January 20, 2003  ·  Lessig

Doc has a brilliant and absolutely correct diagnosis at the American Open Technology Consortium website about how we lost in Eldred. Copyright is understood to be a form of simple property. The battle in Eldred thus sounded like a battle for and against property. On such a simple scale, it was clear how the majority of the Court would vote. Not because they are conservative, but because they are Americans. We have a (generally sensible) pro-property bias in this culture that makes it extremely hard for people to think critically about the most complicated form of property out there — what most call “intellectual property.” To question property of any form makes you a communist. Yet this is precisely our problem: To make it clear that we are pro-copyright without being extremists either way.

So deep is this confusion that even a smart, and traditionally leftist social commentator like Edward Rothstein makes the same fundamentally mistake in a piece published Saturday. He describes the movement, of which I am part, as “countercultural,” “radical,” and anti-corporate. Now no doubt there are some for whom those terms are true descriptors. But I for one would be ecstatic if we could just have the same copyright law that existed under Richard Nixon.

Our problem is, as Doc rightly points out, that we have so far failed to make it clear to the world who the radicals in this debate are. Until 1976, the average copyright term in the United States was 32.2 years (the maximum term was 56 years, but 85% failed to renew their copyright after 28 years). In the last forty years, that term has tripled — every single work copyrighted today will remain copyrighted for an average of at least 90 years. Rothstein says that lots has entered the public domain since 1928. Indeed, he is right. But that was because copyrights expired every year between 1928 and 1962, and copyright until 1976 required renewal for an author to get the benefit of a maximum term. Under current law, however, absolutely nothing created now will enter the public domain for at least a century. And because of the Sonny Bono Act, nothing will enter the public domain again in the United States until 2019.

How to change the debate is the hardest thing. But rather than philosophy, perspective and pragmatics seems the best way. Build a public domain (which CreativeCommons will help to do), and show people and companies how the public domain helps them. Indeed, of all the companies out there, this is the one point Disney should certainly understand: Now that they have won the Eldred case, they should be racing to embrace the Eldred Act. No company has depended more upon the public domain. The Eldred Act would give them much more to build upon.

January 18, 2003  ·  Lessig

There’s a growing and interesting thread at the Volokh Conspiracy about the Lopez argument that we made. Glenn Reynolds had a sensible post on the tension between strict constructionists (or as I have called it, the silent 5) and the result in Eldred. Juan non-Volokh agrees, disagreeing with Orin Kerr.

Orin argues that Lopez/Morrison were federalism cases; Eldred was clearly not. That’s no doubt true, but missing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere. Judge Sentelle couldn’t find such a reason. Maybe there is one. But the principle that would justify limiting power in one context but not in another should have been articulated.

But Juan says that the “strict textualist argument” that Glenn advanced was not advanced by us. He says this argument was Erik Jaffe‘s. It is true that Jaffee made this argument in the Court of Appeals. But it is not true that we failed to make a strict constructionist argument in the Supreme Court. Indeed, a section of our brief expressly argues that the “grant of power” was the “to promote progress” clause, and that that clause is not a “preamble.”

The only difference between Jaffe’s position and ours was that Jaffe’s would have authorized a court to evaluate any copyright act to test whether it “promoted the progress of science.” We thought that was too aggressive a position to take (on at least this point we were right!). Our argument instead was simply that the grant of power must at least be used to interpret the scope of “limited times.” That while it was not an independent substantive constraint, it should be used to interpret the scope of the power. This is more “textualist” than Lopez itself: Lopez grounds its reductio on a background view about federalism; we grounded our reductio on a view about “to promote the progress of science.”

Eugene passes on Eugene Kontorovich’s view that this case was really about original-congress interpretations — that the silent 5 could vote as they did because they were simply ratifying what the original congress did. That is indeed the most charitable read, though again, it is just bad history. Abstracting the fact that in 1792 the framers had not yet fixed on what it would mean for a law to be unconstitutional, in 1790, there is zero evidence that the framers would have believed the extension of an existing term was within Congress’s power. For the reasons argued extensively by the historians, Stevens, and us in our brief, the 1790 Act was not that. Thus it may well be that this case was all about one-step originalism. But on that basis, it was poorly reasoned.

January 18, 2003  ·  Lessig

Among the hundreds who have written, Kevin Kelly writes “[y]our stand before the court will only be a failure if we fail to follow through with what is next.” Many more ask, “what can we do next.”

Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been “published,” a copyright owner would be required to pay a copyright tax. That tax should be extremely low–this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.

If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante–98% of the public domain that our framers intended. Not bad for government work.

Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.

But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is “to follow through with what is next.” This bridge–between those who want copyright to be forever, and those who want a public domain–should be next.

If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?

There is a FAQ about the proposal that will be updated to reflect great questions raised by many.

Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman. Donate via PayPal to free.mickey@foobox.com to help us spread the idea.

And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here.

January 17, 2003  ·  Lessig

Jesse Walker, who has written many wonderful things for Reason, and lots of great things about the harms to copyright extension, has a brilliant piece interviewing Mickey Mouse about the result in Eldred. My first laugh in 52 hours.

January 17, 2003  ·  Lessig

My inbox is a testament to the kindness of strangers. Thank you. Many ask, is there anything more that could be done?

The easy answer is no. The Supreme Court has ruled that Congress has the power perpetually to extend the terms of existing copyrights. This brief “experiment with the public domain,” as the NYT eloquently put it, is over. In twenty years, we can expect terms will be extended again. There is no good reason to expect anything different.

The hard answer is, well, yes, there is always the possibility of an amendment, except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. (1) is for Congress to propose an amendment (which would not happen here — ever); (2) is for the state legislatures to call for a “convention” which may propose amendments. In either case, amendments must be ratified by 3/4s of the states.

The second path has never been followed. People are afraid of it because the convention could in principle propose any amendment at all. As 3/4s of the states must ratify any amendment, that doesn’t seem terribly dangerous to me. But clearly, it would take a massive campaign to march through the states to succeed in getting such a proposal passed.

One kind soul asks, “would you be willing to work to amend the constitution.” If there were a commitment of sufficient resources to make the campaign real, obviously yes. Impossibly difficult tasks seems my calling these days. I’d be happy to become Mr., rather than Professor, Lessig, if there were a good reason to believe such a campaign could be supported.

But short of the impossible, there are many battles yet to be won. The opinion of the Court gives no support to restoring copyrights once expired. That means the challenges in Golan and related cases survives. And, as Jack Balkin forcefully argues, Eldred does nicely frame the unconstitutionality in the DMCA.

More importantly, there is a political campaign that must now be waged. The many organizations that have been fighting these issues have done an extraordinary job getting people to see what’s at stake. That battle has only begun. My hero Siva (which is easier to spell than Vaidhyanathan) has a great piece on Salon on just this point. And Bill Moyers has a piece on PBS tonight that will do lots to help others to see.

I, meanwhile, will be answering email. I should have that finished before the next Sonny Bono Act.

January 16, 2003  ·  Lessig

It is the middle of the night. Sleep is awol, scared off by this question that won�t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle? (Updated)

(Apologies. I intended to update this but deleted it instead. Links to the original are below in the text, but this is the product of a few more hours sleep.)

Some background. There is a single, central question that has divided this Court over the past decade: Is it the Court’s role to review and constrain Congress in the exercise of its enumerated power. Four justices have been generally strongly in favor of deference. Five justices have insisted on limits. These five have insisted that an interpretation of Congress’s enumerated powers that erases any effective limit to that enumerated power is wrong. Four justices have consistently rejected that argument. Not that these four don’t vote to strike down laws of Congress. But rather they don’t strike laws of Congress on the ground of this “principle of enumeration.”

The single most important strategic decision in this case, and a decision for which I am solely responsible, was the decision to focus upon just this division. When we brought this case, people were rightly skeptical that the court would embrace an argument grounded in the First Amendment alone. Nor, given the Court’s general and appropriate deference to Congress, was it likely that a straight attack on the “rationality” of the statute would succeed. So our aim was to say, as Judge Sentelle argued in his dissent in the Court of Appeals: Under the enumeration principle announced in Lopez, and Morrison, retroactive extensions of existing terms violates “limited times.” If Congress has the power to extend a limited term without limit, then that is not a limited term.

The primary target of our appeal was therefore the five justices who had endorsed this principle ? Rehnquist, O’Connor, Scalia, Kennedy, Thomas. And in addition to these five, we had hoped that the general extremism of the extension (and pattern of the extensions) would attract the votes of some of the remaining four. But the least likely justice to be persuaded by our case was Justice Ginsburg, and second, Justice Souter.

