September 09, 2002
A Platonic Dialogue on Eldred v. Ashcroft

A Platonic Dialogue on Eldred v. Ashcroft

Ignoramus Inquisitivus: I have a question. Why did the Supreme Court grant cert. [that is, agree to hear and decide] in Eldred v. Ashcroft [the case arguing that the most recent copyright extension act was unconstitutional because Article 1, Section 8, Clause 8 of the Constitution gives Congress the power to grant copyrights only for limited times, and only to promote the useful arts--and since the extension act was not intended to promote the useful arts Congress did not have the power to lawfully enact it]? One natural way to decide would be to say, "The Commerce Clause gives ample power for Congress to do whatever it wants as far as economic regulation is concerned. I§8¶8 covers patents and copyrights and should be read in a way consistent with the overall Commerce Clause to give the Congress effective plenary power..." A second way would be to say, "Congress has granted patents and copyrights for limited times, 100 years is a 'limited' time, 1000 years would be a 'limited' time, so what is the problem?"

Realisticus: But this is not a Supreme Court that accepts cases simply to affirm the Appeals Court decision, and strengthen the legal principle that the Commerce Clause is Godzilla. It is not a Supreme Court that accepts cases simply to affirm relatively boring Appeals Court decisions. Some justices accepted it because they wanted to say something...

Ignoramus Inquisitivus: Could the Supremes be seriously planning to give Larry Lessig and company [the lawyers arguing for the Eldred side of the case, arguing that the copyright extension is unconstitutional] a victory? Declare the copyright extension unconstitutional, and thus serve notice that they have fired up their chainsaws and are beginning to use them on all federal government power to regulate the economy? That power--exercised mostly through the Commerce Clause--has grown very large...

Sapientia: It's possible, but very unlikely. This isn't a "Texas Chainsaw Massacre" type of Supreme Court. These guys take small steps. This would be a big step. Congress might react. They don't want to get into an institutional fight with Congress.

Ignoramus Inquisitivus: But if they're not going to overturn the copyright extension, why did they take the case? And if they are going to overturn the copyright extension, how can they? I.§8¶8 is a grant of power, not a restriction. Can a grant of power to Congress cast a shadow that hobbles what is now an extraordinary broad Congressional power to regulate the economy however it wants?

Realisticus: How can a limited power to regulate interstate commerce be read to give the federal government the power to enforce formal racial equality nationwide? How can a limited power to regulate interstate commerce give the federal government the power to force people to buy health insurance? I.§8.¶8 can be read as a restriction and not a grant if five justices decide to read it as a restriction and not a grant of power, and if there is no resulting political uproar big enough to make the Supremes back down.

Experienticus: But it is harder to get five justices to do something that goes against the plain language of the document. And that's a powerful reason that Lessig and company should have taken into account. Were I arguing the case--were I in the position of wanting the Supremes to make new law curbing Congressional power--I would grab not for a section of the Constitution that gives Congress power, but one that takes it away. I would reach not for Article I but for Amendment V--the takings clause. Say that the copyright extension is a taking of private property--the right of access to things in the public domain--for public purpose. Say that such takings have to be done with compensation. And say that the hurdle is especially great when the "public purpose" for which the taking of intellectual property out of the public domain is being done is to extend and enhance the profits of one's Hollywood campaign contributors. I really don't understand why Lessig didn't make the "takings" argument. It is, I think, in the long run a much stronger argument if the Supremes' ultimate agenda really is the rollback of the Commerce Clause...

Sapientia: But there is a Lockeian counter to the "takings" argument: we extend copyright--we remove your public domain rights of access--just to increase the rate of progress of the useful arts and sciences. As in Lockeian "original appropriation," your rights aren't really harmed as long as there is "enough, and as good"--and faster progress means that there is more and better.

Realisticus: That none of the founders would have dreamed of the growth of the Commerce Clause is not decisive. The world changes. How people think changes. The fact that the founders did not foresee how large interstate commerce would become, and thus how powerful the power to regulate it would become does not bind us. It does not obligate us to read "interstate commerce" narrowly. That they would have seen Copyright and Commerce as somewhat independent activities doesn't mean that we can't see Copyright as wholly subsumed within Commerce.

Ignoramus Inquisitivus: But wouldn't it have been better to pass amendments? A New Deal Amendment to allow federal control of the economy, and a Civil Rights Amendment, rather than simply relying on an expanded and hypertrophied Commerce Clause? Change the Constitution according to constitutional procedures, rather than changing the rules of interpreting it according to whoever yells loudest wins?

