[dvd-discuss] Commentary on Eldred from Law.com

[Ben <ballenf(at)yahoo.com>]

Forgiving the intro, this article provides a very interesting
perspective on Eldred.
 
©2002 Law.com
http://www.law.com  

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Dangerous Reading:  How a subversive legal theory can make a
good copyright case go bad

Evan P. Schultz

Legal Times 
March 13, 2002 

Today's quiz: What do Sonny Bono, gun-toting schoolkids,
battered women, and members of the Geritol generation have in
common? Answer: If Stanford Law professor Lawrence Lessig gets
his way, the U.S. Supreme Court will kneecap a copyright law
named after the 1970s kitsch icon with the same constitutional
blackjack it recently used to take down laws involving those
other groups. Though Lessig is championing a cause -- shorter
copyright protection -- that has attracted a broad coalition of
supporters, by embracing a divisive argument used against those
earlier laws he's chosen a strategy bound to fracture his
alliance. 

The background is this: Lessig represents the plaintiffs in
Eldred v. Ashcroft, which the Supreme Court last month agreed to
review. Eldred challenges a 1998 law, the Sonny Bono Copyright
Term Extension Act, which gave 20 more years to all copyrighted
works, current and future. The law now protects materials for
the lifetime of a creator plus 70 years or, for works for hire,
95 years after publication. And the 1998 act is merely the most
recent of a series of incremental extensions that Congress has
granted to copyrighted materials -- 11 of them since 1962. Since
then, the regular flow of materials into the public domain has
largely evaporated. (It's no coincidence that Congress passed
the Sonny Bono Act after lobbying efforts by the Walt Disney
Co., which absent the additional protection would have already
relinquished to the public domain some early versions of Mickey
and friends.) 

For Lessig, the Sonny Bono Act's extension is the straw that
broke the camel's back -- or, more accurately, would break the
Constitution's. The constitutional source of copyright
protection is Article I, Section 8. It provides that Congress
has the power "[t]o promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries."
The critical phrase here is "limited Times." 

Lessig doesn't simply argue: "Limited means limited -- as in
brief or short. End of story." But the fact that such a
common-sensical argument could be made undoubtedly makes his
position a sympathetic one. Whether the arguments that Lessig
actually uses deserve similar sympathy is another matter
entirely. 

In fact, Lessig's line of reasoning changed for the worse when
the case made it to the U.S. Court of Appeals for the D.C.
Circuit. Until oral arguments there, he had presented a series
of arguments that were not only strong but also narrowly
focused. 

First, Lessig relied on the terms of the copyright clause itself
to target the Sonny Bono Act's retroactive extension of
protection to already copyrighted works. He argued that
retroactive protection (1) violates the requirement that
copyrighted materials be original (works that have been
copyrighted in the past can no longer be seen as new
expressions); (2) violates the Constitution's command that
copyright protection "promote the Progress of ... useful Arts"
(how can Congress provide an incentive to create works that have
already been created?); and (3) cuts off the flow of materials
into the public domain (because the copyright clause only gives
Congress the option of recognizing copyrights, and only for a
limited time, the Constitution in essence mandates a regularly
replenished public domain that the Sonny Bono Act impermissibly
weakens). 

Second, Lessig relied on the First Amendment to challenge the
Sonny Bono Act's retroactive and prospective extensions. The
First Amendment limits even some content-neutral restrictions on
speech. Copyright law, Lessig argued, is just such a
restriction. 

Under Supreme Court precedent, laws can impose content-neutral
restrictions only when there are "important governmental
interests" at stake and where the restriction "does not burden
substantially" speech. The Sonny Bono Act fails on both counts,
according to Lessig: The government's interest in increasing
incentives for creators is outweighed by Congress' obligation to
feed the public domain; and if providing additional incentives
is necessary, Congress has simply gone too far here and burdened
too much speech. 

These arguments have the advantage of being not only (I think)
persuasive, but also narrow. Tight arguments also made Lessig's
case easier politically. His goal of reining in copyright
protection has an inherently broad appeal. Techies like it
because it makes more material available on the Web. Liberals
like it because the result is anti-corporate (for the "The Mouse
is a rat" crowd). Libertarians like it because it pulls back
congressional power, if only a little. And by keeping his
arguments focused on the copyright clause and well-established
First Amendment formulations, Lessig minimized the chance of
dissent in the ranks. Broader arguments would run the risk of
turning the case into fodder for another of the federal courts'
bloody ideological battles. 

OPENING THE DOOR 

The only problem with Lessig's strategy -- and it was a big
problem -- was that it failed, at least in court. Several
federal judges were not persuaded by the professor's reasoning.
The U.S. District Court upheld the Sonny Bono Act, as did the
D.C. Circuit. But before the appellate judges turned him down,
Lessig offered yet another idea, presumably to strengthen his
case. 

According to the oral argument transcript, one of the appellate
judges asked, "Have you adopted any point -- any arguments --
that appear in any of these amicus briefs? Or maybe -- I don't
remember -- there is more than one, but in any brief other than
your own?" 

And Lessig replied, "Well, in particular, Mr. Jaffe's brief is a
brief that makes textualist arguments that we believe are quite
strong in this way." 

And that's where the trouble began. "Mr. Jaffe" is D.C. attorney
Erik Jaffe, who wrote an amicus brief for the Eagle Forum. That
group and its founder, Phyllis Schlafly, have been players in
America's cultural wars for decades. 

The Forum's stated mission is "to enable conservative and
pro-family men and women to participate in the process of
self-government and public policy making so that America will
continue to be a land of individual liberty, respect for family
integrity, public and private virtue, and private enterprise."
In other words, the Eagle Forum isn't so much concerned with
copyright law per se, as it is concerned with what it no doubt
sees as Congress' efforts to choke the individual American
spirit with clots of unconstitutional law -- of which the Sonny
Bono Act is merely one example. 

