Dangerous Reading: How a subversive legal theory can make a good copyright case go bad

Today's quiz: What do Sonny Bono, gun-toting schoolkids, battered women, and members of the Geritol generation have in common? Answer: If Stanford Law professor Lawrence Lessig gets his way, the U.S. Supreme Court will kneecap a copyright law named after the 1970s kitsch icon with the same constitutional blackjack it recently used to take down laws involving those other groups. Though Lessig is championing a cause -- shorter copyright protection -- that has attracted a broad coalition of supporters, by embracing a divisive argument used against those earlier laws he's chosen a strategy bound to fracture his alliance.

The background is this: Lessig represents the plaintiffs in Eldred v. Ashcroft, which the Supreme Court last month agreed to review. Eldred challenges a 1998 law, the Sonny Bono Copyright Term Extension Act, which gave 20 more years to all copyrighted works, current and future. The law now protects materials for the lifetime of a creator plus 70 years or, for works for hire, 95 years after publication. And the 1998 act is merely the most recent of a series of incremental extensions that Congress has granted to copyrighted materials -- 11 of them since 1962. Since then, the regular flow of materials into the public domain has largely evaporated. (It's no coincidence that Congress passed the Sonny Bono Act after lobbying efforts by the Walt Disney Co., which absent the additional protection would have already relinquished to the public domain some early versions of Mickey and friends.)

For Lessig, the Sonny Bono Act's extension is the straw that broke the camel's back -- or, more accurately, would break the Constitution's. The constitutional source of copyright protection is Article I, Section 8. It provides that Congress has the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The critical phrase here is "limited Times."

Lessig doesn't simply argue: "Limited means limited -- as in brief or short. End of story." But the fact that such a common-sensical argument could be made undoubtedly makes his position a sympathetic one. Whether the arguments that Lessig actually uses deserve similar sympathy is another matter entirely.

In fact, Lessig's line of reasoning changed for the worse when the case made it to the U.S. Court of Appeals for the D.C. Circuit. Until oral arguments there, he had presented a series of arguments that were not only strong but also narrowly focused.

First, Lessig relied on the terms of the copyright clause itself to target the Sonny Bono Act's retroactive extension of protection to already copyrighted works. He argued that retroactive protection (1) violates the requirement that copyrighted materials be original (works that have been copyrighted in the past can no longer be seen as new expressions); (2) violates the Constitution's command that copyright protection "promote the Progress of ... useful Arts" (how can Congress provide an incentive to create works that have already been created?); and (3) cuts off the flow of materials into the public domain (because the copyright clause only gives Congress the option of recognizing copyrights, and only for a limited time, the Constitution in essence mandates a regularly replenished public domain that the Sonny Bono Act impermissibly weakens).

Second, Lessig relied on the First Amendment to challenge the Sonny Bono Act's retroactive and prospective extensions. The First Amendment limits even some content-neutral restrictions on speech. Copyright law, Lessig argued, is just such a restriction.

Under Supreme Court precedent, laws can impose content-neutral restrictions only when there are "important governmental interests" at stake and where the restriction "does not burden substantially" speech. The Sonny Bono Act fails on both counts, according to Lessig: The government's interest in increasing incentives for creators is outweighed by Congress' obligation to feed the public domain; and if providing additional incentives is necessary, Congress has simply gone too far here and burdened too much speech.

These arguments have the advantage of being not only (I think) persuasive, but also narrow. Tight arguments also made Lessig's case easier politically. His goal of reining in copyright protection has an inherently broad appeal. Techies like it because it makes more material available on the Web. Liberals like it because the result is anti-corporate (for the "The Mouse is a rat" crowd). Libertarians like it because it pulls back congressional power, if only a little. And by keeping his arguments focused on the copyright clause and well-established First Amendment formulations, Lessig minimized the chance of dissent in the ranks. Broader arguments would run the risk of turning the case into fodder for another of the federal courts' bloody ideological battles.

The only problem with Lessig's strategy -- and it was a big problem -- was that it failed, at least in court. Several federal judges were not persuaded by the professor's reasoning. The U.S. District Court upheld the Sonny Bono Act, as did the D.C. Circuit. But before the appellate judges turned him down, Lessig offered yet another idea, presumably to strengthen his case.

According to the oral argument transcript, one of the appellate judges asked, "Have you adopted any point -- any arguments -- that appear in any of these amicus briefs? Or maybe -- I don't remember -- there is more than one, but in any brief other than your own?"

And Lessig replied, "Well, in particular, Mr. Jaffe's brief is a brief that makes textualist arguments that we believe are quite strong in this way."

And that's where the trouble began. "Mr. Jaffe" is D.C. attorney Erik Jaffe, who wrote an amicus brief for the Eagle Forum. That group and its founder, Phyllis Schlafly, have been players in America's cultural wars for decades.

