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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."
I dunno what'll happen. Scalia's on their side, hence the focus on harm to the public in Larry's final briefs. You will find many who share your viewpoint, of course.
But it was while surfing sites like LawMeme, GrepLaw, and Copyfight, among others that I thought about what might be the worst development to come out of this, from a copyright holder's standpoint.
You've got a whole generation of law students following along, rooting for Larry, and sharing his belief that copyright as currently constructed, only benefitting the holders, is wrong (Michael Hart's too-easily dismissed manifestoes, as the reporter condescendingly put it, echo this view).
And that same generation of law students may very well find a lot of other ways to beat up on the publishing industry (hint here: the industry's biggest market is schools, while prices are set rather high by a few players). It's quite possible that industry types will win the Eldred battle but lose the war.
We'll know soon enough.
Go get 'em, Larry.
When I grow up, I want to be a Karma Whore.
Decision 6-3 for Eldrich
Majority decision(4 justices signing): Court of Appeals errored in deciding that the copyright law is immune from First Ammendment attack. Sent back to Court of Appeals for an actual trial
Minority supporting majority (2 justices signing): In addition to the majority statement, congress was incorrect in not considering the quid pro quo implied in the copyright section of the consitution. Giving to copyright holders, and not returning the favor to the public is inequitable and against the original intent of the signers.
Dissent (3 justices signing): What a bunch of quacks.. Congress can decide what limited means, what constitutes quid pro quo... Justices are writing the law... we love mickey mouse blah blah blah.
This is by far the most likely scenario. The copyright clause was written before the 1st ammendment, therefore ruling that it is immune from 1st ammendment analysis is quite wrong and getting 6 justices to agree on that should not be a problem. On the more general question of wether the law is invalid or not, the supreme court will not rule in general (although they will send very strong hints to lower courts), but sending it back to the lower court to reanalyze for first ammendment reasons is quite a good solution to the problem. In addition I suspect they will tell congress that they are being stupid and patents and copyrights were created under the same law, and giving 14 years to one, and 70 years + life of author to the other is rediculous.
If the Supreme court does say that the copyright laws are immune from first ammendment analysis it would contradict most of their previous rulings on the first ammendment. I feel this decision is basically open and shut on the 1st ammendment issue and a very long shot on the other 2 arguements.
Eldred v. Ashcroft is not predicated on the argument that copyright must be limited. ... The argument Lessig makes is not that the "limited term" clause is violated.
;)
In fact, if you read the brief, he does exactly that. The constitution makes provisions for both Free Speech and the types of protections that Patents and Copyright afford. This is not about Copyright being trumped by Free Speech. That would be like having two Popes trying to excommunicate each other. That could never happen...
This is how the brief petioning the Supreme Court to hear the case begins:
This case is about the limits on Congress' Copyright Clause power.
--Lawrence Lessig for Congress!
The limited term argument is not as peripheral as you might suspect reading the above. There is a common law rule against perpetuities that says (harking back to law school) "no interest is good unless it must vest (if at all) within 21 years of some life in being at the time of creation of the intetest''. In effect, 21 years equals forever at common law, and forever is not a limited time such as the constitution mandates if Congress grants intellectual property rights at all, according to the grant of power to Congress by the constitution.
Before you ever get to look at the 1st amendment issues and balancing, you have to look at the limited grant of power to Congress in the case of IP, period. I would have to comment that I am not even vaguely familiar with the history of decisions in this area, but I suspect at lot of effort has been made to engage in the "balancing" types of consideration that has preoccupied the courts for the last century. Lawyers tend to cover all bases in a brief, and the longest and most convoluted arguments, making up most of the page count of the brief may be just make-weight, in the sense you are trying to argue there is no great harm (balancing act) if you rule as I suggest in my first paragraph. Arguing both law and fact, if you will.
The first copyright monopoly was for 4 years, if I remember correctly. There are fundamental limits on Congress' powers in this area in the explicit wording of the constitution, and the evidence is that the first congress understood what was meant by those limits. There seem to be good arguments that Congress does not even have the power to give an artist copyright on the artist's own works for the period of the artist's own life!!! In any event, there is a profound legal principle that nothing may last forever, and to say that the Gershwin heirs or Disney Inc. (or the heirs of Elvis or John Lenin) have any residual rights to their work more than 21 years beyond their death (or after the creation of Mickey Mouse, in the case of the inanimate Disney) violates the common law rule against perpetuities, and thereby certainly violates the limited power of Congress to grant monopoly rights for limited terms.
Sorry about the AC.