Mickey in for the Long Haul [ http://www.boston.com/dailynews/015/wash/Supreme_Court_gives_victory_to:.shtml ]

Donna Wentworth
Copyfight: the politics of IP

January 15, 2003

Eldred [ http://eldred.cc/ ] lost. 7-2 for the government, with Justices Breyer and Stevens dissenting. Much, much more to come. [Later: Scroll down for continual updates.]

Larry [ http://cyberlaw.stanford.edu/lessig/blog/ ] on the loss, here [ http://cyberlaw.stanford.edu/lessig/blog/archives/2003_01.shtml#000860 ] and here [ http://cyberlaw.stanford.edu/lessig/blog/archives/2003_01.shtml#000861 ].

Majority opinion [ http://cyberlaw.stanford.edu/lessig/blog/archives/01-618o.pdf ], by Justice Ginsburg. Dissent [ http://cyberlaw.stanford.edu/lessig/blog/archives/01-618d1.pdf ] by Breyer; Dissent [ http://cyberlaw.stanford.edu/lessig/blog/archives/01-618d.pdf ] by Stevens.

John Palfrey [ http://cyber.law.harvard.edu/people/jpalfrey.html ] at his new blog [ http://radio.weblogs.com/0117678/2003/01/15.html#a13 ]:

Initial reax on the 2-7 decision in the Eldred case: 1) No one could have done a better job than Larry Lessig did, period. He is the standard-bearer. 2) This movement is bigger than this court case. It's about giving voice to the public domain and we're committed to it. 3) The challenges will keep coming, make no mistake. 4) More people than anyone could have expected cared about this case. 5) We need to think through new ways to make this whole copyright-and-the-Internet thing work.

Slashdotters start chewing the scenery [ http://yro.slashdot.org/yro/03/01/15/1528253.shtml?tid=123 ]; Ernie Miller on the trail [ http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=824&mode=&order=0&thold=0 ].

More from Larry [ http://cyberlaw.stanford.edu/lessig/blog/archives/2003_01.shtml#000862 ]:

So I’ve got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It's my nature to identify most closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote Declan, "Larry lost Eldred, 7-2." Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing.

It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. I have often wondered whether it would ever be possible to lose a case and yet smell victory in the defeat. I'm not yet convinced it's possible. But if there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, "this makes no sense," then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.

I will always be grateful to Eric Eldred, and our other plaintiffs, for putting his faith in this case. I will always regret not being able to meet that faith with the success it deserves.

What the Framers of our constitution did is not enough. We must do more.

BoingBoing [ http://boingboing.net/ ]: "R.I.P., the Public Domain."

Aaron Swartz [ http://www.aaronsw.com/weblog/000806 ]: "Supreme Court fails Eldred, the Web turns black for 'limited Times.'"

Eugene Volokh [ http://volokh.blogspot.com/2003_01_12_volokh_archive.html#90187512 ]: " WRONG, WRONG, WRONG. That's me--wrong, wrong, wrong in my prediction [ http://volokh.blogspot.com/2002_10_06_volokh_archive.html#85551817 ] of the outcome in Eldred v. Ashcroft, the Copyright Term Extension Act case. The Court just upheld the Act by a 7-2 vote. I'll be at McCrow's today eating a nice sandwich and reading the opinion...."

SCOTUSblog breaks it down [ http://www.goldsteinhowe.com/blog/archive/2003_01_12_SCOTUSblog.cfm#87479625 ].

Jenny Levine [ http://www.theshiftedlibrarian.com/2003/01/15.html#a3416 ]: "What I'd like to know is if the Bono Extension doesn't exceed constitutional limits, what does? What is to prevent Disney from asking for another extension? How does this madness ever end?"

Comments--38 and counting--on Larry's blog [ http://cyberlaw.stanford.edu/mt/mt-comments.cgi?entry_id=862 ]. Two such:

Jeff White [ http://studentweb.tulane.edu/~jswhite/ ], a law student at Tulane: "We have now lost the battle, but the war has just begun. From reading the majority opinion, I never got the idea that 'Larry lost Eldred.' I believe that the majority was simply facing an argument that had never been conceived before and was not entirely comfortable with going down the road we wanted at this time."