Realisticus: You are forgetting that we already passed the real Civil Rights Amendments. We passed them in the 1860s. But then came a bad "constitutional moment" that changed the rules of interpretation, and eviscerated them: for a century the Civil Rights Amendment protected not the rights of freedmen but the rights of corporations. Bruce Ackerman is right: there are "constitutional moments" throughout American history, and the right-wing original-intent "shocked, shocked" at the expansion of the Commerce Clause has as much credibility as Claude Rains's "shocked, shocked" at gambling in Casablanca.

Ignoramus Inquisitivus: But...

Experienticus: And you mustn't forget the greatest and largest movement in judge-made law in American history: the Bork-Posner-Easterbrook rewrite--largely a good thing--of the entire antitrust and consumer-protection areas. There's nothing the law and economics movement would fear more than a return to the "original intent" of the authors of the Clayton Act.

Sapientia: Bruce Ackerman is a figure of fun to many, but it's not because of his positive theory of "constitutional moments"--and that cases before the last such "constitutional moment" aren't valid precedents. That positive part of his theory is unassailable. It's his normative claims that are mocked...

Ignoramus Inquisitivus: But there's a bigger problem. Who decides...

Sapientia: Yes. Rehnquist, C.J. [Chief Justice] could stand up and say, "Counsel, your argument that these long-ago precedents came before what Bruce Ackerman calls the latest 'constitutional moment' is surely correct and is well-taken. But I want you to stop talking and sit down, because the other more recent precedents on which you rely are now irrelevant. Nino [Scalia] and I have been talking, and we have decided--and we want you to go tell Bruce so he can come down and study it--that we are going to have our own constitutional moment right now..."

[Pause]

Sapientia: But none of us has answered your question, have we? You want me to tell you what the Eldred v. Ashcroft decision will be. I can't tell you what it will say--that depends on how smart and brave the law clerk who writes it is. But I think I can tell you what it will mean. The court won't overturn the copyright extension. They won't use the chainsaw. But they will take the chainsaw out of the garage and make sure its fuel tank is full. Its opinion will mean, "Congress, there are some limits, somewhere, to your copyright power." It will mean, "Disney, you've bought your last copyright extension." It will mean, "Congress, next time find someone more serious than Sonny Bono to lead the issue." It will mean, "We're not going to tell you where the line is exactly--that would be dicta, and we hate dicta, except when we don't--but we are telling you that if you move to extend copyright again, you first need to ask yourselves the Clint Eastwood question: 'Do you feel lucky?'"

Posted by DeLong at September 09, 2002 07:06 PM | Trackback

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If like me you need background information about this case, you will find some at the Stanford Law School.

Posted by: Jean-Philippe Stijns on September 9, 2002 08:25 PM

I think you're making a bit too much of the Commerce Clause here -- and Eldred places it on the other side of the argument.

The brief for _Eldred_ mentions the Commerce Clause only twice (plus once in a footnote), and only to argue by analogy that since the Court has already ruled that the power of Congress under the Commerce Clause is limited, it should rule that Congress's power under the Copyright Clause is limited too.

The argument is really about whether the "limited times" condition in the Copyright Clause has any meaning as a limitation in practice. You can read the Eldred brief for yourself at http://eon.law.harvard.edu/openlaw/eldredvashcroft/

>> Why did the Supreme Court grant cert. [that is, agree to hear and decide] in Eldred v. Ashcroft ...? <<

I dunno, but my first guess would be that Scalia got three of the bretheren to thinking that maybe the original intent of the Framers who wrote the words "limited times" into the clause should still matter.

That's sure the argument Eldred's brief makes, quoting Justice Story (of the Marshall Court, way back when):
"There is no mystery about what the Framers had in mind for the duration of copyright — they expected it would be 'short' so that after a 'short interval', creative work would pass into
the public domain 'without restraint.' JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES."

Scalia, Rehnquest & Co. also were the ones who recently scotched the idea that the Commerce Clause is open ended (or Godzilla), which precedent Eldred is now invoking by analogy.

So those are the Justices your friends will be pitching to and who you'll be hoping will carry the day on this one: The Intellectual Zombie and his Minions of Original Intent, versus the liberals who dissented in the Commerce Clause case that such clauses really are open ended and Congress can do whatever the heck it wants with them.

Litigation makes strange bedfellows. ;-)


Posted by: Jim Glass on September 9, 2002 08:44 PM

It just occurred to me that the conservative side of the Supreme Court could deal a significant blow to the liberal entertainment industry by holding that many of the copyrights which entertainment businesses count as assets (i.e., those copyrights which have been extended at least once) are invalid because there is no Constitutional power to extend the term of an existing copyright.

Probably paranoid thinking, but it's an interesting idea.

