Friday, November 20, 2009

Bilski: which elements from Eldred will return?

Further to the IPBiz post titled
On horse-training methods and Bilski oral argument
, one recalls the exchange between Chief Justice Rehnquist and Professor Lessig in Eldred v. Ashcroft:

MR. LESSIG: Well, if it flies in the face of what the Framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.

CHIEF JUSTICE REHNQUIST: Well, you know, certainly what is happening in the country today in the way of congressional -- under the Commerce Clause is totally different than what the Framers had in mind, but we've never felt that that was the criterion. What the Framers thought of, there weren't steamboats, there weren't railroads.

MR. LESSIG: That's right.

CHIEF JUSTICE REHNQUIST: We've said there was a general grant, and that Congress was free to run with it in many respects.

Another interesting exchange:

MR. LESSIG: That's right. That's the important hurdle, and we'd like to jump that first, but the other ones, Justice, you're right, in 1831 and in 1909 Congress extended terms in a way that is inconsistent with the strongest form of the test that we have advanced. Those extensions, however, were never challenged in any court and certainly not considered by this Court.

CHIEF JUSTICE REHNQUIST: Well, doesn't that itself mean something, Mr. Lessig? The fact that they were never challenged, perhaps most people, and perhaps everybody felt there was no basis for challenging them.

MR. LESSIG: Well, Mr. Chief Justice, it's absolutely true that this case is here because of a fundamentally important changed circumstance that makes the Framers' limitations on the Copyright Clause much more significant. This is the first time I can remember where this Court has been pointed to changed circumstances as a reason to reaffirm the Framers' values, because for most of this period, Mr. Chief Justice, the only people who were regulated by copyright law under the Copyright Act would have been [*4] commercial publishers, primarily, and now for the first time the scope of this exclusive right has expanded because of the changed technology of the Internet to reach an extraordinarily broad range of creativity that never would have been imagined before.

Now, it's not the case that the earlier extensions were not questioned on constitutional grounds. In fact, Melville Nimmer, in the consideration of the 1976 act, suggested they were plainly under --

CHIEF JUSTICE REHNQUIST: Well, I'm talking about court challenges, not academic challenges.

IPBiz notes the existence of Lawrence Lessig's article, "How I Lost the Big One," [ Legal Aff., Mar./Apr. 2004] concerning the outcome of Eldred v. Ashcroft, which includes the text:

There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem "important" to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against "the most powerful media companies in the world."

[of the result]

I first scoured the majority opinion, written by Ginsburg, looking for how the court would distinguish the principle in this case from the principle in [United States v. Lopez, 514 U.S. 549 (1995)]. The reasoning was nowhere to be found. The case was not even cited. The core argument of our case did not even appear in the court's opinion. I couldn't quite believe what I was reading. I had said that there was no way this court could reconcile limited powers with the com-merce clause and unlimited powers with the progress clause. It had never even occurred to me that they could reconcile the two by not addressing the argument at all.

***Separately, from LBE in IPT ( April, 2002 ) -->

On the copyright front, on February 18, the Supreme Court granted cert in Eldred v. Ashcroft (99-5430) to review the holding by the U.S. Court of Appeals for the D.C. Circuit that the 1998 Sonny Bono Copyright Term Extension Act is constitutional. Eldred's case has been spear-headed by Professor Lawrence Lessig, who recently came under attack in an article by Edward Samuels n6 who wrote of Lessig: "He doesn't even consider the international context in which Congress acted. Lessig suggests that the United States adopt a short copyright term, subject to renewal every five years. This proposal, or indeed any proposal for a term of less than life of the author plus 50 years, would be in viola-tion of our treaty obligations under Berne." On the flip side, many point to a law review article by Justice Breyer, "The Uneasy Case for Copyright," 84 Harv. L. Rev. 281 (1970), and point to various special interests who benefit (oppo-nents call the law "the Mickey Mouse Protection Act."). Somewhat lost in all of this is the idea that copyright law is to encourage authors, and ultimately create a public domain of works of authorship. Although copyright law, unlike pat-ent law, has a work-for-hire provision, at some point the public, if not lawyers, has an expectation that the creator of the work should be rewarded.

***Elsewhere [54 Vill. L. Rev. at 144]

Although a tremendous amount of fascinating legal scholarship has built upon the idea that code is law, all of this scholarship has missed an important point. Legal scholars have responded to Lessig's maxim like visitors to a zoo where coders are the animal attraction: Code is law, so we better start studying coders. This has led to suggestions such as: let's look at what incentivizes software firms; n104 let's ask when and whether regulators should regulate coders; n105 let's try to predict what code will look like tomorrow, or worse, let's become science fiction writers and try to predict what code will (or possibly could) look like in ten years. n106

***Time quotes Lemley on Bilski:

"I don't think anyone other than Bilski thinks that Bilski deserves a patent," says Mark Lemley, a professor of law at Stanford University.


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