Posted 5:44 PM by Robert

again, about this we were right...?

Professor Lawence Lessig: [M]issing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere.
....

[from comments section:]

We believed (and again, about this we were right) that it was unlikely the Supreme Court would open every copyright statute up to the question — does this promote progress. So we appealed to “promote progress” as a way to interpret the scope of “limited times.” The “limited times” that the constitution permits are those that promote progress.

But Eldred specifically held that Congressional power to enact copyright laws is a limited power in that, among other things, the copyright system as a whole must rationally "promote the Progress of Science." Every single copyright act that Congress enacts is subject to this limitation, and the Supreme Court will open every copyright statute up to the question: "Taken together with the rest of the copyright system of which it forms a part, does this promote the progress of Science?"

That is, a review of Eldred shows that they were NOT right about "this."

The Eldred majority opinion reasoned:

Satisfied that the CTEA complies with the “limited Times” prescription, we turn now to whether it is a rational exercise of the legislative authority conferred by the Copyright Clause. On that point, we defer substantially to Congress.... The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) ... at 332 (the United States could not “play a leadership role” in the give-and-take evolution of the international copyright system, indeed it would “lose all flexibility,” “if the only way to promote the progress of science were to provide incentives to create new works”). ... Congress ... rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works ... In sum, we find that the CTEA is a rational enactment ...

Eldred's "rationality" analysis above obviously follows its determination that the CTEA complies with the "limited Times" prescription. The rationality analysis is intended by the Court to show that the CTEA can rationally be construed as "promoting the progress of Science." And the Court makes very clear that the entire copyright system is subject to constitutional "rationality" review:

More forcibly, petitioners contend that the CTEA’s extension of existing copyrights does not “promote the Progress of Science” ... As petitioners point out, we have described the Copyright Clause as “both a grant of power and a limitation,” ... and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” ... The “constitutional command,” we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a “system” that “promote[s] the Progress of Science.”

In sum, contrary to Professor Lessig's insistence:

(1) Eldred does not stand for "unlimited government" - but rather for the limited power both of the Congress (which, among other things, is limited to creating a copyright system which a rational person could find promotes the progress of Science and of the Court, which must defer to Congress if Congress has been rational in attempting to promote the Progress of Science and has conformed to the "limited Times" requirement (and other specific requirements of the Copyright Clause) in that copyright system.

(2) Eldred is a federalism case. Federalism works on several levels. One of them is dividing federal government power between the Congress and the Court. Eldred is fully consistent with federalism principles: Congress legislates and the Court evaluates whether the requirements of the Copyright Clause have been met - applying the deferential "rationality" standard to the question of whether the copyright system Promotes the progress of Science.

(3) The Court rejects the argument that "the only way to promote the progress of science [is] to provide incentives to create new works." Congress could, if it chose, completely eliminate this "incentive" aspect of the copyright system - as long as the replacement system rationally promotes the Progress of Science and conforms to the "limited Times" requirement and other specific requirements of the Copyright Clause.

(4) If one loses a case in Court, one should take one's licks and not go around arguing that "unlimited government" has been unleashed upon the land, or the "federalism is falling" or suggesting that the Court is stupid or intellectually dishonest - unless one of these things is true.