LAW MEME, April 16, 2002

Ernest Miller

Features: IP Bar Shutdown - No Amicus in Eldred Says ABA Governors

As LawMeme reported last week, the IP Section of the ABA was pushing hard to file an amicus on behalf of the copyright industry in Eldred v. Ashcroft, which challenges retroactive copyright extension and Congress' apparent policy of perpetual copyright on the installment plan (ABA IP Section Intends to Defend Incentives for Dead People, Lawyers). Thankfully, the Board of Governors declined the request of the IP Section. The politics of the ABA can be Byzantine, so the reasons for the decision were not readily apparent.

Yesterday, Salon published an interview with Morton David Goldberg, prominent IP attorney and former chair of the ABA's section on IP (In defense of copyright). Goldberg has been one of the most prominent proponents of the Sony Bono Copyright Term Extension Act [PDF] (SBCTEA), which Eldred challenges. The constitutional challenge has really shocked the IP bar, given the hyperbolic responses it has elicited. For example, LawMeme highlights some of Goldberg's responses in the interview:

Goldberg has been quoted as saying about Eldred that, "The case could present a field day for those who have an anti-IP sentiment -- those who say information wants to be free, less protection is necessarily better, the public domain promotes the progress of science and useful arts better than IP, and when technology advances, IP rights must be cut back." This, of course, is sheer scare tactics. Goldberg is trying to set up a false dichotomy between those who favor copyright protection and those who don't believe in copyright protection. In reality, the debate is not over whether there should be some copyright protection, but how extensive and what form that protection should take. Although some argue that IP should be abolished, their numbers are few. Frankly, I am unaware of anyone who argues that as technology advances, IP rights should be cut back. Rather, the debate has generally been whether or not IP rights should be extended as technology advances. In fact, that is one of the very arguments the government has been using in Eldred.

One of the questions the Supreme Court will decide in the case is whether or not copyright law is categorically immune to First Amendment challenge. The lower courts have decided, essentially, that it is. Goldberg claims that this is an invitation for the court to say, "Oh, the very constitutionality of the Copyright Act and each of its provisions is questionable under the First Amendment and should be reviewed -- and copyrights and copyright infringement suits should have a First Amendment analysis by the courts in all copyright cases." First, why shouldn't copyright laws be reviewed for conflict with the First Amendment? Should Congress just get a pass on laws passed under the copyright clause of the Constitution? Again, we see the scare tactics, with courts required to make a First Amendment analysis in all copyright cases. Even if the Supreme Court decides, as it should, that copyright law can be subject to First Amendment review, that will not mean that a First Amendment analysis will have to take place in every copyright case. That is why we have precedent.

The other question at issue is whether Congress can retroactively extend copyright for works that already exist. In other words, will Mickey Mouse get another 20 years of protection? To Goldberg, this is the biggest fear, "The broader and even more dangerous question is related to the issue of whether Congress has the power to extend the term of copyright." It is true, as Goldberg notes, that Congress has extended copyright and patents in the past, and invalidating the SBCTEA may result previous extensions being overturned. This might require some adjusting on the part of copyright holders. However, this is not a response to the arguments against retroactive term extension. Any time that the Supreme Court judges a law to be unconstitutional, adjustments are necessary. For Goldberg to call such a result "chaos" is pushing the term a little far. Clever lawyers will be able to straighten out the various copyright terms relatively quickly.

What is more interesting about Goldberg's lament is that he seems to be attacking the very concept of judicial review enumberated in Marbury v. Madison itself (the case that established the doctrine of judicial review). "It's also even more disastrously a case of chaos as to what the limited scope of congressional power really is. What is the meaning of constitutional power? That's really what's at stake here." Goldberg continues, "what is to preclude the court from making other determinations contrary to the determinations that Congress has made?"

The fear, apparently, is that the Supreme Court might begin reviewing other laws passed under the copyright clause power, laws like the DMCA perhaps, or the proposed CBDTPA. As Goldberg notes, it has been many decades since the Supreme Court has struck down a law passed under the copyright clause. Goldberg goes on to say that, "Judicial history says that the court should be very reluctant, No. 1, to adjudicate a constitutional issue if it doesn't have to; and secondly, if it does get into a constitutional issue, it should be exceedingly reluctant to overturn something that has been the view of Congress, undisturbed, for two centuries." Goldberg is correct, but I am sure that the Supreme Court is well aware of these doctrines. Moreover, this is not an argument as to the merits of the challenge itself. If laws that were unchallenged for decades were free from review on that basis alone, we would not enjoy the civil liberties which we do today. The question is not whether the law has gone unchallenged, but whether it is constitutional.

Goldberg then makes the odd argument that constitutional review is policy making by judges, "[The balance between the rights of copyright holders and the public is] a critical policy decision, and the question is whether that policy decision should be made by the legislative branch, which is empowered under the copyright clause, or should be made by the judicial branch." Goldberg seems to be making the claim that Congressional decisions which create a lopsided balance should never be subject to judicial review.

