The losing side in the Eldred case decided yesterday by the Supremes are scratching their heads and trying to understand why the court ruled that it’s OK for Congress to protect copyright:
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.
Similar sentiments are expressed on Glenn Reynolds’ MSNBC blog and in various tech-topian, hippie, and Open Source sites. The issue here isn’t enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright.
What seems to be missing in the commentary on this case is that the law in question — the CTEA — actually harmonized American copyright law with the EU’s copyright law, not an irrational thing to do in this era of global commerce.
I’ve said all along that the hippies had a weak case here, and apparently the Supremes agree with me. Now we need to get serious about a nice micro-payments scheme so that the Internet can be used to publish copyrighted works; I believe the “Information Wants to Be Free” mantra is more than anything an attempt to gloss over the weakness of the ‘Net as a tool of commerce in the small.
UPDATE: Jeff Jarvis has the right take on Eldred, and so does Misanthropyst.
Speaking as an anti-hippie who walked out on pot parties in the 1970s, I’m worried that Congress with the power to retroactively change copyright terms might try lowering them as well.
The perils of democracy.
The same people also failed to note that the 5 federalists on the Court also tend to oppose legislating from the bench. There are good arguments for changing the length of time on copyrights. It’s a very tricky issue, and worthy of debate. However, I’m just not convinced that the Court can rule on it; how can the Supreme Court possibly say “this term is too long, but this one is alright.” That seems like a definite case for the legislative process.
I’m sympathetic to the arguments against retroactive change (though certainly it should be a taking if there’s a retroactive lowering, not that the courts respect the Takings Clause enough), as well as the arguments that incredibly long terms would be effectively infinite and not for a limited time. I just don’t see a bright line for the Court to rule by, and I dislike the idea of Court-as-Legislature.
This debate belongs in Congress, not before the Supreme Court. It’s a clear delegated power.
Yup – you don’t create policy from the bench, American Government 101. Even Lessig seems to have figured that out, based on his NYT Op-Ed today.
It’s about time.
I think any one that doesnt support bush should leave the country