Posted on 01/15/2003 8:14:57 AM PST by general_re
No it's not. Congress is one of the parties; it is the entity empowered to act on behalf of the people of the United States in the matter of copyrights. If the holders of copyrights come to it and petition it for an extension, and it agrees, then that is a mutually agreed decision by both parties to the agreement.
If what you're really getting at is that your elected representatives did not represent you in this particular case, well, that happens every day on a lot of things. I used to live in California, where I had Boxer and Feinstein for Senators; they didn't represent me for squat. I got out-voted.
For the same reason that the right to bear arms should not be abridged, regardless of what a 'militia' actually is. The purpose is to promote the progress of science and useful arts; but the actual power is to secure for limited times the exclusive right to inventions and discoveries. The Constitution says the times must be limited, but that, IMHO, gives Congress wide latitude to decide what those times should be. As long as Congress makes a determination, however stupid or corrupt, that lengthening the span of copyrights aids progress, the Courts, IMHO, should not be second guessing them.
The founders, in other cases, laid down a precise quantity in a Constitutional provision. They could have said in this case 'no longer than 50 years'. The fact they declined to do so means, IMHO, that the courts should likewise decline to constrain Congress.
I'm just reiterating, of course, what Nick Danger has written. I doubt he's claiming proprietorship over 'judicial restraint' either, however eloquently he's espoused it.
Spoken like a person who thinks that all valuable art is ephemeral and popular. Those who work their asses off to produce slowly developing, but potentially immortal classics would differ.
Well, now we're getting into semantics. The 2nd Amendment says that because of X, the right Y shall not be infringed. X is the motivation for Y but doesn't limit it. The copyright clause says that Congress has the power to do X (promote arts and sciences) by doing Y (granting copyrights and patents). I would argue this means that Congress can do Y *only* if it is related to achieving the goal of X.
As long as Congress makes a determination, however stupid or corrupt, that lengthening the span of copyrights aids progress, the Courts, IMHO, should not be second guessing them.
For lengthening copyrights on future works, I'm forced to agree. But I don't on the retroactive extension, because there is no conceivable way in which that aids progress.
But this is all moot, as 77% of SCOTUS disagrees with me. Like you, I intend to give this law every bit of respect that it deserves.
It has to act in accord with its charter as an agent, and in the case of the copyright and patent clause it has not, it exceeded that, yet the Court has let it. It is a signficant development that you might best be troubled about. Our charter with which we established and authorized this Congress and Court had one guiding precept oft stated by the Founders, yet only inplicit in the charter itself. That is rather than that we "empowered" Congress generally as if by some power of attorney, we did NOT. We enumerated its powers, and limited it to that enumeration, and in the case of copyright and patent, we said these "may" be provided for, not necessarily so, and we couched their term, "limited Times".
As Breyer pointed out -- for REAL property, perpetuity is 90 years, and it is irrational and a form of theft majestic that the virtual form of property claims a "limited" term beyond what is perpetuity for real.
In other words, the Court and the Congress have traversed beyond their legitimate grant of agency. They allow and promote an expansion of that agency that subsumes the rights of us owners and the proprieters.
Do you think you can limit them, in this aggrandization in your pet regards -- privacy and arms bearing? How is that?
Your view that the Congress and the Supreme Court are in violation of your opinions has been noted and logged. I'm afraid that's the best I can do.
Irrelevant. Many cases of Constitutional law start with thoroughly cynical motives (e.g. "How do I get a law against what I want to do struck down?" or "How do I get the damning evidence against my client thrown out?"). That doesn't affect the underlying merits of the issue.
As I noted earlier, the Consitutional issue is not with a specific number, but with the process of evading the "limited terms" clause through infinity-by-induction. The problem is that any challenge directed at any specific act of Congress is primarily focused on the former. The majority opinion addresses the infinity-by-induction argument by concluding that Eldred failed to present convincing evidence that this was in fact occuring (which implies that the Court may take a different view if Congress does indeed repeatedly extend copyrights to the point of preventing any post-Steamboat Willie works from maturing into the public domain).
Ginsberg, in a footnote:
Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress' traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act.
Judicial blinders: The old "It's not an act of Congress, it's just a 'temporary placeholder'" explanation.
This too is a genuine Constitutional issue. The issue is whether or not Congress has exceeded the power granted it by the people through the Constitution. The Constitution is plain -- it grants Congress the power to create copyrights only insofar as Congress limits that copyright to a specific period of time. It even states the reason. The reason copyrights are even allowed in the first place seeing as the very idea conflicts with the First Amendment, is that granting a limited copyright will stimulate an artist or author to create something in the first place. In no instance can a retroactive extension of a copyright term stimulate something's initial creation. Given that fact, Congress exceeded its authority.
Do you believe that Congress is unbounded in what it can do?
Have you seen a copy of Disney's Song of the South at Blockbuster recently? Disney is using the copyright law to suppress this movie for political correctness reasons.
