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Re: I Blew It
Those poor Supreme Court Justices: they seem to be having trouble finding a principle that can limit the duration of copyright. It doesn't seem to occur to them that the duration of the monopoly itself can be a principle. Congress is empowered to grant copyrights and patents to "promote progress", but the monopolies so granted must promote progress by more than they burden the public. Congress itself noted this in the committee report accompanying the 1909 Copyright Act, in the section that justified the new device of the mechanical compulsory license. Monopolies burden the public in proportion to their scope and their duration. Hence the longer the monopoly, the less likely it is to promote progress more than it burdens the public. The shorter the monopoly, the more likely the progress obtained is worth the price of the burdens endured. It follows that if Congress wants to extend the term, it must justify the new term more rigorously than it justified the old term. If the courts review a copyright extension, they must scrutinize longer terms more strictly than short terms. Congress's excuse for the CTEA were simply warmed-over versions of its reasons for the 1976 act, plus a ridiculous statement that it will increase our balance of trade, plus a ludicrous statement that film studios will be encouraged to restore films. (If they have had 75 years and not restored the film, why will they do it in the 76th year ?) Hence Congress has not justified the longer term more rigorously than it justified the shorter term; hence the courts should find a want of reason in the legislative judgement. What is so hard about that ? I discuss some related issues in my most recent post at Telae Tabulae. Another point: The Solicitor General's comments show that the true reason for the CTEA (even if the CTEA's supporters themselves don't altogether realize this) is to replace the Federal law's constitutional utility-and-incentive basis for copyright with a pseudomorphic "neoclassicist" rationale. The difference is discussed here.
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