Now the Court has before it a law that is constitutionally offensive on every level: It clashes with the explicit limits on Congress's power set out in the text and original understanding of the copyright clause, it represents a naked transfer of wealth to a handful of greedy heirs of pop-culture icons from the '20s, and it threatens to constrict public domain on the Internet for generations to come.
But some of his facts and arguments are dubious. Eg, he says:
The reason the Supreme Court got out of the business of striking down acts of Congress in the mid-twentieth century was that it presumed that economic interests could ordinarily fend for themselves in the political process.
No, the reason is that President FDR intimidated the SC by threatening to expand it and pack it with political hacks who will rubber-stamp his misguided and socialistic programs. Eventually, the SC capitulated, and FDR did pack it with political appointees who ruled that Congress can regulated a farmer growing vegetables for his own consumption. If that could be justified, then there were no practical limits on what Congress could do under the Commerce Clause.
Jeffrey Rosen is misguided in implying that Professor Lessig seeks a reduction in government copyright power ("Mouse Trap," Oct. 28). Rather, his briefs and oral argument endorse congressional power to extend copyright retroactively for old works, if conditioned on a quid pro quo like restoration activity. Lessig thereby petitions the Supreme Court for better government, not less government. Rosen is right that the 20-year copyright extension should be stricken, but that can only happen by embracing less government.
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