Berkman [ http://cyber.law.harvard.edu/ ] Fellow Dave Winer [ http://www.scripting.com/ ]: "Hang in there Larry. You got through to a lot of new people with Eldred v. Ashcroft. The Supreme Court won't save us when it's a matter of money, but they will (I believe) when it's a matter of freedom."

Doc Searls [ http://doc.weblogs.com/2003/01/15#welcomeToTheLongRun ]: "We don't turn around a pervasive mentality, anchored in conceptual metaphors older than most oaks, in one court calendar, one congressional term, or perhaps even one decade. But we will. In the long run, the absurd will not stand."

Siva Vaidhyanathan [ http://www.nyu.edu/classes/siva/ ], author of Copyrights and Copywrongs [ http://www.amazon.com/exec/obidos/tg/detail/-/0814788068/qid=1042158267/sr=1-1/ref=sr_1_1/002-0159686-7595256?v=glance&s=books ]:

Here are my initial thoughts:

1) The public interest movement must use this decision to strengthen itself. The courts are no longer our friends.

2) Ginsburg--as so many short-sighted jurists have--grants far too much power to fair use and the idea-expression dichotomy as safety valves in the copyright system. This means that we must focus on these two rights, both of which are in dire danger, to support legislation that strengthens users' rights (i.e. the Boucher bill) and defend against legislation that shrinks users' rights (i.e. UCITA and the database protection bills). We should use Ginsburg's words against the content industries.

3) Larry Lessig and Eric Eldred have done us all a great service by clarifying and publicizing these issues. If we succeed at anything, it's because they spent years of their lives working for our benefit.

Jack Valenti, via the Politech list [ http://www.politechbot.com/p-04317.html ]: "We [ http://www.mpaa.org/ ] are pleased that the Court has reaffirmed the absolute authority of Congress to set copyright terms. We have always maintained and the law has long-recognized that copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest. That is why this ruling is a victory not solely for rights holders but also for consumers everywhere."

J.D. Lasica [ http://jd.manilasites.com/2003/01/15#eldred ]: "I'm incensed that this court, which has taken a radical approach to striking down Congressional laws such as the Violence Against Women Act on the grounds that Congress improperly exceeded its authority, has once again shown that it applies its principles arbitrarily and wantonly."

Eben Moglen [ http://emoglen.law.columbia.edu/ ], in Declan's [ http://www.politechbot.com/ ] CNET piece on the decision [ http://news.com.com/2100-1023-980792.html ], "The very same arguments the Supreme Court rejected today, it would accept in 2014, if there were no precedents against it. Everyone who's a member of the literate community would see at that time what Justice Breyer saw today (in his dissent)."

Co-counsel Jonathan Zittrain [ http://cyber.law.harvard.edu/ ], to Forbes [ http://www.forbes.com/2003/01/15/cz_mf_0115copyright.html ], "One thing the case has represented since its inception and the efforts of Larry Lessig and Eric Eldred, is that there's a movement brewing."

DigitalConsumer.org, via J.D. Lasica [ http://jd.manilasites.com/2003/01/15#digitalconsumer ]: "This large setback for consumers should be a call to action for those who care about innovation and the public's access to creative works, to re-focus their attention on Congress. Public pressure should now turn to having our elected officials legislate a more equitable balance between copyright holders and consumers as the courts have said clearly that they will not intervene in this debate."

Sensenbrenner/Conyers press statement, via Politech [ http://www.politechbot.com/p-04318.html ]:

Chairman Sensenbrenner said, "I am pleased the Supreme Court defended the Constitutional prerogative of Congress to pass the Copyright Term Extension Act. The law provides writers, musicians, and other artists with greater incentive to create and disseminate their works which ultimately benefit the American public. The United States produces more intellectual property than any other country in the world. The copyright and related industries employ millions of American workers, and its vitality is critical to our national economy. The Court's decision will ensure that American copyright holders will generate additional revenues from domestic and foreign sales of their copyrighted works."

