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Re: [dvd-discuss] O'Connor quoted at USA Today from Eldred oral argument

--- "James S. Tyre" <jstyre@jstyre.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. 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.

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