[dvd-discuss] Argument: NO extensions can be constitutional. Eldred related-- of DVD interest

["John Zulauf" <johnzu(at)ia.nsc.com>]

Quoting from the legal Prof. amicus brief  (
http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cert/conlaw-amicus.pdf
)

"Congress must, at the very least, show that the statute
serves an important government interest in a manner no
more restrictive than necessary. Turner I, 512 U.S. at 662."

I was pondering this quote and the power of the least-restrictive-means
(LRM) necessary test for limitations on speech and I came to the
following logical argument.

(1) For "copyright law" the LRM would be the shortest terms and least
paracopyright restrictions needed to incent the broad publication of
works.

(2) Subsequent to the initial copyright act (17?? or 18??) many works
were created and much progress occurred.

(3) Thus we can assert an historical (and non-hypothetical) proof that
14+14 copyright terms are sufficient to incent the broad publication of
works (at least books, charts, et. al.)

(4) Given that the initial 14+14 year term was sufficient any longer
term is supersufficient

(5) Supersufficient terms cannot (by definition) be a LRM, since a
shorter, provably sufficient incentive (in the form of a shorter term)
is available.

(6) Thus any term extension beyond that for which "progress" and the
successful minimal incentive to publish can be shown fail 1A scrutiny of
the LRM sort.

The same argument could be made for any and all term extensions,
including any paracopyright restrictions such as the anti-circumvention
provisions.  DVD's pre-date the DMCA, showing sufficiency -- rendering
the anti-circumvention provisions a super sufficiency, non-LRM and thus
"more restrictive than necessary." 

I'm sure the USSC ruling that all copyright extensions since the
inception of the copyright would be as popular as desegregation, but I'm
not sure I see a whole in the logic that allow a rational alternative
solution.   The only whole is the claim that the market forces have so
dramatically changed that much longer terms are needed to incent -- but
Congress did not make this showing at all.  Certainly the level of
political contributions from Disney et. al. would indicate a healthy and
thriving copyright industry.  Paradoxically (and ironically), the only
kind of copyright industry that could argue that (on a constitutional
basis) for the need of term extensions, DMCA paracopyright and the like
would be one that could NOT afford such lavish political action.  The
shear fact that they won politically means that it is clearly
unconstitutional.

The "harmonization" treaty cannot be the compelling gov't interest BTW,
as (a) "harmonization" cannot rationally be argued to "promote progress"
(or even defend sovereignty) as it is clearly a "preservation" activity
and not a progressive one and (b) the 1A cannot be subject to treaties
with foreign powers.


.002