The silent five

It is the middle of the night. Sleep is awol, scared off by this question that won�t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle? (Updated)

(Apologies. I intended to update this but deleted it instead. Links to the original are below in the text, but this is the product of a few more hours sleep.)

Some background. There is a single, central question that has divided this Court over the past decade: Is it the Court’s role to review and constrain Congress in the exercise of its enumerated power. Four justices have been generally strongly in favor of deference. Five justices have insisted on limits. These five have insisted that an interpretation of Congress’s enumerated powers that erases any effective limit to that enumerated power is wrong. Four justices have consistently rejected that argument. Not that these four don’t vote to strike down laws of Congress. But rather they don’t strike laws of Congress on the ground of this “principle of enumeration.”

The single most important strategic decision in this case, and a decision for which I am solely responsible, was the decision to focus upon just this division. When we brought this case, people were rightly skeptical that the court would embrace an argument grounded in the First Amendment alone. Nor, given the Court’s general and appropriate deference to Congress, was it likely that a straight attack on the “rationality” of the statute would succeed. So our aim was to say, as Judge Sentelle argued in his dissent in the Court of Appeals: Under the enumeration principle announced in Lopez, and Morrison, retroactive extensions of existing terms violates “limited times.” If Congress has the power to extend a limited term without limit, then that is not a limited term.

The primary target of our appeal was therefore the five justices who had endorsed this principle ? Rehnquist, O’Connor, Scalia, Kennedy, Thomas. And in addition to these five, we had hoped that the general extremism of the extension (and pattern of the extensions) would attract the votes of some of the remaining four. But the least likely justice to be persuaded by our case was Justice Ginsburg, and second, Justice Souter.

So let’s start with the charitable point first: However much we may disagree with the result, as I said in my post after the argument in the case, there is something wonderful about losing because the Court believes its power is limited. As I said then, it is a virtue of a court system that the court constantly checks its will against a proper view of its limits. From this perspective, excluding the enumeration principle and putting aside the First Amendment, we should have lost. Justice Ginsburg was thus perfectly consistent with her own view of the constitution and the Court’s properly limited role when she wrote that whatever the Court’s view of the policy of the Sonny Bono Act, it was not the Court’s job to invalidate it.

This view also explains the general astonishment in the Bar about our bringing this case in the first place. For it was first year constitutional law throughout the 1990s that the Court should defer to Congress on the scope of enumerated powers. Since the New Deal, the Court had repeatedly held that there was no challenge of a statute by Congress on the grounds that it exceeded enumerated powers so long as there was any “rational basis” for that statute (where rational basis means, is there a hypothetical set of facts under which this statute makes sense). And again, under that standard, we should have lost.

But constitutional law did not end in 1990. Instead, beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress’s enumerated power yield the conclusion that its power is unlimited. If it does, then that interpretation must be rejected.

The context of those cases was the Commerce Power. But there was nothing in the opinions, or in logic, that would explain why the principle would apply to the commerce power and not elsewhere. Indeed, this was the strongest argument made by the dissents against the principle: That it would entail a general limitation on Congress’s power that was totally new in constitutional law.

It was new. And whether or not justified, our view was that this principle of constitutional law showed precisely why the power perpetually to extend copyright terms mean that copyright terms were not “limited.”

So here’s a first and simple way to test whether commentators about our case know what they’re talking about: Do they explain this principle and how it does or does not apply? In a petty moment of frustration, I made this point here. But the frustration is more general: If you don’t understand that this was the core argument in the case, then you don’t understand the case.

After the argument, I described the purgatory of an advocate, reliving the argument over and over, reanswering every question on countless sleepless nights. As I look back, there was just one question that might have mattered if answered differently. The most astonishing moment in the whole of the case was Chief Justice Rehnquist’s question, why hasn’t anyone ever raised this challenge before. The simple and obvious answer was this: “Because before your decisions in Lopez and Morrison, Mr. Chief Justice, there was no possible ground on which to argue against the exercise of an enumerated power. But Lopez established a principle that applies to this case. And unless there is some principled reason to distinguish it, the principle of Lopez limits Congress’s Copyright Clause power.”

That said, there is no chance that the Court didn’t understand that this argument was before it. Again, it was the sole ground upon which Judge Sentelle had voted against the statute. It was the core of our brief. Yet among the many doubts that will forever haunt, this more than any haunts most: Did the Chief really not understand that this case was his case? That it was because of the principles that he had first articulated that we had spent four years litigating this case?

No one wants to be proven wrong. But the sole reason that I believed that we were right, and that we would prevail, was this principle of enumeration. And despite the skepticism expressed at the oral argument, I could not begin to imagine how these 5 could distinguish that principle in this case. If we were going to lose, it was going to be, I thought, because they would find a way to distinguish what I believed they could not in good faith distinguish.

