October 10, 2002
Justice Breyer Asks Interesting Questions on Eldred v. Ashcroft

Could the Congress make copyright perpetual and absolute if it wanted to? Does the fact that intellectual property rights are established not by the common law but by the U.S. Constitution for the express purpose of promoting the arts and sciences have any bite today? The Eldred v. Ashcroft "is the latest extension of copyright constitutional?" case was argued this week.

Justice Breyer seems to get it: extending the term of copyright from 50 to 70 years has only a trivial effect on the well-being and economic interests of someone who is going to write a create a work next year, but it has an enormous effect on the well-being and economic interests of someone who holds a copyright to a work six months from the 50-year limit. It's not that the "retrospective" extension is just a consequence (out of a desire for "uniformity") of the extension for prospective works. The retrospective extension is the dog. The prospective extension is not even the tail.

The seventeen economists were very good on this as well. It's nice to see they had an effect on Justice Breyer's thinking.

Here are quotes from one observer's report:


: ...The one really interesting line of questioning was pursued (several times) by Justice Breyer, who wanted Olson to come to terms with an economic argument that showed significant "harms" from the 1998 law's retrospective extension as set aside nebulous "benefits." His harms were: 1) $6B in additional royalties for a small number of copyright holders 2) $1B in costs borne by people who need to track down copyright holders of non-revenue-producing works that are to be included in collections, databases, etc. 3) "innumerable" harm when those holders cannot be found, and the works cannot be used.

The "benefits" are: 1) "uniformity," which includes "harmonization" with European law. Harmonization is one of the government's big arguments in favor of the 1998 law. 2) "consistency," meaning that new and old copyrights are subject to the same terms.

Breyer asked Olson to give more benefits, and Olson gave "harmonization. Breyer said that's part of "uniformity." Olson talked some about the importance of harmonization, including an argument that there needs to not be a "disincentive" to publish in the United States. On the face of it, a laughable argument.

Breyer said that the "additive value" of a 70 year term versus a 50 year term is "essentially zero." Olson said that wasn't true, if you were 80 years old the additional 20 years might encourage you to produce, or if you were a publisher, the additional 20 years might change your economic calculation. Breyer pressed on this point, saying he didn't see why the 80-year-old author would see a difference. Olson said, well, really that's for congress to decide.

October 9, 2002


I've just come from the Eldred v. Ashcroft oral argument. 

My impression is that things didn't go very well for Lessig. He was
unable to cleanly parry any of the Justices major concerns. Theodore
Olson (the Solicitor General, arguing the other side of the case) was
quite unimpressive, but he has a much easier argument to make.

But, I'm not a lawyer, and certainly not a seasoned Supreme Court
watcher. It's possible that I'm interpreting the aggressive,
devil's-advocate style of Court questioning as more pointed than it
was intended to be. 

For those who've never seen one of these things, they're short and
somewhat rough-and-tumble. Lessig, as the petitioner, has half an
hour, then Olson gets half an hour, then Lessig gets three minutes of
summary. Except during the summary, the lawyers were rarely allowed
to say two sentences before being interrupted by a Justice. The
Justices choose the direction of the argument; the lawyers respond.

Given the time constraints, the oral argument boiled down to just a
few key points on each side:

Lessig has framed a very conservative argument. Congress is
constrained by the specific language of the copyright clause in two
important ways: copyrights must be limited in their duration, and
granted for the purpose only of "promot[ing] the Progress of Science
and the useful Arts." Congress has retrospectively extended copyright
-- ie, granted term extension to existing (as opposed to new) works --
numerous times. Doing so violates both of the constitutional limits on
Congress's copyright-granting powers.

In addition, Lessig advances a second, separate argument that
extending the terms of existing copyright violates Freedom of Speech
protections under Article I, because the "restrictions on speech"
greatly outweigh any plausible societal "benefits". As I understand
it, this test of restrictions/benefits is termed the "intermediate"
test under First Amendment law, and is the general test applied to
content-neutral regulation of speech.

