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Editor’s note: Lawrence Lessig, who arguedEldred v. Ashcroft on behalf of the plaintiff, Eric Eldred, maintained a running Web log, also known as a “blog,” throughout various stages of the case, which challenged the legality of the 1998 Sonny Bono Copyright Term Extension Act. The following entries, some of which have been edited for length and clarity, begin on the eve of the Supreme Court’s oral arguments and extend through the court’s 7-2 ruling, handed down on Jan. 15, which upheld the statute. The blog entries that make up this article are reprinted here under the terms of a license issued by Creative Commons, a group founded by Lessig and others that promotes liberalized copyright restrictions and encourages the transfer of intellectual property into the public domain. The text of the licensing agreement covering this article can be found at http://creativecommons.org/licenses/by/1.0. The Supreme Court will hear arguments tomorrow in Eldred v. Ashcroft. Over the past weeks I’ve received an extraordinary amount of mail, ranging from wishes of good luck to demands that I win. When we brought this case four years ago, there were many allies who said there was no way we could win. The reason they were right four years ago is that the world did not yet see how important these issues are and just what’s at stake. In four years, that has changed. Not because we brought this case or because of anything I’ve done in this case but because of an extraordinary number of people who have been pushing to make this issue understandable. It is extremely hard to win a case like this. I have given it everything I have, and I believe we are right and have a good shot at showing it. But the important lesson from the attention this case is getting now is this: There is an extraordinary passion and energy out there for the ideals that Eric Eldred and others represent, and that if we do something to push these ideas, we can have an effect. But regardless of what happens here, let us not lose the momentum. Freeing culture is what our framers did. We can do it again regardless of what five justices on the Supreme Court say. – posted on Oct. 9, 5:09 a.m. 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 four years of activism by many, many people have changed the public’s view about the importance of these issues. But as someone who believes that 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, only to spend the rest of the night re-answering Justice Ginsburg or asking Chief Justice Rehnquist how he could distinguish the Commerce Clause from the Copyright Clause. 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 issue 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. I’ve lived this struggle every moment of the last four 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 arguments 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. Peace, quiet and may terms be limited. – posted on Oct. 13, 4:51 a.m. THE RIGHT QUESTION If there is one intellectual passion that has lived the longest in my life, it is how a country makes sure its constitution lives. I spent many years studying the emerging democracies in the former Soviet republics. I spent many years writing about how our courts can best protect our constitutional values over time. This, it turns out, is an extraordinarily hard question for which we have no good answer. So as a constitutionalist, I must confess that the greatest part of this debate about Eldred is that it has now become framed — at least in the public space — as a debate about what the appropriate role of the Supreme Court is. This is precisely the right question to ask. As Eldred’s attorney, it is, of course, my role to say that the answer is easy. Indeed, the nice thing about picking one’s cases is that the proper answer in my role is the answer I genuinely believe. There has been great controversy about the court’s intervention in the context of federalism. But as I firmly believe, there should be no similar controversy in the context of the Copyright Clause (again, the text is clear, and the court unanimously has affirmed that the text is a grant of power and a limitation). But however the court resolves this case, it will be teaching us something important about what a constitution means: either that the court can interpret express limits to give them effect (and hence my clients win) or that the court interprets the limits on its own power such that there is only so much it can do to police a Congress out of control (and hence, a principle of judicial restraint wins). I, of course, prefer giving the Constitution’s limits effect over a restraint that defeats the Constitution’s aim. But either way, these are results of principle, not politics. As one person e-mailed me, either result “reaffirms something important and good” of at least this part of our government. – posted on Oct. 17, 11:01 a.m. THE SPIRIT OF DISNEY It is wonderful to see that the spirit of my hero, Walt Disney, still lives at that amazing company. See their latest drawn from the public domain. Creativity the way it was meant to be. [Editor's note: In the online version of Lessig's blog entries, he inserted here a link to a page on Walt Disney Co.'s official Web site promoting the animated movie "Treasure Planet," which Disney adapted from author Robert Louis Stevenson's classic story "Treasure Island." Lessig and his supporters in Eldred have often commented on Disney's extensive lobbying for longer copyright terms