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

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:bryan_w_taylor@yahoo.com]
> Sent: Thursday, October 10, 2002 7:15 AM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: 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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