Larry and the Supremes

During my blogout yesterday, Larry Lessig argued his case against the Bono Copyright Extension Act of 1998 in front of the Supreme Court. The case meaning what it does to the Net, there was a ton of coverage of various depth out there. My favorites include

Lots of interesting quotes abound, both from the actual arguments and from the commentary. For starters, Sandra Day O’Connor sums up the issues with the case when she says, “I can find a lot of fault with what Congress did…This flies directly in the face of what the framers of the Constitution had in mind, but is it unconstitutional?” (from the AP coverage).

Kwin seems to have the best summary of the entire arguments of both sides. He writes:

“Lessig has framed a very conservative argument. … Congress has retrospectively extended copyright — ie, granted term extension to existing (as opposed to new) works — numerous times. Doing so violates both of the constitutional limits on Congress’s copyright-granting powers.

“In addition, Lessig advances a second, separate argument that
extending the terms of existing copyright violates Freedom of Speech
protections under Article I, because the ‘restrictions on speech’ greatly outweigh any plausible societal ‘benefits.’ As I understand it, this test of restrictions/benefits is termed the ‘intermediate’
test under First Amendment law, and is the general test applied to
content-neutral regulation of speech.”

Kwin goes on to state that the Supremes challenged the first point mostly on what it would do to previous copyright term extensions (such as the 1976 extension), but essentially drilled the second point out of existence. This is going to disappoint a lot of the Internet folks who wanted a broader ruling about free speech from this case.

Kwin also writes,

“The one non-obvious tack Olson’s argument took was to continually emphasize that the ‘promot[ing] progress’ language wasn’t intended to apply just to authorship, but also to distribution. Making things widely available required that publishers have a strong economic interest in the copyright system. By implication, the 1998 law was intended to promote progress by strengthening publishers’ interest.”

This is an interesting argument and one that I didn’t see coming: argue that publishers really are adding value and as such are entitled to the same considerations as content creators. Justice Breyer aggressively questioned the economic rationale behind this point and asked whether the damage done directly and indirectly (by letting works fall out of circulation because finding the copyright holders would be too difficult) exceeded the “benefits” of the law.

It’s all fascinating. The fact that the Supremes implicitly acknowledged the real economic harm done by copyright extension and that the current practice of extending copyright without limits may violate the Constitution is encouraging. But I’ll leave it to Greg to do the legal handicapping.