to
assist them in reaching the right conclusion.

Many years ago I was told that on an appeal one should never
fully develop one's second-best argument, although one
should raise it at least obliquely.  That way the judges who
adopt it are more likely to see the argument as being their
own, rather than merely the argument of counsel.  Few
arguments are more persuasive than those that one discovers
for oneself.

If the copyright clause did not exist, we would almost
certainly still have a Copyright Act, supposedly authorized
by the commerce clause.  In that case the First Amendment
challenge would be quite clear, and the government would
have to overcome at least intermediate scrutiny to justify a
retroactive extension.  That is not a point where Lessig's
arguments are likely to make that much of a difference. 
What Eldred & Co. wish to do is ``pure speech,'' but the
challenged regulation is content neutral. Under the Commerce
Clause, the Eldred case would to a large extent be a rehash
of Bartnicki v. Vopper.

Thus the critical issue was to persuade the Court that the
Copyright Clause is not a broad grant of power that allows
the Court to ignore the First Amendment, but rather a
limitation on the power to create copyrights, so that the
First Amendment is even more applicable than it would be if
the only authority for the granting of copyrights were the
Commerce Clause.

--
Peter D. Junger--Case Western Reserve University Law
School--Cleveland, OH
EMAIL: address@hidden    URL: 
http://samsara.law.cwru.edu   
NOTE: address@hidden no longer exists