I was wrong, but not in the way I believed. Astonishingly, the silent 5 escaped this argument simply by ignoring it. Justice Ginsburg could understandably ignore it — she has never been a supporter of that argument. The same with Justices Stevens and Breyer — they too have never been supporters. But I would never have thought that the Court would decide the case by ignoring the only argument made in dissent by a federal judge below, and the core argument made by the petitioners in this case. Thus as I have said over and over again, I don’t know how you distinguish the Copyright Clause from Commerce. I still don’t. I just know we lost.

In my first post here, this point angered me. It angers me still. I respect (and have defended) the Court’s enumeration principle long before this case. I would have respected being shown the principled ground on which it does not apply here. But my frustration in reading the Court’s work in this case is the failure to apply its principle, or at least explain why not. If the Court believes there is a principled reason why the principle of enumeration applies to protect the rights of states (against liberal legislation) but does not apply to protect the public domain (against special interest legislation), it should say so. That is the picture of law that the best of our tradition teaches. And while our tradition also has many who believe there is no such thing as principle in the courts, that is not a view that I could ever promote as a law professor — as one who makes lawyers for a living, as distinct from one who simply analyzes and critiques the law.

I want to believe (thanks Aaron) that in ordinary times, principle guides this Court. The opinions in Eldred show some of those principles. There is nothing inconsistent in what was written. The inconsistency is in what was not written. And the challenge for me will be to explain the practice of reason that yields this fundamental inconsistency.

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55 Responses to The silent five

  1. Eliot Williams says:

    Larry, rest asured that the enumeration principle is alive and well. The silent five in the majority clearly adopted the position that “limited Times” is a meaningful limit on congressional power and the CTEA did not run afoul of that limit. Footnote 16 seems to do most of the work in this regard. Query whether Ginsburg authored that text.

  2. DebC says:

    You know, it’s very much a sign of our times that we feel a need to apologize for standing on principle. You’re at least the third person this week I’ve seen do that on an important topic (not even counting me). It is not naive to stand on principle or to ask that others do so. It is not impractical. It is the whole bloody point (especially if you’re the Supreme Court) and, frankly, we should insist that more people do it.

    The work that you and others have done has increased my understanding and helped me to articulate important things in ways I wasn’t able to (or, really, didn’t even full understand before). Thank you for that.

  3. Andrew Greenberg says:

    We are all grateful for your work, Professor, and empathize strongly with the passion shared in your blog. Alas, it may always have been naive to deny the fact of legal realism. One doesn’t need to be a Crit to see the gaping holes in every Justice’s jurisprudence, or to deconstruct judicial actions as naked exercises of political power — nor does one need to accept the wildest views of CLS to see what ultimately is always the case:

    (a) Advocates are human;
    (b) Justices are human;
    (c) The “right” answer exists only in a world where one has accepted the false rubrick that principles actually govern all decisions.

    Even taken justice by justice; the better idea is to analyze the question of the form — “If these *specifics* are his/her principles, then this should be the answer.” This is the best we can do — if we can do even that. When we see variation, perhaps it isn’t correct to criticize the decision as wrongly decided, but merely to vary the specifics to accomodate the deviation — in this sense, the study of law is far closer to science than mathematical logic.

    Nature doesn’t follow laws — at least the ones we have guessed to date. It was the lesson of Science, particularly in the twentieth century, that principles and scientific laws are, at best, approximations of what is the case. Experiment and theoretical analysis will at best confirm our confidence in those laws, but ultimately can only disprove them. The “principles” we attribute to Justices are only a present best guess, verified by the experiments of particular adjudications, but must be modified as the next experiments roll in. Newton’s laws, which are wrong, work only in a particular context (albeit a large one substantially consistent with our personal experience), and must be modified or abandoned for the worlds of the very fast, the very slow and the very small and engetic.

  4. Hari says:

    I can’t begin to express my gratitude for the fight you’ve made. It was a disheartening decision by the court, but you’ve made a lot of people aware that the public domain belongs to them. A lot of us never thought much about the public domain and what it means to a healthy society. Now we do.

    You make me wish I had gone to law school.

  5. Brad Patrick says:

    Note to self – get copy of tape from first day of con law class with Lessig…

  6. John J. Coupal says:

    If you’re a Constitutional lawyer, why do you spell the Constitution with a lower case “c”?

    Just curious..

  7. Anonymous says:

    Your words and actions have inspired more people than you will ever know. You may have lost, but the public lost even more. And I bet if we (the public) were to take a vote, we’d still want you arguing the case. Keep working, thinking, writing; we’re listening.