as part of an effort to keep the company's original stable of cartoon characters, including Mickey Mouse, out of the public domain.] – posted on Oct. 18, 2002 at 5:13 p.m. ANSWERING E-MAIL I’ve just finished replying to the more than 500 e-mails I received about the Eldred case. Despite my con-law musings it is extraordinarily hard to read these e-mails without a profound sense of just what’s at stake. Missive after missive describes the burden of the existing system and how 20 more years of control will stifle creative work. These half-a-thousand e-mails should be worth one word at least — REVERSED. In a bunch of these e-mails, however, there were two recurring questions that I wanted to clarify. Many people asked why it was so clear that the 1790 copyright statute did not support the government’s case. I had said that of all the questions in this case, on this one I was 100 percent certain. If the 1790 act “extended” copyrights, why isn’t it precedent for the 1998 Copyright Term Extension Act? The reason is this: CTEA extended copyright terms in exchange for nothing from the companies and authors who benefit from the extension. It is an extension without a quid-pro-quo. As we argued, and the government simply ignored, in 1790 many would have believed that they had a perpetual common law copyright as well as any state statutory copyright. The effect of giving them the benefit of the federal right was to terminate this state right. The 1790 act thus fits the quid pro quo requirement in a way the CTEA does not. But, as one person e-mailed, the solicitor general said that the Supreme Court held in 1834 that there was no common law copyright. True enough. But that doesn’t resolve at all what the people who passed the 1790 act thought. We are not arguing that they, in 1790, necessarily believed there was a common law copyright. Just that they thought it uncertain and believed they were terminating any rights that existed then in exchange for the federal right. But, as another careful reader asked, what about the 1793 Patent Act that the government pointed to? Didn’t that show that the Copyright Act of 1790 did not require a quid pro quo? For that statute expressly required the surrender of a patent to get the benefit of the federal act. Again, true enough. But there is zero authority for the idea that a state right survived after the 1790 act. The same case in 1834 holds as much. The statutes may well be different but the effect was identical. Both terminated state rights and gave a federal right in exchange. Many asked whether the First Amendment claim is dead or whether we had given it up or had it taken away. The answer is clearly no. Again, there are certain questions we wanted to focus on at the oral argument. We would have been happy never to even mention the First Amendment. That’s not because that claim is not alive and crucial to our case, but instead because it is, or should be, clear enough when they think through the mechanics of the case. If we prevail on the Copyright Clause claim, there is no need for them to reach the First Amendment claim. If we don’t prevail on the copyright claim, then they must reach the First Amendment. But when they get to that step in their thinking, it will be extremely hard for them to avoid applying ordinary First Amendment analysis to this statute. Justice O’Connor said she thought it was odd to think of a law passing under the Copyright Clause but failing under the First Amendment. But the government concedes this possibility — if the law removed, say, fair use — so the only real question is how the First Amendment should police changes in copyright terms. If they apply “definitional balancing,” which is how the Harper case is framed, then the question will be how that balancing applies to changes in copyright terms. And if they apply ordinary First Amendment intermediate scrutiny, then there is no presumptive pro-speech benefit that could outweigh the burden on speech. Either way, the First Amendment stands as an effective backstop to the Copyright Clause argument. But as that argument is narrow, and more easily cabined to just changes in terms, we expect, if we prevail, that’s where the court will decide it. – posted on Oct. 21, 6:25 p.m. THESE NUMBERS ARE AMAZING! Jason Schultz [an associate at Fish & Richardson who co-authored an amicus brief in the Eldred case] has done amazing work calculating any “chaos” that would come from striking the 1976 Copyright Act. Using the Internet Movie Database (imdb.com), he confirmed the Copyright Office’s numbers that about 37,000 movies were released between 1927 and 1946. Of those, only 2,480 — 6.8 percent — are currently available in any format. This means 93.2 percent of the films made during that period are commercially dormant. Another way to put this: Jack Valenti’s crowd says exclusive rights are the only way to ensure that content gets distributed. So we have a nice experiment: For the films between 1927-46, exclusive rights fail to make available 93.2 percent of the content produced. Does anyone really doubt the public domain would do better? – posted on Dec. 4, 10:35 a.m. THE RACE TO THE TOP CONTINUES There’s a very interesting article in The New York Times about a new push in Europe to increase copyright terms. Let’s remember the sequence here. Germany increased its terms to compensate for World War II. The European Union then increased its terms to match Germany. The U.S. then increased its terms to “harmonize” with the EU by enacting the Sonny Bono Act. But of course, the “harmony” of the Sonny Bono Act was like some of the worst of the Sonny and Cher acts — disharmony. In response to the disharmony caused by the act, Europe is now calling for another increase in its term. Japan is doing the same. This spiral of increasing terms will mean that less will be available, not more. Obviously there is a world of work to do before this message is understood. – posted on Jan. 3, 11:22 a.m. LOSING I’ve got to get on a plane to go to my least favorite city, Washington, D.C. My inbox is filling with kind e-mails from friends. Also with a few of a different flavor. It’s my nature to identify more closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote to a journalist, “Larry lost Eldred 7-2.” 