Re: ELDRED

>>> SCHULTZ[_at_]compuserve.com 01/22/03 09:40AM >>> wrote:
But haven't many of the messages over the past few days--[snip]--confused two issues? And aren't many of the angry outbursts we've seen here misdirected?

>>Whether or not the CTEA--or copyright, or any other amendment to
Title 17--is or is not a good thing is one issue (or group of issues).

>>I'm not a lawyer. But I'm under the impression that what SCOTUS was
asked to rule on, and did rule on last week, was a different issue: Whether or not the Congress was within its constitutional rights in enacting the CTEA. The Court said that it was (and it seems to me that it was).

>>I *think* that the quarrel of those who object to any part of the
Copyright Law or its amendments, including the CTEA, is with Congress, not SCOTUS.
<<<<<

Dodi - You may not be a lawyer, but you're on your way to becoming one!  You are indeed correct in your perception. The sole question, and the question on which the majority ruled, was whether the CTEA was within the power of Congress. One of the major premises of separation of powers is that the Court is not supposed to rule on the wisdom of Congressional action, but only on its Constitutionality. As Larry Lessig said at a luncheon talk after the oral argument, that's not a bug; it's a feature.

Having said that, it is not always possible to separate the two issues as neatly as we would like. The interpretation of the words of the Constitution often turns on what the Framers intended, which in turn often depends upon the purpose behind a particular Clause. In this case, I and other historians argued that the purpose of the language of the Copyright Clause was to restrain the power of Congress in a particular way. In particular, we argued that the purpose was to prevent Congress from enacting a perpetual copyright, and that permitting term extensions without restraint would give Congress the power to do just that. We also argued that extending copyrights retroactively [rather than prospectively] did not "promote the Progress of Science" within the meaning of the Clause. ["Science" in the language of the 18th Century meant all knowledge.] Our interpretation of that language did call for judicial scrutiny of the wisdom of patent and copyright legislation, by asking whether it actually promotes the progress of knowledge in a particular way ["quid pro quo," requiring a new work in exhange for an extended term.]

The Court did not disagree with the first premise; it agreed that Congress cannot enact a perpetual copyright. But the majority did disagree with the other two contentions. It did not believe that extending an existing copyright amounted to a perpetual copyright where the resulting time was concededly "limited." [This is where Breyer disagreed with the majority; he felt the resulting period was not limited, either prospectively or retrospectively.] The majority also held that the language "to promote the Progress of Science" did not require the Court to scrutinize the wisdom of Congressional action in the way that we had argued for. [The Court applies a higher standard, known as "strict scrutiny," to laws that classify on the basis of race, and it applies "intermediate scrutiny" to laws that are content-neutral, but have an effect on free speech. We argued that the latter should also apply to copyright enactments. The court disagreed, and applied ordinary, rational basis review.]

As an advocate for a particular point of view, I am disappointed in the decision. I believe the Court interpreted the Clause in a way that allows Congress to enact legislation of a type that the Framers wanted to prevent. But the Court disagreed, and its decision is a reminder to all of us that policy questions are primarily for the legislative arena, subject only to limited review by the courts. Even unwise policy is not always unconstitutional.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Thu Jan 23 2003 - 20:05:56 GMT