In Lessig's opening -- which lasted about thirty seconds before he was
cut off by Justice O'Connor -- he said that "this is not a case" about
the "general power" that Congress has over copyrights, but about
"specific limits." The narrowness of this argument is frustrating to
me, as a non-lawyer observer, but obviously Lessig fashioned a case
that he thought this Court might be willing to rule on. He's trying to
avoid asking the Justices to make new law, and certainly trying to
avoid asking them to make policy.

The government's argument, as advanced by Olson, is very simple: the
language in the copyright clause is so general as to almost not
restrict Congress' power at all. The only thing Congress wouldn't be
allowed to do is grant copyrights (or patents) that are explicitly
non-limited in term.

Lessig's problems are several:

  1) Congress has passed copyright extensions 11 times, and almost all
     of those extensions were retro- as well as prospective. This is
     the first court challenge of the constitutionality of
     retrospective copyright extension. The Justices wanted to know
     why, if this is such an important thing, there's never been a
     challenge before. Lessig's core answer to this is more or less
     "the Internet changes everything." The Justices didn't ask any
     follow-ups about this technology-driven argument. 

  2) If the retrospective extension in the 1998 law are
     unconstitutional, then certainly those same extensions in the
     1976 law (the last major change) are also unconstitutional. And
     in both laws, the retrospective extensions are inseverable from
     the prospective extensions. Declaring both laws unconstitutional
     would cause, in Justice Breyer's words, great "chaos." There
     followed some back and forth about "retrospection" and "severe
     disruption," or the Court's latitude to explicitly leave alone
     the earlier law even if it throws out the later one.

     The Court didn't much want to talk about retrospection with
     Lessig. Breyer joked that if Lessig's argument about 1998 applied
     equally to 1976, then he'd better find another argument. Everyone
     laughed. (Everyone always laughed whenever a Justice made a
     joke.) When pressed about whether it was possible to distinguish
     between 1976 and 1998, Lessig said that according to his
     argument, there was no substantive difference. However, according
     to the government's argument, there were differences. I didn't
     really understand either his point, or where he expected to get
     making it, and the Justices didn't seem to much like it.

  3) The retrospective/prospective distinction and the Free Speech
     argument don't seem to fit together very elegantly. Justice
     Ginsberg, joined by Souter and the Rehnquist, asked a long series
     of questions trying to get at the core of Lessig's Article I
     argument.

     Lessig didn't seem to do well on this topic. He kept talking
     about the "intermediate test," and the Justices kept asking why
     this content-neutral, equally-applied retrospective extension
     should be different from a content-neutral, equally-applied
     prospective grant. About the best argument Lessig made was that
     there's no such thing as an equally applicable retrospective
     extension, because a retrospective extension always applies to
     "particular authors." On the face of it, this is a weak argument,
     unless the Justices are looking for some bit of minutiae on which
     to hang new law.

     Suitor suggested that Lessig make a connection between the
     copyright clause "aim" and the First Amendment argument. Lessig
     refused this out, saying that the two arguments were
     independent. O'Connor then said that Lessig was asking the Court
     to consider the First Amendment argument as a kind of fall-back
     position, and that the court had never done such a thing -- that
     it was "without precedent" to frame the argument in that way. (At
     least, that's what I understood her to say, she didn't use the
     word "fallback," and I might have lost the thread of her
     criticism.)

  4) No matter how convincing Lessig's argument that Congress is being
     slippery, or foolish, or failing to really promote progress might
     be, he has a very steep hill to climb. The Justices have to
     decide that Congress' retrospective extension of copyright
     expressly violates either the copyright clauses limitations, or
     the First Amendment's requirements, or both. Neither is clear
     cut. The final part of the half hour was devoted to questioning
     Lessig about what "test" the Court should apply to decide if an
     extension is valid under the copyright law.

     Because there's no specific time-frame given in the constitution,
     it's very difficult for the Justices to say that 70 years is
     okay, but 90 years is too long (or something similar). In
     addition, the hard test of "promoting progress" that Lessig wants
     to be definitive isn't really that concrete. So the argument
     hinges on the pattern of Congress's actions, versus the intent
     of the framers. O'Connor said that she may well be convinced that
     the 1998 law is bad policy, but the Court obviously doesn't do
     policy.

