Posted 2:28 PM by Robert

Justice Breyer Dissents

Stuart Buck cites to Justice Breyer's dissent in the Supreme Court's recent Eldred v. Ashcroft decision. Stuart is an able and engaging writer, but I cannot share his enthusiasm for this dissent. In particular, a discussion of this dissent seems a proper place for reviewing a straightforward question raised here by Justice Breyer: What copyright-related benefits might justify the statute’s extension of copyright protection?

After raising this general question, Justice Breyer himself proceeds to focus on his version of the now-common argument that extensions of the copyright monopoly cannot induce additional creative production when the extension is retroactive or begins far in the future. He even cites to the Economists Brief. I am not going to address those arguments because they are not the only potential benefits from extending copyrights. [The majority finds other benefits, which I also do not address, although I do note that most of Justice Breyer's points are quite effectively rebutted in the majority opinion's footnotes.]

The answer to Justice Breyer's question is as follows: The maintenance of an "owner" who will have an incentive to make certain that the copyrighted property is used in, and only in, ways that maximize the value of, and financial return from, the copyright are copyright-related benefits justify the statute’s extension of copyright protection. These benefits arise especially with respect to already existing copyrights. Justice Breyer does not mention these benefits, although he accepts that the standard of review is "rationality" - so if a rational person can believe such benefits exist, Justice Breyer seems to be wrong by his own standard. The Justice is writing in dissent, his dissent will have no effect - and he appears to take full advantage of the freedom from judicial responsibility that allows him.

Justice Breyer also asks, again rhetorically, if the logic behind the Bono Act Would ... justify continuing to extend copyrights indefinitely, say, for those granted to F. Scott Fitzgerald or his lesser known contemporaries? But the answer to his rhetorical question is "yes" - the benefit of having an owner would continue to provide a rational basis with which Congress could justify its iterative decisions to extend the copyright monopoly. And as long as each extension is limited there is no difficulty under the Copyright Clause (the First Amendment might be another matter in some cases). So what?

Justice Breyer's rhetoric surely reaches a nadir with his dismissal of the possibility that a major artist might be influenced by anything happening with his work, say, 50 years after his death: What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum?

But this rhetorical flourish seems particularly off base since it focuses pretentiously on great artists, who often care about huge effects flowing far into the future - Justice Breyer should have restricted himself to expressing his concern only for what motivates mediocre or bad artists, as I noted in a prior post:

Arnold Schoenberg used to say towards the end of his life: "In fifty years even the mailman will be whistling my tunes." Mahler expressed similar thoughts about how long it would take his music to come into its own. And Mahler's evaluation of his music's future was essentially correct (the prospect of hearing my mailman whistling at least later Schoenberg, I confess, is still unlikely). Mahler died in 1911. Much of his music had been performed during his life, but most of it was controversial and underappreciated. His work never completely fell from the repertory, but only really began to come into its own and be fully appreciated by the broad audience it deserved and he desired until the 1960's, fifty years after his death - especially in the United States, where it blossomed under the inspired championship of Leonard Bernstein. In short, Mahler seems to have lived and written music expressly for a future beginning a half-century after his death - and his hope came true. But the opponents of the Bono Act seem to deny that such expectations are meaningful to society.

We know at least some great music was created in specific contemplation of its performance in the time period captured by the Bono Act, although not with the expectation of financial return. How is the Supreme Court supposed to determine how much other art has been lost because the needs and thinking of such exceptional artists go far beyond what happens "the minute they completed their work" (as the New York Times charicatures the issue in its editorial discussed below)? Are the Justices going to pull out their Constitutional crystal balls, or think themselves from the comfort of their Washington chambers into the mind of the next Mahler who might or might not write a note without copyright protection for that very period of time he or she is thinking about? If they do, maybe the Justices could drop a footnote explaining how they did it to the rest of us.

In his dissent, Jutice Breyer engages in considerable mind reading of dead artists: "What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?" Nice. Did the good Justice have a seance in his chambers to confer with Mr. Melville on this point? Or perhaps the Justice thinks that he's sufficiently gifted to know what one of the greatest literary minds in history would have thought about any given matter without the need for a chat? This particular aspect of Justice Breyer's rhetorical style proves that it is possible for judicial arrogance to reach a Biblical scale. Perhaps that has something to do with why not a single other Justice - not even his fellow dissenter, Justice Stevens - cared to sign Justice Breyer's dissent.