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. 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, Phyllis Schlafly, Milton Friedman 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 their 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. – posted on Jan. 16, 1:31 a.m. THE ‘SILENT FIVE’ It is the middle of the night. Sleep is AWOL, scared off by these questions that won’t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle? Some background. There is a single, central question that has divided this court over the past decade: Is it the court’s role to review and constrain Congress in the exercise of its enumerated powers. Four justices have been generally strongly in favor of deference. Five justices have insisted on limits. These five have insisted that an interpretation of Congress’ enumerated powers that erases any effective limit to those powers is wrong. Four justices have consistently rejected that argument. Not that these four don’t vote to strike down laws of Congress. Rather, they don’t strike down laws of Congress on the ground of this “principle of enumeration.” The single most important strategic decision in this case — and a decision for which I am solely responsible — was the one to focus upon just this division. When we brought this case, people were rightly skeptical that the court would embrace an argument grounded in the First Amendment alone. Nor, given the court’s general and appropriate deference to Congress, was it likely that a straight attack on the “rationality” of the statute would succeed. So our aim was to say, as Judge Sentelle argued in his dissent in the D.C. Circuit Court of Appeals: Under the enumeration principle announced in U.S. v. Lopez and U.S. v. Morrison, retroactive extensions of existing terms violate “limited times.” If Congress has the power to extend a limited term without limit, then that is not a limited term. The primary target of our appeal, therefore, were the five justices who had endorsed this principle — Rehnquist, O’Connor, Scalia, Kennedy and Thomas. In addition to these five, we had hoped that the general extremism of the extension (and pattern of the extensions) would attract the votes of some of the remaining four. But the least likely justice to be persuaded by our case was Justice Ginsburg, and the second was Justice Souter. So let’s start with the charitable point first. However much we may disagree with the result, there is something wonderful about losing because the court believes its power is limited. It is a virtue of a court system that the court constantly checks its will against a proper view of its limits. From this perspective, excluding the enumeration principle and putting aside the First Amendment, we should have lost. Justice Ginsburg was thus perfectly consistent with her own view of the Constitution and the court’s properly limited role when she wrote that whatever the court’s view of the policy of the Sonny Bono Act, it was not the court’s job to invalidate it. This view also explains the general astonishment within the bar about our bringing this case in the first place. First-year constitutional law had long taught that the court should defer to Congress on the scope of enumerated powers. Since the New Deal, the court had repeatedly held that there was no challenge of a statute by Congress on the grounds that it exceeded enumerated powers so long as there was any “rational basis” for that statute. Under that standard, we should have lost. But constitutional law did not end in 1990. Instead, beginning with the Lopez case, which was confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply about rational basis. Now, the question was als Is there a stopping point? Does a particular interpretation of Congress’ enumerated power yield the conclusion that its power is unlimited? If it does, then that interpretation must be rejected. The context of those cases was the commerce power. But there was nothing in the opinions, or in logic, that would explain why the principle would apply to the commerce power and not elsewhere. Indeed, the strongest argument made in the dissents against the principle was that it would entail a general limitation on Congress’ power that was totally new in constitutional law. It was new. And whether or not justified, our view was that this principle of constitutional law showed precisely why the power to extend copyright terms perpetually means that copyright terms were not “limited.” So here’s a first and simple way to test whether commentators about our case know what they’re talking about: Do they explain this principle and how it does or does not apply? If you don’t understand that this was the core argument in the case, then you don’t understand the case. After the oral argument, I described the purgatory of an