So let’s start with the charitable point first: However much we may disagree with the result, as I said in my post after the argument in the case, there is something wonderful about losing because the Court believes its power is limited. As I said then, it is a virtue of a court system that the court constantly checks its will against a proper view of its limits. From this perspective, excluding the enumeration principle and putting aside the First Amendment, we should have lost. Justice Ginsburg was thus perfectly consistent with her own view of the constitution and the Court’s properly limited role when she wrote that whatever the Court’s view of the policy of the Sonny Bono Act, it was not the Court’s job to invalidate it.

This view also explains the general astonishment in the Bar about our bringing this case in the first place. For it was first year constitutional law throughout the 1990s that the Court should defer to Congress on the scope of enumerated powers. Since the New Deal, the Court had repeatedly held that there was no challenge of a statute by Congress on the grounds that it exceeded enumerated powers so long as there was any “rational basis” for that statute (where rational basis means, is there a hypothetical set of facts under which this statute makes sense). And again, under that standard, we should have lost.

But constitutional law did not end in 1990. Instead, beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress’s enumerated power yield the conclusion that its power is unlimited. If it does, then that interpretation must be rejected.

The context of those cases was the Commerce Power. But there was nothing in the opinions, or in logic, that would explain why the principle would apply to the commerce power and not elsewhere. Indeed, this was the strongest argument made by the dissents against the principle: That it would entail a general limitation on Congress’s power that was totally new in constitutional law.

It was new. And whether or not justified, our view was that this principle of constitutional law showed precisely why the power perpetually to extend copyright terms mean that copyright terms were not “limited.”

So here’s a first and simple way to test whether commentators about our case know what they’re talking about: Do they explain this principle and how it does or does not apply? In a petty moment of frustration, I made this point here. But the frustration is more general: If you don’t understand that this was the core argument in the case, then you don’t understand the case.

After the argument, I described the purgatory of an advocate, reliving the argument over and over, reanswering every question on countless sleepless nights. As I look back, there was just one question that might have mattered if answered differently. The most astonishing moment in the whole of the case was Chief Justice Rehnquist’s question, why hasn’t anyone ever raised this challenge before. The simple and obvious answer was this: “Because before your decisions in Lopez and Morrison, Mr. Chief Justice, there was no possible ground on which to argue against the exercise of an enumerated power. But Lopez established a principle that applies to this case. And unless there is some principled reason to distinguish it, the principle of Lopez limits Congress’s Copyright Clause power.”

That said, there is no chance that the Court didn’t understand that this argument was before it. Again, it was the sole ground upon which Judge Sentelle had voted against the statute. It was the core of our brief. Yet among the many doubts that will forever haunt, this more than any haunts most: Did the Chief really not understand that this case was his case? That it was because of the principles that he had first articulated that we had spent four years litigating this case?

No one wants to be proven wrong. But the sole reason that I believed that we were right, and that we would prevail, was this principle of enumeration. And despite the skepticism expressed at the oral argument, I could not begin to imagine how these 5 could distinguish that principle in this case. If we were going to lose, it was going to be, I thought, because they would find a way to distinguish what I believed they could not in good faith distinguish.

I was wrong, but not in the way I believed. Astonishingly, the silent 5 escaped this argument simply by ignoring it. Justice Ginsburg could understandably ignore it — she has never been a supporter of that argument. The same with Justices Stevens and Breyer — they too have never been supporters. But I would never have thought that the Court would decide the case by ignoring the only argument made in dissent by a federal judge below, and the core argument made by the petitioners in this case. Thus as I have said over and over again, I don’t know how you distinguish the Copyright Clause from Commerce. I still don’t. I just know we lost.

In my first post here, this point angered me. It angers me still. I respect (and have defended) the Court’s enumeration principle long before this case. I would have respected being shown the principled ground on which it does not apply here. But my frustration in reading the Court’s work in this case is the failure to apply its principle, or at least explain why not. If the Court believes there is a principled reason why the principle of enumeration applies to protect the rights of states (against liberal legislation) but does not apply to protect the public domain (against special interest legislation), it should say so. That is the picture of law that the best of our tradition teaches. And while our tradition also has many who believe there is no such thing as principle in the courts, that is not a view that I could ever promote as a law professor — as one who makes lawyers for a living, as distinct from one who simply analyzes and critiques the law.

I want to believe (thanks Aaron) that in ordinary times, principle guides this Court. The opinions in Eldred show some of those principles. There is nothing inconsistent in what was written. The inconsistency is in what was not written. And the challenge for me will be to explain the practice of reason that yields this fundamental inconsistency.