  8. Somee says:

    I am very sad about that decision.
    You have been an amazing navigator.
    Wherever the cruise is heading now,
    please, do not quit seeing and telling
    where the North Star is.

  9. Anonymous says:

    Is the timestamp mechanism on this board working properly ?

    Does the board properly honor the “a href” HTML tag ?

  10. Anonymous says:

    The time stamp seems to be malfunctioning. Posts clearly prior to this one are dated later.

  11. David says:

    It was weird as I drove home from work yesterday, across the Mississippi, next to the Rock Island Arsenal, and heard the news on NPR that we had lost. I’m still somewhat shocked, maybe because I hold Prof. Lessig and his arguments in such high regard. As a librarian, I too take this as a loss. And, I am at a loss for words. But, the sun will rise tomorrow, which just gives us another opportunity to advance our cause.

    D. Weaver
    Augustana College

  12. Professor Lessig: Please stop flogging yourself for the inadequacies of others. I can assure you that better arguments lose often, particularly when one has to appeal to an audience that sees many reasons not to be concerned. You are trying to shift an entire mindspace, and it will take time.

    From your personal perspective, take the opportunity to learn from defeat. There will be things you learn that you never thought you would need to know. Such as, that human judgments are frequently irrational and wrong.

    There is more to learn about where to put your treasure. As the Earl of Stafford said on his way to his beheading on the order of Charles I, “put not your trust in princes”. A law professor is a priest of a severely rationalist religion. Try seeing law as a craft as much as a science, and save your faith for greater things than courts.

    Believe in yourself.

    With affection

    Tim Denton

  13. Here’s my cynical, political, take as to why the
    enumeration argument failed:

    In Lopez, the losers were going to be gun-control
    advocates. Here, the losers would be Disney, MPAA, RIAA,

    That was the difference.

  14. Paul Hughes says:

    Dear Larry,

    I want to add to the other words of support. I’m very proud of the efforts you made for this case. Its the equivalent of diverting a river with a spoon, or of the lone man standing in front of the tanks in Tianemen Square. Its both valiant and brave. We now know what we need to do more than ever. I believe this will galvanize more people than ever to fight. Its time to start the hard work of building a grass-roots effort to change this through legislation. Just imagine how many joe-sixpacks will join our ranks as DRM electronics start sneaking their way into our homes. We can win this, it just going to take some time.

  15. Anonymous says:

    Well, it’s known that Rehnquist is unprincipled. Sorry, but them’s the facts. The ‘Saturday night massacre’ in the Nixon administration proved that, and he’s proved it again as a judge several times.

    Scalia is an idiot; his opinions have no relation to logic or reasoning. He has no understanding of the importance of the appearance of judicial independence, having repeatedly given speeches giving his opinion on cases which will probably come before the Supreme Court. He has expressed the IMHO impeachable belief that he must defer to Catholic Church doctrine (?!?) in making rulings (?!?) even when his own opinion contradicts it; making himself a disturbingly real example of what Catholics were falsely accused of for centuries.

    Thomas is a sexual harrasser with below-par law credentials, who follows Scalia and Rehnquist slavishly on essentially every case which is not about race; he has never shown any signs of integrity on any other issue.

    (These are the three who I think should never have been considered as judges, let alone for the Supreme Court, and I believe Scalia should obviously have been impeached. My apologies for being so blunt, but it has to be said. Your mileage may vary.)

    So I had zero expectations that they would *ever* do anything principled.

    The ones I wonder about are the others: Kennedy, O’Connor, and Souter.

  16. anon says:

    So, yes, they shut down Eldred Vs. Ashcroft.

    Disapointed, yes, but not surprised:

    Bush Declares Jan 18th Sanctity of Life day (30 years after Roe Vs Wade)

    You know? We’re seeing a full-frontal assault on the rights of the individual.

    Jose Padilla – american held indefinitely without trial as an “enemy combatant”

    In this climate it would have been a miracle of the first order for the Supreme Court to give something this large back to the people.

    Our liberty is falling, and our Constitution – our protection against government – is under dire threat from, well, people like the Supreme Court (who, let us not forget, made Bush president).

    You did the best you could. But when the civil system fails the people, civil disobedience on a mass scale, protest, unrest and finally the selection of a new government, one who’s interests are aligned with the people and not against them, must be selected.

    All along, you’ve treated Copyright as an issue separate from encroaching fascism. But it isn’t: fascism is the union of state and corporate interests.

    And that’s the real message of this decision: corporate interests won out over a perfectly valid and good constitutional argument, and this is perfectly in keeping with the times we live in.

    Prof., it’s time to come off of the fence: the problem is political, not legal, and it goes far further than just copyright.

