Re: ELDRED

At 04:39 PM 1/22/03 -0800, Tyler Ochoa wrote:
>the Constitution says that patents and copyrights may
>only be granted "for limited Times." Why would the Framers have put
>those three words in the Constitution except for a desire to restrain
>the power of Congress? Absent a formal amendment to the Constitution,
>those words should have been given real meaning. Instead, the Court
>read them in a way that imposes no practical limit on the power of
>Congress.

Tyler is correct that that's what the Court did. However, and however much I wish they had done otherwise, this is not the only instance in which the Court has refused to construe value-laden wording in the Constitution. Consider the "republican government" clause, which the Court has held is essentially non-adjudicable. What the Court said in Eldred is that it washes its hands of having to draw an arbitrary line, especially in light of prior practice in which any term extension has passed muster. Far from being an exercise in judicial activism, this is one of those examples of head-in-the-sand passivity.

I take some slight heart from the decision in the Verizon case the other day. It betokens a gradual awakening of certain powerful sectors of the economy (telecom) to the fact that they can't cut any lasting deals with the entertainment industry. By arousing powerful opposition to what Hollywood wants, draconian cases like Eldred and Verizon could generate some potent political alliances that might be adequate to counterbalance the mindless amoeboid expansionism of the entertainment moguls.

Vance

Vance R. Koven, Senior Attorney
Comverse, Inc.
100 Quannapowitt Parkway
Wakefield, MA 01880 USA
+1 781-224-8523 (vox humana)
+1 781-224-8144 (fax mechanica) Received on Thu Jan 23 2003 - 13:51:39 GMT