Sunday, October 20, 2002

Andy writes:
The Hartford Courant reports that the FDA now concedes that the anthrax vaccine was dangerous. A number of servicemen were punished for refusing to take it.

The paper also says that liberal Republican incumbent Nancy Johnson has an 18-point lead over Democratic incumbent Maloney, for whom Gore flew in to campaign.

It's amazing how much the sniper and threat of terrorism affects so many people, who completely change their plans in response. It's equally remarkable how immune the internet is to every possible type of terrorism. That bodes well for continued growth in internet usage and influence.

Roger noted that teams other than the New York Yankees and Atlanta Braves are in this year's World Series. But this is only the 3rd time in 12 years that the Series has not featured one or both of those big money teams! To use an old adage, is this year the exception that proves the rule?

I did some more homework on Lessig's "quid pro quo" argument for Copyright Clause limitation, which he emphasizes at least 6 times in his reply brief, and 11 times in his initial brief. This seems to be his main argument, that Congress extended copyright without a "quid pro quo" by the beneficiary (Disney et al.), and that lack of quid pro quo is somehow unconstitutional.

My research revealed that is a fictional argument developed by law professors, which the Supreme Court has never adopted and should not adopt. At most, two Supreme Court decisions mentioned a quid pro quo in the context of the patent statute, but not required by the Constitution. Simply put, there is no constitutional balance between private property and public rights.

Not a single one of the many amicus briefs in the Eldred case, except for one brief by one law professor, embraced Lessig's "quid pro quo" argument.

Worse, Lessig says that Congress could have "easily" made the Sonny Bono Act constitutional by including a quid pro quo: "if Congress wanted "restoration" of old works, or further "dissemination" of particular works, it could easily have achieved those ends in the same manner the Framers set--as a quid pro quo. Pet. Br. 16. Rather than an unconditioned grant, Congress could have offered a conditioned grant for restoration or a particular kind of dissemination."

Can Lessig's side win the case without a single Justice accepting Lessig's argument? Yes, but that might be unprecedented outside the context of criminal appeals.

Andy, maybe we should write an op-ed for publication somewhere on how Lessig is blowing it.

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