October 10, 2002

Attempting optimism on the Eldred copyright case

I decided to see if I could come up with a good optimistic well-grounded argument for the commons side to prevail in the Eldred copyright case. The best place to look seemed to be in the last round of court hearings, the case's dissent. Two judges dissented, what were the reasons? You can't go too far wrong quoting a bona-fide dissent. The most promising material here seemed to be the following:

Contrary to my colleagues, I do not accept that it is sufficient for Congress to merely articulate some hypothetical basis to justify the claimed exercise of an enumerated power. The Copyright Clause only bestows the power "to promote the progress of science and useful arts." In exercising this power, Congress "may not overreach the restraints imposed by the stated constitutional purpose," which is "the promotion of advances in the 'useful arts.' " Graham v. John Deere Co., 383 U.S. 1, 5, 6 (1966). I accept that extending copyright terms for future works may well increase creative efforts at the margin. Once a work is published, however, extending the copyright term does absolutely nothing to induce further creative activity by the author--and how could it? The work is already published. A simple finding by Congress to the contrary is not sufficient to demonstrate that the exercise of that power is "necessary and proper." As the Supreme Court noted in Lopez and again in Morrison, that Congress concluded a given piece of legislation serves a Constitutional purpose "does not necessarily make it so." United States v. Lopez, 514 U.S. 549, 557 n.2 (1995) (citation omitted); United States v. Morrison, 120 S. Ct. 1740, 1752 (2000).

But the US vs Lopez case was about guns, and now I see the US v. Morrison case is about "gender-motivated violence".

Bluntly, the losers from those decisions were going to be gun-control advocates in the former, and violence-against-women activists in the latter. Here, the biggest loser would be Disney. Maybe that's an overly political view. But it's something to think about.

By Seth Finkelstein | posted in copyblight | on October 10, 2002 01:57 AM (Infothought permalink)

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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