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

[Joshua Stratton <cpt(at)gryphon.auspice.net>]

Well, this is very similar to a post-Lochner commerce argument. The Ct. 
isn't really supposed to make decisions of a legislative type. I.e. 
specifically how much protection copyright should afford. This upsets the 
balance of powers and makes the court a super legislature.

The nice part is that the Justices are likely rather critical of this. A) 
Lessig brought in his Lopez argument for the C.J., where the Court has 
held that just b/c Congress claims it is acting w/in the commerce power 
doesn't make it so, despite the broad deference they receive. B) One of 
the justices complained to Olson that he was in effect claiming that 
Congressional exercise of the copyright power is not subject to judicial 
review. Aside from the historical counter-examples: fair use and first 
sale are judicially-crafted doctrines, I cannot imagine the court wanting 
to chip away so greatly at their core power.

If we lose I imagine it'll be b/c the Ct. says that this particular 
extension is acceptable, not b/c ANY extension would be. (though surely 
they won't provide hard numbers in dicta)


On Thu, 10 Oct 2002, Richard Hartman wrote:

> Ok, perhaps someone can explain one thing to me.
> 
> Excerpt from recent Wired News article:
> [blockquote]
> 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.
> [/blockquote]
> 
> 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
> hartman@onetouch.com
> 
> 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.
> > 
> > __________________________________________________
> > Do you Yahoo!?
> > Faith Hill - Exclusive Performances, Videos & More
> > http://faith.yahoo.com
> > 
>