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

Bryan Taylor writes:

: --- "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.

I would suggest that Lessig's failure may be tactically wise---very wise.
In the first place he had limited time, and to try to cover both arguments
might well have made neither argument effective or coherent.

More importantly though, I gather from the reports that no justice
was happy with the extension act itself, a majority at least
being apparently convinced that what Congress did was not what
the Founders intended.  In those circumstances it should be 
fairly easy for a majority to conclude that, though the limited
times requirement may not be self-enforcing, it clearly does
not justify the longer term, and particularly not the retroactive

And that leaves the First Amendment argument as the reason for striking
down the retroactive extension.  I suspect that the Justices are as
capable of making that argument as Lessig is.  They have already
recognized, for example, that fair use is a constitutionally required
limitation on copyright.  On the other hand, it would be hard to cite
anything squarely in point; and they do have the briefs to assist them
in reaching the right conclusion.

Many years ago I was told that on an appeal one should never fully
develop one's second-best argument, although one should raise it
at least obliquely.  That way the judges who adopt it are more
likely to see the argument as being their own, rather than merely
the argument of counsel.  Few arguments are more persuasive than
those that one discovers for oneself.

If the copyright clause did not exist, we would almost certainly
still have a Copyright Act, supposedly authorized by the commerce
clause.  In that case the First Amendment challenge would be
quite clear, and the government would have to overcome at least
intermediate scrutiny to justify a retroactive extension.  That
is not a point where Lessig's arguments are likely to make that
much of a difference.  What Eldred & Co. wish to do is ``pure
speech,'' but the challenged regulation is content neutral.
Under the Commerce Clause, the Eldred case would to a large extent
be a rehash of Bartnicki v. Vopper. 

Thus the critical issue was to persuade the Court that the
Copyright Clause is not a broad grant of power that allows
the Court to ignore the First Amendment, but rather a limitation
on the power to create copyrights, so that the First Amendment
is even more applicable than it would be if the only authority
for the granting of copyrights were the Commerce Clause.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists