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For better or for worse, our democratic system abhors the idea of nine old justices acting as a super-legislature. The Supreme Court, in theory and to a lesser degree in practice, requires significant justification before striking down the acts of properly elected officials. One would think that a significant amount of academic literature would focus on the Court's justification in acting to safeguard society's expectations of an expanding public domain. However, such arguments are hard to find. Mere proposals that the Court should act, are rhetorical and unconvincing in light of the overwhelming complexities involved in constitutional problem-solving. Here, this admittedly ill-prepared law student will offer some basic arguments that hopefully will prompt others to consider, research and comment on the issue at hand.
As discussed in the section entitled "New Property", the retroactive extension of copyright laws violates the public's reasonably held expectation interest—but is such a violation sufficient to warrant the Court's intervention? It is often argued, in the wake of Carolene Products footnote 4, that the Court should not interfere with legislative actions unless certain conditions are present. Regarding the law at issue, neither an insular minority nor a problem with the political process are involved. The majority of people are effected, and they can choose to repeal the law, through the electoral process, if they so desire. (While it may be argued that new property and the liberty interest found in Roe v. Wade have nullified the precautionary restraints on the Court that were articulated in Carolene Products, I doubt that present Court would take such an activist stand.) With that in mind, I will first consider the most common argument that is made in order to justify the Court taking action. After showing the failings of this argument, I will demonstrate how the Public Trust Doctrine might aid in convincing the Court to act.
The most popular argument favoring Court intervention is based in public choice theory (the study of legislatures, agency capture, Arrow's Theorem, etc.) and suggests striking down this legislation because it is the product of a faulty process, and that it is faulty itself. Everyone knows the influence of special interest groups and their role in producing legislation commonly referred to as "pork." Pork, in its most expansive definition, is legislation that benefits a small group at the expense of a larger group, and which is socially inefficient. Some public choice theorists would argue that a special "pork provision" be added to Carolene Products footnote 4. The problem faced by the Court is in the definition of socially inefficient. Invariably, this definition stops on a vague idea that government should act so as to make us all better off in the long run. This is neatly summed up by economists who say government should aim to maximize social utility. (Be careful not to equate utility, which is general happiness, with wealth.) Determining what laws are aimed at maximizing social utility requires the Court to consider the people's subjective valuations, an extremely problematic job, and one better suited to Congress. For this reason, the Court rarely accepts this justification for its taking an active role.
How does our discussion of special interest groups apply specifically to this case. One must remember that the Court considers precedent very important. It may seem perfectly logical for the Court to strike down this act of Congress because it disregards the public's best interest. However, the Court would be hesitant to hold itself out to future litigants as a willing and final arbiter of what constitutes the public's opinion.
The beauty of the Public Trust Doctrine, and its significance to our case, is in the simplicity of its mandate. According to the PTD, the government cannot give away or sell its responsibility as the manager of the trusted good, even if so doing would be beneficial to society—social utility maximizing. Under the PTD, the government cannot sell the Mississippi River to the highest bidder even if so doing would be to everyone's benefit. We may be tempted to ask, "Why?" Surely, the Justices will want to know "Why?" when considering if copyrighted information deserves to be elevated to the legal sanctity of the mighty Mississippi.
In order to convince the Justices I would propose that at the heart of the matter is fear. Western civilization has evolved an understanding that the Mississippi can not be sold fee-simple absolute because such an action creates too much potential for the owner to abuse this privilege. Only government, and the power of the ballot box, can be counted on to protect society's interest in the Mississippi River. For this reason, government is allowed to assign some rights in the Mississippi, but not the ultimate right of ownership. The rights to pollute, to take out fish, and to navigate are all short term "sales" of the Mississippi that are consistent with the PTD. These are allowed because they can be undone and, but final sales cannot. The extension of the copyright term for an indefinite period amounts to a fee-simple sale. But why should such a sale be feared? Can you imagine a world where the pieces of our common heritage never become ours, but are held in perpetuity by an artificially created monopoly?
There still remains the objection that the text of the Constitution does not mention the Public Trust Doctrine, so why should the Court even consider it. A restatement of this objection would be, "Why should the Court believe that the Public Trust Doctrine legitimizes any action by them?" To this argument, I point out that the Constitution was written not as a replacement of the common law, but with the full consideration that the evolving common law would continue to alter our perception of the text itself. This is the argument made by Justice Scalia in Lucas v. South Carolina Coastal Commission. In Lucas, Scalia ties the interpretation of the Fifth Amendment's takings clause with the common law definition of nuisance. It would seem that the common law notion of the Public Trust Doctrine could similarly be linked to the copyright text in Article 1, Section 8.
There still remains a problem, at least for some, which has a lot to do with constitutional interpretation. Nuisance law, as it was applied in the Lucas case, had not changed significantly from the time of the Constitutional Convention. The change we propose to the PTD would be so significant that it would be harder to argue that the founding fathers would have considered this present connection of the idea to copyright law. Yet, such an argument presupposes a stagnant Constitution unwilling and incapable of accommodating new realities. To proponents of such thinking, I argue that their beliefs make the functioning of a just government impossible.
| Last modified April 11, 1999. | Berkman Center for Internet & Society |