Added Ranking Member Conyers, "I am not surprised that the Court upheld the prerogative of Congress to promote and protect authorship. Copyright protection is the main incentive that content owners have to create and distribute their creations; if Congress does not act pursuant to its constitutional responsibilities to update that protection as technology advances, we will take away that incentive and lose what is this country's number one export. This decision demonstrates this country's commitment to encouraging authorship and free expression."

Matt Haughey [ http://a.wholelottanothing.org/archived.blah/1/01/2003#1103 ]: "'Limited Time,' my ass."

Arnold Kling [ http://www.corante.com/bottomline/20030101.shtml#18124 ], of Content is Crap [ http://www.techcentralstation.com/1051/techwrapper.jsp?PID=1051-250&CID=1051-011303A ] fame and/or infamy: "You certainly don't need Creative Commons to prove that infinite copyright is non-optimal. Infinite copyright is unconstitutional. To an economist, that makes the Bono act unconstitutional, because to a first approximation, 75 years is infinite if you discount at a reasonable rate of interest. Unfortunately, I suspect the Justices found that argument too cute for their purposes, although it makes perfect sense to me."

Gigi Sohn, for Public Knowledge [ http://www.publicknowledge.org/news-events/press-releases/eldred-decision.html ]:

[Today's] decision underscores the need for Congress and other policymakers to give greater attention to the question of how "fair use"--the lawful unlicensed use of copyrighted works--may be affected by various "digital rights management"(DRM) technologies. In finding the CTEA constitutional, the Court emphasized the importance of a broad "fair use" limitation on the copyright monopoly. This reasserts the importance of fair use to today's debates over the Digital Millennium Copyright Act (DMCA), digital rights management (DRM) systems and the regulatory mechanisms that would enforce them.
[...]
Finally, today's decision highlights the importance of mechanisms like the Creative Commons [ http://www.creativecommons.org/ ] and the Budapest Open Access Initiative [ http://www.corante.com/copyfight/www.soros.org/openaccess ]. These initiatives are designed to work outside of the policy process in ways that give creative artists and researchers greater ability to control their works and make them available to the public under terms more generous than copyright law normally allows.

The puzzle in the case was the silent 5--the 5 justices who have consistently argued that Congress's power is limited; that enumerated powers must be read in a way that makes sense of those limits. It was my judgment that those justices would apply the same principle to the Copyright Clause, or at least explain why they did not. And ever since the argument on October 9, I have struggled to imagine how they could ever write an opinion that would distinguish commerce from copyright.

It had never even crossed my mind that these 5 justices would simply duck the issue. By assigning the opinion to a justice who has consistently rejected that principle (Justice Ginsburg), the Chief Justice avoided any need to show why his principle of enumeration applied to some clauses of Article I, sec. 8, but not others. And as there was no reason for the dissent to mention the argument, the case gets decided without the central argument that we had advanced even being discussed. It was Hamlet without the Prince.

When I read what Lessig wrote this morning about the Supreme Court's decision in Eldred v. Ashcroft today, I thought of what Rabbi Joshua says in Avot D'Rabbi Nathan when he sees the ruins of the Temple:

oi lanu al ze she-hu charev!

(Alas for us that it is ruined!)

Rabbi Nathan goes on to report that Rabbi Yochanan ben Zakkai (Rabbi Joshua's teacher) answers "b'ni, al yera l'cha" (my son, do not grieve). I hope Professor Lessig's teachers are even now writing to him: b'ni, al yera l'cha.

Yochanan ben Zakkai argues specifically that Rabbi Joshua need not grieve because there are alternatives to the Temple service ("yesh lanu capara acheret," "we have another atonement"). What is Eldred supporters' "capara acheret"?

Surely it starts with cultural struggle to show people that the public domain, and all the public's rights in copyright, are valuable; that, as the Eldred dissents recognized, the copyright law properly aims at a public rather than a private end; that no one is intrinsically entitled to property rights in creative work [ http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl220.htm ]; that, as Professor Litman argues, legislation by private negotiation is not serving the public; and that copyright significantly burdens expression, and that the fair use doctrine may not always be adequate to remedy the harm.

