Man Without Qualities

Wednesday, January 15, 2003

Victory For The Dead Hand Of Sonny Bono

As predicted in several MWQ posts, the Supreme Court today upheld the Sonny Bono Copyright Term Extension Act (Bono Act) against Constitutional objections formulated under both the Copyright Clause and the First Amendment. The 7-2 vote was not close. The Court correctly defered to Congress on the Copyright Clause argument ("`We find that the [extension] is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be''). But the decision also properly does not appear to be a naked deference to Congress with respect to the First Amendment argument.

MWQ had also predicted, contrary to some other legal commentators, that Justice Scalia would vote to uphold the Bono Act - and, in fact, he did join today's majority. The Court also rejected the intellectually embarrassing "Economists Brief" - also as predicted by MWQ. The Economists Brief was hardly more than a simplistic discounting calculation which avoided serious consideration of even basic economic considerations such as the famous Tragedy of the Commons (or "Overexploitation of the Common Pool") which often arises where property rights are terminated.

Even if the economic logic - which was given quite a lot of prominence by some people other than the Court - had been correct and complete, the Court found those arguments of little significance, also as predicted by MWQ: "Of course, not a jot of evidence has been adduced that any early Congress even dreamed that interest rates mattered for this purpose, although it is critical under the reasoning now advanced to the Court". Today the Court noted: "It is doubtful, however, that those architects of our Nation, in framing the "limited Times" prescription, thought in terms of the calculator rather than the calendar." The Court also correctly pointed out - in a line that reads as if it was inserted by Justice Scalia - that "To comprehend the scope of Congress’ Copyright Clause power, 'a page of history is worth a volume of logic.' ... History reveals an un-broken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.”

The Court's analysis of the First Amendment considerations is sophisticated and appears to be correct:

By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” ... In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.

First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. .... As we [have] said [in prior cases], this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” ... Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. ...

Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. ...

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adher-ence.” ...

The CTEA, in contrast, does not oblige anyone to repro-duce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas.

This is a complex area. The Court's results may or may not be correct - although MWQ is fairly confident that the Court is more correct than wrong.

But at this juncture one thing is clear: The Court has done a heck of a better job than the opponents of the Bono Act did in arguing its case and in dealing with all of the necessary complexities.

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