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Features: Law School in a Nutshell, Part II
Posted by James Grimmelmann on Thursday, October 03 @ 16:34:15 EDT Copyright
Welcome back to Part II of Law School in a Nutshell, LawMeme's hacker-oriented introduction to reading legal documents and understanding the strange way in which lawyers look at the world. (You can go read Part I if you missed it at the time.)

In today's installment, we're going to look at the "Statement of the Case," the factual foundation on which the Eldred brief's legal case will rest. We'll learn some more about the American legal system, what the word "fact" means to a lawyer, and look at some of the clever strategery hiding under some of Larry Lessig's polished words. (continues inside . . .)

Facts, Meet Law. Law, Meet Facts.

If there's a big theme to this part of the brief, it's the distinction between "facts" and "law." Law is the stuff only lawyers are allowed to talk about; facts are everything else. In your standard courtroom, these roles are very carefully divvied up. The judges and lawyers will go at each other hammer and tongs arguing about "legal" questions, but only witnesses are allowed to give factual testimony, and once a jury has ruled on a factual issue, that decision is basically final. You can appeal legal mistakes by a judge, but you can't appeal facts.

Of course, in practice, "fact" and "law" bleed into each other in the same way that "hardware" and "software" do. Try to keep this thought in the back of your mind as you see what sorts of laws and arguments some very smart lawyers can sneak into their summary of the "facts."

The Supreme Court asks for a summary of the facts up front. From the Court's perspective, if it's not in here (or in the facts presented by the other side), it didn't happen. This rule may seem dumb -- "You mean the judges of the Supreme Court of the United States are so ignorant they wouldn't know what the Constitution says unless you told them?" -- but it makes a certain kind of sense. Confining the arguments to the facts "pleaded" (another Legal keyword, this one meaning, roughly, "mentioned" or "alleged") by the two sides keeps the legal side of the process from getting completely out of hand.

For one thing, there's a lot less temptation to "not mention" some key fact in the early stages of a trial so you can whip it out later and whap the other side with it while they have their backs turned. Yeah, I know that's what the good defense attorney always does in the movies after he and his sidekick have just survived being nearly shot on their way back from interviewing the pig farmer who happened to witness the crime but didn't come forward at the time, but that's just the movies. Real courts have plenty of rules to make sure that each side knows what facts and arguments the other is going to advance. Surprises make for good drama, but not for very good law. Besides, remember that Eldred v. Ashcroft is an appellate case, not a trial; the Supreme Court is hearing it so they can settle a disputed legal issue, not figure out whether Clint Eastwood fired six shots or only five.

Digression: in the American system, we also rely on the opposing parties in a lawsuit to do the fact-finding because we think they'll do a good job of it. After all, they have a strong incentive not to let some fact that helps their case be forgotten. European countries tend to let the court run the show, looking into the facts, calling and questioning witnesses, and making the two opposing sides jump through its hoops. Judge Judy is actually much more like a French judge than an American one. Funny, huh? The debate between American-style "adversarial" justice and European-style "inquisitorial" justice is one of the legal world's great holy wars. If legal scholarship weren't so deathly dull, the flamewars would be great fun to watch.

Let's Do the Limited Times Warp Again

Okay. Enough theory. Back to work. This is a song about a whale, and this is also a case "about the limits on Congress's Copyright Clause power . . ." Do these words look at all familiar? We've seen something like this the Questions Presented, in the Table of Contents, and in the Constitutional and Statutory Provisions Involved section. And guess what? We'll be seeing them again . . . and again . . . and again. Legal briefs are actually designed to be skimmed. They repeat themselves so you can pick up the main points easily, and they repeat themselves so you can jump in almost anywhere and quickly orient yourself.

Digression: if that's the case, you may be asking, why are legal documents so notoriously hard to read? The sad answer is that the kinds of legal documents you're familiar with -- contracts, software licenses, cease-and-desist letters -- aren't really designed to be read. They're written to leave behind a written record, and to scare you. Documents lawyers write for their "friends" (i.e., their clients, lawyers on their side, judges, etc.) are very different from documents lawyers write for their "enemies" (lawyers on the other side and the public at large).

