October 21, 2002  ·  Lessig

I’ve just finished replying to the more than 500 emails I received about the Eldred case. Despite my con-law musings, it is extraordinarily hard to read these emails without a profound sense of just what’s at stake. Missive after missive describes the burden of the existing system, and how 20 more years of control will stifle creative work. These half-a-thousand emails should be worth one word at least — REVERSED.

In a bunch of these emails, however, there were two recurring questions that I wanted to clarify.

1790?

Following a comment to my account, a bunch of people asked why it was so clear that the 1790 statute did not support the government’s case. I had said that of all the questions in this case, this one I was “100% certain” of. If the 1790 Act “extended” copyrights, why isn’t it precedent for CTEA?

The reason is this: CTEA extended copyright terms in exchange for nothing from the companies and authors who benefit from the extension. It is an extension without a “quid-pro-quo” — the authors giving something in exchange for something they get. As we argued, and the government simply ignored, in 1790, many would have believed that they had a common law copyright (perpetual) as well as any state statutory copyright. The effect of giving them the benefit of the federal right was to terminate this state right. IN EXCHANGE FOR the federal right, they gave up a state right. The 1790 Act thus fits the “quid pro quo” requirement in a way the CTEA does not.

But, as one person emailed, the SG said that the Supreme Court held in 1834 that there was no common law copyright. True enough. But that doesn’t resolve at all what the people who passed the 1790 Act thought. We are not arguing that they, in 1790, necessarily believed there was a common law copyright. Just that they thought it uncertain, and believed they were terminating any rights that existed then in exchange for the federal right.

But, as another careful reader asked, what about the Patent Act (from 1793) that the government pointed to? Didn’t that show that the Copyright Act of 1790 did not require a “quid pro quo”? For that statute expressly required the surrender of a patent to get the benefit of the federal act. True enough again. But there is zero authority for the idea that a state right survived after the act of 1790. The same case in 1834 holds as much. The statutes may well be different but the effect was identical: both terminated state rights and gave a federal right in exchange.

1st Amendment claims?

A bunch asked whether the First Amendment claim is dead, or whether we had given it up, or had it taken away. The answer is clearly “No.” Again, there are certain questions we wanted to focus on at the oral argument; we would have been happy never to even mention the First Amendment. That’s not because that claim is not alive and crucial to our case, but instead because it is, or should be, clear enough when they think through the mechanics of the case. If we prevail on the copyright clause claim, then there is no need for them to reach the First Amendment claim. If we don’t prevail on the copyright claim, then they must reach the First Amendment. But when they get to that step in their thinking, it will be extremely hard for them to avoid applying ordinary First Amendment analysis to this statute. (Justice O’Connor said she thought it was odd to think of a law passing under the copyright clause, but failing under the first amendment. But the government concedes this possibility — if the law removed, say, fair use — so the only real question is how the First Amendment should police changes in term.) If they apply “definitional balancing” which is how the Harper case is framed, then the question will be how “definitional balancing” applies to changes in copyright terms, and as the author of definitional balancing said, “definitional balancing” should invalidate retrospective changes in terms. And if they apply ordinary First Amendment intermediate scrutiny, then there is no presumptive pro-speech benefit that could outweigh the burden on speech. Either way, the First Amendment stands as an effective backstop to the copyright clause argument. But as that argument is narrow, and more easily cabined to just changes in terms, we expect, if we prevail, that’s where the Court will decide it.

Again, thanks to all who wrote in support of the case and with kind words for what has been done. Even the one defender of Mickey was polite in his strong opposition.

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