Monthly Archives: January 2003

Have called for a 14 year copyright term, renewable once. Talk about changing the debate. Continue reading →

There’s a growing and interesting thread at the Volokh Conspiracy about the Lopez argument that we made. Glenn Reynolds had a sensible post on the tension between strict constructionists (or as I have called it, the silent 5) and the result in Eldred. Juan non-Volokh agrees, disagreeing with Orin Kerr.

Orin argues that Lopez/Morrison were federalism cases; Eldred was clearly not. That’s no doubt true, but missing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere. Judge Sentelle couldn’t find such a reason. Maybe there is one. But the principle that would justify limiting power in one context but not in another should have been articulated.

But Juan says that the “strict textualist argument” that Glenn advanced was not advanced by us. He says this argument was Erik Jaffe‘s. It is true that Jaffee made this argument in the Court of Appeals. But it is not true that we failed to make a strict constructionist argument in the Supreme Court. Indeed, a section of our brief expressly argues that the “grant of power” was the “to promote progress” clause, and that that clause is not a “preamble.”

The only difference between Jaffe’s position and ours was that Jaffe’s would have authorized a court to evaluate any copyright act to test whether it “promoted the progress of science.” We thought that was too aggressive a position to take (on at least this point we were right!). Our argument instead was simply that the grant of power must at least be used to interpret the scope of “limited times.” That while it was not an independent substantive constraint, it should be used to interpret the scope of the power. This is more “textualist” than Lopez itself: Lopez grounds its reductio on a background view about federalism; we grounded our reductio on a view about “to promote the progress of science.”

Eugene passes on Eugene Kontorovich’s view that this case was really about original-congress interpretations — that the silent 5 could vote as they did because they were simply ratifying what the original congress did. That is indeed the most charitable read, though again, it is just bad history. Abstracting the fact that in 1792 the framers had not yet fixed on what it would mean for a law to be unconstitutional, in 1790, there is zero evidence that the framers would have believed the extension of an existing term was within Congress’s power. For the reasons argued extensively by the historians, Stevens, and us in our brief, the 1790 Act was not that. Thus it may well be that this case was all about one-step originalism. But on that basis, it was poorly reasoned. Continue reading →

I’ve posted an Eric Eldred Act FAQ. Continue reading →

Among the hundreds who have written, Kevin Kelly writes “[y]our stand before the court will only be a failure if we fail to follow through with what is next.” Many more ask, “what can we do next.”

Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been “published,” a copyright owner would be required to pay a copyright tax. That tax should be extremely low–this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.

If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante–98% of the public domain that our framers intended. Not bad for government work.

Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.

But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is “to follow through with what is next.” This bridge–between those who want copyright to be forever, and those who want a public domain–should be next.

If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?

There is a FAQ about the proposal that will be updated to reflect great questions raised by many.

Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman. Donate via PayPal to [email protected] to help us spread the idea.

And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here. Continue reading →

Jesse Walker, who has written many wonderful things for Reason, and lots of great things about the harms to copyright extension, has a brilliant piece interviewing Mickey Mouse about the result in Eldred. My first laugh in 52 hours. Continue reading →

My inbox is a testament to the kindness of strangers. Thank you. Many ask, is there anything more that could be done?

The easy answer is no. The Supreme Court has ruled that Congress has the power perpetually to extend the terms of existing copyrights. This brief “experiment with the public domain,” as the NYT eloquently put it, is over. In twenty years, we can expect terms will be extended again. There is no good reason to expect anything different.

The hard answer is, well, yes, there is always the possibility of an amendment, except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. (1) is for Congress to propose an amendment (which would not happen here — ever); (2) is for the state legislatures to call for a “convention” which may propose amendments. In either case, amendments must be ratified by 3/4s of the states.

The second path has never been followed. People are afraid of it because the convention could in principle propose any amendment at all. As 3/4s of the states must ratify any amendment, that doesn’t seem terribly dangerous to me. But clearly, it would take a massive campaign to march through the states to succeed in getting such a proposal passed.

One kind soul asks, “would you be willing to work to amend the constitution.” If there were a commitment of sufficient resources to make the campaign real, obviously yes. Impossibly difficult tasks seems my calling these days. I’d be happy to become Mr., rather than Professor, Lessig, if there were a good reason to believe such a campaign could be supported.

But short of the impossible, there are many battles yet to be won. The opinion of the Court gives no support to restoring copyrights once expired. That means the challenges in Golan and related cases survives. And, as Jack Balkin forcefully argues, Eldred does nicely frame the unconstitutionality in the DMCA.

More importantly, there is a political campaign that must now be waged. The many organizations that have been fighting these issues have done an extraordinary job getting people to see what’s at stake. That battle has only begun. My hero Siva (which is easier to spell than Vaidhyanathan) has a great piece on Salon on just this point. And Bill Moyers has a piece on PBS tonight that will do lots to help others to see.

I, meanwhile, will be answering email. I should have that finished before the next Sonny Bono Act. Continue reading →

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) Continue reading →