    This battle is lost. You could turn around and say “well, that was the war, and we lost, and it’s over until the next copyright case”. And that would be ok, valid as far as it goes.

    Or you could say “That was the battle, and we lost because the Supreme Court no longer serves the interestes of the people, but has been corruped as have most other branches of our government: by corporate interests and big money. And so, for justice to ve served, we must continue the battle against those interests, until our democracy is restored“.

    You’re good enough to make a difference. Rest a while, and then get to work.

  17. David Lewis says:

    I too applaud Larry’s prodigious and heroic work, and hope this event doesn’t discourage him. But if he’s finally coming to the conclusion that the Supreme Court (and all other courts) are primarily political institutions rather than purely legal/logical ones, then it could help him be even more productive in his quest for real justice. I hope he takes it that way.

  18. Nathanael Nerode says:

    Do not have faith in the courts. Have faith in the Law. There is a higher law than the Supreme Court — in the United States we might call these the Laws of Nature and of Nature’s God.

  19. bvw says:

    To the faceless slanderer who said: “Well, it�s known that Rehnquist is unprincipled. Sorry, but them�s the facts” … Delusions and slanders help none, and are a cancer to Liberty.

  20. Victor Copyrightholder says:

    Yes, there’s a principle. The principle is that nonsensical, specious arguments such as yours will be rejected by intelligent, responsible people, including but not limited to the Supreme Court majority that handed down this ruling.

    Slink back to Stanford, Larry, and give up. Or continue bashing your head against a brick wall — it really makes no difference to the rest of the world what a loser such as you does in the future.

  21. Anonymous says:

    On the subject of Rehnquist’s principles, he surely has them, but the ones he has are not ones that we should support as appropriate principles for a member of the High Court.

    Especially regarding his support of the conservative political agenda regardless of whether it is in agreement with the Constitution. This decision is an example of that, since the Conservative agenda is pro-business, even at the expense of individual liberty and the public good.

    A legal argument defending the notion that the current court is activist on conservative politics–something intuitively obvious to anyone with liberal political leanings–is here:

    Thanks to Mr. Lessig for fighting the good fight.

  22. Larry, by concentrating on the enumeration issues, you may have lost sight of the larger issue, at least from the conservative point of view, which is property rights. The court’s conservatives are not going to be aggressive about transferring private intellectual property into the public domain absent a compelling reason, and by deferring to Congress in this matter, they advance the larger and more important issue.

  23. Sam says:

    Footnote 16

    Footnote 16 hardly solves the problem. I don’t see it doing any “work”; it simply announces that so long as the Congress establishes a (calendrical) limit on copyright term then the clause is not violated. This leaves the Congress free to establish any term whatever, so long as there is a term, and, as the Eldred brief contended, to make copyright extensions perpetual on the installment plan.

    By contrast, what Lessig is looking for in appealing to the post-Lopez cases on the Commerce Clause is some principle that would allow the Court to intervene in the case of some extension. But the Eldred decision commits the Court to upholding an extension of a thousand or a million years — as long as there is a number. In the commerce cases, the Court insisted on a way (a problematic way, but a way) of distinguishing between what is truly national and what is truly local, and promised to intervene in the future on that basis. Which it did.

    Hence the inconsistency. Footnote 16 doesn’t fix it.

  24. Andrew Cory says:

    I�ve been in contact with my congresspeople (well, 2/3 of them), and begun asking them when we can expect to see them write a law that will overturn the CTEA. This may be the easiest way to go about fixing the problem…

  25. Giles Hoover says:


    The fight is not over by a long shot. Those of us who have looked to you for leadership and knowledge and guidance will continue to do so — because you WERE right, the arguments DID make sense (even to laypeople), and politics (which are out of your control) seemed to be the deciding factor, not what was right or best or even logical.

    I, for one, would give real money to be in your classroom on Tuesday.

    All the best, man. We’re counting on you to continue.

    Giles Hoover

    Note to Victor Copyrightholder: For God’s sake, Valenti, don’t be such a p*ssy — use your real name.

  26. Amanda says:

    Mr. Lessig,

    Your constitutional law class should feel honored to have you for a professor and I have a feeling that 99% will be highly honored to study under your direction. Personally, I’d rather learn from someone sincere and honest such as yourself who has “lost” in front of the Supreme Court than from someone who is manipulative liar who’s “won” (i.e. Sarah Weddington).

    Anon mentioned above that, “We�re seeing a full-frontal assault on the rights of the individual.” I don’t agree. I think that now more than ever there is more of an tangible understanding of individual rights. Americans are clearly empowered with superior and easily accessible information (as found in The Future of Ideas as well as Vaidhyanathan’s Copyrights and Copywrongs) and have the ability to make change happen.