     Stevens asked whether a retrospective extension that does promote
     progress is permissible. Lessig said yes. Stevens then said that
     the 1998 law, at least on its face, does that. Lessig: well,
     that's the government's position. Stevens: but that's what you
     just said. Lessig: no, Congress still has to abide by the
     constitutional limits. We were all confused.
     
As mentioned above, Olson's argument was quite straight-forward. No
matter how the wind blew, he just said the equivalent of, "that's
nice, but Congress gets to do almost whatever it wants, here." He gave
lots of equivocal answers to specific questions and hypotheticals, but
when pressed said the government's position is that there is no
judicial review for any piece of copyright law, short of some
explicitly unconstitutional language like "permanent grant" or
"unlimited term."

The one really interesting line of questioning was pursued (several
times) by Justice Breyer, who wanted Olson to come to terms with an
economic argument that showed significant "harms" from the 1998 law's
retrospective extension as set aside nebulous "benefits." His harms
were:

  1) $6B in additional royalties for a small number of copyright
     holders

  2) $1B in costs borne by people who need to track down copyright
     holders of non-revenue-producing works that are to be included in
     collections, databases, etc.

  3) "innumerable" harm when those holders cannot be found, and the
     works cannot be used.

The "benefits" are:

  1) "uniformity," which includes "harmonization" with European
     law. Harmonization is one of the government's big arguments in
     favor of the 1998 law.

  2) "consistency," meaning that new and old copyrights are subject to
     the same terms.

Breyer asked Olson to give more benefits, and Olson gave
"harmonization. Breyer said that's part of "uniformity." Olson talked
some about the importance of harmonization, including an argument that
there needs to not be a "disincentive" to publish in the United
States. On the face of it, a laughable argument.

Breyer said that the "additive value" of a 70 year term versus a 50
year term is "essentially zero." Olson said that wasn't true, if you
were 80 years old the additional 20 years might encourage you to
produce, or if you were a publisher, the additional 20 years might
change your economic calculation. Breyer pressed on this point, saying
he didn't see why the 80-year-old author would see a difference. Olson
said, well, really that's for congress to decide.

The one non-obvious tack Olson's argument took was to continually
emphasize that the "promot[ing] progress" language wasn't intended to
apply just to authorship, but also to distribution. Making things
widely available required that publishers have a strong economic
interest in the copyright system. By implication, the 1998 law was
intended to promote progress by strengthening publishers' interest.

----

Well, I've written more than I intended to. There's more stuff in my
notes, but that's most of the substance (at least as I understood it)
of the hour. It was a fascinating experience, sitting in the courtroom
listening to Lessig answering questions from the Supremes. I would,
personally, have liked to hear the Justices ask some more questions
about how the "regime" that this law is part of changes in the context
of the Internet, but perhaps we'll have to wait another generation
before we're all ready for that.

Kwin

Posted by DeLong at October 10, 2002 04:18 PM | Trackback

Email this entry
Email a link to this entry to:


Your email address:


Message (optional):


Comments

>> The seventeen economists were very good on this as well. It's nice to see they had an effect on Justice Breyer's thinking...."Justice Breyer, who wanted Olson to come to terms with an economic argument that showed significant 'harms' from the 1998 law's retrospective extension as set aside nebulous 'benefits.'." <<

As sympathetic as I am generally to law-and- economic analysis, and as much of a fan as I am of some of the 17 economists in their brief, I'm afraid this is all only very weakly relevant here. Some would say not at all

The issue here is just *constitutional* -- whether it is constitutional for Congress to make this law -- not whether the law is good or bad on the merits.

As Justice Oliver Wendell Holmes said, the fact that a law is good doesn't make it constitutional; the fact that a law is bad doesn't make it unconstitutional; and it is not the job of the Court to substitute its judgment for that of Congress -- which has much more input from many more parties and experts --- as to what is good and bad in any event.

So saying to the Court "bad law, bad law" is pretty futile by itself -- one has to show that it is bad in some constitutional sense. A lot of people who are hyped about how the Court should strike this law down because it is so "bad" miss this point entirely.

