RE: Samuel Johnson, Noah Webster and Sonny Bono

I think this is where we part company; the good professor's article makes very clear that in her opinion, the quid pro quo principle is built into the clause and is an enormous limitation on Congress's power. IMO the research in the article (not to mention a couple hundred years of interpretive case law) probably lends greater support to the other side.

If the meaning of Progress pushed in the article is correct, then Eldred loses. The first premise of Eldred's argument is that 'Progress' is limited to providing an incentive to create (and create only). Works in existence don't need an incentive. If this premise fails (as it would if Progress were interpreted to mean 'spread' or 'dissemination'), then Eldred's cause is doomed, and most likely his case as well. (I say probably because the court could conceivably conclude that Congress had no rational basis for enacting the term extension. The extensive pro and con in the legislative record makes that possible, but unlikely). It is entirely reasonable to believe that, if a person can make money from digitizing it's a wonderful life, for example, that they will do so. It may or may not be empirically correct in the long run, but it's rational. Congress is allowed to make bad policy choices.

 That, it seemed to me, is why the government advanced that definition and why that definition appears nowhere in petitioners' briefs or those of their amici. But not knowing why either did what they did, I'm just speculating. Nonetheless, it seems to me that adoption of that definition by petitioners would be more than a tactical mistake; it would be substantive suicide.

In any event, we'll see what the answer is soon enough.

Cheers
Chris
-----Original Message-----
From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org] On Behalf Of M. Pollack
Sent: Wednesday, October 02, 2002 11:11 AM To: Multiple recipients of list
Subject: Re: Samuel Johnson, Noah Webster and Sonny Bono

Yup, for tactical reasons, this argument is not pushed on the Court. For one thing, the research was not completed in time to be aruged below.

         But the good professor's article makes very clear that the quid pro
quo principle is built into the Clause by other words, by the anti-government corruption history of the Statute of Monopolies, and that, furthermore, the Copyright Term Extension Act hurts distribution of works over all.

        Thanks for the kind works
:-) "the good professor"

Chris Mohr wrote:
>
> The research in that article is impressive. Ironically, the
petitioners
> in Eldred take great pains to distance themselves from this
definition.
> (see, eg, reply brief note 12). And the good professor's amicus brief
> nowhere mentions this theory.
>
> -----Original Message-----
> From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org]
> On Behalf Of M. Pollack
> Sent: Monday, September 30, 2002 11:35 AM
> To: Multiple recipients of list
> Subject: Re: Samuel Johnson, Noah Webster and Sonny Bono
>
> For a much better (I wrote it :-)smile) supported and argued
discussion
> of the language in the Copyright Clause, see Malla Pollack, What Is
> Congress Supposed to Promote? Defining 'Progress" in Article I,
Section
> 8, Clause 8 of the U.S. Constitution, or Introducing the Progress
> Clause, 80 Nebraska L. Rev. 754 (2001) (published October 2002).
> Prepublication draft available at
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=304180 and
> http://eon.law.harvard.edu/openlaw/eldredvashcroft/progress.html. The
> best reading (in the Clause) of "progress" is dissemination, however,
> this means that Eldred wins (not Congress).
>
> David Dailey wrote:
> >
> > In preparation for the upcoming Supreme Court hearing on the
Copyright
> Term
> > Extension, the respondent's brief (visible at
> >
>

http://eon.law.harvard.edu/openlaw/eldredvashcroft/supct/government-brie
> f.pdf)
> > makes reference to both Samuel Johnson's (1755) "A dictionary of
the
> > English language" and a more modern edition (1958 -- didn't anyone
> have a
> > newer copy around when they wrote this?) of Webster's dictionary
> > essentially to argue that "limited" doesn't have to mean "brief".
> >
> > A Johnsonian scholar and friend of mine writes "It's a pity that SJ
> should
> > be quoted in this case, because he was wary of authors and
publishers
> using
> > copyright laws to prevent the dissemination of knowledge". My
friend
> goes
> > on to add that citing the differences between the obsolete first
> definition
> > and the second in the OED might have made a better argument.
> >
> > I think a more formal semantic analysis using linguistic
methodologies
> > might have given an even more solid argument:
> >
> > "the legislature's understanding of copyright law is limited" isnot~
> "the
> > legislature's understanding of copyright law is brief"
> >
> > "a brief departure from the constitution" isnot~ "a limited
departure
> from
> > the constitution"
> >
> > See? The two words aren't the same! Justice prevails!
> >
> > On the other side of the coin, it was apparently Noah Webster's
energy
> more
> > than anyone else's to get Congress to pass the U.S.'s original
federal
> > copyright law. He also thought it was a good idea to have a
> constitution.
> >
> > So the Attorney General's office may have been right after all, it's
> just
> > that the witnesses they lined up didn't happen to agree with their
> conclusions.
> >
> > David Dailey see
> >
>

http://www.sru.edu/depts/cisba/compsci/dailey/copyright/dailey_on_copyri
> ght.htm
> > Associate Professor copyright musings: humor
and
> dread
> > Slippery Rock University
>
> --
> Malla Pollack
> Visiting Associate Professor
> University of Memphis, Law
> mpollack[_at_]memphis.edu

-- 
Malla Pollack
Visiting Associate Professor
University of Memphis, Law
mpollack[_at_]memphis.edu