Lessig's Thoughts On Eldred v. Ashcroft Arguments

yokem_55 writes "Lawrence Lessig has updated his blog giving his thoughts on how the oral arguments for Eldred vs. Ashcroft went before the Supreme Court on Wednesday. He discusses the goals and methods he used in framing his arguments to convince the court to overturn the Sony Bono Copyright Term Extension Act, how he felt he did in presenting his arguments, and also provides some analysis on how he thinks the court might rule."

Comments

Good points - and elaboration

[kscguru]

VERY good pints, though I think I might comment/elaborate on a few of them.

Remember that just because a law is "bad" and horribly unbalanced towards lobbists doesn't make it illegal unless there is some specific legal reason the law is unconstitutional.

Exactly right - and the Supreme Court would be correct in maintaining a law passed entirely by lobbyists over the objections of 90% of the American people. Why? Because the Constitution doesn't prevent it. And in the U.S., there is no law higher than the Constitution. Immoral, yes, but illegal, no.

I even think this is necessary - because think of the opposite. How many laws were passed with the support of 90% of the people over the objections of lobbyists? Answer: a whole bunch of important ones. Taft-Hartley (sp?) on labor laws, Sherman Antitrust, Amendment 19 (?) (women voting). If we want the people to overrule lobbyists sometimes, we need to let lobbyists overrule us sometimes - because the people can always re-elect a more favorable Congress.

So far it seems the court is buying [the limited powers] argument. The court seems to be unsure though if it has any power to do anything about it. This is good news to Lessig, because it means the court buys the limited power argument.

It's actually a very good thing the court is unsure if it has power. In fact, the court almost ALWAYS asks if it has power to intervene... you'll notice that since the court rejects upwards of 90% of the cases appealed to them. A big part of those appeals are cases where the court doesn't feel it should issue a ruling.

Another example, the Florida election stuff. That debacle was an example of the Court deciding it DID have power (and deciding very quickly, and without much justification). IMO, a more correct ruling would have been to just say that "how a state runs its elections is its own business" and just refuse the matter entirely. This was basically the minority opinion. I'm not arguing the merits or outcome of the decision (I would have remanded it with instructions for a re-hearing, but I'm not a Supreme), but most of the mess occurred because the Court jumped too quickly into an area it shouldn't have entered.

Perhaps the Court even feels burned because of the Florida voting episode, and is trying to be extraordinarily cautious with its power (and even more so because more eyes are looking for faults!)

The case was also helped by a government bumble. The government argued that there is no constitutional limit on the ability of Congress to extend copyright, thus the extention was legal. This actually helped Eldred because the court did not like this view at all. The court did not support the idea that the constitution limits the powers of Congress, but that Congress gets to set what the limits are. In effect, the government proved Eldred's point themselves.

As much as the Court hates giving itself power, it likes giving someone else power even less. A better argument might have been that there is a limit but Congress should determine it; but instead, the government chose to try to defend the whole thing. It almost feels like they're giving the case away. Thus: I'm watching carefully to see if someone responds to "an erosion of copyright law" by introducing a new, draconian law with overwhelming support. Cyncial, yes, but I'm very cynical when politicians are involved.

Very good summary, my complements to you good sir.

Re:Eldred is gonna lose.

[Skyshadow]

This, and a sane policy that recognizes that authors don't have any incentive to create Writings and Discoveries after they're dead, would pretty much wrap it all up.

Interesting, but totally off-base.

Consider the memoirs of U.S. Grant. Their are considered to be a model for military memoirs, and he wrote them while he was dying of throat cancer. He did so with the specific intent of restoring his family fortune (lost in bad business deals) and providing for his family.

That alone demonstrates that heirs should be allowed copyright protection for a limited time.