Supreme CourtCalGal -- Sunday, January 12, 2003 -- 08:39:20 PM
Decisions, appointments, strategies, what have you.This thread is tagged: law
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Under the Supreme Court's equal protection doctrine, sex discrimination is in a separate category from age and disability discrimination. Official policies that treat people differently on the basis of age, disability, income and — unless the court says otherwise in a case that is currently pending — sexual orientation are presumed to be constitutional, as long as the government presents a "rational basis" for their defense. But sex and race discrimination are presumed to be unconstitutional. Further, Congressional measures to prevent or cure these types of discrimination have traditionally received the court's deference, even if the justices would not themselves have defined the problem as Congress did or designed the remedy it chose.
That history of deference, and of constitutional interpretation as an enterprise to be shared between the court and Congress, is now at stake. The implications are both practical and symbolic.
But a ruling that the act was not "appropriate" 14th Amendment legislation would entail the court's rejection of Congress's vision of what equal protection means. It would import into the core constitutional area of civil rights enforcement the muscular approach to judicial review displayed in recent cases: that the Constitution is only what the Supreme Court says it is.
To hold that civil rights laws could be justified only as economic measures under the Commerce Clause, rather than the Equal Protection Clause, "would be a huge symbolic turn in American politics," Prof. Robert C. Post of the University of California at Berkeley said in an interview.
Yes, that was a bit of a bummer. But I guess it is up to Congress.
But I guess it is up to Congress.
Zactly. Maybe I'm missing something, but I don't see how this is any of the Court's business, unless Congress does what the constitution expressly forbids (i.e., grants a copyright of unlimited duration).
Liberals tend to think that there is no difference between "bad public policy" and "unconstitutional policy." I tend to agree with the liberal critique of the law in question -- honestly, there is no real reason for this, except to keep a flow of money going into Disney's (and DC Comics', and etc.) coffers.
But how on earth does this become a Constitutional issue? The Constitution does not dictate what laws we will and will not have. It only forbids those laws which are expressly contrary to its terms. Just because a law might be a bad law does not make it an unconstitutional law.
Lawyers and liberals might hate this, but the proper way to get a bad law struck down is to petition Congress and engage in democratic advocacy, not to bring your complaints to an unelected, antidemocratic, ultraliberal judge.
This goes beyond liberal-shellacking. When liberals do this, time and time again, they are guilty of rejecting democracy and its mechanisms in favor of the expediency of antidemocratic rule by an unelected Revolutionary Vanguard.
Why it's the Court's business:
It would seem to me that a strict constructionist interpretation of the above would say that the FF never intended for copyright or patent to outlive the author or inventor because the Constitution says nothing about heirs or estates. Nor does it grant copyright to corporations.
Obviously lots of precedent has built up since that gives Congress the "assumed" power of doing what it's done--including extending a previously granted copyright, which also isn't enumerated as a power.
Still, I think the language of the Constitution makes it clear that the FF didn't envision Congress creating perpetual copyrights.
Of course the Court can also interpret it differently than I have interpreted it above. But certainly there's a constitutional question for the Court to consider.
It would seem to me that a strict constructionist interpretation of the above would say that the FF never intended for copyright to outlive the author or inventor because the Constitution says nothing about heirs or estates.
Nonsense. I'll bet you dollars to donuts the first copyright act provided for copyrights surviving the author.
Nor does it grant copyright to corporations.
More silliness. If a corporation pays someone to write for that corporation, the actual writer is merely writing for-hire, and the corporation is the actual legal author. And no corporation could ever buy a work from an author, becuase the corporation would immediately lose copyright protection. Indeed, no PERSON could buy a book from another, for the same reason-- the purchaser would not be an "author" and hence the copyright would immediately expire.
Why would they seek to forbid people from selling their rights in books to other people or to corporations, without so much as debating such a strange proposal?
Your silly objections fail to take into account, as Justice Marshall said over and over again, "It is a CONSTITUTION we are expounding" -- i.e., not a piece of legislation which is written with all details laid out. It is written in shorthand form, and a certain amount of common sense must be read into that short-hand. Certainly the Framers didn't seek to divorce themselves from the English copyright & patent tradition without even debating such an enormous change.
I took an IP course last semester with a nationally known IP expert, and they didn't. (We discussed this case at some length, as well as copyright in general). That's different from saying that copyright rights didn't survive the author.