The whole issue of this case is the "limited times" term of the Copyright Clause of the Constitution -- whether 90 years or 199 years or whatever is a "limited time", which it certainly is literally but may not be as the original drafters of the Constitution meant the term. So one can wager the Justices will line up first on the basis of whether this clause should be read with some regard for original intent, or in the more modern manner of giving Congress all plausible leeway (as e.g. with the Commerce Clause) so long as there is no clear conflict with the Constitution. The "good/bad" argument just isn't very relevant there.

It might become relevant to a Justice who is sitting on the fence and looking for a tie-breaker reason to come down on one side or the other. And it might become relevant to original-intenters who are looking around for something to buttress their position. But it's an ancillary argument at most .

Posted by: Jim Glass on October 10, 2002 09:21 PM

Oh no doubt you're right Jim. But it's a bad law so I hope it is unconstitutional, as have been the majority of copyright extensions. The latest ones amount, imo, to little more than corporate interests that control the House and Senate stealing from the commons to fatten themselves.

Posted by: Ian Welsh on October 10, 2002 10:43 PM

>>The issue here is just *constitutional* -- whether it is constitutional for Congress to make this law -- not whether the law is good or bad on the merits.<<

Two extreme models of judicial decision-making are (1) judge comes up with what she believes is right answer, then finds legal justification and (2) judge carefully weighs the law to come up with right answer, without consideration for her personal feelings. A milder version of (1) would be that in close case, judge is influenced by her view of what is right. If the case is a slam dunk on legal analysis, personal feelings are not likely to play a large role, but the Supreme Court does not get many slam dunks.

It's not entirely clear how judges behave. My working assumption is that some version of (1) is closer to the truth than (2). Jim appears firmly in camp (2).

Posted by: richard on October 11, 2002 06:35 AM

This will be an interesting decision due to the likely unusual alliance of Scalia and Thomas with Breyer and some others, which is indicative of how different approaches can sometimes arrive at the same place. Here's hoping that five can get there, and strike down this abomination.

Posted by: Will Allen on October 11, 2002 08:00 AM

>> Two extreme models of judicial decision-making are ... Jim appears firmly in camp (2). <<

Not at all. The judges in NJ hand-waved the law away to rule as they thought was right in the Torricelli affair (and they may have been right to do so). It happens all the time.

In fact that's an important part of the constitutional process. Common law develops by judges distinguishing the old rule from the present case to create a new rule -- which means effectively setting aside the old law in favor of what they think is right, and rationalizing it with an opinion why. This is one of the reasons why state court judges generally are elected -- so they won't stray too far from the political consensus while developing the law this way.

But with the US Supreme Court we are not talking about generic "judicial decision making". We are talking about one unique court that considers limited issues and which operates under very strong institutional precedents and constraints -- which developed for good reason -- while doing so. (It's tried ruling on a "we say this is good/bad basis" in the past, with unhappy results.)

To cut the pedantry, just look at Lessig's brief. We're talking about a specific case as well, and this is about the simplest case I've ever seen before the SC. The justices have very little room to come up with rationalizations for "what's right" because that's *not the issue*.

To quote Prof. DeLong's correspondent: "O'Connor said that she may well be convinced that the 1998 law is bad policy, but the Court obviously doesn't do policy."

Note the "obviously". That's Lessig's problem. And he knows it: "Lessig's trying to avoid asking the Justices to make new law, and certainly trying to avoid asking them to make policy."

And that's the conundrum for those who think the Court should overturn this law because it is bad policy: The Court isn't going to rule on policy grounds and Lessig is *avoiding* asking them to do so -- while he wants them to do so (as per the economists' brief). He's trying to square a circle.

Policy issues are simply ancillary in this case. That's why Eldred is facing long odds. On the constitutional issues, it's going to be difficult for even the strictest of constructionists to say "70 years was constitutional but 90 isn't".

Posted by: Jim Glass on October 11, 2002 08:51 AM

Some argue that the law is obviously constitutional because "limited" == "finite". But this is not obvious and there are many cases where the courts are willing to exercise judgment.

What is "cruel" punishment. What is illegal pornography? What is a "reasonable" search? Some deference is due to the legislature, but courts should sometimes step in when even these vague terms are in play.

