Comments on: The silent five Blog, news, books Tue, 10 Oct 2017 06:01:00 +0000 hourly 1 By: assman Sun, 25 Jul 2004 16:40:41 +0000 I had to post again because Lessig cynical manipulation of the truth has mad me very angry.

Let me see if I can summarize the stupidity of Lessig’s position. He basically says that the supreme court should abrogate one of the powers the constitution explicitly gives the supreme court (namely the power to regulate copyright). They should do this in the name of state’s rights. Of course Lessig doesn’t actually believe in state’s rights. Rather he believes in a large federal government. So he also thinks that the supreme court should give the federal government powers it was never explicitly given by the federal government and which are therefore reserved to the states like the power to outlaw discrimination. In sum, Lessig believes we should read the constitution and do the exact opposite of what it says. Lessig than goes own to criticize the supreme court because he didn’t get his way. He considers it a violation of principle for the supreme court to actually follow the constitution. Namely the supreme court is violating the principle of limiting the power of the federal government to the greatest extent possible which BTW is a principle that Lessig never believed in the first place. In was just a principle Lessig decided to cynically exploit in order to get his way. The only problem with this principle is the supreme court never actually believed in it themselves. They instead followed the principle that YOU SHOULD DO WHAT THE CONSTITUTION SAYS. This principle implies that you give to the federal government the powers it is supposed to have according to the constitution. Nothing more and nothing less.

By: assm Sun, 25 Jul 2004 16:25:46 +0000 Lawrence your an idiot. Federalism is about giving the federal government the powers they are supposed to get according to the constitution and nothing more. The constitution gives the federal government the power to regulate copyrights EXPLICITLY. It is in the constitution. Read it.

On the other hand there is nothing in the constitution that says the federal government has the right to outlaw discrimination as in the civil rights act. In fact the first civil rights act was declared unconstitutional in 1875 when the supreme court actually believed in the constitution. Most of the New Deal legislation is also unconstitutional. NONE OF THESE THINGS POWERS GIVEN TO THE FEDERAL GOVERNMENT IN THE CONSTITUTION. The power to regulate copyright is a power the federal government is explicity given. So I don’t see why your complaining. If anything the court is being too liberal. It should be out there outlawing the civil rights act, the new deal legislation etc. Instead it is dealing with stupid things over which the federal government has explicit power.

By: Anonymous Thu, 20 Feb 2003 21:29:55 +0000 In terms of principle, the best conclusion is probably: The Court is not the Law. The Law is higher than the Court; the Court can be wrong, and the Court can be corrupt, as I believe it has been many times in the last 20 years.

The Law as determined by precendents may be the law which is enforced, but it is not the Law. Loss of faith in the honesty of the Court is not the same as loss of faith in the Law. (Rather, it’s a cause for promoting impeachment proceedings…)

By: Anonymous Thu, 20 Feb 2003 21:23:54 +0000 The depressed point of view states that the principle involved is simple: fascism. A.k.a. “There are no individual rights; the state has all rights.” This is unfortunately entirely consistent with the rulings of Rehnquist on most cases.

Paul Fernhout has made a very good point. Unfortunately, the attitude of the Reagan/Bush “justices” corresponds quite consistently with a belief that *private* property is sacrosanct but *public* property has no value. This is of course in contradiction to the ancient public trust doctrine, but it’s the line they have taken. Accordingly they probably see it as an issue of property, but see nothing wrong with giving away public property for zero public benefit.

Impeachment of Scalia, Rehnquist, and Thomas is what the country needs, of course; unfortunately it’s very unlikely to happen.

By: Paul Fernhout Mon, 10 Feb 2003 11:37:22 +0000 A positive spin on the decision:

By its ruling, the Supreme Court essentially and perhaps unwittingly advanced the notion that copyright is not a natural property right, and is not subject to compensation for taking, since otherwise, how could extending an existing copyright not be considered a taking from the public domain and thus entail direct and immediate compensation to the public? Thus, say, a law shortening existing and future copyright terms to say three years passed tomorrow can not be considered a taking from the private domain (which is otherwise, the obvious objection copyright holders would make to such a law). The hope of this decision is that someday it can essentially be cited in defense of legislation to shorten copyright rems for all works. (“The Supreme Court did not object to lengthening them in Eldred vs. Ashcroft on property rights grounds, so it cannot object to shortening them…”) So, the loss of this case could be viewed in the end as a clever ploy by Prof. Lessig to undermine the notion of copyright as property, and thus lay the ground work for a transformation of U.S. society in the internet age. :-)

By: Thomas Sun, 19 Jan 2003 23:49:01 +0000 Larry, what I’m talking about is this post, which has stuck with me for a long time, and which connects with the piece I responded to:

“The Lopez-Eldred link: [...]There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. … Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.”

