From the front line

By Lawrence Lessig

October 13 2002

So there’s an extraordinary (and extraordinarily interesting) range of reporting about the argument before the Court. As I was on the front line, let me add a bit more. My hope in doing this is to put this in a bit of context, and to highlight at least what we should be looking for. (EV [ ] predicts a 6-3 victory, which is significant, because he and I have a bet, and he took the other side.)

Aaron [ ] reports Brewster’s statement to him that “it was a dance for which I don’t know the steps.” That’s close. I think the better analogy for someone viewing an oral argument for the first time is the first time you see a cricket match. There are some moves you are certain you know are bad (a swing and a miss); but there’s lots that plays into something you can’t quite get till you know the context of the game. Here, then, the context of the game, as well as the moves from last Wednesday.

The aim

Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress’s power — the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress’s power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that “affects” interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez [ ], the Court said we need a different interpretation of “commerce” that actually recognizes limits. Limits, not control of Congress’s discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.

We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent [ ] in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government’s interpretation of that clause, “limited times” has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term “limited” (limited as in limited edition print) that would also produce an effective limit on Congress’s power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham [ ], “court favorites,” but instead to create an incentive for “new” creativity only).

Now that strategy was controversial from the start, especially because some of our natural allies (Stevens, Souter, Breyer) were so strongly opposed to the Lopez line of cases. But our call early on in this case was that they could be brought around to see that even if they oppose the results in Lopez, there was no reason to oppose the same reasoning in this case. Indeed, they could use this case to show why they were right in Lopez: They could argue that unlike the Copyright Clause, the Commerce Clause has no express limitation built into it; unlike the Copyright Clause, the limit the Court has found is wholly implied; thus, they could say, it is not appropriate to imply limits where not expressed. But, they could also say, where a limit is plainly express (as it is in the copyright clause, which is one of only six clauses [ ] in Article I, sec. 8 (the part of the constitution with the core grants of power to Congress) that expressly limits a grant of power (the others are clauses 1, 12, 15, 16, 17)), then it is appropriate for the Court to find a way to enforce those limits. In other words, they could write, “for the reasons given in Lopez, you were wrong in Lopez, but it would be right to limit Congress here.”

The fear

The greatest fear we had about this strategy (beyond the backfiring point) was that it all presupposed that the Court got it. It presupposed that the Court understood the problem with extensions of existing terms; that it understood the harm that would do to the internet, and the ability of people to build on the internet; that it saw the law as useless. And before the argument we struggled over and over again with how best to focus the Court on the costs, if in fact they didn’t get it.

The argument

(1) The most important first indication that was absolutely clear from the argument is that our fear was misplaced. The Court clearly got it. Though the other side had written literally 300 pages trying to show all the good CTEA did (and pronounce it like it is a disease — sateeeya), the Court hadn’t bought any of it. Congress was not acting to promote progress, it was acting to reward “court favorites.” The only question the Court was struggling with is whether it has the power to do anything about it.

Now pause for a second to think about how important and good this struggle is. First: It is a rare but valuable exercise for any branch of government to worry about the scope of its own power. And the greatest virtue the Court exercises is the virtue of self-restraint. This is a reason to respect the Court, not criticize it (though how they exercise their restraint, or where, can be criticized, as I suggest below). But the general idea that it will restrain itself, despite believing a law is stupid, is a feature, not a bug in our constitutional tradition.

And second: that they are struggling with this question of restraint means they clearly get the problem. They are motivated to do the right thing; they are resisting the right thing for the right reasons. Both sides are good.

(2) Though it took some hammering, they clearly understood by the end of my argument the dynamic of the argument that we were making. I said, over and over again, that we were advancing an interpretation of “limited times” that had the virtue of actually imposing limits, because otherwise the clause would have no limits. The aim, and I think effect, was to repeat this idea so many times that they had in their heads a simple picture: There was a way to read “limited” so that Congress would not have unlimited power.

