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Features: Law School in a Nutshell, Part III
Posted by James Grimmelmann on Friday, October 11 @ 00:13:38 EDT Copyright
Welcome back to LawMeme's ongoing series on the basics of legalese and the American legal system; we'll continue our reading of the Eldred brief. (LawMeme apologizes for the the delay in getting to part III; what with the oral arguments in the case, things have been a bit hectic in the LawMeme Secret Hideout. Read Part I and Part II here.) Today's installment includes such fun topics as an introduction to constitutional interpretation, some First Amendment law, and a good lawyer joke. (continues inside . . . )

The Story So Far

Let's review. Legal writing is highly redundant and highly front-loaded. By my count, we've seen four summaries of the brief's legal argument so far (in the Questions Presented, the Table of Contents, and twice in the Statement of the Case). True to form, the argument itself starts off with a summary.

But, trust me here, this summary is the best one. It's not trying to do anything besides make the structure of the argument crystal-clear. Everything that has come before in the brief was hamstrung by its structure. You don't go to the table of contents to get an overview of the argument; you go to the table of contents to figure out what page something is on. Sure, a smart lawyer will do what he can to make his case subliminally wherever he can, but the Summary of Argument is the part where the judge sits down with a wolfish grin and says, "Okay, Larry -- and I can call you Larry, right -- tell me what this case is really about, and don't pull any punches."

In other words, the next time you have to read a brief, this is the part you should flip to. The summary sits in the sweet spot along the rigor/readability curve.

Batting First, the One and Only John Marshall!

The opening quote is a zinger. Marbury v. Madison was the first major case decided by the Supreme Court and also one of the greatest verbal slap-downs ever handed down by the Court. Chief Justice John Marshall kicked off a twenty-year power trip by declaring that the President and his Secretary of State were rat-bastards (and we're talking Thomas Jefferson and James Madison, here), that those nincompoops in Congress had overreached themselves and passed an unconstitutional law, and that from now on, the Supreme Court was everybody else's daddy.

Marbury placed beyond doubt the rule that the Supreme Court could just come along and -whoosh- wipe out a law they didn't like. Since then, Marshall's no-look slam-dunk showoff opinion in Marbury has been a favorite source of quotes for lawyers who'd like the Supreme Court to put Congress back in its place.

But the celebrity parade isn't over yet. At the top of page 10, some dude named Joseph Story comes on to explain what the authors of the Constitution ("Framers" is the usual term among lawyers and historians) thought about Copyright. Joe Story is another member of the Supreme Court All-Star Team; he served on the Court for 34 years and was perhaps the most respected legal scholar of the first half of the 19th century. His book on the Constitution -- the one the brief is quoting from -- was a towering achievement; he lived close enough in time to the Constitution itself that he has some street cred when it comes to figuring out what its authors meant.

How to be a Constitutional Lawyer in One Easy Lesson

Now, there are as many theories of constitutional interpretation as there are constitutional lawyers. And while I don't want to get bogged down in these arguments -- believe you me, in law school, you see more than enough of them -- it is worthwhile pointing out a few different sorts of constitutional arguments, so you can be alert to them as they appear. What we've just seen here is an argument based in the original intent of the Constitution: what matters is what was in the minds of its authors. And if they didn't want retroactive copyright extensions, well then, that ought to settle things.

But if you don't believe in original intent, well, the next paragraph makes the same point again on a textual theory of the Constitution: what matters is what it says. Every word, every phrase, every comma and semicolon is significant. (Textualists tend to be the sorts of people who'd be writing compilers if they'd gotten into programming instead of lawyering. It's the same mindset.) And if the Constitution says "limited times," well then, that ought to settle things.

If that's not good enough, the next paragraph riffs on two more theories. First, there's a structural argument: the great achievement of the Constitution was our finely-tuned system of checks and balances. From that point of view, anything which threatens to "evade [a] constitutional restraint" is no good, including repeated retroactive copyright extensions. Second, there's a policy argument: anything that provably serves no useful public purpose is no good. Retroactive copyright extensions? Well, they're not "grants that require anything in return," which means the public is the big loser in the copyright game.

If you've been keeping count, that's four kinds of constitutional argument in three paragraphs. Now, the great thing is, you can use these theories in your regular life. Say you're hacking on a reasonably mature piece of code. You've probably been told, in one form or another, that you should respect its original design decisions, follow existing code-formatting conventions, divide up functionality into reasonably-sized modules, and use appropriately efficient algorithms. But these are just our four constitutional theories rephrased in programming terms.

