Update: Larry Stanton in my comments referred to posts by Jack Balkin about the First Amendment clause issue of Eldred vs. Ashcroft. This gentlemen is a constitutional lawyer specializing in first amendment law, and his posts on this issue, here, here, and here are rich reading — clear explanations from an expert’s viewpoint.
As I said earlier, I know that Larry (Lessig) is disappointed at the results of Eldred vs. Ashcroft, but this opportunity for us to see constitutional law in action, and to hear from the experts as ‘regular folk like you and I’, is worth its weight in blogger gold.
Thanks Larry Stanton for links. And I did notice that Denise Howell also had linked to Jack Balkin but I had missed it, earlier.
Where others have been seeing failure about the Eldred vs. Ashcroft decision, I’ve seen nothing but triumph. I do not agree with Larry Lessig that he ‘failed’; and the guiding principles behind this decision should be ones that, once the emotion of this moment passes, he also should be celebrating.
A small group of people took on not only the powerful entertainment industry but the very Congress of this land. They could do so because the Framers of the constitution instituted a court of last resort — the Supreme Court. In this court all power is set aside and two parties could argue a case based on its own merit. In this very court even the smallest of us could have one last word.
However, there is nothing in the Constitution that says that the law of the land favors the small, or even favors the fair. Because of this, the court of last resort sweeps aside all emotion in addition to the power. This is not to make it an unfeeling court, but one whose decisions are based on careful consideration of the law, as well as the impact of the decison over the future and the past — something too important and far reaching to trust to the vagaries of emotion. Who dances on the side of angels changes too frequently to allow this any influence of the decision within this court.
In the last 48 hours, we’ve been given an opportunity to read the decisions of the Justices, to get a glimpse into the minds of these, the defenders who stand at the last bulwark between law and lawlessness in our land. Adding to this richness of this experience, Larry himself, in an expression that is both simply stated as well as compelling, provides insights into the mind of the man who prepared this case. Rather than a dry recital of fact, tonelessly presented in sound bites on the evening news, we’ve been given a glimpse into how law — law at it’s best — in this country works, or was meant to work when framed many, many years ago.
The Supreme Court denied the challenge of Eldred vs. Ashcroft, true. Who is to say that their reasons are not good? Larry wonders if the reason the justices denied the challenge is because the Court will only accept a role to defend the rights of the states against Congress, and not the public domain. But what is the public domain that it needs defense?
A question lingers through all of this: Do the rights of the public domain exceed the rights of the author to have control over their own acts of creation?
We may say that copyright is evil, that it denies the ‘public domain’; but to the artist, copyright is the only law they have that allows them ownership of their own work. It’s true that the copyright laws have benefited, hugely at times, major corporations, but ultimately there is that barely known writer or painter whose only defense against theft of his or her work is copyright law. Could this not have weighed strongly with the justices, this image of the artist rather than the corporation? The rights of the individual versus the rights of the common good? It’s at the back of my mind; are they so very different from me?
However, the copyright law itself was not the wearer of the black hat in this particular challenge. And the law itself was not the basis of Larry’s arguments. Instead, he sought to show that the Congress basically overreached itself with its extension of the copyright. What was unsaid in the arguments he provided, because they had to be unsaid, is that Congress overreached itself due to the influence of power and money — the same Congress that in its purest form should be beyond both.
However, the Supreme Court answered that though it may seem as if the Congress has overreached itself, it is not up to the members of this court to reign in a Congress that allows itself to be overly influenced by power and money — it is up to the people who put this Congress into office, and then ignored the acts of this same Congress. For the court of last resort to deny this is to deny the responsibility of the voters to ensure that the Congress acts in the best good for all.
The Supreme Court was never meant to abbrogate our own responsibilities.
What the Framers of our constitution did is not enough. We must do more.
I both agree and disagree with Larry — the Framers of our constitution framed it exactly right; and it is now up to us to do more.