    When my husband gave me The Future of Ideas he said, “It’s wonderful but it’s really depressing.” He’s wrong. Frankly, I’m greatly encouraged by your work and the work of others.

  27. Scott Grammel says:

    I can’t say I was at all surprised by the Court’s decision, so I’m afraid I can’t join in the general lamentations. Elsewhere today I’ve already written that I have always felt your arguments in this case were more ingenious than persuasive (and I’ve been privately railing against the ever-lengthening copyright laws for twenty years or more), especially given the make-up of the current Court. None of your main arguments, it seems to me, finally compelled the Court to act in this case and at this time, and as others have written that then allowed the members of the Court to defer to Congress’s judgement, which was essentially their default position in a case like this.

    You wrote: “I don’t see what the argument is that would show why it is the Court’s role to police Congress’s power to protect states, but not to protect the public domain.”

    But the five aren’t interested in protecting the states as much as in limiting the federal government’s reach and power. In this case, those five surely viewed Congress’s latest copyright extensions not as an outrageous example of Congressional reach and power (vis a vis the public and the public domain), but, in an almost perverse way, as an empowerment (to use one of my least favorite words) of the individual and corporate copyright holders. The question that needed to be asked in determining the Justices’ likely votes was how do they tend to rule in property law cases, since, essentially, that seems to be what they did in this case.

    Now if they had come to believe that the larger, communal property rights of the American public had been stolen (which, essentially, was the case — wasn’t that the contract?), that would’ve given them at least a greater pause before deciding as they did. Whether it would’ve been enough we will probably never know. I tend to doubt it myself.

    I’ve come to believe that the only thing that will change this situation is massive and widespread individual acts of civil disobedience. Especially, I should add, if someone is able to clearly and simply articulate a moral and ethical alternative to the current status quo. My slogan is “50 is Fair.” It just may be simplistic enough to gain some traction.

    Guess I should go back to looking for a job. Or maybe law school…

  28. Lis says:

    I have a deep layman’s interest in the Supreme Court and often thought about studying law, not out of a desire to work as a lawyer, but simply out of an interest in understanding the subject.

    Now, I desperately want to take your constitutional law class.

    I truly admire you, and I wish you the best.

  29. Protected, copyrighted material, like privacy, is dead. Whether the Supreme Court, Congress or the Disney’s of the world like it or not, the “Darknet” of universal peer to per file sharing and CD/DVD copying is upon us and nothing, in the long term, will alter this situation. What’s so unfortunate about this is the inability of the powers at be to acknowledge this fact and move on to rectify the copyright issue in a way that’s in concert with how the world does business in the connected age of the Internet.

    As a designer and software developer, I hate to see this happening because public domain and the free exhange of information, unencumbered by bad law, is vital to the maintenance of a free and open society able to deal with the challenges of the 21st century.

    Keep up the good fight and don’t quit. We don’t need another Volstead Act in 2003.

    Robert E. Moran

  30. MG says:

    “As the Chief Justice taught in the case of Lopez, if an interpretation of Congress’s power yields the conclusion that Congress’s power is unlimited, it is an improper interpretation. Yet that is precisely what the government conceded its interpretation did.”

    But these are two very different types of “unlimited.” Pre-Lopez, the commerce clause had come close to having no limits of any kind. Commerce affected everything and everything affected commerce, so the clause came to have no limits until Lopez reasserted them. The commerce clause could justify any federal law not explicitly prohibited by some other provision (such as a bill of attainder or establishment of religion).
    The copyright clause, OTOH, has always had a subject matter limitation. No one would use the copyright clause to argue that the federal government could regulate guns near schools or violence against women.

    Conceptually, the copyright clause has always had generally understood limits as to its breadth: it covers copyrights. The question in Eldred was one of length: how far does the copyright power go?

    The commerce clause, pre-Lopez, had lost any limits on its breadth. The connection to commerce had been eliminated. This is what the court properly restored. Even though I support Professor Lessig on Eldred and am disappointed in the decision, I think complaining about an inconsistency between Eldred and Lessig reveals more about the ideological blinders of the complainers than of the Supreme Court.

  31. MG says:

    In my prior post, the clause reading “I think complaining about an inconsistency between Eldred and Lessig reveals more about the ideological blinders of the complainers than of the Supreme Court” should of course read “I think complaining about an inconsistency between Eldred and Lopez reveals more about the ideological blinders of the complainers than of the Supreme Court.” Sorry.

  32. Mike Mirarchi says:

    Here’s the hypothetical that the majority never fully confronts:

    Suppose every 20 years, Congress extends the copyright term by 20 years, and applies the extension to subsisting copyrights.