Lawyers aren't completely stupid.

How to be a Shark in One Easy Lesson

There's a lawyer joke you hear pretty early on in law school. It goes:

What did the lawyer say when accused of breaking a vase?

  1. It's my vase . . .
  2. . . . it was broken when you gave it to me . . .
  3. . . . it was in perfect shape when I gave it back . . .
  4. . . . and I've never seen that vase before in my life.

This is called "arguing in the alternative." Lawyers do it all the time. For some reason it seems to drive non-lawyers absolutely nuts. The way it works is that you provide a whole bunch of reasons for something, so that even if you lose on N-1 of them, you still win on the last one. The twist is that you act completely innocent whenever anyone complains that your reasons contradict each other. You just look at them and smile, as though you have utterly no idea what they're talking about. All you have to do is pretend that you're living in a Douglas Adams novel and it's surprisingly easy.

Now, the Eldred brief doesn't actually contradict itself anywhere. But it does argue in the alternative, in the sense that it gives a lot of independent legal reasons for the same conclusion. (So, for that matter, does the government. Like I said, lawyers do this all the time.) You don't know up front which argument the Court will like most; even highly experienced lawyers are surprised all the time. So you give them lots of choices and you make sure that the failure of one will leave the others standing.

The next two paragraphs (the last one on page 10 and the first one on page 11) offer, by my count, six different legal arguments for the unconstitutionality of CTEA. It's not hard to walk through them, as long as you understand that these are distinct arguments.

Digression: a lot of people seem to have been confused by this feature at oral arguments, including several Supreme Court Justices. Apparently, they've never seen anyone argue a First Amendment claim in the alternative with a non-First Amendment claim. Usually, anyone who has a First Amendment argument figures that it's such a winner, comparatively speaking, that there's no point in trying anything else. The Eldred brief is probably fairly unique in having a second argument that's stronger than its First Amendment argument.

The Eldred Six-Pack

The brief starts by telling us that retroactive extensions violate both the "limited Times" requirement and something called "originality." (We'll see more about "limited Times" in the rest of this paragraph.)

(Originality) So what's "originality?" That's the requirement that copyrights be given only for "original" creative works. Of course, the word "original" doesn't appear in the Copyright Clause; the Supreme Court itself worked out this particular rule in a case called Feist. There's a fuller explanation of the rule at page 32 of the brief, and I personally think the argument Lessig builds around it is the cleverest piece of reasoning in the whole brief. But we'll save that treat for later. For now, he's just mentioning it here to remind the Supreme Court that even if they don't buy his reasoning on "limited Times," they could still strike down CTEA on Copyright Clause grounds.

Turning back to "limited Times," the next sentence -- once you figure out where the semicolons are -- provides three different ways that those two words conflict with Sonny Bono.

(Limited Times) This is the argument you know best. If Congress keeps on adding 20 years here and 20 years there, those works just ain't ever going to fall into the public domain. And that's not hardly "limited," nosireee, not at all.

(The Progress of Science) If "Progress of Science" is rubbing up against those copyright grants, it must be for a good reason, right? The Eldred team is arguing that this reason must be to put a condition on copyright grants. No progress of science, no biscuit. (What kind of argument is this, class? That's right, it's a textual argument.)

(Quid Pro Quo) It's a standard rule of contracts that unless both sides get something, it's not a contract at all and the legal system won't do a damn thing to enforce it. Presumably, something similar applies to copyright. Unless the public gets something back in exchange for giving exclusive copyrights, goes the argument, those copyrights aren't constitutional.

Typically, that "something" is the author's cooperation in writing something worth copyrighting in the first place. But with a retroactive grant there's no "something," since we already tricked the author into being creative. If we want more blood from that particular stone, it can only come by getting the author to write new works, not by extending the copyright on old ones. When that particular stone happens also to be dead, this argument is particularly compelling

Now, you may be complaining that the "quid pro quo" argument looks an awful lot like the "Progress of Science" argument. And they are pretty similar. But quid pro quo is more of a policy argument than a textual one. It depends on there being a general "fair trade" idea in the Copyright Clause, rather than on a particular prohibition (against copyrights and patents that don't promote the "Progress of Science"). Depending on your judicial philosophy, you might buy either, both, or neither of these arguments.