What is one supposed to think this means? “[E]xcept for ugly reasons.” Are we supposed to think that that is directed at all 9?

By: John J. Coupal Sat, 18 Jan 2003 04:57:53 +0000 If you can’t answer my question about the spelling of “Constitution”, you undoubtedly don’t understand the meaning of the Eldred decision.

I understand.

By: Lessig Fri, 17 Jan 2003 17:19:49 +0000 A person named “Thomas” writes: “You?ve been questing the integrity of the 5 since October.” Not true. This is the first post that has suggested anything at all about “the five.” The other references to 5 was just the 5 votes necessary to make up a majority — whether from the 5 Lopez supporters, or not.

By: Ben Fri, 17 Jan 2003 13:29:30 +0000 Hi. Haven’t communicated for a while, but I thought I’d respond to your elegy for Eldred. I don’t understand why the actual mechanics of decision-making in any particular case ought to undermine your teaching of how we should try to understand what the Court does. In our 1998 seminar on constitutional fidelity, you coyly insisted that your theories about the behaviours of the Court were merely descriptive. I recognize in retrospect that the act of teaching itself made these theories normative. In struggling to read the Court’s decisions over time in a fidelitist manner, we internalized a conception not merely of the Court, but rather of law. (Your work in the academy, on this view, is symmetrical with that of Robert Hale, but pushing in the opposite direction.) It would take many decisions–maybe more than the Court could issue–to make me abandon that conception of what law is. Besides, Eldred may yet be interpretable once we’ve gained greater perspective on it. So keep the faith.

By: Roy Murphy Fri, 17 Jan 2003 13:21:46 +0000 Onward to Golan v. Ashcroft!

By: Thomas Fri, 17 Jan 2003 12:39:57 +0000 Perhaps an advocate who respected the Court would have had a better chance of persuading them. (You’ve been questing the integrity of the 5 since October. )

And perhaps an advocate who recognized both the strength and weaknesses of his case would be better at handling defeat. Blame the case, not the Court.

By: M�r �rlygsson Fri, 17 Jan 2003 10:37:19 +0000 Stay spirited! The world needs people with spirit like yours!

By: Denis Borges Barbosa Fri, 17 Jan 2003 10:20:44 +0000 Reading now many comments of this and other blogs, I would think it appropriate to stress that the damage done by Ginsburg decision is larger than hitherto seen. The integrity of the public domain in authorship’s right shall be sought, no doubt, but the effective denial of the same principle for patents (see footnotes 9 and 22) and revocation of Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 (1964) (even in obiter) will have probably more stringent effects.

I my country, Sears Roebuck was being used as a compelling argument to oppose ex post extensions of patent terms. Extending the life of a patent beyond its expiration term was arguably unconstitutional on may legal systems, as the right to use the teachings of the patent at the end of monopoly term is (as the argument goes) vested on public simultaneously as the patent owner gets its grant. The idea that copyright and patents have different exchange terms (offered on page 24-25 of Ginsburg’s opinion) is not entirely bad, but footnote 22 dismiss all positive content to such finery. They are distinct, but have the same result: disvesting the public from its constitutional right to free use of creations.

I am probably out of tune with the prevailing mood here. My worry, however is equally shared between free flow of ideas and availability of medicines to fight AIDS. Eldred has certainly a worldwide import.

By: Denis Borges Barbosa Fri, 17 Jan 2003 09:43:41 +0000 As a Brazilian IP professor, I have been following closely and with great expectation your jousting in favor of the public interest. Thank you for the developing countries.

By: Karl Marx Fri, 17 Jan 2003 07:01:38 +0000 The last twenty years have been hard: first the Russians lost the faith, and then my hegemon in Eastern Europe crumbled. Then China went to that “one nation, two systems” concept, the first step toward a recognition of private property, and now this debacle in the USA where the right of a worker to the fruits of his labor is recognized even after his death. It’s getting harder and harder to convince people to eschew the opiate of capitalism and come over the communal side, and I fear that the death of Fidel Castro, the last true communist except for that nutty guy with the weird haircut, will the end of my ideology.

But my thanks to the good soldiers of the revolution at Stanford and Berkeley who aren’t afraid to stand up to the evil capitalist class.