    This would be a perpetual copyright (on the installment plan), yet there is absolutely nothing in the majority opinion that would provide any basis for invalidating it on the ground that the term is not limited.

    First, all the historical arguments would apply with equal force. Indeed, the historical arguments would apply with even greater force. Instead of noting that “petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to ‘limited Times’ that the 1831, 1909, and 1976 Acts did not,” the majority could note (at whatever point in time the hypothetical statute is challenged) that “petitioners fail to show how the Nth CTEA crosses a constitutionally significant threshold with respect to ‘limited Times’ that the 1831, 1909, 1976, 1st CTEA, 2nd CTEA, . . ., (N-1)th CTEA did not.” Oddly, then, if Congress were to grant a perpetual copyright on the installment plan, the historical argument against invalidating the statute gets stronger and stronger with each successive term extension.

    Second, the naive textualist argument would also apply with equal force. Suppose one hundred years from now, Mickey still isn’t in the public domain, and the current term is life + 170. To quote the majority (footnote 16), it would be “impossible to identify any statement in the statutory text that installs a perpetual copyright, for there is none.” If Congress were to grant a perpetual copyright on the installment plan, as in the hypothetical above, it would never have to change the text of the statute beyond changing the number specifying the term, which would itself always be a finite number. The textualist argument in footnote 16 simply fails to come to grips with the fact that it is possible for Congress to grant perpetual copyrights by amending a statute in a way that the statute will always specify a finite term. Similarly, the dictionary definitions cited by the majority (II.A) don’t provide any help when it comes to invalidating a perpetual copyright on the installment plan. If, as the majority holds, the current term falls within Webster’s definition of “limited,” then so would a term of life + 170, or any other term in the succession of extensions by which Congress grants a perpetual copyright in the hypothetical above.

    Nor would the portion of the majority opinion on legislative intent (II.B.1) provide any basis for invalidating a perpetual copyright on the installment plan. It’s possible, in the hypothetical above, that each time Congress extends the copyright by 20 years, Congress genuinely believes that that is the last extension of subsisting copyrights, and has no intention of ever extending them again. Again, the majority’s reasoning would require upholding the term: “Nothing before this Court warrants consturction of the [Nth] CTEA’s 20-year extension as a congressional attempt to evade or override the ‘Limited Times’ constraint.”

    What I find most maddening about the majority opinion is that all of its arguments as to why the CTEA is consistent with the “Limited Times” requirement would apply equally forcefully, if not more forcefully, to each subsequent copyright term extension if Congress were to grant a perpetual copyright on the installment plan. I challenge anyone to point to anything in the opinion that would provide a basis for holding that a perpetual copyright on the installment plan runs afoul of the “limited times” requirement. What good are any of the majority’s arguments as to why the current term is “limited,” in the constitutional sense, if each of the majority’s arguments leads to the conclusion that a perpetual term on the installment plan is also “limited,” in the constitutional sense?

  33. FormerLarryStudent says:

    To the jerkwater who called Scalia an “idiot” — why don’t you ask, of all people, Larry Lessig whether he thinks Antonin Scalia is an “idiot” — he clerked for him after all and probably helped write a whole bunch of opinions you didn’t care for.

    Go Bears!

  34. Anonymous says:

    Of course there’s a principle, and a clear one: if the constitution can be read in such a way as to support the interests of the wealthy and powerful, it should be so read. Good or bad, this is the principle of the current court.

  35. charlie says:

    i’m not a student or practioner of the law, but, assuming that the court was acting on “principles,” i suspect that those principles are faith and fear.

    faith in the intellectual property system that we currently have, that which is based on ownership, the operating principle of our capitalist society. only a very small portion of our society recognizes that the conceptual alternatives to private content ownership — free culture, open source, the gnu, the public domain — are an important, possibly better means to knowlege production/creation for all. so to violate that faith in a decision for eldred is to betray society.

    fear that a ruling in eldred’s favor here could result in repeals of previous copyright acts, a cascading effect which could shake up the publishing and entertainment industries. fear that if they did not defer to congressional power here, that there will be other cases assaulting their faith in ip law where they would have to rule against their faith again. mostly, fear of the unknown.

    so to change this faith and combat this fear, we must educate the american public, as well as the courts, by activately demonstrating that free culture represents a better paradigm for knowledge-making in our society.

    suggestion: if you didn’t submit it as evidence (is that the right term), have the audacity to personally send each of the members of the supreme court a signed, complimentary copy of the future of ideas. i’m in the middle of it now. might do them good to read it 🙂

  36. Max Kennerly says:

    No, there isn’t–Law Meme’s sponsor has already demolished Ginsburg’s argument:

    Our society has deified private economic interest and the law has become infected; as Balkan points out, the Court was unable to see the erosions in copyright’s free speech safeguards over the past 200 years. I maintain this is because they hold private economist interest to be more important.

