JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.
MR. LESSIG: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.
JUSTICE KENNEDY: Well, perhaps I misunderstood. I thought the whole thrust of your argument was that there is a great First Amendment force here that's being silenced, that's being thwarted.
There are two main Constitutional arguments against copyright extension: that it (1) does not promote progress, and (2) is not effectively time-limited. Before the DC Circuit, Lessig refused to argue (1), and persuaded no one. Lucky for him, one judge got argument (1) from the Eagle Forum amicus brief and made a forceful enough argument to get the Supreme Court's attention. It amazes me that Lessig would make the same mistake again.
Copyrights and patents only promote progress to the extent that they provide incentives to authors and inventors. No one ever creates a work with the purpose of getting royalties 50 years after death. The only people who want the long copyrights are companies like Disney who have bought up the rights to long dead authors like Milne (who wrote the Winnie The Pooh books).
Also, Andy should note that Justice O'Connor mentions the Rule against perpetuities.
Roger's excellent blog has a link to the full transcript for the oral argument in Eldred v. Ashcroft (the Mickey Mouse case): http://www.aaronsw.com/2002/eldredTranscript
Roger describes Lessig's dreadful admissions as "mistakes". But they aren't mistakes at all. His approach is one of public ownership. He probably supports the vast federal ownership of land out West, for example. Roger is pretending that Lessig's objection to the Sonny Bono law is the same as ours. It isn't.
Kennedy is the leading free speech Justice on the Court. He was biting on the First Amendment argument, which we made more forcefully than Lessig did.
JUSTICE KENNEDY: I thought that [the First Amendment is] the whole underpinning of your case.
MR. LESSIG: It's certainly the case that we are asserting, in light of the changed circumstances, that the opportunity to build upon works within the public domain is a fundamental First Amendment interest, and that the First Amendment values, the vital speech interest at stake of this case, is that the public domain be permitted as a source for cultivating work about our culture without unnecessary legal restriction.
Did you get that conclusion? "that the public domain be permitted as a source for cultivating work about our culture"??? That's more an assault on private property than anything else. It is not limited to speech. Environmental groups would love this stuff.
It gets worse when Stevens asked a question:
JUSTICE STEVENS: Can I ask you about one of the limits, just focusing on the Copyright Clause and the progress of science and useful arts? In your view, does that -- is that limited to encouraging creativity by authors and inventors, or does it also include the distribution of materials that might not otherwise be distributed, like old films and so forth?
MR. LESSIG: We're happy to adopt a broader interpretation of what promote the progress is about, within the general framework that the Framers established in light of the English practice, which was a quid pro quo. The ability to facilitate distribution ...
Lessig's admission, of course, destroys his entire case. Congress can justify its extension by promoting distribution of old works. Justice Breyer, stunned, gives Lessig a second chance:
JUSTICE BREYER: So your answer to Justice Stevens is no, they cannot give a copyright purely for purposes of dissemination to publishers, is that right?
MR. LESSIG: No.
??? Did Lessig change his answer? Doesn't look like it from the transcript.
I went back and looked at Lessig's briefs. He clearly argued that Congress can extend copyrights on existing works if the "retroactive extension [is] in exchange for nothing new" like "restoring old works, or disseminating old works, or for any other progress-promoting activity" -- like his first answer (to Stevens) above.
Our brief invoked the Feist decision to demonstrate that a promise of restoration cannot justify a copyright extension. "Preserving old works utterly fails to satisfy the constitutional requirements of "originality" or promotion of progress. Preservation is no more original than the compilation found unworthy of copyright protection in Feist. 499 U.S. at 364 (holding that "copyright rewards originality, not effort"). Preservation fails to promote progress within the meaning of the Copyright Clause, regardless of its value as "sweat of!
the brow." Id. at 354 ("Without a doubt, the 'sweat of the brow' doctrine flouted basic copyright principles.")." Point I.C.
But are we stuck with Lessig's admission?
Lessig's final point in summary is this:The delicate balance is that, under the most reasonable assumptions of copyright royalty income and under our interest rate of 7 percent, as the amicus economists note at page 6, note 6 of their brief, the current term gives authors 99.8 percent of the value of a perpetual term. Now, that might be a delicate balance, that they give the author 99.8 percent and the public .2 percent, but in my mind, that's delicate in a very different sense of that term.
In other words, curtail private property by balancing it against public needs, the commons that Lessig keeps talking about. No wonder the consensus is that Rehnquist is going to hold against Lessig.
One thing I've learned in my limited legal experience is that even big-shot lawyers who get paid the big bucks for doing court appearances often look bad in the transcripts. Sometimes I think I know what points they are making in court when I hear the arguments orally, but then when I see the transcripts, I am baffled. Part of the problem with the above Lessig exchange may be that he was interrupted before he could finish his point, and he sounded like he was making the opposite point. But really good arguers always stay firmly on their side of the issue, no matter how they might get interrupted.
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. His view is fundamentally mistaken.