Gosh, golly gee, it's our friend the Copyright Clause. The whole clause -- which we saw on the previous page -- isn't much longer than the summary given here. But slicing and dicing it this way brings out the words that Lessig and friends want to hammer home. Copyright has a purpose -- to "promote the Progress of Science" -- and also a limitation -- "limited Times." Artful quotation is one of the fundamental techniques ("tricks" sounds so cynical) used by lawyers to advance their points. Even in a seemingly dispassionate summary of "facts," good lawyers will find a way to present those facts in a light favorable to their clients.

The next sentence, after a repetition of "limited Times" to make sure that everyone is clear on the concept, presents once again the central central central point of Eldred: that repeated retroactive extensions of copyright are, for all practical purposes, as good as a single infinite extension, even if each extension is "limited." Good legal writing tends to be heavily front-loaded: the big conclusions appear almost immediately. There's not much room for suspense in a brief; judges don't like to be kept waiting. (Judges have more flexibility in writing their opinions. If reporters and lawyers don't like flipping through your opinion to find out what the result is, they just have to suck it up. You're the judge, after all.)

Now, get ready to meet your first legal footnote. It's a real monster, ain't it? Well, that's deliberate here. The ugly first half of footnote one is just a huge citation string, listing the eleven separate copyright extensions mentioned in the text. Any resemblance to having a ton of bricks dropped on you is not at all coincidental; Lessig is emphasizing Congress's ugly mania for copyright extension by making the citation itself big and ugly.

From here on in for a while, we get a summary of Sonny Bono and its effects on existing copyrights. This part is actually pretty dispassionate; the summary of the same facts in the government's brief is not all that dissimilar. They tend to use "amend" rather than "extend," (making the extensions seem more like patches and less like new versions), and Lessig goes out of his way to point out how long the terms can become, but the differences are not especially huge.

Widows, Orphans, and the Public Domain

Now that we've got the (facts about the) law out of the way, it's time to get to the fricking facts themselves. The next few pages bring on a parade of the most sympathetic characters the good guys could find. We meet Dover Publishers, who sell nice books cheap, thanks to the public domain. We meet Luck's Music Library and Edwin F. Kalmus & Co., who sell sheet music to schools, thanks to the public domain. We meet film preservationists racing against time to restore old films, and on and on. There's no dishonesty taking place here, not even any serious shading of the facts. The good guys just made sure to have some awfully sympathetic plaintiffs. That's often how test cases work. Have you ever noticed that the students who challenge school prayer and mandatory drug tests are always honor students who'd never even be accused of so much as speaking without raising their hand first? Same deal.

Quasi-digression: you may, by now, have noticed the word "Id." kicking around. That's not some obscure reference to the Supreme Court's sense of self; it's short for "idem," which is more Latin for "the same thing." Instead of writing out citations in full every time, lawyers get to use "Id." if they're quoting from the same thing they quoted from last time.

After the opening acts have gotten the crowd good and warmed up, Eric Eldred himself comes out and starts singing his twelve-bar Public Domain Blues. The brief has saved the best for last, because the Internet twist that Eldred puts on the public domain underlines and puts exclamation points and stars all around the idea that cutting off public domain access is a Terrible, Horrible, No Good, Very Bad Thing. The Internet is opening up previously unthinkable new possibilities, and how awful is it that we're letting something silly like copyright get in the way?

The brief itself doesn't have time to develop this line of argument in much detail, so the argument gets kicked over the amici. Yep, more Latin. "Amicus" means "friend," so "amici" means "friends." Now, it's true that Brewster Kahle, the Internet Archive dude, is a friend of the good guys here. But the full term is actually "friend of the court" (amicus curiae in the original), which is how you refer to anyone who filed a brief without actually being part of the lawsuit. The mental image is that Brewster just happens to be a bowling buddy of Justice Kennedy's, and when he found out about this neato case coming before the court, he just ran home to his typewriter and banged out a brief for his buddy's benefit. The amicus briefs are a bit about showing that you have powerful -- or very sympathetic -- friends, and also a bit about getting around that page limit by letting your friends try out some of the secondary lines of argument you'd advance if you had more space. (Eldred's page has a collection of amicus briefs in the case.)