    The case required a different time in history and a different court, not a different lawyer.

  37. The principle that I would place at the center of our quest is what we now call the public domain, though the framing generation called it “free trade”, “restriction against monopolies”, or simply “liberty”. The majority opinion is characterized by a lack of respect for this principle. So you are right to see it as unprincipled.

    Another contributor compared this decision to the Dred Scott decision, but I think a better analogy is to Korematsu v. United States:

    in that case, as in this one, the court failed to focus clearly on the deep principles at stake and we were all diminshed by their decision.

  38. Anonymous says:

    While I understand Larry’s anguish and I’m grateful for all his heroic work, the principle with respect to the “silent five” is quite simple: courts much prefer to issue a single majority opinion. Significant concurring opinions are rare; concurring opinions that independently judge a constitutional issue are even rarer.

    Don’t give up, Larry. Here’s another great case to test their principles, and yours:
    “A Desparate Case Under the Commerce Clause: Federal Jurisdiction Over All Radio Use”

    You’re a human being, Larry, a human being. If your students recognize that, you’ll be doing better than the average law professor.

  39. Karl Marx says:

    The last twenty years have been hard: first the Russians lost the faith, and then my hegemon in Eastern Europe crumbled. Then China went to that “one nation, two systems” concept, the first step toward a recognition of private property, and now this debacle in the USA where the right of a worker to the fruits of his labor is recognized even after his death. It’s getting harder and harder to convince people to eschew the opiate of capitalism and come over the communal side, and I fear that the death of Fidel Castro, the last true communist except for that nutty guy with the weird haircut, will the end of my ideology.

    But my thanks to the good soldiers of the revolution at Stanford and Berkeley who aren’t afraid to stand up to the evil capitalist class.

    In solidarity, I remain Your Comrade.

  40. As a Brazilian IP professor, I have been following closely and with great expectation your jousting in favor of the public interest. Thank you for the developing countries.

  41. Reading now many comments of this and other blogs, I would think it appropriate to stress that the damage done by Ginsburg decision is larger than hitherto seen. The integrity of the public domain in authorship’s right shall be sought, no doubt, but the effective denial of the same principle for patents (see footnotes 9 and 22) and revocation of Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 (1964) (even in obiter) will have probably more stringent effects.

    I my country, Sears Roebuck was being used as a compelling argument to oppose ex post extensions of patent terms. Extending the life of a patent beyond its expiration term was arguably unconstitutional on may legal systems, as the right to use the teachings of the patent at the end of monopoly term is (as the argument goes) vested on public simultaneously as the patent owner gets its grant. The idea that copyright and patents have different exchange terms (offered on page 24-25 of Ginsburg’s opinion) is not entirely bad, but footnote 22 dismiss all positive content to such finery. They are distinct, but have the same result: disvesting the public from its constitutional right to free use of creations.

    I am probably out of tune with the prevailing mood here. My worry, however is equally shared between free flow of ideas and availability of medicines to fight AIDS. Eldred has certainly a worldwide import.

  42. Stay spirited! The world needs people with spirit like yours!

  43. Thomas says:

    Perhaps an advocate who respected the Court would have had a better chance of persuading them. (You’ve been questing the integrity of the 5 since October. )

    And perhaps an advocate who recognized both the strength and weaknesses of his case would be better at handling defeat. Blame the case, not the Court.

  44. Ben says:

    Hi. Haven’t communicated for a while, but I thought I’d respond to your elegy for Eldred. I don’t understand why the actual mechanics of decision-making in any particular case ought to undermine your teaching of how we should try to understand what the Court does. In our 1998 seminar on constitutional fidelity, you coyly insisted that your theories about the behaviours of the Court were merely descriptive. I recognize in retrospect that the act of teaching itself made these theories normative. In struggling to read the Court’s decisions over time in a fidelitist manner, we internalized a conception not merely of the Court, but rather of law. (Your work in the academy, on this view, is symmetrical with that of Robert Hale, but pushing in the opposite direction.) It would take many decisions–maybe more than the Court could issue–to make me abandon that conception of what law is. Besides, Eldred may yet be interpretable once we’ve gained greater perspective on it. So keep the faith.

  45. Lessig says:

    A person named “Thomas” writes: “You?ve been questing the integrity of the 5 since October.” Not true. This is the first post that has suggested anything at all about “the five.” The other references to 5 was just the 5 votes necessary to make up a majority — whether from the 5 Lopez supporters, or not.

