Saturday, October 19, 2002

Andy writes:
More good stuff on Roger's blog, especially how the internet version of the Eldred v. Ashcroft includes information that the official court version intentionally deletes (e.g., name of Justice posing the question).

Roger wrote, "I thought [Lessig's] SC brief supported our argument. Good thing you did an amicus brief."

At first blush, Lessig seems to be with us. But scratch beneath the surface, and you find his views are very liberal and irrational. The Justices scratched at oral argument, and found illogic and confusion lying below.

Roger wrote, "Part of the problem with the above Lessig exchange may be that he was interrupted before he could finish his point ...."

What he said is repeated extensively in his briefs. There is no mistake.

Roger wrote, "I am inclined to agree with Andy that Lessig's problems are rooted in his political premises. In Lessig's view, copyright law is a quid pro quo between authors and the public, and the court should review it (with intermediate scrutiny) to see if it is a fair contract."

Right, and this is nonsense. It's emphasized in his reply brief. In effect, Lessig is saying that the Sonny Bono Act is unconstitutional because there is inadequate contractual consideration! Even if Lessig won, Congress could merely pass an identical act with an addendum requiring Disney to restore and distribute some old works in exchange for the extended copyright. I doubt a single Justice buys this central argument of Lessig's.

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