Turning back to the main brief, there's a dense, but very important paragraph at the bottom of page 6. Having introduced our lovable gang of misfit neighborhood kids and Old Boss Cranch, who runs the town chemical plant, the brief needs to show a connection -- you know, that Timmy's dog's hair fell out after it drank from the pond near the plant, or that Old Boss Cranch is going to knock down their treehouse to put in a loading dock. Otherwise, the court will just say "so what?" and throw the case out. It's a general principle that courts, being lazy (but lazy in a good way), only bother with laws that matter. If they don't have to deal with the constitutionality of a law in order to settle the case before them, they generally won't. Now, since Eldred has been a test case from the start, it's not much of a stretch to allege that Eldred has been harmed by Sonny Bono, but the Supreme Court tends to get upset if you don't at least go through the motions.

The argument here is simple: we were all counting on these works coming into the public domain, and when Congress extended copyright, it took the future of those works away from us and returned it to the current copyright holders. Eldred and company -- along with the entire rest of the public -- "lost" the ability to use these works for the years between 1998 and 2019 (the next paragraph gets into the value of that loss). "Vested a remainderman interest" is a phrase from the world of property law whose etymology is soooo not worth getting into here. Hey. I can't just give away everything you learn in law school, now, can I?

If at First You Don't Succeed . . .

So, first, Timmy tried telling his mom about Old Boss Cranch, but she was busy, so Timmy went and told the mayor, only the mayor didn't listen because Old Boss Cranch paid him off, so then . . .

In telling the story up to this point, our heroes have the unpleasant task of explaining why it is that they lost in both lower courts -- but first, they have to walk through some procedural preliminaries. Here's the deal. I'm going to explain the legal terminology in the first two paragraphs of section 4. But I recognize that procedural trivia aren't exactly the most exciting thing about the legal life. Have you ever noticed that TV shows and movies about lawyers are always about trial lawyers and never about the schmoes back in the office writing the briefs? There's a reason. So I'm going to put some text in H1 down below. If you don't care about the vocabulary lesson, just scroll on down, okay?

Facial challenge: a lawsuit saying that a law isn't just constitutional, but always unconstitutional. The unconstitutionality isn't hiding someplace deep inside the law's subtle consequences; you can see the unconstitutionality on the law's "face."

Standing: what I was saying above about Eldred & Co. having been hurt by the change in the ground rules of the public domain. You have to have "standing" to bring a lawsuit, which means that you need to have a reason for the suit, in the sense of something you deserve but haven't gotten that the court can give you. If Congress passed a law banning criticism of the President by wooly mammoths, well, the courts may not think much of the law, but they're also not going to bother listening to suits about it unless someone can show it caused them harm. Courts, being lazy (but lazy in a good way), only bother with cases that matter.

Judgment on the pleadings: also known as "summary judgment," this fun-filled motion asks a court not to bother with an actual trial. The idea is that a court will grant you this motion if there is nothing your opponent could possibly show that would win the case. Say I hit you and you sue me, and I come to the court and say, sure, I hit you, and it wasn't self-defense or anything lame like that, but I'll bring in a hundred witnesses to testify what a great guy I am and then once the court sees what a great guy I am, they'll let me go, right? The court will say not to bother. A motion for judgment on the pleadings says to the court, in effect, "I win on the law here, even if the other guy wins on all the facts in dispute." Harsh, huh? Yeah, perhaps, but, say it with me now, courts, being lazy (but lazy in a good way), only bother with trials that matter.

In the Eldred case, there really weren't any disputed issues of fact. No one was going around saying that maybe Eldred was a space alien or maybe a temporal anomaly would open up in connecting 1882 and 2034 and pulling old sheet music out of the public domain in the 21st century. The only issue at stake was the constitutionality of Sonny Bono, which was a purely legal question. The District Court thought about the matter and made a ruling. From which ruling Eldred appealed . . . and lost again.

And now, back to the show!

The summary of the Court of Appeals' ruling is a delicate matter. In about four pages, this brief is going to do its best to shred that ruling, but for the moment, outright disdain isn't an option. So, ask yourself, thinking of yourself as a clever L.A. Law-style attorney, what spin you'd want to put on the Court of Appeals' opinion in summarizing it.

Well, keeping in mind that the goal of the Eldred brief is to convince the Supreme Court to overrule the Court of Appeals, the more outrageous Larry can make the Court of Appeals' opinion look, the better his chances. Thus, these two paragraphs are studded with the most forceful, most extreme claims to be found in that opinion. "[C]ategorically immune from challenges under the First Amendment" is an awfully strong statement. That the Court of Appeals was willing to go that far was bad news at the time, but it also supplies useful ammunition in trying to persuade the Supreme Court that the Court of Appeals went too far. Lemons to lemonade. Lawyers play these games all the time.