advocate, reliving the argument over and over, re-answering every question on countless sleepless nights. As I look back, there was just one question that might have mattered if answered differently. The most astonishing moment in the whole of the case was Rehnquist’s question of why hasn’t anyone ever raised this challenge before. The simple and obvious answer: “Because before your decisions in Lopez and Morrison, Mr. Chief Justice, there was no possible ground on which to argue against the exercise of an enumerated power. But Lopez established a principle that applies to this case. And unless there is some principled reason to distinguish it, the principle of Lopez limits Congress’ Copyright Clause power.” That said, there is no chance that the court didn’t understand that this argument was before it. Again, it was the sole ground upon which Judge Sentelle [of the District of Columbia Circuit Court of Appeals] had voted against the statute. It was the core of our brief. Yet among the many doubts that will forever haunt, this more than any haunts most: Did the chief really not understand that this case was his case? That it was because of the principles that he had first articulated that we had spent four years litigating this case? No one wants to be proven wrong. But the sole reason that I believed that we were right — and that we would prevail — was this principle of enumeration. And despite the skepticism expressed at the oral argument, I could not begin to imagine how these five justices could distinguish that principle in this case. If we were going to lose, it was going to be, I thought, because they would find a way to distinguish what I believed they could not in good faith distinguish. I was wrong but not in the way I believed. Astonishingly, the silent five escaped this argument simply by ignoring it. Justice Ginsburg could understandably ignore it — she has never been a supporter of that argument. The same with Justices Stevens and Breyer — they too have never been supporters. But I would never have thought that the court would decide the case by ignoring the only argument made in dissent by a federal judge below and the core argument made by the petitioners in this case. Thus, as I have said over and over again, I don’t know how you distinguish the Copyright Clause from commerce. I still don’t. I just know we lost. – posted on Jan. 16, 2:22 a.m. ONCE MORE INTO THE BREACH, MY FRIENDS? My inbox is a testament to the kindness of strangers. 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 New York Times eloquently put it, is over. In 20 years we can expect terms will be extended again. There is no good reason to expect anything different. The hard answer is yes, there is always the possibility of a [constitutional] amendment except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. The first is for Congress to propose an amendment (which would not happen here — ever). The second is for state legislatures to call for a convention, which may propose amendments. In either case, amendments must be ratified by three-fourths 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 three-fourths 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 me whether I would be willing to work to amend the Constitution. If there were a commitment of sufficient resources to make the campaign real, the answer is obviously yes. Impossibly difficult tasks seem to be my calling these days. I’d be happy to become Mister rather than Professor Lessig if there was 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 v. Ashcroft and related cases survive. And, as others have forcefully argued, Eldred does nicely frame the unconstitutionality of the Digital Millennium Copyright Act. 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. I, meanwhile, will be answering e-mail. I should have that finished before the next Sonny Bono Act. – posted on Jan. 17, 10:09 a.m. AFTER LONG SILENCE As the cruel master of fate would have it, on the day that the Eldred case officially ended, I was at Disney World. I was tricked into going to Disney World. I thought that a conference to which I had been invited was in Orlando, but Orlando has apparently morphed into Disney World. And so when the Supreme Court yesterday refused a request to rehear the case (totally expected), I learned the news while drinking coffee from a Mickey mug. With that decision, a self-imposed silence about these things ends, too. I accepted this silence after a respectful but strong rebuke by a friend. He objected that it was wrong for me to suggest that “the silent five” were acting without principle. I disagree. I do believe their decision lacked principle, but I also see that it was right to complain about the context within which I was making that charge. So we filed a petition to rehear the case that made the claim of principle in as careful and balanced a way as possible. Again, such petitions are never granted any more. But if there is a place to express such criticism, respectful of the institution and tradition that these justices serve, it was in this form, without the pressure of publicity. This stage is now over. More hopeful stuff soon. – posted on March 11, 2003, 11:12 a.m. Lawrence Lessig is a professor at Stanford University Law School and the author of “The Future of Ideas: The Fate of the Commons in a Connected World” (Random House, 2001). He argued the case ofEldred v. Ashcroft on behalf of plaintiff Eric Eldred before the U.S. Supreme Court.

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