Posted 11:22 AM by Robert

The Big Kill

One of the more unfortunate effects constitutional law, especially at the Supreme Court level, has on its traffickers is the inclination to go for the big kill: the Brown v. Board of Education, the Eire v. Tompkins or similar breakthrough decisions. The effect - and the concomitant inclination to adopt a rhetoric of the gods in discussing one's position - is especially strong on academics. The Court hates that and the Chief Justice has on more than one occasion warned those appearing before the Court against it – but the Justices often have to endure it anyway. The Court hates it because the Justices feel obligated to address important constitutional issues, and they don't appreciate very clever people dressing up and structuring cases that could be treated in more ordinary fashion as urgent big deals - especially when the Court and accepts the case before a good layer of lower court precedent is created. Professor Lessig, who unsuccessfully challenged the Bono Act before the Supreme Court on assorted constitutional grounds, a very intelligent man and apparently an excellent legal academic, is a sad victim of these forces.

While is may be hard for the opponents of the Bono Act to accept their defeat - and all too easy to predict amorphous dire consequences from the Court's decision - in fact the Court's decision leaves plenty of room to gnaw at the more inappropriate aspects of copyright law. But my suggestion is that to exploit the Court's new ruling to limit the reach of copyright and government, interested people should start by limiting their own rhetoric, stop talking like gods and start talking like lawyers.

The good news: The Court accepted that the First Amendment does have a lot to say about the protection of ideas even where Congress acts through its copyright clause powers. Sadly, the case before the Court was a facial, across-the-board attack on the copyright term. There is no proof that copyright law generally restricts ideas - if it did then that restriction would probably exist with a term of 15, 30, 50 or 70 years. Faced with a sweeping facial attack couched in rhetoric of the gods, the Court responded with a sweeping overview of the copyright power generally - and found that in general copyright by its terms does not allow for restriction of an idea, but only restricts use of a particular expression of an idea. That alone pretty much demolishes the First Amendment argument against the Bono Act at the Olympian scale chosen by its opponents. [Of course, sweeping rhetoric is much more appropriate - at least in many cases - on the Blogospere than it is in a Court brief. But even on the Blogosphee it can be disadvantageous if it begins to blur one's judgment or divert an argument. The risks from "reading one's own press releases" do not stop at the edge of the Blogosphere.]

But the scope of copyright law has recently been extended wildly to include many things that are quite arguable themselves "ideas" - not just the expression of an idea. For example, in the 1970's software essentially could not be effectively copyrighted - but all that changed in the 1980's and the ambit of copyright has continued to grow. Worse, characters and structural aspects of novels and other creative works have been brought under the protection of copyright - although they are quite arguably "ideas." The Court's language opens the way for First Amendment challenges to such arguably pernicious extensions of copyright law into new areas. But such challenges will be effective only if they take the form of old fashioned lawyering - and not if they are couched in godlike constitutional rhetoric by legal academics looking for the big kill. Perhaps the best case would be one in which the emerging new economics of intellectual property seems plausibly applicable and the case is limited to onew in which the copyrighted material is arguable an "idea."

If one does not want to wholly give up employing divine rhetoric, one could tarry a bit in the briefs over what an "idea" is (and how it differs from the expression of an idea) under the First Amendment and copyright law. For example, perhaps a long footnote considering the question of whether a thought occurring to someone in a forrest who never has a chance to write it down or otherwise express it is really an "idea" might be enough to slake this particlar thirst.

One of the worst aspects of the now-defeated assault on the Bono Act was the failure to make the assault in modest, ungodlike, incremental stages, thereby building up a more appropriate body of precedent. It is worth noting that the Court’s decision evidences a serious disapproval of the abuse of precedent by the Bono Act opponents – and on that point the Court is, in my opinion, correct. Lacking a solid foundation in precedent and having decided to launch their premature assault anyway, the Bono Act opponents should have at least recognized that they needed to make compelling economic and structural arguments. But, as I have often pointed out, the economic arguments offered to the Court against the Bono Act were primitive, incomplete and embarrassing. Similarly, the structural arguments offered up - centering on “limited government” considerations which attempted to establish a false parallel between the Copyright Clause (which does not have a notorious history of having been stretched by political considerations) and the unique, bloated and unparallel Interstate Commerce Clause – were also quite weak.