The Forum's stated mission is "to enable conservative and pro-family men and women to participate in the process of self-government and public policy making so that America will continue to be a land of individual liberty, respect for family integrity, public and private virtue, and private enterprise." In other words, the Eagle Forum isn't so much concerned with copyright law per se, as it is concerned with what it no doubt sees as Congress' efforts to choke the individual American spirit with clots of unconstitutional law -- of which the Sonny Bono Act is merely one example.

Not surprisingly, the Eagle Forum's arguments to the D.C. Circuit are as broad and sweeping as Lessig's are narrow. Specifically, the Forum's brief raises two recent controversial Supreme Court cases that Lessig had avoided: United States v. Lopez (1995) and United States v. Morrison (2000).

Both cases served to upend what had been the long-settled issue of the reach of Congress' constitutional power to "regulate Commerce ... among the several states." From the beginning of the New Deal until Lopez, the Supreme Court had given the commerce clause a wide berth. As a result, it is probably Congress' favorite ground on which to legislate. Simply put, without an expansive commerce clause, federal law would be an unrecognizably crabbed version of what it is today.

And since legislation on everything from New Deal programs to consumer safety to civil rights to worker safety to the environment has been based on the commerce clause, opponents of those laws have long tried to narrow it. They finally succeeded in Lopez, when a majority of the justices struck down a federal law that made it a crime to carry firearms near schools. And in Morrison, they succeeded again, when the Court struck down key provisions of the Violence Against Women Act.

While Lessig did not originally advocate this restriction-of-congressional-power argument in his copyright case, he apparently knew a good thing when he saw it. And he saw the power that this argument could have in the only supporting vote he received from the D.C. Circuit panel that ultimately rejected his case. In dissent, Judge David Sentelle relied heavily on the Eagle Forum brief and on the Lopez line of cases. "It would seem to me apparent," Sentelle wrote, "that this concept of 'outer limits' to enumerated powers applies not only to the Commerce Clause, but to all the enumerated powers, including the Copyright Clause, which we consider today."

From that point on, Lessig took the Eagle Forum arguments as his own. In his petition for rehearing to the D.C. Circuit (denied), he whole-heartedly embraced the Eagle Forum arguments, and also cited to Lopez and Morrison once each. In his petition for certiorari to the Supreme Court (granted), he cited to Lopez four times and to Morrison once. (Indeed, in that brief, he went one better than the Eagle Forum, by citing to the Supreme Court's decision in Kimel v. Florida Board of Regents [2001]. That controversial case struck down the part of the Age Discrimination in Employment Act applicable to states and, in the process, restricted Congress' ability to legislate on the basis of Section 5 of the 14th Amendment.) And Lessig's reply brief in his petition for cert referred to Lopez once.

To be fair, it's not clear that the case could play out any differently. Though Lessig tried to argue for a worthy goal based on a limited theory, it's doubtful that the Court, now that it has granted cert, would limit its consideration of the case to such narrow grounds. The five justices in the Lopez, Morrison, and Kimel majorities (Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas) often are suspicious of both the idea of broad congressional power and the substance of many laws that Congress has passed. Given all this, it doesn't really matter that Lessig and the Eagle Forum brought up the Lopez line of cases: If they hadn't, the Supreme Court itself would, no doubt, have seen the obvious parallels between this case and its recent precedents.

So if Lessig played to the conservatives to get his case before the Court, that's merely what good lawyers do (and the professor, who has a libertarian streak, might not oppose the idea of restricting congressional power generally). Lessig has also tried to appeal to the liberal justices. He cited in his cert petition to sources opposing strong copyright protection that you might assume those justices would view sympathetically -- a law review article by Justice Stephen Breyer before he wore a robe, another law review article by Justice Ruth Bader Ginsburg's daughter, and an opinion by Justice John Paul Stevens before he was elevated to the Supreme Court.

But if Lessig hopes that those offerings will assuage the liberals, he's probably mistaken. In his dissent from Kimel, Justice Stevens wrote, "The importance of respecting the Framers' decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority's repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President." With that sort of sentiment, it's hard to imagine that the liberals will happily curtail copyright law at the cost of strengthening precedent that could further hamstring Congress.

Assume that the federalism argument carries the day and Lessig wins: If Judge Sentelle's dissent at the D.C. Circuit is any sort of a sign, even the conservatives on the Court will only be willing to restrict Congress' ability to extend copyright law retroactively. All too many works will still be copyrighted for the life of the author plus 50 years or, for works for hire, 75 years -- the state of the law before the Sonny Bono Act.

That result can hardly be considered a strong victory for someone like Lessig, who favors a vibrant public domain, not one on life support. He would probably prefer a copyright system at least as open as the patent system, which allows innovations to enter the public domain in a couple of decades rather than a couple of generations. Having free access to new expression in our own lifetimes -- not our grandchildren's -- is key.