When we get to page 9, there's finally some good news. Judge Sentelle didn't just grok Eldred's argument, he grokked it in a particularly surprising way. Sentelle's dissent rests on the Supreme Court's holdings in the Lopez and Morrison cases. Both of these cases involved Congressional legislation struck down by the Supreme Court because it felt that Congress had overreached its power. Although the Supreme Court in those cases was describing limits on Congress's power under the Commerce Clause (which gives Congress power to make laws concerning "interstate commerce"), Sentelle decided that the analytic framework articulated in those two cases would apply equally well to an analysis of Congress' power under the Copyright Clause. And he did this all on his lonesome, apparently, since Eldred's legal team didn't raise this line of analysis in their earlier briefs.

Now, personally, I think this analysis was a political windfall for Larry and Eric. Lopez and Morrison are two of Chief Justice Rehnquist's dearest babies, centerpieces of his crusade to trample Congress into the dust and demonstrate the Supreme Court's power to make lawmakers quiver in fear. Eldred will presumably resonate with the liberal wing of the Court, but in order to win, our guys need to pick up at least one vote from the Reagan-Bush appointees (two, if you count Souter, who acts as though he were a Clinton appointee). In other words, Larry needs to persuade one of the five Justices who were in the majority in Lopez and Morrison. Pretty slick, huh? It's nice when you can get precedents of every ideological persuasion to come out your way.

The Statement of the Case wraps up with a quick rehash of the various motions filed and denied after the Court of Appeals issued its opinion. Again, this is one of those paragraphs that's just there for the sake of completeness. Trust me: it's not any more interesting than it looks. We went through this stuff last time and it hasn't changed since then. Next time, on the other hand, is going to be fun, because we're going to start looking at the argument itself, including its quad-damage reading of the Copyright Clause.

To be continued . . .

 
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"User's Login" | Login/Create an Account | 12 comments
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Re: Law School in a Nutshell, Part II (Score: 1)
by Helsinki on Friday, October 04 @ 05:28:08 EDT
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could we in the future have this the other way around by some "tech-geek" who found this information by a "legal-geek" useful?

As an non-US lawyer must say that this is useful intro to your system for other than techies, too. Thus: Thank You.


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 04 @ 17:32:06 EDT
Thank you for this series, it's fascinating.


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Saturday, October 05 @ 01:37:14 EDT
1. fascinating. yes.
2. its weird. i dont get some of the geek things (not being a programmer by trade(able of contents??)) but i am enjoying it nonetheless.
3. i want part III! ;p


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Saturday, October 05 @ 09:43:09 EDT
Thank you for this brilliant series - it exposes much more than I would have understood myself - especially about the working of the US system.


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Saturday, October 05 @ 13:29:54 EDT
Thank you for posting this series. I eagerly await Part III. <humble>Could you put additional material from this case through your legal2tech filter?</humble>


[ Reply to This ]

Same thing for European system? (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, October 06 @ 06:49:20 EDT
Is there a similar article somewhere for the European legal system?


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, October 07 @ 10:10:21 EDT
Awesome series -- I'm looking forward to part III.

More page number references would be useful to make sure that we know exactly which paragraphs are referred to. I got lost a couple of times in reading along...


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, October 08 @ 03:50:02 EDT
Great article, I've always found this stuff to be way too confusing. This series is helping to clear that up for me (a little....)

Would it be possible to request that subsequent articles be published using the default font size? For those of us who take the trouble (not much trouble at all, actually) to configure our browsers so that the default font size is comfortable and useful, it's annoying to have to strain to read the small font that you're using for this article.

If the default font size is too big for your combination of screen/browser/eyes your screen, then perhaps you should adjust your browser. :)


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Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 07:53:57 EDT
Great article. As both a lawyer and a techie, it resonated well.


[ Reply to This ]

Re: Law School in a Nutshell, Part II (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 10 @ 17:07:59 EDT
Excellent! Now I begin to understand. Thanks for your trouble in writing and posting this, and I also eagerly await part III.

Bob Gullett


[ Reply to This ]


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