  46. John J. Coupal says:

    If you can’t answer my question about the spelling of “Constitution”, you undoubtedly don’t understand the meaning of the Eldred decision.

    I understand.

  47. Thomas says:

    Larry, what I’m talking about is this post, which has stuck with me for a long time, and which connects with the piece I responded to:

    “The Lopez-Eldred link: […]There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. … Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.”

    What is one supposed to think this means? “[E]xcept for ugly reasons.” Are we supposed to think that that is directed at all 9?

  48. A positive spin on the decision:

    By its ruling, the Supreme Court essentially and perhaps unwittingly advanced the notion that copyright is not a natural property right, and is not subject to compensation for taking, since otherwise, how could extending an existing copyright not be considered a taking from the public domain and thus entail direct and immediate compensation to the public? Thus, say, a law shortening existing and future copyright terms to say three years passed tomorrow can not be considered a taking from the private domain (which is otherwise, the obvious objection copyright holders would make to such a law). The hope of this decision is that someday it can essentially be cited in defense of legislation to shorten copyright rems for all works. (“The Supreme Court did not object to lengthening them in Eldred vs. Ashcroft on property rights grounds, so it cannot object to shortening them…”) So, the loss of this case could be viewed in the end as a clever ploy by Prof. Lessig to undermine the notion of copyright as property, and thus lay the ground work for a transformation of U.S. society in the internet age. 🙂

  49. Anonymous says:

    The depressed point of view states that the principle involved is simple: fascism. A.k.a. “There are no individual rights; the state has all rights.” This is unfortunately entirely consistent with the rulings of Rehnquist on most cases.

    Paul Fernhout has made a very good point. Unfortunately, the attitude of the Reagan/Bush “justices” corresponds quite consistently with a belief that *private* property is sacrosanct but *public* property has no value. This is of course in contradiction to the ancient public trust doctrine, but it’s the line they have taken. Accordingly they probably see it as an issue of property, but see nothing wrong with giving away public property for zero public benefit.

    Impeachment of Scalia, Rehnquist, and Thomas is what the country needs, of course; unfortunately it’s very unlikely to happen.

  50. Anonymous says:

    In terms of principle, the best conclusion is probably: The Court is not the Law. The Law is higher than the Court; the Court can be wrong, and the Court can be corrupt, as I believe it has been many times in the last 20 years.

    The Law as determined by precendents may be the law which is enforced, but it is not the Law. Loss of faith in the honesty of the Court is not the same as loss of faith in the Law. (Rather, it’s a cause for promoting impeachment proceedings…)

  51. assm says:

    Lawrence your an idiot. Federalism is about giving the federal government the powers they are supposed to get according to the constitution and nothing more. The constitution gives the federal government the power to regulate copyrights EXPLICITLY. It is in the constitution. Read it.

    On the other hand there is nothing in the constitution that says the federal government has the right to outlaw discrimination as in the civil rights act. In fact the first civil rights act was declared unconstitutional in 1875 when the supreme court actually believed in the constitution. Most of the New Deal legislation is also unconstitutional. NONE OF THESE THINGS POWERS GIVEN TO THE FEDERAL GOVERNMENT IN THE CONSTITUTION. The power to regulate copyright is a power the federal government is explicity given. So I don’t see why your complaining. If anything the court is being too liberal. It should be out there outlawing the civil rights act, the new deal legislation etc. Instead it is dealing with stupid things over which the federal government has explicit power.

  52. assman says:

    I had to post again because Lessig cynical manipulation of the truth has mad me very angry.

    Let me see if I can summarize the stupidity of Lessig’s position. He basically says that the supreme court should abrogate one of the powers the constitution explicitly gives the supreme court (namely the power to regulate copyright). They should do this in the name of state’s rights. Of course Lessig doesn’t actually believe in state’s rights. Rather he believes in a large federal government. So he also thinks that the supreme court should give the federal government powers it was never explicitly given by the federal government and which are therefore reserved to the states like the power to outlaw discrimination. In sum, Lessig believes we should read the constitution and do the exact opposite of what it says. Lessig than goes own to criticize the supreme court because he didn’t get his way. He considers it a violation of principle for the supreme court to actually follow the constitution. Namely the supreme court is violating the principle of limiting the power of the federal government to the greatest extent possible which BTW is a principle that Lessig never believed in the first place. In was just a principle Lessig decided to cynically exploit in order to get his way. The only problem with this principle is the supreme court never actually believed in it themselves. They instead followed the principle that YOU SHOULD DO WHAT THE CONSTITUTION SAYS. This principle implies that you give to the federal government the powers it is supposed to have according to the constitution. Nothing more and nothing less.

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