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.

  • http://sethf.com/ Seth Finkelstein

    Once more, here is my cynical take on it – “Who Benefits?”

    In US vs Lopez the case was about guns. The losers were going to be gun-control
    advocates.

    In US v. Morrison the case was about “gender-motivated violence”. The
    losers were going to be violence-against-women activists.

    In Eldred, limiting powers would mean that the losers were going to be MPAA/RIAA/Disney etc. That was the difference.

    To anyone who thinks this is unreasonable, I have just two words:
    “Bush v. Gore”.

  • http://www.litig8r.net Franco Castalone

    We have also published similar comments. See
    http://radio.weblogs.com/0110436/2003/01/18.html#a253

  • Lessig

    LitiGator has a very careful analysis at the link just above. But again, I agree that the court could have tried to distinguish Lopez from this case. My criticism is that it didn’t. Lopez has been applied in the context of federalism. This is not a federalism case. But that’s a description, not an argument. Why shouldn’t the principle that defined Lopez be applied here?

    I also just don’t ever understand this argument that there is no “attempt to evade” “limited times.” What would constitute such an attempt? What is the level of proof that is being imagined here?

  • doogieh

    An easy attempt to evade limited times: copyright exists in 50 year terms. In the last two years, you can submit a renewal fee for another 50 year term (as you’ve suggested in your Eldred Act).

    But whats to stop a simple amendment to your act which makes this process perpetual? At the end of any 50 year term, the copyright owner can apply for another fifty year.

    This variation on the Eldred Act, maybe call it the Valenti Act, indeed only protects a work for a limited time. An author/assignee can simply request another limited time at the end of a term.

    Is this ever unlimited? Given Ginsburg’s argument, which would probably have judges from Justice Story to Learned Hand turning over in their public domain graves, the public interest balance doesn’t matter anymore.

    The actual copyright term ends in 50 years, and at any particular time you can only get 50 more years. This really feels unlimited to me, but I think this is the real test case? Would a limited, but perpetually renewable term, meet the Art I sec 8 cl 8 requirements? Until this week I would have said no. But after this opinion, I’m not sure any more.

  • doogieh

    Regarding Lopez: If Congress’ power was limited by the phrase “limited times”, using Lopez reasoning, then (absent some First Amendment restraint) the power of states to regulate copyright would be greatly expanded. Thus, I think the answer is a bit more complex than “who benefits.”

    What if the state of New Omaha passed a bill that:
    (1) granted copyright for an unlimited time; and,
    (2) granted database rights in uncopyrightable facts for an unlimited time.

    As to hypotehtical (1) the traditional preemption argument, bolstered by 17 usc 301, is that state regulation “interferes with a traditional federal area” or directly interferes with federal legislation. If Eldred won, this wouldn’t fly since the regulation at issue was expressly outside congress’ power, and is further weakend by the fact that states, until 1976, still had some substantive copyright laws on the books as to unpublished/unfixed works.

    Maybe, just maybe, this ambiguous result on limited times was necessary to preserve the presumption that copyright should be predominantly a federal issue; with the ambiguity a state law clearly conflicts with federal policy. With a bright line, the states could come in and have a field day.

    As to (2) take Feist. If something isn’t a work of authorship, then it is outside of the federal copyright power. Can a state then come in and create a database right? There have been attempts at federal legislation to this end but none has passed yet… and if its OK at the federal level, and isn’t preempted by Section 301, the states could protect databases, (unless a court somehow ruled it conflicted with federal policy… which would be a stretch since copyright simply cannot regulate facts.)

    If there were any doubt that a state could protect databases and facts, then just look at trade secret law. Even if unpublished, these databases are clearly protected by copyright if fixed. Yet so long as reasonable efforts are made to keep them secret, and they have value, then the trade secret law of virtually every state grants a potentially perpetual right to the database holder. Trade secret law differs by its elements, just as database protection differs from copyright, thus there is no premption there.

    This is all hypothetical, but the point is unlike Lopez and that line of cases, here in Eldred there is no tension between state power and federal power here. States don’t want this power.

    Everyone was acting on the assumption that either the federal government had the power to regulate copyright, or noone could, and that isn’t true. If the federal government couldn’t, then the states could come in and fill the void: that would be much much worse result.

  • doogieh

    Regarding Lopez: If Congress’ power was limited by the phrase “limited times”, using Lopez reasoning, then (absent some First Amendment restraint) the power of states to regulate copyright would be greatly expanded. Thus, I think the answer is a bit more complex than “who benefits.”

    What if the state of New Omaha passed a bill that:
    (1) granted copyright for an unlimited time; and,
    (2) granted database rights in uncopyrightable facts for an unlimited time.

    As to hypotehtical (1) the traditional preemption argument, bolstered by 17 usc 301, is that state regulation “interferes with a traditional federal area” or directly interferes with federal legislation. If Eldred won, this wouldn’t fly since the regulation at issue was expressly outside congress’ power, and is further weakend by the fact that states, until 1976, still had some substantive copyright laws on the books as to unpublished/unfixed works.

