Posted on 01/15/2003 8:14:57 AM PST by general_re
Trouble is, every 45 days I get a new letter from him, as my agent, saying that due to a confluence of aggravating factors that he has had to extent that "limited Time" I had asked for originally for yet another 45 days.
My loss is all of his fees ruuning on the meter, my interest on the monies had on short-term basis (which I have long ago stopped doing, being a practical man), and the frustration of the continual delays.
I went to court. The Judge said, well, he is my agent, and I had agreed to a "limited time", and gee whiz, the time is limited and continues to be limited.
I said, "Ri-i-ght."
The single most important strategic decision in this case, and a decision for which I am solely responsible, was the decision 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 Court of Appeals: Under the enumeration principle announced in Lopez, and Morrison, retroactive extensions of existing terms violates “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 was therefore the five justices who had endorsed this principle ? Rehnquist, O’Connor, Scalia, Kennedy, Thomas. And 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 second, Justice Souter.
So let’s start with the charitable point first: However much we may disagree with the result, as I said in my post after the argument in the case, there is something wonderful about losing because the Court believes its power is limited. As I said then, 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 in the Bar about our bringing this case in the first place. For it was first year constitutional law throughout the 1990s 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 (where rational basis means, is there a hypothetical set of facts under which this statute makes sense). And again, under that standard, we should have lost. But constitutional law did not end in 1990. Instead, beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress’s 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, this was the strongest argument made by the dissents against the principle: That it would entail a general limitation on Congress’s 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 perpetually to extend copyright terms mean that copyright terms were not “limited.”
"to encourage continued development of already-created works."
By restricting who can engage in such development? Note that since substantial improvements of existing works are protected by copyright, this extension was not necessary to provide such encouragement for the existing copyright holder.
"to strengthen the United States balance of payments. "(presumbly very indirectly via improving the national well-being)
By ensuring that materials will be copied freely abroad for many years before anyone can use them domestically!?
"To harmonize international copyright laws" (presumably differing national standards weaken the overall effect of copyright, and thence lessen incentives. )
By passing copyright laws which are longer than those in other countries?
"extended protection for existing works will provide added income with which to subsidize the creation of new works."
Anyone who wrote something 70 years ago and hasn't written anything else marketable since isn't apt to use their income from their 70-year-old work to subsidize new works.
Most works are effectively abandoned by their copyright holder within a decade. A 28-year original copyright term, renewable to 56, allowed copyright holders who were actively receiving value from their work (and thus producing value with it) to be protected for over half a century, while allowing works which were ignored by their creators to be fodder for those who would use them better.
Of the claimed reasons above, only the last is even in the foggiest bit plausible, and it highly strains credulity.
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.