In short, Lessig has been forced to litigate Eldred v. Ashcroft in the shadow of Lopez. Though he initially walked the line between camps in the broad war over the limits of congressional power, he was inevitably drawn into the fight. That means that a case with seemingly broad appeal now must be viewed in starkly political terms. It means that the best hope for truly reviving the public domain is probably Congress rather than the courts. And it means that Lessig's statement to Legal Times before the Court granted cert -- "This is one of those unique cases where the issues are not political" -- is nothing more than an ode to the way things should have been.

Evan P. Schultz is associate opinion editor at Legal Times. His e-mail address is eschultz@legaltimes.com.

I think Mr Schultz is hyper-ventilating just a bit. I believe Lawrence Lessig is quite correct to challenge the "Bono" Act on both fronts: a strict reading of the source of Congress' power to authorize copyrights (Article 1, Section 8, Clause 8) and a challenge to Congress' ever expanding power under the Interstate Commerce Clause.

I remember reading an interview with Billy Tauzin, author of the abominable Digitial Millenium Copyright Act (DMCA). Tauzin stated that Congress' authority to craft the DMCA relied more on the Interstate Commerce Clause than the "Copyright" Clause. Hence, it is necessary to slay this beast, if we are ever going to get copyright under control.

Although I disagree with the author on several points, there is nevertheless quite a bit of useful information in this article.

And frankly, Evan Schultz can kiss my a** - that sounds like probably the most fabulous thing that could possibly happen to this country since FDR's perversion of the Constitution.

Yeah, I waded through the entire article (which did contain a lot of valuable information), waiting to find out what this devisive, subversive legal argument was that constituted such a danger. And the only thing that came out is that Lessig is challenging the conventional wisdom that Congress has essentially unlimited power. He is providing the Supreme Court with (horror of horrors!) another opportunity to take baby steps in restricting Congress. And if the Supreme Court continued down this path, the entire edifice of modern gargantuan governmental power would tremble and risk shattering!

If only it were so...

I know, I know. I'm just trembling in fear of such a development. The way he starts out, you'd think Lessig was arguing against the extension of copyright by basing his legal argument on the theory that babies taste great, especially after putting them in a 325 degree oven for 15 minutes per pound. I mean, come on - how about a little more hyperbole, eh Mr. Schwartz?

I know I'm going to be losing a lot of sleep over the thought of Congress having its wings clipped. First off, even if they do strike it down, it's pretty unlikely that the court is going to go even one inch further than they absolutely have to. And second, for the life of me, if they did go all the way, I just can't bring myself to see that as a bad thing...

Not really.

In 1950, Truman took us into a major war in Korea without Congressional authority. First time that ever happened. He got away with it, too, just as Clinton got away with exceeding the 60-day limit in Kosovo under the War Powers Act. In fact, when Clinton went into Haiti, he had the audacity to proclaim that the Constitution reserved the war-making decision to the executive. It's well known that presidents have gotten accustomed to making law through executive orders, and it's amazing how few of these are ever challenged or stricken down by Congress. The Supreme Court consistently refuses to hear cases concerning power struggles between the other two branches. All you have to do to realize how unequal Congress and the White House are, is to look at how the size and budget of the executive has grown since the 30s, relative to growth in the legislative branch.

A couple of points. The President is explicitly granted the authority of "Commander-in-Chief" of the military under the Constitution. No President has ever recognized the constitutionality of the War Powers Resolution.

The Constitution reserves to Congress the right to declare war, but the War Powers Resolution clearly states that the President can act with something called "specific statutory authorization", whatever that means. It certainly doesn't sound like a declaration of war to me, nor did it to Nixon, who vetoed the whole mess - the implication is that Congress has Constitutional powers far beyond the simple declaration of war granted by the Constitution.

Also, in light of INS v Chadha and subsequent cases, it is not at all clear that the War Powers Resolution could survive a challenge in the courts. Perhaps recognizing that fact, Congress has never chosen to exercise the remedies provided by the Resolution, such as ordering the removal of troops engaged in hostilities, and thereby provoking a court challenge.

Finally, if you want to look at expansion of powers, it is facile to do so without looking at the explosion of federal agencies over the last 70 years, all of which have been created at the behest of Congress, and exist as a result of congressional delegation of authority.

In any case, what this particular article is about is the expansion of federal powers, at the behest of Congress, by legislating virtually everything under the auspices of the Commerce Clause. Such an expansion of federal power has largely come at the expense of state power, not that of the Executive.

"A couple of points. The President is explicitly granted the authority of "Commander-in-Chief" of the military under the Constitution. No President has ever recognized the constitutionality of the War Powers Resolution."

