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More from Lessig on the Eldred Argument |
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Prof. Larry Lessig reflects on the many emails he received after arguing Eldred v. Ashcroft (answering (e) mail). He discusses two legal points in some depth: whether the 1790 Copyright Act is invalid under Eldred's argument and the status of the First Amendment claims. Well worth reading to understand the strategy of the case. For example, considering that the justices did not seem totally comfortable with the First Amendment claims, it is important to note that:
If we prevail on the copyright clause claim, then there is no need for them to reach the First Amendment claim. If we don't prevail on the copyright claim, then they must reach the First Amendment. But when they get to that step in their thinking, it will be extremely hard for them to avoid applying ordinary First Amendment analysis to this statute.
If the justices are uncomfortable discussing the First Amendment issues, they have an easy out - reversing on the copyright clause claim. See also, (Lessig on the Eldred Oral Argument).
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Re: More from Lessig on the Eldred Argument (Score: 0) by Anonymous on Monday, October 21 @ 18:33:52 EDT | How can anyone argue that 1790 was a retroactive extension of Federal Copyright law? There WAS NO Federal Copyright law to extend before 1790. 1790 was an INITIAL grant of Federal copyright. It provides no precedential value at all with regard to changing the term after the intial setting of that term.
With regard to 1976, the law changed from a mix of state and federal protection that covered (creation_date to publication_date + 56 years) to one that covered (creation_date to death_date + 50 years). To compare which is longer, we subtract, which shows that the net change to the copyright protection is
death_date - (publication_date + 6 years)
If you died six years after publication or before, then your work actually had it's term shortened. To calculate whether "on average" this schema change results in longer or shorter total protection is impossible since we can never know the future publication date of all unpublished works. It also has the highly Constitutionally desireable effect of discouraging long periods of holding unpublished works. This easily defeats any facial challenge to the 1976 law. An "as applied" argument probably would fail if the judge can say "this particular work's copyright expires in 2034, and is therefore not for an unlimited time."
The key property that makes the CTEA cross the line is that "add 20 years to all works" can be **repeated periodically** to accomplish through a sequence of legislative acts what Congress could not do through a single act: provide perpetual protection for all works. Neither 1790 nor 1976 have that property.
I am deeply disturbed that these issues, which were not properly before the court anyway (and in the case of 1790 are long since moot), were even important to them. If it did turn out that the 1998 law ase was the one that caused the frog to jump out of the nearly boiling water, then so be it. I am not aware of any principle of law that says an Unconstiutional law will stand when challenged if other previous laws have the same flaw. Whether other laws actually DO have the same flaw should be a question for another day. |
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