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Was Eldred A Principled Decision?
Posted by Steven Wu on Thursday, January 16 @ 16:30:58 EST Copyright
No doubt everybody who has kept up with Eldred v. Ashcroft and the Supreme Court's recent decision has read Lawrence Lessig's latest posting on the subject, where he anguishes over the seeming lack of principle in the seven justices who supported the Copyright Term Extension Act.

It's worth noting, though, that some lawyers disagree--including Howard Bashman (from How Appealing) and Ernie the Attorney. Neither of them find the opinion particularly objectionable, and Bashman doesn't even find it particularly noteworthy as a matter of law.

I mention this only because much of the online discussion of Eldred has been full of "gloom and doom" (as Bashman puts it), and I hope this doesn't dissuade people--either here, or elsewhere--from coming out to defend Ginsburg's opinion with all the force and reason they can muster. I for one would be interested in seeing what kind of a defense such people could make.

 
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"User's Login" | Login/Create an Account | 7 comments | Search Discussion
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Retroactivity OK because... (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 16 @ 18:37:03 EST
I found one point interesting in the majority opinion and also one of those blogs. They say there doesn't need to be much discussion because retroactive copyright extensions had already been established and were not challenged. Does this mean a law can't be challenged if it is not brought before the court soon after it is enacted?

How Appealing also says the only restriction in the copyright clause is the "limited times". But what about the "for advancement of the arts and useful sciences"? Is that just flowery text or does it actually mean that copyrights, etc. have to promote the arts and sciences?

And what was with all the hand-wringing of the Justices about having to set and actual number of years beyond which the law would be Unconstitutional? Lessig never asked them to do that. They merely needed to decide if retroactive copyrights were compatible with "limited times" and "promotion of the arts and sciences".

And finally, doesn't this bascially mean Congress' power under the copyright clause is unchecked unless it horribly infringes on the First Ammendment? As Lessig asks, how is this compatible with the Court's stand on the commerce clause? There is no room for any judicial review! What a copyright extension of 20 years was passed every year for the next 10 years? That's still "limited"... so under this decision, there would be nothing the Court could do about it!

But I have to agree about the First Amendment portion of the challenge. It seemed a bit weak. After all, the copyright clause carves a nice chunk out of the First Ammendment by its very existance.

All-in-all, I don't think this decision makes a lot of sense. The majority didn't really include enough information for me to tell if it was a pricipled decision, especially on limitations on enumerated powers. I am leaning toward "no".


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Re: Was Eldred A Principled Decision? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 16 @ 18:42:13 EST
Bashman's argument is fairly simple:

The Constitution's copyright clause requires only that copyright's last for a limited time. Under the 1998 law, copyrights remain in existence for a "limited" time, even if that time is longer than ever before.

But consider the case of the girl who got three wishes from a genie. Being a clever girl, her third wish was always, "I wish for three wishes more". Did she have an unlimited number of wishes? Bashman, presumably, would say no. He could argue, as he did with Eldred, that while each extension increased the total number of wishes, that number was still limited, and therefore she wasn't violating the "Limited Wishes" rule.

By giving the girl an unlimited right to increase the number of wishes, the genie effectively gave her unlimited wishes. The Supreme Court, in affirming Congress's right to increase the lifetime of copyrights whenever it chooses, has in effect granted Congress the right to make copyrights unlimited. They don't need to ever pass a law saying "copyright protection is perpetual". They can just keep extending the period of protection to ensure that it will never expire.


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Re: Was Eldred A Principled Decision? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 17 @ 07:50:06 EST
Eldred v. Ashcroft is as principled a decision as was Korematsu v. United States, 323 U.S. 214 [caselaw.lp.findlaw.com](1944).


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Empirical Judgment (Score: 1)
by peerwise on Friday, January 17 @ 18:31:18 EST
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I don't understand the commotion. It essentially came down to an empirical judgment, and the Court made it.

The Court decided that the CTEA wasn't evidence that Congress was trying to weasel its way out of the "limited" clause through an endless series of extensions: "Nothing before this Court warrants construction of the CTEA's 20-year extension as a congressional attempt to evade or override the 'limited Times' constraint."

Regarding the question of whether retroactive extensions should be allowable at all, I think the Ginsburg opinion pretty handily addressed all of the issues.

The Court also decided that, all said and done, the contours of copyright, as Prof. Balkin puts it, had not changed significantly enough to warrant deeming this extension act unconstitutional on 1st amendment grounds. There's still enough fair use. The CTEA doesn't significantly alter the balance.

Maybe 2 copyright extension acts from now, the Court might draw the line otherwise. Nothing unprincipled so far as I can see right now, though.


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