Thus, for example, when I said that limited should be read like “limited edition print,” Justice Souter interrupted to say that this was a different kind of case (not a contract, etc.), and I said, yes, but we are simply showing you that there is a plain meaning of the term “limited” that actually produces a limit. He’s a very careful justice; he got the point, as did the court by the end. That’s not to say he bought it, but he clearly gets the dynamic of the argument: if you believe you must impose a limit on Congress’s power, here’s a way to impose that limit.

(3) The government then helped us immensely by simply confirming what we had said: under their theory of the case, there was no constitutional limit on Congress’s power to extend terms; it was always a matter of Congress’s discretion. Congress could perpetually extend existing terms; it could even extend a copyright to works within the public domain.

The Court clearly did not like this answer. They had bought the idea that the Constitution intended there to be a limit; the government’s interpretation meant that this was a limit that was solely a matter of legislative grace. (Compare [ ]: “Under our written Constitution the limitation of congressional authority is not solely a matter of legislative grace.”) They were not comfortable with the idea that they would simply say that though the constitution expressly limits Congress’s power, it is Congress that gets to say what that limit is.

(4) This gave me the opening I wanted in the rebuttal to say: On the government’s view, the Copyright Clause means Congress has total discretion; but that is plainly inconsistent with 125 years of Supreme Court authority. The very first time the Supreme Court ever struck down a law of Congress because it exceeded a particular grant of power in Article I, sec. 8, was in 1879 in a Copyright Clause Case [ ]. Since that time, the Court has repeatedly and unanimously imposed limits on Congress’s power in the name of Copyright Clause. All of those limits so far have been implied limits. The Court has held that of all the “authors” and “writings” that might be granted copyright, only those that are “original” are allowed copyright; and it has held that of all the inventions or writings that can get patent or copyright protection, only works that are not in the public domain can get the benefit of the copyright and patent clause protection. Both of these limits are implied. Yet here, with the only express limit on Congress’s Copyright Clause power, the government was arguing that in effect, the limit was limitless. This, I argued, is fundamentally inconsistent with this 125 year history, and shows the government must be wrong in its view.

(5) Finally, the government’s repeated invocation of the “delicate balance” that Congress has struck became too much to ignore by the end. My final point before the Court is ultimately the most compelling politically, though not directly relevant to the constitutional argument: Under the current term of 95 years, under the most conservative assumptions about royalty income and interest rates, the current term gives authors 99.8% of the value of a perpetual term. Put differently, the current “delicate balance” between author and the public is 99.8% to the author, .2% to the public. (Check out footnote 6, page 6 of the economists’ brief [ ] if you want to do the numbers.)

After thoughts and advice on interpretation (read: clues on the game)

Lots of people have made tons of noise about what the court asked questions about and what it did not ask questions about. In my experience, this is not an indicator of anything. One hour is an extraordinarily small amount of time to consider the issues in this case. They ask question about things that need to be discussed. They let go things that they get from the briefs. When I clerked, oral argument was irrelevant to 90% of the cases; that is because they do their work based on the writing, and unlike most branches of government, they actually do their work.

That said, there was lots I was unhappy we didn’t get more of a chance to discuss. Here’s an enumeration of what’s open and what we’ve got to win.

(1) 1790 Act: We lose if they are not careful about the interpretation of the 1790 Act. We need the originalists; we therefore need to defeat the government’s claim that “CTEA = the 1790 Act.” The arguments here are not even close if you pay attention to the history. It is simply and absolutely false to say that the 1790 Act “undoubtedly extended existing terms” as the government says. The 1790 Act (1) did not extend any term (since there was no federal term before 1790); (2) it did not, on balance, effectively extend existing terms (because the law at the time included both state common law and statutory law granting copyrights, and while it may have extended the term of the works protected by the state statutes, it shortened the term of works protected under the common law); and finally (3) even for works protected under the state statute, 3 states expressly stated they didn’t mean their statute to displace the common law. Thus, it is more likely the 1790 Act shortened, not lengthened, terms.

