How I Lost the Big One (Legal Affairs) [LWN.net]

How I Lost the Big One (Legal Affairs)

Posted Mar 4, 2004 19:31 UTC (Thu) by jdthood (guest, #4157) [Link]

Lessig's disappointment is palpable, but he shouldn't feel too bad. It was a long shot to begin with. What happened? Lessig failed to get the Bono Act struck down on a technicality. He thinks that if he had presented the technical argument with some salesmanship then he might have got the majority to vote his way. But he didn't.

This is no travesty. If the framers had seriously intended to impose limits on copyright terms then they would have specified some numerical limit or at least some criteria that must be adhered to. You don't have to be a mathematician to understand that saying that copyright must be for a "limited time" doesn't rule out that time being three trillion years.

The problem is ultimately political and has to be solved through political effort. There was a chance of shortcircuiting that by appealing to a word in the constitution. Lessig took the chance, and failed. It's not the end of the world.

How I Lost the Big One (Legal Affairs)

Posted Mar 5, 2004 3:15 UTC (Fri) by jensend (guest, #1385) [Link]

Good grief. This is a big deal, not just for IP law but for the entire judicial system. Everybody on the court recognized that the practice of continually extending copyright is obviously counter to the provisions of the Constitution (the technicality you mention is obviously irrelevant). However, the majority of the judges decided they didn't bloody well care about the provisions of the constitution. O'Connor's interruption of Lessig amounted to "of course this conflicts with the constitution- SO WHAT?" The refusal of judges to enforce the constitution and laws of the country, enforcing their own ideas instead, threatens every aspect of the American polity, and that this happened in Eldred is something you can agree with even if you are one of the brainwashed who think it's not what happened in "right to privacy" decisions.

Not a blatant disregard for The Constitution, only a question of holdings vs dicta

Posted Mar 5, 2004 12:41 UTC (Fri) by Duncan (guest, #6647) [Link]

> O'Connor's interruption of Lessig amounted to "of
> course this conflicts with the constitution- SO WHAT?"

I wouldn't go that far. Rather, it would seem to me, it's a lessen in "holdings"
vs. "dicta", which those of us following the SCO case learned about in Eben
Moglen's Harvard speach. The controversy in both the Second Amendment
gun argument and here essentually boils down to one of whether certain
commentary included in The Constitution should be interpreted as "dicta",
therefore holding no legal or precident setting power, or whether instead The
Constitution is held to be a concise document so important as to have little or
no room for "dicta", thus, every word is effectively "holdings", carrying full
legal weight and power.

I'm not a legal scholar, and while I'd seen dicta and holdings referenced
before and guess I sort of understood them within context, their real
importance and the importance of where one draws the line between them,
only now is coming into focus, for me.

It would seem that The Court basically interpreted the limited times clause as
"dicta", explanatory support for the "holdings" set forth, yes, but not on its own
holding the power of "holdings". Obviously, folks differ on whether The
Constituition even HAS what amounts to "dicta", and even if so, opinions
could reasonably differ on whether this is indeed dicta or holdings. For those
of the opinion that every word counts, in effect, that there is indeed no room
in a document as important and concise as The Constitution for dicta, that it
must ALL be "holdings", a view of what happened here may be that The
Court, accustomed as it is to interpretting judicial precident and therefore to
finding and distinguishing holdings from dicta everywhere they look, wrongly
found dicta in a document in which there by definition (according to this held
opinion) IS and CAN be none.

Oh, well, the court has reversed itself in the past, altho it may take years and
serious damage before it does so.. All hope isn't lost yet, tho the damage
continues..

Duncan

Or what he said vs what he meant

Posted Mar 6, 2004 19:12 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I agree, and perhaps a clearer explanation for people not used to interpreting case law (which is where the holding vs dicta metaphor comes from) is that O'Connor argues, "it's clear the creators of the Constitution didn't intend to give Congress this power. But it's equally clear that they did give it."

A thousands of years old principle in our legal system is that a person should be able to read a specific legal code and know what the law is. So it's what the law says, not what it's supposed to say, that matters.

Sometimes the specific code doesn't seem to say anything, and then we look at dicta, preambles, and transcripts of the legislature to establish a context in which to give any meaning at all to the words. But where the words are clear, they are all that matter.

I'm not saying I buy the argument in this case. "for a limited time" seems like one of those "no meaning at all" terms that requires context to interpret. But I admit that a reasonable person could find that it's quite clear: any time less than forever.

Or what he said vs what he meant

Posted Mar 11, 2004 11:42 UTC (Thu) by TheNottledimKid (guest, #57) [Link]

> I'm not saying I buy the argument in this case. "for a limited time" seems
> like one of those "no meaning at all" terms that requires context to
> interpret. But I admit that a reasonable person could find that it's quite
> clear: any time less than forever.

IANAL but "limited" clearly doesn't extend to forever. That would be "unlimited". Limited means "confined within limits" or "restricted to a few examples".

However I accept the effect is the same i.e. "no meaning at all".

How I Lost the Big One (Legal Affairs)

Posted Mar 8, 2004 16:32 UTC (Mon) by pimlott (subscriber, #1535) [Link]

To someone who followed the case closely, this reflection is so touching that I have to respond.

So I'll say that the alternative route--focusing on the harms to culture and free expression--would have been been perilous as well. In order to reconcile it with historical copyright extensions, Lessig would have had to demonstrate a qualitatively new impact of the recent law. Then he would have had to convince the court to assume the responsibility (superceding congress) of weighing the harms and benefits of copyright policy. I think this would have been a difficult and complex case to advance. A "free speech" argument per se would have been even more tenuous.

Maybe I read Lessig too much leading up to the case, but he convinced me that the approach he took had the best chances of success.