What about Lon Chaney's London After Midnight? Where can I get a copy of it? It is lost. No one can find a copy. If it were freely copiable it would have been archived by somebody somewhere, but instead it deteriorated away in a movie studio's vault because they had sole say-so in who copied it. And now no one will ever be able to see it again.
I salute you for having come up with an argument that is stronger than "my internal definition of the word 'limited' is correct, and everyone else's is wrong." I wonder why your argument did not carry the day.
Where do I send Mr Mozart's royalities? or even Ormandy's? Or Elvis's? or Sid Vicious's
;-)
You were talking the difference between 17 and 75 years.
I'll give you a personal example. I invented and patented a glove coating process. Although we made a successful product out of it, it may not be used to its potential for another ten years.
That's one.
I wrote a book. It's taken me two years just to get some academic buy-in. It may be seventy-five years before it reaches its market potential.
Got it?
I just wrote a book called "How to Survive When the Sun goes Supernova." It won't reach market potential for another 120 million years. Should copyright protect my future earnings until it does? I expect it to be a really hot seller.
And if you simply define a decision as "wrong", rather than "unconstitutional", and then carry as though your definition were the final word on the issue, you can render any decision at all striking down some legislative action as illegitimate. It's more than just "wrong" to retroactively (and potentially indefinitely) extend copyrights - it plainly and obviously conflicts with both the language and intent of the clause in the constitution that addresses such things. Of course, if we're all suddenly of the opinion that not even original intent means much, I guess we can just suck it up when somewhere down the road, the court agrees with the notion that a "well regulated militia" excludes ordinary, unorganized private citizens, too.
And stop putting words in my mouth. I have not stated that the Court has no function.
Right. You never said they couldn't speak, you just cut out their tongues. My mistake. So what sorts of interpretive issues can the Court engage in without being accused of being unelected philosopher kings, improperly seeking to thwart the will of Congress?
I just do not think that the Supreme Court of the United States needs to be meddling in picayune crap like whether a copyright ought to be for 5, 10, 50, or 100 years. What I want them to rule on is whether law enforcement -- or even worse a copyright holder -- has the right under the Constitution to conduct a warrantless search of my computer to see if I have any copyrighted works. That, at least, is a genuine Constitutional issue.
Huh? So, lemme see if I've got this straight - essentially, the Court has the power to interpret the word "unreasonable" in the Fourth Amendment, and make Congress stick to it, but interpreting the word "limited" in Article I is just way beyond the pale, and not a "genuine" Constitutional issue? Do you have a definitive list of which particular words in the Constitution are off-limits to them - and oh, by the way, something resembling an argument supporting that kind of completely arbitrary division into "genuine" and non-genuine issues for the Court - or is this sort of an ad-hoc thing, the "Nick Danger valid docket word list"?
After all, I'd sure hate for you to be seen in public, asking those unelected philosopher kings to substitute their judgement about what a reasonable search is in place of the divinely inspired judgement of Congress. Everyone knows that that's not a "genuine" Constitutional issue, and so if Congress passes a law mandating the attachment of an anal-probe module to your computer, so that you can be searched at will by the FBI and the RIAA...well, hey, that's the system, and you can just work to change that law legislatively, right? You wouldn't want to introduce such a patently trumped-up Constitutional issue into a court, would you? I'm sure a year's (or more) worth of rectal discomfort is a small price to pay for keeping that word "unreasonable" off the Court's list of "genuine" Constitutional issues, don't you think? God alone knows where the courts will meddle if we give them the job of deciding what is and isn't a reasonable search...
I'm sure you are, so long as you get to decide what is right and good. I'm not sure I trust you though, so I'm not ready to make you king.
Right. This is somehow different than when Nick unilaterally and without argument decides which words in the Constitution are "genuine" issues for the Court, and which aren't. At least, I think that's the impression I'm supposed to walk away with, although I'll be damned if I can see the difference.
Oh, wait - here's the difference. I'm perfectly willing to make my opinion about what's right and good known to the public at large, where they can then adjudge for themselves whether my notion of right and good accords with theirs, and whether this law is consistent with the Constitution, and whether the courts have fallen down on the job. Nick has...a word list to tell us what is and isn't properly a part of the court's purview.
Courts aside, it is patently obvious that this whole "constitutional" argument was backed into by people who started not with the Constitution, but with "how do we get this number we don't like changed?"
Oh, no - say it isn't so. Tell me it's not true, and that plaintiffs in constitutional cases are really always concerned with abstract principle, and not the practical effects of laws upon them.
Gimme a break. Until we institute the Nick Danger Purity of Motives Test™ as a part of filing suits, we're just going to have to settle for deciding whether or not a position is right or wrong on its merits, rather than impugning the presumed motives of people who walk into courtrooms.
They lost in Congress, so they went to Court with a stupid, trumped-up "Constitutional theory" that says that Congress cannot change its own laws.
As opposed to the wise, well-supported "Constitutional theory" that says that Congress has an absolutely free hand in this area, and is subject to not even the barest hint of external restriction. Here's hoping that the courts don't decide to add words like "unreasonable" and "abridge" to this list of non-genuine Constitutional issues...
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