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.

US Constitution, Section 8, Clause 8: To 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;

You may breathe freely, without a tax, the same air another man has breathed, and think a thought someone else may have thought, also without a tax. Yet you own the breath as it was breathed, whilst in you, and the thought, too, whilst it is in your mind. These are not "public domains", these are private things.

In the clause 8, an exclusive right is secured -- secured by the government. Why is that governmental action needed? Becuase a man, himself, has not a chance of securing any such right, even were he a powerful man and willing to use force to do so, and in an extravagantly widespread way. Not even all the agencies of government alone can secure that right completely, for all the force and authority they can muster.

Why? Because you could still invent, discover, or create the same thing youself at any time in any place, perhaps as a copy or by influence, or perhaps by orginality. The thought, the idea and what you cause to follow from it are your property, they are what you can hold. Nor are they "public domain" -- say by holding your copied machine you have no intent of letting others use it.

Government can restrict very effectively your access to a place or ban the sales of this thing or that. But you retain the ability to create and construct, and no government will ever have the power, save by imprisonment, of taking that away.

So what is meant in the statement "secure exclusive rights"? And what can an honest charter of government mean by that boldness?

These are not "public domains", these are private things.

Recently, I came across what is probably the first patent, issued to Fillipo Brunellesci, in 1421, in Florence, Italy. The preamble clearly states the purpose of the patent:

"Considering that the admirable Filippo Brunellesci, a man of the most perspicacious intellect, industry and invention, a citizen of Florence, has invented some machine or kind of ship, by means of which he thinks he can easily, at any time, bring in any merchandise and load on the river Arno and on any other river or water,for less money than usual, and with several other benefits to merchants and others; and that he refuses to make such machine available to the public; in order that the fruit of his genius and skill may not be reaped by another without his will and consent; and that, if he enjoyed some perogative concerning this, he would open up what he is hiding, and would disclose it to all; and desiring that this matter, so withheld and hidden without fruit, shall be brought to the light, to be profit to both to said Filippo and to our whole country and others; and that some privilege be created for said Filippo, as hereafter described, so that he may be animated more fervently to even higher pursuits, and stimulated to more subtle investigations..." (emphasis added)

Ideas are private things - as long as you keep them to yourself. Once divulged, they do indeed enter the public arena, the "domain" of the public. Of course, anyone can choose to keep their ideas private - through trade secrets, or through private, by invitation only displays or performances of works of art.

Patents and copyrights seek to induce artists and inventors to share their works with the public; in exchange, the government secures their interests for a limited time.

I understand what is meant by the public domain -- it is what may be observed or freely used by the public. Certainly as this very early patent demonstrates, by providing a patent Florence hoped to cause Brunellesci to give up his secret, to make it public. And the Framers surely hoped for that effect of patents and copyrights on secret holders.

Yet the Founders viewed philosophy through a private property and inseperable individual rights lens, and their legalisms are best interpreted from that aspect, rather than considerations of the "public domain". In so doing one is likely to achieve deeper understandings of the law, and how the Framers came to it.

So what is meant in the statement "secure exclusive rights"? And what can an honest charter of government mean by that boldness?

You might also ask what they mean by "promote progress" and "limited." Such public-mindededness and limitation of state power! Not so very "bold" at all.

You might also ask why I can call you a wife-beating kiddie porn monger after you are dead and you have no recourse, while somehow this concept of explicitly "limited" protection lives on, mainly for the benefit of your publisher nowhere named in this clause.

Correct! And this also illustrates how deep the rot has gone. The Library of COngress should be making electronic versions of out-of-copyright books available in commonly used formats. It could do so at a low cost compared with operating a physical facility. Yet it does not, mainly due to the corrupt influence of Hollywood copy protection Nazis. They fear that enahncing the power and benefit of public domain works would remind people too much of the goal of the copyright clause, which is to promote progress.

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