The closest that Goldberg comes to making a substantive argument with regard to the challenge is when he attempts to make a semantic distinction:

"Retroactive": That kind of terminology is wonderful forensically, especially for a jury. It conjures up notorious kinds of things like ex post facto legislation; if it's retrospective, reaching back, [the argument goes], there must be something wrong with it.
But semantics aside, [the Bono Act] is not retroactive. It is prospective. It deals with the extension of subsisting copyrights. It does not go back, for example, and take works out of the public domain.

"Subsisting copyrights," that is, copyrights that already exist. If the constitutional purpose of copyright is encourage innovation, it is hard to see how extending existing copyrights meets that test. After all, Walt Disney was already incentivized enough to create Mickey Mouse and Mickey Mouse cannot be created a second time. One can argue (wrongly, but reasonably) that extending copyright prospectively will incentivize living authors to create more works. Extending copyright for existing works merely grants a boon to copyright holders. It is true that the bill doesn't take works out of the public domain, but that is not a defense of the law.

Goldberg address the question of "chilling effects," "If you try to enjoin me from peddling unauthorized 100 percent knockoffs of your copyrighted book, should I be able to get off the hook by saying that the Copyright Act has a "chilling effect" on some First Amendment right I have to knock off your book? Answer: no." Really, is anyone arguing that 100 percent knockoffs shouldn't be enjoined? Does any actual (as opposed to straw) person think that straight up piracy is what proponents of the "chilling effect" arguments against certain forms of copyright protection are worried about? The "chilling effects" argument has more to do with Fair Use arguments, where the draconian penalties imposed in the SBCTEA will tend to chill some speech that would have a Fair Use defense. Is this an illegitimate argument? Why must Goldberg characterize it as an argument in favor of "100 percent knockoffs"?

Again, addressing the question of technological change, Goldberg inveighs against policy making by the Supreme Court, "The mere fact that there is a change, a drastic change, even a revolutionary change, in our economy, our society, our technology, does not in and of itself create a constitutional issue. It does not in and of itself empower the Court to say "we will make the policy decision." However, is that the question before the Supreme Court? Is the question for review, "does technology in and of itself create a constitutional issue?" Answer: no. In fact, the question before the Court in Eldred is as far away from the Internet as you can get. Eldred is a publisher of traditional books. Although the decision will likely inform other issues that do involve technological change, the decision itself has nothing to do with technological change. Be that as it may, however, why wouldn't revolutionary change in technology create constitutional issues? It does all the time in the realm of privacy. At one point it was considered constitutional for police to wiretap phones without probably cause. It is no longer.

As for the effects of overturning the SBCTEA, Goldberg presents a list of horribles:

There will be fewer derivative works prepared from existing works, because there's much more of an incentive to create a derivative work if you can get an exclusive right from the copyright holder.
That is not entirely clear. For example, virutally all of Disney's feature length animated films are based on works in the public domain. Moreover, by this argument, there shouldn't be a public domain at all, since if all works were owned the incentive to create derivative works would be maximized. Goldberg couldn't possibly believe that, could he?
There would also be much less incentive to prepare new works. This is difficult to show empirically, but the congressional decision was [designed] to enlarge the period of copyright so that authors would have more incentive to create their works than they had before.
At least Goldberg admits that the question of incentives in creative works is not one that can be answered empirically. But how would removing retroactive extension decrease the incentive to create new works? This is the question that proponents of the SBTCEA cannot and never answer.
And there would certainly be less incentive for the publishers and other disseminators of copyrighted works to disseminate.
Why? As a matter of fact, it seems that Eldred wants to disseminate, but the law will prohibit him from doing so.
These things would happen merely because of a finding that the extension is unconstitutional.
Huh? How? This makes no sense. If it was profitable to disseminate when the work was created without the extension, it would remain profitable if the extension was revoked.

Once again Goldberg attacks the question of judicial review:

It's not just new legislation; is a party going to be able to go into court and question the constitutionality of a certain portion of the Copyright Act using Eldred as a precedent? And is a party in litigation going to be able to say, "The provision that you say I violated is unconstitutional"? This claim, of course, can always be made, but it is rarely if ever made and if it's made, it's almost always thrown out because it's the last refuge of a scoundrel.
Depending on how the court rules, yes, Eldred may serve as precedent for other constitutional challenges to copyright law. I would hope so, since copyright law has gone unchallenged for so long. Still, courts are unlikely to accept illegitimate challenges. Constitutional challenges are rarely successful, not because, as Goldberg claims, they are the "last refuge of a scoundrel" but because courts are loathe to throw out laws. If courts decide to invalidate other copyright laws, perhaps it will because copyright law has overstepped its bounds.

Finally, Goldberg finishes the interview with a claim to distinguish policy from constitutional arguments, "We have to distinguish between the arguments, such as those in Lessig's book, which is an argument addressed to the policymaking forum, and the arguments addressed to the Court -- the constitutional arguments." A good exercise, but courts have to grapple with policy all the time. The real problem in Eldred is not that there are no constitutional arguments, but that the proponents of the SBCTEA never seem to answer them.