The capara acheret is also to support all the people who are working on the accessibility of culture, from librarians in libraries through free software programmers through "vernacular archivists" (as Stewart Brand says) and the creators and operators of the "databases" so celebrated by Justice Breyer's dissent. And its includes supporting technologists who make creative work easier and cheaper.

Declan McCullagh [ http://www.politechbot.com/p-04323.html ], the day after:

The tussle leading up to the Supreme Court case has done two interesting things. First, it has highlighted some of the recent expansions of copyright law--I think of the DMCA, NET Act, and CTEA as the troika of the late 1990s--and their problems. Second, it's catalyzed a movement that will last beyond today. The second outcome would not have happened without Larry championing this case.
[...]
The problem now is what to do with this movement's angry fire. To his credit, Larry will be one of the most prominent torchbearers. I made my suggestions [ http://news.com.com/2010-1071-949275.html ] in August, and I suspect Larry will post his on his site. If Politechnicals would like to send along their own, I'll dutifully compile and forward.

Howard Bashman [ http://appellateblog.blogspot.com/2003_01_01_appellateblog_archive.html#90190598 ]: "On some level I envy those people who view Eldred v. Ashcroft as one of the most significant and/or fascinating legal disputes of all time. Due to an unspecified character flaw, to me it's just another case involving questions presented and 'the law.' But if indeed I don't view Eldred as an extraordinary case, today I find myself in good company, because seven Justices serving on the Supreme Court of the United States seem to share my view."

Cory Dororow, in an O'Reilly piece by Richard Koman [ http://www.oreillynet.com/pub/a/policy/2003/01/16/eldred.html ]: "There's widespread anger and even rage that this decision came down the way it did, and there's a renewed sense that something must be done as soon as possible to counteract the harmful effects of bad laws like the Sonny Bono act. ... We are now at a point where the issue of copyright reform and the public domain, which two years ago was so obscure as to be invisible--even among very technical people--is now a mainstream issue, at least within the technology world. We can hope now that this [decision] will vault this issue into the nontechnical world, but certainly a generation of technical people have been changed forever by the preparation for and the outcome of this case."

Berkman Faculty Fellow Arthur Miller [ http://cyber.law.harvard.edu/miller.html ], who supported the government in the case, to the NYT [ http://www.nytimes.com/2003/01/16/business/media/16IMPA.html ]: "The case has sparked a public discussion that wasn't happening before...In a 21st-century environment, do you need a 95-year monopoly to promote the progress of science and the arts or is society better off enriching the public domain earlier? Have we reached the point where we have to be much more sophisticated in calibrating copyright? With the Eldred decision Congress can go back and think about it."

Glenn Reynolds [ http://www.msnbc.com/news/856672.asp ]: "While many people are unhappy with the Intellectual Property implications of this decision, its most striking aspect is the strict constructionists' abandonment of the principles of limited government. I predict that this will come back to haunt them in future cases."

Ted Weinstein [ http://www.twliterary.com/ ], literary agent (via email): "As an agent for individual authors my sole interest is the success and rights of my clients, and I spend much of my day fighting on their behalf against Disney and other corporations ... but I find much of the venting against the Bono Act to be knee-jerk anti-corporatism rather than reasoned analysis."

Tim Phillips [ http://home.telepath.com/~hrothgar/ ] (via email): "In its ruling in Eldred v. Ashcroft, the US Supreme Court has said, in effect: 'We lied, suckers. Everything we ever said about the public purposes of copyright was just hot air.'"

A characteristically dry Marty Schwimmer [ http://trademark.blog.us/blog/2003/01/16.html#a397 ]: "Now that my estate is assured of those 20 extra years, I am going to begin work on that novel I have been putting off."

David Moser, author of Music Copyright for the New Millennium [ http://belmontnews.blogspot.com/2003_01_01_belmontnews_archive.html#87856994 ]: "The United States Supreme Court's decision in the case of Eldred v. Ashcroft, upholding the Sonny Bono Copyright Term Extension Act, is a good legal decision that's getting a lot of bad press."

Copyright 2003 http://www.corante.com/copyfight/