It sounded like Breyer was looking for a way to declare the 1998 law unconstitutional without touching the 1976 law, but Lessig could not give him any such rationale.
John writes:
Breyer's question was logical and foreseeable. However, I can think of no better answer than the one Lessig gave (according to Nina Totenberg's report on NPR/ATC): Yes, logic implies that if the 20-year extension passed in 1998 was unconstitutional, the earlier 20-year extension passed in 1976 was also unconstitutional, but there is ample precedent for the Supreme Court to make its decision prospective only and not retroactive.
The question is logical and foreseeable, but also stupid. The court only has to rule on the question before it, not hypotheticals about other laws. When someone brings a case that a punishment is cruel and unusual, the court rules on the issue without ever defining precisely which punishments are lawful and which are not. No one challenged the 1976 law.
The main purpose of the 1976 law was to remove the copyright notice requirement, and to move into conformance with the Berne convention. Maybe no one wised up to the fact that Congress had decided to pass a 20-year extension every 20 years. The 1998 law was more clearly an attempt to make copyrights perpetual.
Breyer's argument can just as easily be run the other way. He is saying, if the 1998 law is unconstitutional, then why isn't the 1976 law unconstitutional? He could just as easily ask, if the 1998 is constitutional, then does that automatically make extensions in 2018, 2038, 2058, etc. constitutional? If so, he just approved a perpetual copyright.
John writes:
Those are good, snappy answers. Too bad Lessig, apparently, wasn't prepared with a similar response to what now seems like an obvious objection.
Just because Breyer's question was obvious doesn't make it "stupid." The issue of whether a Supreme Court decision is retroactive has come up many times before. An experienced advocate would have been able to handle it.
Probably our best hope is simply the fact that the Court took the case. Why would they take it unless some justices, at least, were interested in overturning it? There was no split among the Circuits that needed to be settled.
Andy writes:
Good analyses by Roger and John, plus John's superb links. The internet sure is powerful. One link said that only those who were in the public line prior to 3 am actually got in!
Ginsburg didn't like the Free Speech argument, which is predictable because I think her husband practiced in copyright law for decades. But that doesn't mean Thomas won't like the Free Speech argument, and if he runs with its power than that it will influence the outcome.
Consistency in outcome with the 1976 Act is an issue, but I doubt that will be dispositive. Consistency, after all, is the hobglobin of little minds.
However, it does sound like Lessig stumbled as badly at oral argument as in his brief on his "balancing", good-government approach. From one observer: "Stevens asked whether a retrospective extension that does promote progress is permissible. Lessig said yes [N.B.: that admission loses the case]. Stevens then said that the 1998 law, at least on its face, does that. Lessig: well, that's the government's position. Stevens: but that's what you just said. Lessig: no, Congress still has to abide by the constitutional limits. We were all confused." Confused indeed. Lessig loses if the Court accepts his admissions.
Our brief strived to pick up Rehnquist et al. on the "limited government" approach of Lopez. A very astute observer saw this today. That observer wondered if "the court was interested in extending the precedent set in Lopez, which for the first time in many years constrained Congress' power to regulate interstate commerce. Some have thought that this issue would be raised by analogy from the commerce clause to the copyright clause. The Chief Justice is the only one who raised the issue in a single question to Prof. Lessig. The question was oblique, and only implied the question, but Prof. Lessig recognized it and provided the appropriate answer, which seemed to please the Chief Justice. It was not raised by any other justice, nor was the Solicitor General provided a similar question."
If Rehnquist bites on our Lopez argument, and Thomas bites on our Free Speech argument, then we probably win by adding Scalia, Breyer and Stevens or Souter or Kennedy. We could even lose Rehnquist and still win. But if Lessig's admissions like the one above stick, then we lose.
I agree with Andy that Lessig should have told Stevens that a retrospective copyright extension cannot promote progress because it cannot provide an incentive for the author.
Andy writes:
Roger's excellent blog has a link to a NY Times article, which made this observation:
Chief Justice William H. Rehnquist seemed unsympathetic to those who want the law overturned. "You want the right to copy people's works verbatim,'' he told Eldred's lawyer.
My reaction: unfortunately, this may also be the result of Lessig's liberal approach to the case. Lessig argues for public rights and common good. Lessig thinks private property rights should be balanced against the "commons". He proposes new balancing tests for copying of others works.
Apparently Rehnquist didn't think much of this approach, and neither do I. The only way the case can be won is to embrace private property, but that the government entitlement must be limited. Lessig's talk about the commons hurts our cause.
What is wrong with Lessig's answer:
Professor Lessig replied, "We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified" either under the First Amendment or Congress's copyright power.
We absolutely do want to right to copy verbatim works that are in the public domain.
Andy writes:
Professor Lessig replied, "We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified" either under the First Amendment or Congress's copyright power.
Roger wrote: "We absolutely do want to right to copy verbatim works that are in the public domain."
The flaw in Lessig's answer is that it inflames, rather than ameliorates, Rehnquist's concern about Lessig's assault on private property. Lessig argues that works should be in the public domain for the good of the "commons". His reasoning is anti-private property, and my guess is that Rehnquist will rule against him for that reason.
If Lessig were conservative, then he would have replied: "We do NOT support a right to copy verbatim the property of another. But as the Framers made clear, Congress has sharply limited powers to grant copyright entitlements. Protections other than copyright, such as trademark or licenses, can extend beyond the copyright entitlement to prevent copying."
Roger wrote, "Meanwhile, here is this year's Nobel tally:
Physics: USA, USA, Japan
Chemistry: USA, Japan, Swiss
Medicine: UK, UK, USA
Economics: USA, USA
Literature: Hungary
So US 6, Europe 4, Japan 2.
Sounds about right. US intellectual output is about the same as the rest of the world put together."
Non sequitur. The Nobel prize is a grant by liberals to liberals. How'd we do with the MacArthur prize this year? Same dynamic.
Conservatives would do well to criticize these prizes more. Brace yourself for the Nobel Peace prize, to be awarded tomorrow.
Update: here is Lessig's account of the hearing.
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