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

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

Bryan Taylor wrote:
> 
> Evidently, Lessig didn't try to link his limited times argument and his first
> amendment argument (reportedly to the great dismay of O'Connor).

Yeah!  I really, really want to understand this, and I
can't.  What is going on here?  Are certain advocates really
afraid of doing First Amendment arguments?  I really don't
understand why Lessig didn't make the play.  I don't get it,
and it p*s me off, to be perfectly frank.  I am *trying* to
keep my frustration in check, on the off chance that this
ploy makes some sense that I don't see.  But I am dumbstruck
by Lessig's tack on this.  Can anybody explain his
reasoning?  I read something that sounded like Souter
specifically tried to elicit a linkage argument from Lessig,
and he stated that the two are separate.

I really am p*d off that we are going to have to wait for
another opportunity to come around on this.  What I wanted
to see was a good First Amendment argument related to the
exclusive rights clause, so we can have something that says
the exclusive rights clause is subordinate to the Frist
Amendment.  So if anybody can, please explain this to me. 
Please.

Seth Johnson

> 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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