Posted by: alkali on September 10, 2002 07:13 AM

Wait a moment. I thought that there couldn't really be a commerce clause concern lurking in the background of Eldred. Congress simply could not enact the copyright statutes that it has under the commerce clause because the first amendment would disallow it. That is, because copyrights restrict the speech rights of some to promote the expression of others, an enactment of copyrights under the commerce clause would run afoul of first amendment concerns.
Under current thinking, the same could not be said about statutes enacted under the copyrights and patents clause. The clause provides a limited exception to the first amendment's bar on prior restraints --- what is a copyright if not a prior restraint on derivative speaker's right to speak? --- but one that is supposed to have, among its positive consequences, an increase in the dissemination of ideas. One of the arguments of Lessig and company in Eldred (I thought) plays on this distinction. Under the current copyright extension statute, the additional rise in incentives to speak on behalf of some is far outweighed by the resulting limitations on the speech of others. The statute traverses the boundary the limited exception in the copyrights and patents clause by failing to weigh the marginal free speech costs and benefits of additional copyright protection.
Regardless of whether the copyright extension is permissible under the copyrights and patents clause, it would not be permissible under the commerce clause. Chainsaws or no, the commerce clause simply does not contain the limited exception to the first amendment bar. Because the regulation would constitute a direct attempt to negotiate the value of original versus derivative speakers, it would be impermissible under the first amendment if enacted pursuant to the commerce clause.

Posted by: Robert Tennyson on September 10, 2002 07:41 AM

Actually, the precise relationship between copyright law and the First Amendment is one of the most-anticipated aspects of the case. Copyright law is in considerable tension with the First Amendment, for many of the reasons pointed out above (e.g. prior restraints, etc.). The conventional explanation for why copyright law is constitutional isn't so much because the Patent and Copyright Clause carves out an exception (after all, the First Amendment came afterwards, and could have modified the prior law), but because: (1) copyright doesn't protect ideas (so you can repeat the idea, just in a different way), and (2) there's fair use. This is basically the reasoning that was adopted by the lower court, but it has come under a lot of attack recently. One hope is that the Supreme Court will do something to clarify this.

Posted by: Joe Liu on September 10, 2002 09:20 AM

Is there *really* a connection between copyright and the first amendment? I don't see it. There's no prior restraint in copyright: I can violate your copyright, and the government doesn't step in and shut down my printing press. Rather, *you* (not the government) sue me in a civil action. Right?

Second, if *copyright* is in tension with the first amendment, then what about defamation law?

Myself, I think extension of copyright is against the meaning of the power of Congress to grant *limited* protection. But that's starting to get into normative, not descriptive, issues.

Regards,

sjfromm

Posted by: Stephen Fromm on September 10, 2002 10:52 AM

I agree that if five justices believe that the First Amendment neutralizes any Commerce Clause-based attempt to create intellectual property rights, then the First Amendment neutralizes any Commerce Clause-based attempt to create intellectual property rights. But will five justices believe this?

Posted by: Brad DeLong on September 10, 2002 12:00 PM

The problem with the "feel lucky" argument, which strikes me as plausible otherwise, is the length of time. Few, maybe none, of these nine will be here in 20 years. It is harden to threaten with dicta across that large a gap.

Posted by: Ken Doran on September 10, 2002 12:51 PM

Economic analysis of the issues by 17 pretty good economists, including a bunch of Nobel winners, is in an amici brief for Eldred at http://eon.law.harvard.edu/openlaw/eldredvashcroft/legal.html#amici

The 17 signers are Akerlof, Arrow, Bresnahan, Buchanan, Coase, Cohen, Friedman, Green, Hahn, Hazlett, Hemphill, Litan, Noll, Schmalensee, Shavell, Varian, and Zeckhauser.

Did I mention that Larry Lessig is Scalia's former law clerk?

Again, the Commerce Clause has very little to do with this case. The Government's brief doesn't even mention it, makes no use of it. Eldred's brief mentions it only to say Congress's power under the Copyright Clause should be limited like it is under the Commerce Clause. The issue is the conflict (if any) between the First Amendment and the Copyright Clause.

It's always good to know how the other side thinks. The government's brief is at the same site, scroll down below the economists' one.

Posted by: Jim Glass on September 10, 2002 03:17 PM

I hear Justice Scalia goes by Nino, not Tony.

Posted by: BJ on September 10, 2002 03:34 PM

'So those are the Justices your friends will be pitching to and who you'll be hoping will carry the day on this one: The Intellectual Zombie and his Minions of Original Intent, versus the liberals who dissented in the Commerce Clause case that such clauses really are open ended and Congress can do whatever the heck it wants with them.'

Is it really so open-and-shut that Reinquist & Scalia are going to stick to original intent on this one? As Dahlia Lithwick has pointed out, they can be awfully selective.

Posted by: Jason McCullough on September 10, 2002 04:56 PM

>> Is it really so open-and-shut that Reinquist & Scalia are going to stick to original intent on this one? <<

Nothing is certain in advance. For one thing a literal reading of a document, if unambiguous, obviates any need to read the intent of its makers. You don't have to go further than that. And a literal reading of the Copryight Clause is not good for Eldred.