In solidarity, I remain Your Comrade.

By: Anonymous Fri, 17 Jan 2003 03:59:38 +0000 While I understand Larry’s anguish and I’m grateful for all his heroic work, the principle with respect to the “silent five” is quite simple: courts much prefer to issue a single majority opinion. Significant concurring opinions are rare; concurring opinions that independently judge a constitutional issue are even rarer.

Don’t give up, Larry. Here’s another great case to test their principles, and yours:
“A Desparate Case Under the Commerce Clause: Federal Jurisdiction Over All Radio Use”

You’re a human being, Larry, a human being. If your students recognize that, you’ll be doing better than the average law professor.

By: Timothy Phillips Fri, 17 Jan 2003 03:13:14 +0000 The principle that I would place at the center of our quest is what we now call the public domain, though the framing generation called it “free trade”, “restriction against monopolies”, or simply “liberty”. The majority opinion is characterized by a lack of respect for this principle. So you are right to see it as unprincipled.

Another contributor compared this decision to the Dred Scott decision, but I think a better analogy is to Korematsu v. United States:

in that case, as in this one, the court failed to focus clearly on the deep principles at stake and we were all diminshed by their decision.

By: Max Kennerly Fri, 17 Jan 2003 03:09:30 +0000 No, there isn’t–Law Meme’s sponsor has already demolished Ginsburg’s argument:

Our society has deified private economic interest and the law has become infected; as Balkan points out, the Court was unable to see the erosions in copyright’s free speech safeguards over the past 200 years. I maintain this is because they hold private economist interest to be more important.

The case required a different time in history and a different court, not a different lawyer.

By: charlie Fri, 17 Jan 2003 02:33:53 +0000 i’m not a student or practioner of the law, but, assuming that the court was acting on “principles,” i suspect that those principles are faith and fear.

faith in the intellectual property system that we currently have, that which is based on ownership, the operating principle of our capitalist society. only a very small portion of our society recognizes that the conceptual alternatives to private content ownership — free culture, open source, the gnu, the public domain — are an important, possibly better means to knowlege production/creation for all. so to violate that faith in a decision for eldred is to betray society.

fear that a ruling in eldred’s favor here could result in repeals of previous copyright acts, a cascading effect which could shake up the publishing and entertainment industries. fear that if they did not defer to congressional power here, that there will be other cases assaulting their faith in ip law where they would have to rule against their faith again. mostly, fear of the unknown.

so to change this faith and combat this fear, we must educate the american public, as well as the courts, by activately demonstrating that free culture represents a better paradigm for knowledge-making in our society.

suggestion: if you didn’t submit it as evidence (is that the right term), have the audacity to personally send each of the members of the supreme court a signed, complimentary copy of the future of ideas. i’m in the middle of it now. might do them good to read it :)

By: Anonymous Fri, 17 Jan 2003 02:22:49 +0000 Of course there’s a principle, and a clear one: if the constitution can be read in such a way as to support the interests of the wealthy and powerful, it should be so read. Good or bad, this is the principle of the current court.

By: FormerLarryStudent Thu, 16 Jan 2003 23:41:38 +0000 To the jerkwater who called Scalia an “idiot” — why don’t you ask, of all people, Larry Lessig whether he thinks Antonin Scalia is an “idiot” — he clerked for him after all and probably helped write a whole bunch of opinions you didn’t care for.

Go Bears!

By: Mike Mirarchi Thu, 16 Jan 2003 23:06:44 +0000 Here’s the hypothetical that the majority never fully confronts:

Suppose every 20 years, Congress extends the copyright term by 20 years, and applies the extension to subsisting copyrights.

This would be a perpetual copyright (on the installment plan), yet there is absolutely nothing in the majority opinion that would provide any basis for invalidating it on the ground that the term is not limited.

First, all the historical arguments would apply with equal force. Indeed, the historical arguments would apply with even greater force. Instead of noting that “petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to ‘limited Times’ that the 1831, 1909, and 1976 Acts did not,” the majority could note (at whatever point in time the hypothetical statute is challenged) that “petitioners fail to show how the Nth CTEA crosses a constitutionally significant threshold with respect to ‘limited Times’ that the 1831, 1909, 1976, 1st CTEA, 2nd CTEA, . . ., (N-1)th CTEA did not.” Oddly, then, if Congress were to grant a perpetual copyright on the installment plan, the historical argument against invalidating the statute gets stronger and stronger with each successive term extension.