Here, where the benefits of the extension are negligible, the court could very well decide that the requirement of a "limited" time is finally, at last, violated.

Posted by: Prof. Y on October 11, 2002 08:52 AM

Isn't the benefit question directly relevant, as the constitutional clause grants congress power in order to promote the arts (and then, generally, the progress of the nation). That makes the benefit question directly important. Or at least, that is what I thought.

B

Posted by: on October 11, 2002 10:14 AM

Imagine, for a moment, a variation on the asymmetry of the retrospective-prospective problem. The US Government exists at the time of the first human use of fire, bronze, iron and the collecting of seeds for agriculture. How long should those forms of intellectual property and technology be allowed to garner monopoly rents if the same mentality existed then as does now amongst US corporate lawyers? The system is strained folks.....and the property smog - to use Keith Aoki's fine phrase - is going to choke us all in the not too distant future

Posted by: Ian on October 11, 2002 10:43 AM

To adopt the position that the word "limited" is precisely synonymous with the word "finite" in this context is paramount to saying that Congress has unlimited power in the area of copyright. After all, such an interpretation means that Congress has the power to extend the copyright to 10 billion years, longer than some expect the universe to exist, prior to collapsing upon itself. To adopt this position is to implicitly argue that the Constitution itself is without meaning; the people who crafted it were just killing time and used words, sentences, and paragraphs without regard to eventual practice; otherwise they would have simply stated that Congress had the power to grant copyright for whatever time and purpose it saw fit. Unfortunately, viewing the Constitution as a document forged by the marginally sane comes close to describing how many see it, as some modern interpretors of the commerce clause demonstrate.

Posted by: Will Allison on October 11, 2002 11:25 AM

>>But with the US Supreme Court we are not talking about generic "judicial decision making". We are talking about one unique court that considers limited issues and which operates under very strong institutional precedents and constraints -- which developed for good reason -- while doing so.<<

I don't find the Supreme Court all that different from other courts in this regard. I might argue that lower courts are more respectful of precedent because they are concerned they will be overturned. The Supreme Court has no such constraints (at least, not on constitutional questions; the possibility of a decision being overturned by an amendment is rather small). Some of the most important decisions of the Court have been contrary to precedent or not well grounded in constitutional text.

It's a balancing act between how firmly they believe something and how obviously constained they are by text and precedent. Any institution which can discover a new right in the penumbra of the bill of rights or decide an election based on, well, based on whatever that decision was based on, can not regard precedent and text as overwhelming obstacles.

Posted by: richard on October 11, 2002 01:50 PM

Volokh predicts the Court will strike down the copyright law, Eldred will win 6-3. He gives a Justice-by-Justice forecast of the vote.

http://volokh.blogspot.com/2002_10_06_volokh_archive.html#85551817

As to Breyer he opines: "Breyer will vote to uphold the law because he too takes a narrow view of free speech -- the narrowest of any of the Justices -- and he's never met a federal law that he thinks is outside Congress's enumerated powers...."

Posted by: Jim Glass on October 11, 2002 02:59 PM

Portraying the law as a bad and bringing out a gang of respected economists to back you up does make sense in this context. One of the phrases being examined is "promote the progress...", so one of Lessig's major arguments then is that this law is in fact detrimental to the "promotion of progress...".
Generally the "bad law" argument is beside the point, as your quote states. Except in this instance the Constitution can be interpreted as constraining congresses lawmaking to only certain types of legislation.

Posted by: Jett on October 13, 2002 11:42 AM

Isn't Breyer wrong that the $6 billion in copyright fees is a harm? It's just a transfer. It seems that the real harms are:

1. All the money spent looking for copyright holders.

2. The loss of the use of copyrighted material, either because the holder can't be found or because the would-be user is unwilling to pay the royalty (less the degree to which familiarity breeds contempt)

And of course the benefit is the mirror image of (2): The availability of material that would not exist without the incentive provided by copyright.

I don't know about the Constitutional question, but surely the marginal gain from the extension is less than the cost.

Posted by: Bernard Yomtov on October 14, 2002 05:06 PM
Post a comment
Name:


Email Address:


URL:


Comments:


Remember info?