No one disputes that the President is CIC. However, the "recognition" of the constitutionality of legislation is a function reserved entirely to the courts, not the President. If legislation of any kind is passed into law, over his signature or over his veto, it doesn't matter what he thinks of it -- he is obliged to abide by it or refer it to the court. IOW, he is not supposed to be a law unto himself, he is only empowered to "faithfully execute" the law -- though that fact will not always impress him.

Infrequently, the court will actually do its job and put a stop to presidential excess, for example, when it stopped Truman from seizing the steel mills during Korea. I note that Johnson was very careful to get authorization from Congress for his action in Vietnam. Bush also took great care to obtain Congressional authority for his current war on terrorism. And similarly, his father did so before embarking on his Desert Storm campaign. Aside from the obvious issue of appropriations, it's often, though not always, politically expedient to do so.

The original wording of the war clause gave Congress the exclusive power to "make" war. This, however, was revised to "declare" in subsequent drafts when they realized that the President might have to repell a sudden attack or urgently pre-empt foreign encroachment before Congress could convene and decide. They never intended that one individual, acting on his own, should have the power to commit the country to full-scale war. They had seen this sort of thing done in Europe between rival royal families and would have none of it. It's all in Madison's 1787 notes (in fact, he's the one who proposed the change in wording.) By imposing a time limitation, the War Powers Resolution merely re-elaborates this principle, that the executive must be allowed some degree of flexibility but the ultimate decision to go to war rests with Congress.

"... that the President can act with something called 'specific statutory authorization,' whatever that means."

It means the same thing it did in 1798 and 1799, when Congress, unwilling to declare war on France, nonetheless gave Adams the go-ahead to engage in continuing hostilities with them. They enacted at least a dozen statutes to this end. The War Powers Resolution, if challenged, will do just fine -- if Congress has the intestinal fortitude to defend it, that is.

"...the explosion of federal agencies over the last 70 years, all of which have been created at the behest of Congress..."

Certainly with their collusion, and at times, their meek acquiescence. No question about it -- Congress has willingly abdicated much of its own power.

And I agree with you absolutely that states' rights have taken a terrific beating, and the commerce clause is grossly misconstued and misapplied.

Obviously the courts are the final arbiters of what is and is not constitutional, but thus far, Congress has been unwilling to challenge executive defiance of the War Powers Resolution in any serious fashion. The only direct case I know of, Dellums v Bush, didn't really go anywhere. And in light of the very broad ruling on legislative vetoes in Chadha, I think the constitutionality of WPR is far from a slam-dunk.

Anyway, you're obviously up on the history - how about the law? There was a really interesting article in the Columbia Law Review about 15 years ago entitled "Suppose Congress Wanted a War Powers Act That Worked" - essentially, IIRC, it argued that the fatal flaw in the current WPR was the failure to account for the possibility that executives would just ignore the thing, and explores possibilities for repairing it. And if you want a hint about the current court, Justice Breyer had an article in the Georgetown Law Review way back in 1984 that was rather skeptical of the appropriateness of such legislative vetoes, and instead proposed some substantive alternatives. Not that such a thing would stop him from ruling against a Republican president, of course ;)

"...thus far, Congress has been unwilling to challenge executive defiance of the War Powers Resolution in any serious fashion."

That's correct. Driven by their own petty political concerns, they continue to abdicate the powers of Congress, an institution most of them are unworthy of serving.

"The only direct case I know of, Dellums v Bush, didn't really go anywhere."

Of course it didn't. The court won't even hear an argument unless Congress itself brings the action -- not some gaggle of Representatives, staging a dog-and-pony for the rubes back in their districts. Ron Paul, Dan Burton and a dozen or so others tried the same thing 3 years ago, concerning Clinton's violation of the WPR -- with the same predictable result. Ron Paul, btw, disagrees with me about the WPR. He believes it gives away Congressional powers that are non-delegable. Too bad he doesn't have Madison and the Constitutional Convention on his side like I do.

"...it argued that the fatal flaw in the current WPR was the failure to account for the possibility that executives would just ignore the thing..."

The same flaw could be attributed to many provisions of the Constitution itself. For example, what happens if the President ignores his lawful removal from office by the Senate? The Constitution makes no specific provision for this. In the case of the WPR, Congress has some built-in options -- it can take the dispute to court as a body or it can initiate impeachment proceedings -- if it has the will to do so. I would never deny that some very bright students write for these law reviews, but what it all comes down to is whether the Congress is willing to stand up for its own laws or not.

"Trivia quiz: Who is the only President to ever hold a patent?"

Abraham Lincoln, "Method of Buoying Vessels over Shoals," 1849.

"Next came the Patent laws. These began in England in 1624; and, in this country, with the adoption of our constitution. Before then, any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things."

-- Abraham Lincoln, February 11, 1859

Of course, this will probably infuriate all of the Lincoln haters on this site.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.