    Maybe, just maybe, this ambiguous result on limited times was necessary to preserve the presumption that copyright should be predominantly a federal issue; with the ambiguity a state law clearly conflicts with federal policy. With a bright line, the states could come in and have a field day.

    As to (2) take Feist. If something isn’t a work of authorship, then it is outside of the federal copyright power. Can a state then come in and create a database right? There have been attempts at federal legislation to this end but none has passed yet… and if its OK at the federal level, and isn’t preempted by Section 301, the states could protect databases, (unless a court somehow ruled it conflicted with federal policy… which would be a stretch since copyright simply cannot regulate facts.)

    If there were any doubt that a state could protect databases and facts, then just look at trade secret law. Even if unpublished, these databases are clearly protected by copyright if fixed. Yet so long as reasonable efforts are made to keep them secret, and they have value, then the trade secret law of virtually every state grants a potentially perpetual right to the database holder. Trade secret law differs by its elements, just as database protection differs from copyright, thus there is no premption there.

    This is all hypothetical, but the point is unlike Lopez and that line of cases, here in Eldred there is no tension between state power and federal power here. States don’t want this power.

    Everyone was acting on the assumption that either the federal government had the power to regulate copyright, or noone could, and that isn’t true. If the federal government couldn’t, then the states could come in and fill the void: that would be much much worse result.

  • Anonymous

    Lessig writes: “I also just don�t ever understand this argument that there is no �attempt to evade� �limited times.� What would constitute such an attempt? What is the level of proof that is being imagined here?

    I don’t understand the argument either. In addition to the problems you mention, there is also the problem that you can end up with a perpetual copyright if Congress amends the copyright an infinite numer of times, each time extending the terms of existing copyrights by a finite amount. Theoretically, at least, it is possible that each Congress in this (infinite) series of amendments has absolutely no intention of evading the limited times requirement — their hearts could really be pure as the driven snow when it comes to intending to create an infinite term. So under the majority’s “no evidence of an attempt to evade” test, such a perpetual copyright term would be upheld as limited.

  • Roger Schlafly

    In oral argument before the Supreme Court, Lessig said:
    “Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.”

    It sounds to me like he was abandoning the “progress” argument, and betting the farm on the “limited times” argument.

  • Lessig

    Not quite. We did reject the argument made cogently by Eagle Forum that “progress” should be an independent substantive limitation on every copyright act. We believed (and again, about this we were right) that it was unlikely the Supreme Court would open every copyright statute up to the question — does this promote progress. So we appealed to “promote progress” as a way to interpret the scope of “limited times.” The “limited times” that the constitution permits are those that promote progress.

    I went on in the very next answer to say that the empirical question of whether speech/progress was promoted was relevant under the First Amendment. But just as Lopez/Morrison made clear that the constitutional limits were categorical, not empirical, we, following Eagle Forum, argued the limits on the power over terms were categorical, not empirical.

  • Nathanael Nerode

    So-called “strict constructionists” are ignoring the Constitution. You *cannot* be intellectually honest and take a strict constructionist viewpoint regarding, for example, the right to privacy. Why?

    The Ninth Amendment reads:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    This says, in no uncertain terms, that there *are* fundamental rights which are *not* listed in the Constitution.
    Strict constructionist arguments aregarding the absence of rights are therefore intellectually dishonest.

    The so-called ‘strict constructionists’ on the court have consistently tried to make such arguments.

    This proves that they are intellectually dishonest. And therefore one cannot expect any of their rulings to be honest.

    Sorry, Professor Lessig, but you may have to change the way you teach. Unfortunately there are people on the Supreme Court who are, essentially, crooks; Rehnquist, Scalia, and Thomas at the very least have such a record of corrupt and intellectually dishonest actions that they should never have been considered as judges. That’s the sad truth.

    You did the best you could, but against a court with at least three corrupt judges who rarely care what the law says, what the Constitution says, or what the arguments are, you had an uphill battle.

    I consider the case to be at worst a 4-2 result on the arguments, given that the three crooks’ decisions could have been determined before the law was even passed.

  • Nathanael Nerode

    Actually, what I just said is a very strong argument for removing life terms for federal judges. That way they couldn’t continue to propagate corruption for an indefinite period. Life terms were *supposed* to insulate the judiciary from political bias. This goal has failed completely. Instead, they insulate the judiciary from public opinion, a much worse thing. The 14-year terms we have here in New York seem, in practice, to be a much better system.

    Of course, the Constitution doesn’t *actually* give life terms; it says justices serve on “good behavior”. If that could simply be interpreted to exclude irresponsible anti-democratic rulings like Bush v. Gore, we’d be set to remove the crooks. But that’s a pipe dream.