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Cardozo's Prof. Hamilton on Eldred |
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Prof. Marci Hamilton, the Paul R. Verkuil chairwoman in Public Law at Benjamin N. Cardozo School of Law, has written her analysis of Eldred v. Ashcroft for Findlaw's Writ (Mickey Mouse vs. WIRED Magazine:
The Supreme Court Considers Whether A Law Extending The Copyright Term Is Constitutional). She believes the law is constitutional, but not once in her argument does she distinguish between prospective and retrospective extension of copyright. In fact, she mischaracterizes Larry Lessig's argument:
Those challenging the law, led by Stanford Law Professor Lawrence Lessig, would have the Court declare that Congress has exceeded its power: the term is too long.
I don't believe that Prof. Lessig argued that the length of the term was unconstitutional (although he would certainly agree it is too long). He argued that restrospective extension of terms for existing copyrighted materials was unconstitutional. This is a distinctly different argument. Prof. Hamilton cites the oral argument. How could she have missed this point?
Read the whole thing, it gets worse.
Her position on Eldred is not surprising. According to this CNN article, Prof. Hamilton is also a supporter of the DMCA (The DMCA, decryption, and building
fences in cyberspace).
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Re: Cardozo's Prof. Hamilton on Eldred (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 24 @ 08:58:29 EDT | Well, of course she would be a DMCA supporter. She uses an AOL address: a sure sign of someone who has probably never coded so much as a "Hello World" program. How could she be expected to grasp the implications of the DMCA on technological innovation?
:)
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Re: Cardozo's Prof. Hamilton on Eldred (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 24 @ 16:43:01 EDT | The Court (perhaps with the exception of Ginsburg) clearly understood the difference between the retroactive and propsective aspects of the law and the analysis required to make a decision. Even Ginsburg was *trying* to distinguish the two concepts and her questions were of the form -- where does your argument break down if we shift from existing to future copyrights? Any analysis that doesn't first distinguish the two types of extension is fundamentally unable to have the insight needed to say anything useful or predictive about what the Supreme Court will do here.
It amazes me how otherwise credible people can mouth off with no real comprehension of the issue. This seems to be a very common phenomonon in tech law issues -- and it really ticks me off. |
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I posted this at FindLaw's Writ (Score: 1) by bryan_taylor on Thursday, October 24 @ 18:26:57 EDT (User Info | Send a Message) | Marci Hamilton Misses the Point on Eldred
Marci Hamilton completely misses the point of Eldred's argument, and states the core issue incorrectly. One wonders if she has read the transcript, because it was clear that the Justices were making the critical distinction between existing and future terms which she is not.
She phrases the core question as "who should decide whether copyright duration is too long--the Court or Congress." Sorry, but that is not the core issue. That issue was not before the Court, nor was it part of any argument that Eldred made. Eldred clearly stated that "life+70" for future works is free of Constitutional problems.
Hamilton continues with the wrong question: "As long as the term is for a certain number of years, and not eternity, has Congress complied with the clause?" The core issue is whether a **retroactive** extension of copyright is consistent with Congressional powers. It is not. Indeed by the very standard Marci Hamilton gives, retroactive extension does not create a term of protection that is "certain", nor one that can be confirmed as "not eternity". If Congress has the power to add 20 years to the term of existing works, then they have the power to do this every 20 years, which is the "functional equivalent" of the power to grant an infinite term, as Justice Scalia's put it to Olsen.
Eldred has always conceded that it is acceptable from a Constitutional point of view for Congress to add 20 years to works created after the statute takes affect (although it seems everybody but those paid to think otherwise agrees it's bad policy). Once a term is specified, Congress cannot pass a law that uniformly extends it in a manner that can be repeated to produce infinite terms. This is an immediate corollary of the principle that Congress may not through a series of Acts produce what it cannot Constitutionally do in a single Act. |
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Re: Cardozo's Prof. Hamilton on Eldred (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 24 @ 21:20:41 EDT | The Court sets down hard numbers all the time!
Whether past decisions are right or wrong are always up for debate, but I have no doubt that, if they felt it necessary, the Court could say that life + 70 / 95 years is NOT a limited time, and that limited times must be no more than the average lifespan (say 76 years).
Funny, the Court can designate an actual IQ number below which the punishment of execution is "cruel and unusual."
The Court can use trimesters re: the right to abortion.
The Court can set a requirement that state legislatures always use proportional representation desite the existence of a constitutional fedearl senate. That's a numerical requirement pulled out of thin air.
There are other examples but I'm too tired to think of them right now.
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