It seems entirely appropriate to check with the Court on the subject. The Court confirmed that Congress had the right. That's what they're there for, presumably.
I can't find the actual text of the law, but the initial law (1790) applied for 14 years and could be renewed (once) only if the author was still alive. Without the actual text, I'm not sure what happened in the case of an author dying in the middle of the 14-year-term. It covered only maps, charts, and books.
No, because you could always license your copyright. If you were doing "work for hire," a condition of your work could be that the corporation was granted immediate, full, and exclusive use of your copyright/patent through license and could sub-license that license at will.
Right. But the text does give us hints as to what they intended: "To promote the Progress of Science and useful Arts." That is, this Congressional power isn't to make inventors and/or writers rich or even protect them; it's to give them incentive to do what they do because without that incentive progress will presumably slow down and art decay.
Else, why is there a compelling state interest? You write something, I plagiarize it, why should the state become involved? Because the state wishes to reward innovation so that it will continue, the state is willing to invest the resources to create a system of laws and courts to support your endeavor.
At some point, however, you have been rewarded sufficiently for your labor and the state is expending its resources to protect you only so you can continue to enrich yourself. In some cases, your patent will in fact hold back progress, so the state is even injuring itself to protect you. Copyright law becomes a wealth transfer mechanism.
We're left with the question of what's fair, plus what the Constitution intended. The text says "limited Times." Of course you can take the position that as long as the time isn't infinite, Congress can do whatever it wants, but again, the text says to Authors and Inventors, not to their descendants, etc. The fact that the first copyright law wouldn't allow a renewal if the author was dead makes me even more certain that the FF never intended anything like we have now.
I understand that over the course of 200 years the scope of copyright has expanded in directions that the FF could never have foreseen. Nevertheless, it's clear that the cause for most of that expansion has nothing to do with "promoting progress," but milking cash cows for every last drop.
Two more philsophical rather than legal points: Whatever you write or create doesn't spring from whole cloth. You build on the work of those who came before you. Hence, a perpetual (or semi-perpetual copyright) means you are grabbing ownership of your step in a continual process, even though you made that step from freely borrowing of the work of others. Second, over time it's highly likely that someone else would have discovered or created something pretty similar even without you. Did you save humanity 10 years, 20 years, or 50 years of slow progress by virtue of your discovery? If not, why should the accident that you were born first allow you to hold up all those who came after you?
Objections from the justices came quickly. "Who's to say how much is too much" for a fund-raiser to keep, Justice Antonin Scalia asked, adding that "I'm not comfortable at all" with the state's view that there is a limit beyond which a presumption of fraud is justified.
Justice Sandra Day O'Connor asked, "How would anyone know when the attorney general was going to charge them?"
And Justice David H. Souter said, "I don't see where any charitable fund-raiser could draw a line in advance." If the state wins its case, he said, fund-raisers will be able to protect themselves only by disclosing their arrangements to every person called, "which would totally undercut our precedents that you can't require disclosure."
Justice Anthony M. Kennedy asked whether, assuming that most people would not give money if they knew the real extent of the fund-raising costs, "there is anything the state can do" to protect consumers.
Mr. Copilevitz said fund-raisers must disclose their arrangements if directly asked and must file regular statements with the attorney general's office.
So the rule is "if asked, must tell," Justice Ruth Bader Ginsburg observed, adding, "The sophisticated person who will ask is protected, but if a person doesn't ask, is it against the First Amendment" to require disclosure?
If you were doing "work for hire," a condition of your work could be that the corporation was granted immediate, full, and exclusive use of your copyright/patent through license and could sub-license that license at will.
Actually, if you're doing a work for hire, the ownership of the copyright rests with the employer. The employee/creator has no ownership rights unless they establish them in the employment contract itself.
"If" refers to a hypothetical situation, not current law. The primary assumption of the hypothetical is of a law stipulating that a copyright must belong to an individual because it would be tied to the lifespan of the individual.
Everything after that was explaining how "work for hire" could work, given such a law.
Copyright already is tied to the lifespan of the author/creator that "owns" the copyright. Current law is life of the individual/owner plus 70 years. For corporate owners its 95 years from time of creation.
When are the arguments on that one, Ronski?