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RE: [dvd-discuss] O'Connor quoted at USA Today from Eldred oral argument
- To: "'dvd-discuss(at)cyber.law.harvard.edu'" <dvd-discuss(at)cyber.law.harvard.edu>
- Subject: RE: [dvd-discuss] O'Connor quoted at USA Today from Eldred oral argument
- From: Richard Hartman <hartman(at)onetouch.com>
- Date: Thu, 10 Oct 2002 14:55:08 -0700
- Reply-to: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
Ok, perhaps someone can explain one thing to me.
Excerpt from recent Wired News article:
When justices pressed Olson to explain why
Congress should not be limited to extend
copyright terms to just future works, Olson
said that the Constitution requires that
Congress -- not the courts -- make that call.
Make _what_ call?? There is no call to
be made! The Constitution expressly
forbids retroactive legislation in
Section 9, paragraph 3: "No bill of
attainder or ex post facto Law
shall be passed."
Where is Congress granted the power to
make a "call" about retroactivity?
-Richard M. Hartman
186,000 mi/sec: not just a good idea, it's the LAW!
> -----Original Message-----
> From: Bryan Taylor [mailto:email@example.com]
> Sent: Thursday, October 10, 2002 7:15 AM
> To: firstname.lastname@example.org
> Subject: Re: [dvd-discuss] O'Connor quoted at USA Today from
> Eldred oral
> --- "James S. Tyre" <email@example.com> 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.
> 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
> extension, so that retroactive extension is a subsidy for
> favored speakers,
> whereas prospectively.
> Do you Yahoo!?
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