That conclusion is supported by the numbers reported by William Maher [ ]. He actually counted the number of copyrights granted to works published before 1790. Of the 21,000 works published between 1790 and 1800, we have record of just 699 copyrights. Of the 699 copyrights, only 12 are for works published before 1790. Of the 12, 5 are for works protected by state statute. The remaining 7 were presumptively protected by the common law. Thus, of the records we have, the majority of terms were plainly shortened, rather than lengthened. And the clearest reading of what the framers thought they were doing was simply moving to a new federal regime, and ending the continuing effect of the old state regime.

We need to win this point. Of all the arguments in this case, it is the only one that I am 100% certain of (the rest I’m at 99.8%). But it wasn’t discussed much, which creates lots of anxiety.

(2) The Lopez-Eldred link: The other point that seemed lost on the Chief Justice was that this was a Lopez case — or more importantly, it was a Lopez-plus case. If the Commerce Clause must be interpreted to imply limits, then the Copyright Clause must be interpreted to give effect to express limits. 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 the Chief Justice (author of Lopez and this line of authority) didn’t seem to recognize the link. If it is not made, then again, we lose. 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.

(3) Which Bright Line: Justices Souter and Scalia were trying to figure out which bright line made most sense: that Congress can’t restore copyright to works in the public domain, or that Congress can’t extend the term of existing copyrights. The obvious question which no one asked is: Why do we expect works will be allowed to pass into the public domain again? Look at the pattern:

The effect of term extension is to toll (stop) the passing of works into the public domain. In the first 100 years of the republic, the public domain was tolled like this for only 14 years (14%). In the next 50 years, the public domain was tolled for 14 years again (28%). But when CTEA expires, the public domain will have been tolled for 39 out of 55 years, or 70% of the time since 1962. If the Supreme Court says ok to this, then why would anyone expect 70% won’t become 100%? The line that says Congress can’t restore copyrights to works in the public domain may be bright, but it is in a very dim world indeed.

Final thoughts

I am obviously extremely happy with where we are. The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law.

I am obviously also unhappy with those “swings-and-a-miss” that happened in the argument. As I said before the argument, if we win it will be because 4 years of activism by many many people have changed the public’s view about the importance of these issues. But as someone who believes this the rare case where the law, properly and carefully read, yields one right answer, there is no way I will ever be able to escape the thought that if we lose, it is because I am not the advocate that some could have been. It is the particular hell for lawyers that after an argument, we live in the purgatory of constantly reliving the argument. Every night since Wednesday I have awoken in the middle of the night, to spend the rest of the night reanswering Justice Ginsburg, or asking Chief Justice Rehnquist just how he could distingiush Commerce from Copyright. The kind words of so many notwithstanding, I know and have always known I am not Larry Tribe, or Kathleen Sullivan. And if, after getting this so close to the right result, I have lost this by not being them, then I am not quite sure how I will live with that fact.

So please, no more of the bullshit about “rockstars” or “visionary.” I’ve lived this struggle every moment of the last 4 years; it will take a long time for me to escape it, especially if we don’t prevail. I want to turn my head elsewhere, and my heart elsewhere too. So I apologize if I don’t follow up on this, or the arguments this might begin. Please, in the spirit of the best of this sphere, carry these argument along, and correct the many mistakes I have made. But I need a night when the limits of this lawyer don’t keep this lawyer awake.

I am grateful to an extraordinary number of people, most importantly, Eric Eldred, but also the hundreds who have worked on this case, the people, like Lisa, who slept out at the court to watch this argument, and Brewster who drove across the country to teach the lessons — too many to count. If we have won, it is your work that has made this happen. That the press chooses to focus differently does not change that fact. At least this space can speak the truth about this fact.

Peace, quiet, and may terms be limited.

4:51 AM

Copyright 2002