March 6, 2003
Enough is Enough
Though I didn’t like his chapter in Copyfights, James DeLong seemed to me like a pretty intelligent guy. After reading this, he’s really left me scratching my head.
It is unbelieveable how much he gets wrong about Eldred. Here are the three things that really struck me about this article:
1. His argument that copyright had significant grounding in moral rights. Can you cite something here for me? Everything I have read has pointed towards Madison and Jefferson defending copyright on utilitarian grounds and being skeptical of monopoly power. I’ve also rarely read a convincing argument that Locke would have wanted copyright. In “Indelicate Imbalancing” in Copyfights, Tom Bell made the point that “because [copyright] thus gags our voices, ties our hands, and emolishes our presses, the law of copyright … violates the very rights that Locke defended.” From what I’ve read of Locke, that’s pretty convincing.
2. Delong says, “The “promote Progress” language was to be applied to each legislative enactment, not to the body of copyright law as a whole.” That’s dead wrong – both from what I’ve read and from what Lessig has said. The argument presented in the petitioners’ briefs was a more narrow holding that “limited times” should be read in light of “progress.” From Lessig’s blog:
“The only difference between [Eric] 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.””
3 (and most important). Delong writes: “As a policy issue, one can agree with the CTEA or not, but either way one should be relieved at the decision. Going the other way would have opened the courts to a grinding guerilla war over IP and the precise meaning of “promote Progress.””
The case could have been ruled on quite narrow grounds. You could simply say that retroactive extensions are unconstitutional on the basis of the meaning of “limited times” (particularly when read with “promote progress”), the petitioners’ historical assertions, and a lack of quid pro quo. The First Amendment argument could have opened the door for a lot more judicial intervention in copyright. A broad reading of the Copyright Clause might have done the same. But it was not necessary to have a broad holding.
I really don’t get why people insist that Eldred would have caused a revolution in copyright. Certainly, I would have liked to see the Court involve itself more, to say “If you go far out of line, we’ll stop you.” But overturning the CTEA didn’t require incredible judicial activism. It could have changed a lot – but, “guerilla war”?
Filed by Derek Slater at 10:30 pm under General news
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