Re: Samuel Johnson, Noah Webster and Sonny Bono

The good professor :-) thinks that Mr. Mohr has forgotten the principle of proportionality; and the view of the system as a whole. Furthermore, he is is reading a limiting phrase as a phrase extending Congress' power. Certainly if the Court takes this IMHO simplistic view, Eldred would loose-- but then I don't think that the so-called Conservatives on the Court would want to create such a strong precedent for making Congress' power so unchecked by the Constitution.   Nevertheless, Mr. Mohr has my thanks for recognizing my good scholarship. :-) (smiles all around).

Chris Mohr wrote:
>
> 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

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