So Much for Copyright; Now for Free Speech

Over on page 11, the brief names two more arguments, but in doing so, it descends into the jargon-filled thicket that is First Amendment law. The key phrase here is "intermediate scrutiny." When the government passes a law that somehow restricts your ability to say or write what you want, the courts have to ask themselves whether they ought to be worried (well, actually, what tends to happen is that the ACLU comes along, screaming at the top of its lungs that the courts should be worried sick and unable to sleep at night, but you get the picture). If that law doesn't single out any kind of speech for special treatment ("content-neutral" is the formal term), the way the court figures out whether it ought to be worried is to apply something called "intermediate scrutiny." Under intermediate scrutiny, a law has to pass two tests in order to be constitutional.

Digression: some of you may be wondering what happens if the law does, say, single out a particular kind of speech (like, say, hate speech, or conversations about Windows 98). And I bet some of you are wondering what "intermediate" is intermediate between. Well, actually, what a coincidence, you guys should really make each others' acquaintance. There's also something called "strict scrutiny." The Supreme Court uses it when the law discriminates based on what you say, rather than how you say it; as the name implies, "strict scrutiny" is harder to pass than "intermediate scrutiny." For now, don't worry your pretty little head about strict scrutiny. If you're really curious, this article on filtering software in libraries is a decent intro.

(Important Governmental Interest) First, the law has to be written to further some "important governmental interest." This phrase means exactly what it sounds like. Congress has to have a reason for the law, and it can't be some totally lame reason like "Well, it was the President's birthday, and we wanted to get him something special, so we thought we'd go ban some speech." It can't even be something only halfway lame, like "Coal miners are important to our national economy, so we thought we'd ban some speech on their behalf." The interest has to be important.

When the brief gets to this issue in about another thirty pages, we'll see some economic discussion designed to show that none of the effects of a retroactive copyright extension could possibly be "important" in the right sense. A bunch of copyright owners are going to get some money effectively stolen from the rest of us, and that's about it. This will also be the part of the brief refuting other bad arguments for copyright; it makes for a nice ode to the public domain.

(Narrowly Tailored) Even if the law furthers an important interest, it still has to be "narrowly tailored" to that interest. It's okay for Congress to bar you from talking if you sit in the audience at a Congressional hearing on digital rights management. They have an interest in carrying on debate and discussion, and they can't very well do that if the room is filled with people chattering away on cell phones. But it's not okay for them to bar everyone in the District of Columbia from talking while the hearing is in session. That's not even a reasonably close fit to the interest they want to protect.

Remember that part in the Statement of the Case about the number of works whose copyrights are being needlessly extended, compared with the number of copyrights in active use? Those facts are setup for the argument that retroactive copyright extensions are overly broad, indeed, so overly broad as to make intermediate scrutiny fail.

But first, Lessig and Company have to show that intermediate scrutiny applies. This ought to be a pretty easy job. Copyright, after all, puts some pretty sharp restrictions on what you can say or right. Unfortunately, the Court of Appeals decided that copyrights can never raise free speech issues. So in order to be able to make either of the intermediate scrutiny points, the good guys need first to convince the Supreme Court that the Court of Appeals was wrong on this point. Got that? To win on the First Amendment issue, the good guys need to win on the "categorical immunity" claim AND win on EITHER the "important governmental interest" claim OR the "narrow tailoring" claim.

These things string together in a way that's surprisingly logical. It's just that lawyers don't use whiteboards. They never think to draw a diagram rather than slamming another clause on to the end of an already-overloaded sentence.

To be continued . . .

 
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"User's Login" | Login/Create an Account | 6 comments
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Re: Law School in a Nutshell, Part III (Score: 1)
by NBarnes on Friday, October 11 @ 05:48:39 EDT
(User Info | Send a Message)
Please, sir, may I have some more?


[ Reply to This ]

Re: Law School in a Nutshell, Part III (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 14:04:59 EDT
Very interesting - can hardly wait for the next part.


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Re: Law School in a Nutshell, Part III (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 14:36:18 EDT
Are you going to analyze the government's argument as well? That would be interesting to see.

Luke Francl
editor, infoAnarchy


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TYPO! muthafucka Re: Law School in a Nutshell, Part III (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Saturday, October 12 @ 01:13:15 EDT
"is ought to be a pretty easy job. Copyright, after all, puts some pretty sharp restrictions on what you can say or write. Unfortunately, the Court of Appeals decided that copyrights can never raise free"


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