But Eldred's brief cites as precedent two cases where the Court struck down laws that Congress had based on the Commerce Clause, saying the laws reached beyond the intent of the Framers regarding the clause (since they had precious little to do with commerce).

The cases are _Lopez_, 514 US 549, and _Morrison_, 529 US 598. In each case the Justices lined up the same way: opinion by Rhenquist joined by O’Connor, Scalia, Kennedy, and Thomas; the dissenters being Souter, Stevens, Ginsburg, and Breyer.

Eldred's brief argues the Court should do the same thing here since Congress has gone beyond he intent of the Framers regarding the Copyright Clause.

Since Eldred's counsel are arguing a parallel between this case and Lopez and Morrison, and that the Court should do here what it did with them, it's reasonable to think they are hoping the same five Justices will do it. And observers rooting for Eldred might reasonably conclude those five Justices are the most likely to be sympathetic to their side. But who knows?

If this isn't an "original intent" case, though, I've never seen one. The whole argument is about how how large a number of years Congress can make the copyright term last and still have it be a "limited term" as per the words in the Copyright Clause. Is 99 years "limited"? 199 years? 1,999 years?

Well, any fixed number of years is "limited" and thus satisfies a literal reading of the Constitution, so Eldred loses. Unless the original intent of the Framers -- in which "limited" meant "short", as per Justice Story long ago -- matters. In that case Eldred wins.


Posted by: Jim Glass on September 11, 2002 09:01 AM

Just a quick response to Stephen Fromm re: the tension between copyright and the First Amendment. Prior restraints are routinely granted in copyright cases - in fact, if you are about to publish an infringing book, I can quite easily obtain an injunction and get the government to come in and shut down your printing presses, something that is nearly impossible to do in a standard First Amendment case. The situation is indeed very similar to defamation law, and the Supreme Court explicitly recognized the tension between that body of law and the First Amendment in the landmark case New York Times v. Sullivan.

Posted by: Joe Liu on September 11, 2002 11:05 AM

>>>The cases are _Lopez_, 514 US 549, and _Morrison_, 529 US 598. In each case the Justices lined up the same way: opinion by Rhenquist joined by O’Connor, Scalia, Kennedy, and Thomas; the dissenters being Souter, Stevens, Ginsburg, and Breyer.<<<

Let's not forget that Justice Breyer wrote an article way back in 1970, I believe, titled "The Uneasy Case for Copyright" in which he wrote: "This continual expansion is not surprising. Holders of copyrights about to expire have a financial interest in urging extension. Authors and publishers can lead a legislature to focus on the production and 'moral' arguments for protection, while no single interest group is sufficiently affected to focus legislative attention upon the problems of dissemination. An examination of the question, however, suggests that, even if the moral argument is given its due, which is little, extension is not justified"

Posted by: Larry Staton Jr. on September 12, 2002 09:18 AM

>> But if they're not going to overturn the copyright extension, why did they take the case? And if they are going to overturn the copyright extension, how can they? I.§8¶8 is a grant of power, not a restriction. How can a grant of power to Congress in Article I cast a shadow that hobbles another grant of power elsewhere in the Constitution? <<

Specific constitutional grants or limitations of power govern over more general ones, such as the commerce clause (I.8.3). I.8.8 can therefore "hobble" I.8.3.

The Supreme Court has already ruled that I.8.8 (which governs patents and copyrights in like terms) is both a grant of power and a limitation on Congress' power. Graham v. John Deere Co., 383 US 1, 5-6 (1966). Among other things, the Court said: "The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which, by constitutional command, must 'promote the Progress of ... useful Arts.' This is the standard expressed in the Constitution, and it may not be ignored." For similar remarks, see Bonito Boats v. Thunder Craft Boats, 489 US 141, 146 (1989).

That makes the issue whether Congress could rationally expect to encourage (promote) the progress of science (human knowledge) by granting additional rewards retroactively for works published long ago (like Mickey Mouse and Gone With The Wind). If it is inconceivable that extending Walt Disney's copyright on Mickey Mouse at this time will encourage him, or persons similarly situated, to rise from the grave and create new works, that part of the Mickey Mouse Forever statute would be unconstitutional. (But not the rest.)

Posted by: Richard Stern on September 12, 2002 12:33 PM

' it is inconceivable that extending Walt Disney's copyright on Mickey Mouse at this time will encourage him, or persons similarly situated, to rise from the grave and create new works, that part of the Mickey Mouse Forever statute would be unconstitutional. (But not the rest.)'

Don't underestimate the powers of copyright! Michael Eisner needs another billion.

Posted by: Jason McCullough on September 12, 2002 11:38 PM
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