Second, the naive textualist argument would also apply with equal force. Suppose one hundred years from now, Mickey still isn’t in the public domain, and the current term is life + 170. To quote the majority (footnote 16), it would be “impossible to identify any statement in the statutory text that installs a perpetual copyright, for there is none.” If Congress were to grant a perpetual copyright on the installment plan, as in the hypothetical above, it would never have to change the text of the statute beyond changing the number specifying the term, which would itself always be a finite number. The textualist argument in footnote 16 simply fails to come to grips with the fact that it is possible for Congress to grant perpetual copyrights by amending a statute in a way that the statute will always specify a finite term. Similarly, the dictionary definitions cited by the majority (II.A) don’t provide any help when it comes to invalidating a perpetual copyright on the installment plan. If, as the majority holds, the current term falls within Webster’s definition of “limited,” then so would a term of life + 170, or any other term in the succession of extensions by which Congress grants a perpetual copyright in the hypothetical above.

Nor would the portion of the majority opinion on legislative intent (II.B.1) provide any basis for invalidating a perpetual copyright on the installment plan. It’s possible, in the hypothetical above, that each time Congress extends the copyright by 20 years, Congress genuinely believes that that is the last extension of subsisting copyrights, and has no intention of ever extending them again. Again, the majority’s reasoning would require upholding the term: “Nothing before this Court warrants consturction of the [Nth] CTEA’s 20-year extension as a congressional attempt to evade or override the ‘Limited Times’ constraint.”

What I find most maddening about the majority opinion is that all of its arguments as to why the CTEA is consistent with the “Limited Times” requirement would apply equally forcefully, if not more forcefully, to each subsequent copyright term extension if Congress were to grant a perpetual copyright on the installment plan. I challenge anyone to point to anything in the opinion that would provide a basis for holding that a perpetual copyright on the installment plan runs afoul of the “limited times” requirement. What good are any of the majority’s arguments as to why the current term is “limited,” in the constitutional sense, if each of the majority’s arguments leads to the conclusion that a perpetual term on the installment plan is also “limited,” in the constitutional sense?

By: MG Thu, 16 Jan 2003 20:14:09 +0000 In my prior post, the clause reading “I think complaining about an inconsistency between Eldred and Lessig reveals more about the ideological blinders of the complainers than of the Supreme Court” should of course read “I think complaining about an inconsistency between Eldred and Lopez reveals more about the ideological blinders of the complainers than of the Supreme Court.” Sorry.

By: MG Thu, 16 Jan 2003 19:57:53 +0000 “As the Chief Justice taught in the case of Lopez, if an interpretation of Congress’s power yields the conclusion that Congress’s power is unlimited, it is an improper interpretation. Yet that is precisely what the government conceded its interpretation did.”

But these are two very different types of “unlimited.” Pre-Lopez, the commerce clause had come close to having no limits of any kind. Commerce affected everything and everything affected commerce, so the clause came to have no limits until Lopez reasserted them. The commerce clause could justify any federal law not explicitly prohibited by some other provision (such as a bill of attainder or establishment of religion).
The copyright clause, OTOH, has always had a subject matter limitation. No one would use the copyright clause to argue that the federal government could regulate guns near schools or violence against women.

Conceptually, the copyright clause has always had generally understood limits as to its breadth: it covers copyrights. The question in Eldred was one of length: how far does the copyright power go?

The commerce clause, pre-Lopez, had lost any limits on its breadth. The connection to commerce had been eliminated. This is what the court properly restored. Even though I support Professor Lessig on Eldred and am disappointed in the decision, I think complaining about an inconsistency between Eldred and Lessig reveals more about the ideological blinders of the complainers than of the Supreme Court.

By: Robert E. Moran Thu, 16 Jan 2003 19:24:39 +0000 Protected, copyrighted material, like privacy, is dead. Whether the Supreme Court, Congress or the Disney’s of the world like it or not, the “Darknet” of universal peer to per file sharing and CD/DVD copying is upon us and nothing, in the long term, will alter this situation. What’s so unfortunate about this is the inability of the powers at be to acknowledge this fact and move on to rectify the copyright issue in a way that’s in concert with how the world does business in the connected age of the Internet.

As a designer and software developer, I hate to see this happening because public domain and the free exhange of information, unencumbered by bad law, is vital to the maintenance of a free and open society able to deal with the challenges of the 21st century.

Keep up the good fight and don’t quit. We don’t need another Volstead Act in 2003.

Robert E. Moran