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Lawrence Lessig's Personal Past and Supreme Court Future
Slyfox writes "Ever wonder how Lawrence Lessig became one of the most notable figures in the fight over free speech and intellectual property on the internet? Wired has an excellent article about Lawrence Lessig's life; it beginings with his start as a right-wing Republican, and continues by following the events of his life through law school, contributing to the Microsoft anti-trust case, and becoming a top cyberlaw expert. The article describes both his successes and failures, and it forshadows Lessig's biggest challenge yet: arguing Eldred v. Ashcroft before the US Supreme Court in October."
There is no way the Supreme Court will award this one to the plaintiff (Eldred). The Constitution implies a sort of limit on copyright, but unfortunately it is totally ambiguous.
Did you read the article? That isn't the basis for this case.
From the article:
"But how would he frame it? The obvious way was to say that with its most recent extension, Congress had finally gone beyond any reasonable interpretation of what the framers could have meant by "limited." That approach hadn't worked in the past, so Lessig constructed a different argument. In Article 1, Section 8, the founding fathers not only instructed Congress what to do regarding copyright -- secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries" -- but also stated why they should do it ("to promote the progress of science and useful arts"). Of course, Lessig's complaint includes the idea that Congress' continual extensions make a mockery of the word "limited" (one professor called it perpetual ownership "on the installment plan"). But the main thrust of Lessig's argument rests on the fact that, as with previous extensions, the Copyright Term Extension Act not only grants new copyright holders a longer term of exclusivity, it grandfathers in previous works. A retroactive extension of copyright clearly violates the Constitution."
(Emphasis mine.)
If the argument were as doomed as you say, then I think it's unlikely the Supremes would have even agreed to hear the case in the first place. I agree that it still doesn't seem too likely to win, but I think it's a tad more plausible than you suggest. As it says, your approach has failed in the past, but that's why they're not using your approach.
If you thought the profile of Larry was interesting, I'd encourage you to read the brief (PDF) he filed for the Eldred case. IANAL so I at first thought I wouldn't understand it and almost didn't read it, but eventually I did about a month ago. It is very clear. Extraordinarily clear.
It's also interesting to read the opposing brief (PDF).
Good luck Larry.
The article is at best an incomplete picture of Professor Lessig. While it is framed to show the roots of where he ended up, it could have been different.
Professor Lessig's primary interest, at least initially, was constitutional law. Actually, that makes the Eldred case a good case for him. If you read the briefs you will see that the parties are not especially approaching the case as a "cyberlaw" case.
I don't think the scope of his interest has been limited to being a great niche legal thinker. He wants to be broad, but is going to ride this particular wave for what it is worth. The article does do a good job of explaining why Lessig is important to a particular non-legal community now, and taken for that, it is nice.
How does copyright stomp on my freedom of speech?
It abridges your right to perform copyrighted material (songs and plays for instance), to reproduce a copyrighted work in another form (freedom of press and possibly speech), and so on. The article points out that Disney used a great deal of public domain literature as the basis for some of it's most profitable works (and let's not forget the music in Fantasia), yet none of Disney's work has gone to public domain despite the long timeframe since their original creator's death (never mind the time from creation). What someone might have done with that work we'll most likely never know, though returning the copyright terms to their previous state will at least allow people to utilize those works that were about to lose their copyright protection when the law was passed.
They point out quite a few good examples, such as publishing public domain texts online, which if not a form of speech is most likely a form of press in which the retroactive nature of the law forced people to stop work that they had already begun in anticipation of those pieces going into the public domain.
-PainKilleR-[CE]
There is another view. It goes like this:
The Congress is supposed to interpret the Constitution before it passes a law, and adhere to the Constitution as Congress views it. Many senators and representatives ignore this role, and abdicate in favor of the Supreme Court. Perhaps because it is politically inconvenience (e.g. campaign finance reform).
The President is supposed to interpret the Constitution when he decides to sign a bill or enforce a law. Therefore, he can even stop unconstitional laws that have been passed before from working, and stop new ones from happening. No president (more accurately, Attorney General) attempted to enforce the law that attempted to overthrow the Miranda decision. That was an executive decision.
The Supreme Court (and other courts) interprets the Constitution in the cases before it. The fact that the other branches can be brought before the Supreme Court by others does not take away the Supreme Court's oath to protect the Constitution of the United States of America.
And the Supreme Court is right because they are last, not last because they are right. Lincoln wanted to keep the issues raised in the Dred Scott case alive, and keep presenting them to the Supreme Court to attempt to force a reversal. Supreme Court reversals of position are not common, but they do happen. Nobody should consider issues "over" because of one decision.
The fameous Jackson quote went something like: "John Marshall [the Chief Justice] has made his decision; let him enforce it now if he can."
In reading the opposing (government) brief, I found this interesting point: the CITA was designed to harmonize US Copyright with international copyright. Going back to the original establishment of Federal copyright, the original intent was to unify copyright among the States and common law. The CITA could be argued to continue the tradition by having the United States participate in a world-wide unification of copyright. This means that a content creator would not have to worry as much about the differences between US and European copyright.
Not exactly "something for nothing."
Also, these thoughts are a little late for the government to include in its argument to the court, so I don't feel as though I'm hurting that anti-CITA efforts by discussing them here.