October 25, 2002  ·  Lessig

I’m trying to think about other things, but when my Dad won’t stop sending me articles about the case, it gets hard. Today he sent me this piece by Professor Marci Hamilton which concludes that “Mickey has the better of the argument.” But I wonder whether Mickey would have the better argument if the real arguments that we make are considered.

Jeffrey Rosen in the New Republic is the only commentator I’ve seen (though I’ve been trying to ignore this, my father notwithstanding) who has actually framed what makes this an interestingly hard case. The question is not what the Copyright Clause means in the abstract. The question is what the Copyright Clause means, given the Court’s method for reading enumerated powers. Given the Court’s insistence on the limits on Congress’s power in the context of the Commerce Power, our argument is that the same principles should produce limits on Congress’s power in the context of the Copyright Clause. Again, Rosen frames the question perfectly well: Why would you read the express limits of the Copyright Clause (“limited times”) to produce no meaningful limit on Congress’s power, but read the implied limits in the Copyright and Commerce Clause to impose real limits on Congress’s power?

It is also odd to find in Hamilton’s piece the following statement: “indeed, there is so little history relating to the Copyright Clause that any argument from original intent is doomed from lack of information.” That claim does a great disservice to scholars such as Ray Patterson who has written extensively about what the framers thought. So too does it ignore the extensive history by Tyler Ochoa, Mark Rose, and Edward Walterscheid in their historians’ brief. Indeed, it does a disservice to Hamilton’s own work, for we had relied upon her writing in our opening brief to conclude, as she wrote, that the Copyright Clause is thus not so much “pro-author but rather anti-publisher.” At least in her writing, she seemed quite confident about what the framers meant, and, imho, with good cause.

Hamilton may in the end be right. She is an extraordinarily talented lawyer and legal scholar whose work has taught me a great deal. It may well be that though everyone seems to concede that CTEA is bad policy, the constitution must permit it. But if that’s the answer, then I confess I’ve missed something in my understanding of modern American constitutional law. Taking this Court at its word, and even praising them a bit for their commitment to constitutional fidelity (as I have), “limited times” ought to have a meaningful limit.