Not surprisingly, the Eagle Forum's arguments to the D.C.
Circuit are as broad and sweeping as Lessig's are narrow.
Specifically, the Forum's brief raises two recent controversial
Supreme Court cases that Lessig had avoided: United States v.
Lopez (1995) and United States v. Morrison (2000). 

Both cases served to upend what had been the long-settled issue
of the reach of Congress' constitutional power to "regulate
Commerce ... among the several states." From the beginning of
the New Deal until Lopez, the Supreme Court had given the
commerce clause a wide berth. As a result, it is probably
Congress' favorite ground on which to legislate. Simply put,
without an expansive commerce clause, federal law would be an
unrecognizably crabbed version of what it is today. 

And since legislation on everything from New Deal programs to
consumer safety to civil rights to worker safety to the
environment has been based on the commerce clause, opponents of
those laws have long tried to narrow it. They finally succeeded
in Lopez, when a majority of the justices struck down a federal
law that made it a crime to carry firearms near schools. And in
Morrison, they succeeded again, when the Court struck down key
provisions of the Violence Against Women Act. 

While Lessig did not originally advocate this
restriction-of-congressional-power argument in his copyright
case, he apparently knew a good thing when he saw it. And he saw
the power that this argument could have in the only supporting
vote he received from the D.C. Circuit panel that ultimately
rejected his case. In dissent, Judge David Sentelle relied
heavily on the Eagle Forum brief and on the Lopez line of cases.
"It would seem to me apparent," Sentelle wrote, "that this
concept of 'outer limits' to enumerated powers applies not only
to the Commerce Clause, but to all the enumerated powers,
including the Copyright Clause, which we consider today." 

From that point on, Lessig took the Eagle Forum arguments as his
own. In his petition for rehearing to the D.C. Circuit (denied),
he whole-heartedly embraced the Eagle Forum arguments, and also
cited to Lopez and Morrison once each. In his petition for
certiorari to the Supreme Court (granted), he cited to Lopez
four times and to Morrison once. (Indeed, in that brief, he went
one better than the Eagle Forum, by citing to the Supreme
Court's decision in Kimel v. Florida Board of Regents [2001].
That controversial case struck down the part of the Age
Discrimination in Employment Act applicable to states and, in
the process, restricted Congress' ability to legislate on the
basis of Section 5 of the 14th Amendment.) And Lessig's reply
brief in his petition for cert referred to Lopez once. 

OFF THE SIDELINES 

To be fair, it's not clear that the case could play out any
differently. Though Lessig tried to argue for a worthy goal
based on a limited theory, it's doubtful that the Court, now
that it has granted cert, would limit its consideration of the
case to such narrow grounds. The five justices in the Lopez,
Morrison, and Kimel majorities (Chief Justice William Rehnquist
and Justices Sandra Day O'Connor, Antonin Scalia, Anthony
Kennedy and Clarence Thomas) often are suspicious of both the
idea of broad congressional power and the substance of many laws
that Congress has passed. Given all this, it doesn't really
matter that Lessig and the Eagle Forum brought up the Lopez line
of cases: If they hadn't, the Supreme Court itself would, no
doubt, have seen the obvious parallels between this case and its
recent precedents. 

So if Lessig played to the conservatives to get his case before
the Court, that's merely what good lawyers do (and the
professor, who has a libertarian streak, might not oppose the
idea of restricting congressional power generally). Lessig has
also tried to appeal to the liberal justices. He cited in his
cert petition to sources opposing strong copyright protection
that you might assume those justices would view sympathetically
-- a law review article by Justice Stephen Breyer before he wore
a robe, another law review article by Justice Ruth Bader
Ginsburg's daughter, and an opinion by Justice John Paul Stevens
before he was elevated to the Supreme Court. 

But if Lessig hopes that those offerings will assuage the
liberals, he's probably mistaken. In his dissent from Kimel,
Justice Stevens wrote, "The importance of respecting the
Framers' decision to assign the business of lawmaking to the
Congress dictates firm resistance to the present majority's
repeated substitution of its own views of federalism for those
expressed in statutes enacted by the Congress and signed by the
President." With that sort of sentiment, it's hard to imagine
that the liberals will happily curtail copyright law at the cost
of strengthening precedent that could further hamstring
Congress. 

LIFE PLUS A LITTLE LESS 

Assume that the federalism argument carries the day and Lessig
wins: If Judge Sentelle's dissent at the D.C. Circuit is any
sort of a sign, even the conservatives on the Court will only be
willing to restrict Congress' ability to extend copyright law
retroactively. All too many works will still be copyrighted for
the life of the author plus 50 years or, for works for hire, 75
years -- the state of the law before the Sonny Bono Act. 

That result can hardly be considered a strong victory for
someone like Lessig, who favors a vibrant public domain, not one
on life support. He would probably prefer a copyright system at
least as open as the patent system, which allows innovations to
enter the public domain in a couple of decades rather than a
couple of generations. Having free access to new expression in
our own lifetimes -- not our grandchildren's -- is key. 

In short, Lessig has been forced to litigate Eldred v. Ashcroft
in the shadow of Lopez. Though he initially walked the line
between camps in the broad war over the limits of congressional
power, he was inevitably drawn into the fight. That means that a
case with seemingly broad appeal now must be viewed in starkly
political terms. It means that the best hope for truly reviving
the public domain is probably Congress rather than the courts.
And it means that Lessig's statement to Legal Times before the
Court granted cert -- "This is one of those unique cases where
the issues are not political" -- is nothing more than an ode to
the way things should have been. 

Evan P. Schultz is associate opinion editor at Legal Times. His
e-mail address is eschultz@legaltimes.com.

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