[Commons-Law] Candid confessions of an IP don!

[sudhir at circuit.sarai.net]

Dear all

This article was published in an earlier issue of Legal Affairs. Lessig's
analysis of the Eldred case, particularly the oral arguments, is one of
the most self reflective and insightful account of the nature of legal
practise that I've read in some time.

How I Lost the Big One
When Eric Eldred's crusade to save the public domain reached the Supreme
Court, it needed the help of a lawyer, not a scholar.
By Lawrence Lessig

http://legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.html

IT IS OVER A YEAR LATER AS I WRITE THESE WORDS. It is still astonishingly
hard. If you know anything at all about this story, you know that we lost
the appeal. And if you know something more than just the minimum, you
probably think there was no way this case could have been won. After our
defeat, I received literally thousands of missives by well-wishers and
supporters, thanking me for my work on behalf of this noble but doomed
cause. And none from this pile was more significant to me than the e-mail
from my client, Eric Eldred.

But my client and these friends were wrong. This case could have been won.
It should have been won. And no matter how hard I try to retell this story
to myself, I can't help believing that my own mistake lost it.

ERIC ELDRED, A RETIRED COMPUTER PROGRAMMER in New Hampshire, was
frustrated that his daughters didn't seem to like Nathaniel Hawthorne. And
in 1995, he decided to do something about it: put Hawthorne on the web. An
electronic version with links to pictures and explanatory text, Eldred
thought, would make this 19th-century work come alive.

It didn't work—at least for his daughters. They didn't find Hawthorne any
more interesting than before. But Eldred's experiment gave birth to a
hobby, and his hobby begat a cause. Eldred went on to build a library of
public-domain works by scanning these works and making them available for
free.

Eldred's library was not simply a copy of certain public-domain works.
Just as Disney turned the Grimms' fairy tales into films more accessible
to a 20th-century audience, Eldred put the works of Hawthorne, and many
others, in a form more accessible—technically accessible—today. Like
Disney, Eldred was free to produce new versions of works whose copyright
had lapsed. Hawthorne's Scarlet Letter had passed into the public domain
in 1907.

In 1998, Robert Frost's poetry collection New Hampshire was slated to pass
into the public domain. Eldred wanted to post that collection in his free
public library. But Congress got in the way. For the 11th time in four
decades, Congress extended the terms of existing copyrights—this time by
20 years. Eldred would not be free to add any works published since 1923
to his collection until 2019. Under the new law, no copyrighted work would
pass into the public domain until that year (and not even then, if
Congress extended the term again). By contrast, in the same period, more
than one million patents will pass into the public domain.

This was the Sonny Bono Copyright Term Extension Act, or CTEA, enacted in
memory of the congressman and former musician. According to his widow,
Mary Bono, Sonny Bono believed that "copyrights should be forever."

Eldred decided to fight this law. He first resolved to fight it through
civil disobedience. In a series of interviews, Eldred announced that he
would publish as planned, the CTEA notwithstanding. But because of a
second law passed in 1998, the No Electronic Theft Act, his act of
publishing would make Eldred a felon—whether or not anyone complained.
This was a dangerous strategy for a retired programmer to undertake.

It was here that I became involved in Eldred's battle. I am a
constitutional scholar whose first passion is constitutional
interpretation. And though constitutional law courses never focus upon the
progress clause of the Constitution, it had always struck me as different
in an important way. Every other clause granting power to Congress simply
says Congress has the power to do something—for example, to regulate
"commerce among the several states" or "declare War." But in the progress
clause, the "something" is something quite specific—to "promote . . .
Progress"—through means that are also specific—by "securing" "exclusive
Rights" (i.e., copyrights) "for limited Times."

In my view, our constitutional system placed such a limit on copyright as
a way to ensure that copyright holders do not too heavily influence the
development and distribution of our culture. Yet, as Eldred discovered,
copyrights have not expired, and will not expire, so long as Congress is
free to be bought to extend them again. And while it is the valuable
copyrights—Mickey Mouse and "Rhapsody in Blue"—that are responsible for
terms being extended, the real harm done to society is not that Mickey
Mouse remains Disney's. Forget Mickey Mouse. Forget Robert Frost. Forget
all the works from the 1920s and 1930s that still have commercial value.
The real harm is to the works that are not famous, not commercially
exploited, and no longer available as a result.

Of all the creative work produced by humans anywhere, a tiny fraction has
continuing commercial value. For that tiny fraction, the copyright is a
crucially important legal device. But even for that tiny fraction, the
actual time during which the creative work has a commercial life is
extremely short. Most books go out of print within one year. The same is
true of music and film. Commercial culture is sharklike. It must keep
moving. And when a creative work falls out of favor with the commercial
distributors, the commercial life ends. Copyrights in this context do no
good.

Yet for most of our history, they also did little harm. When a work ended
its commercial life, there was no copyright-related use that would be
inhibited by an exclusive right. When a book went out of print, you could
not buy it from a publisher. But you could still buy it from a used
bookstore, and when a used bookstore sells it, at least in the United
States, there is no need to pay the copyright owner anything. Thus, the
ordinary use of a book after its commercial life ended was a use that was
independent of copyright law. The same was effectively true of film.
Because the costs of restoring a film—the real economic costs, not the
attorneys' fees—were so high, it was never at all feasible to preserve or
restore film.

Digital technologies have changed that. It is now possible to preserve and
offer access to all sorts of knowledge. Digital technologies give new life
to copyrighted material after it passes out of its commercial life.

And now copyright law does get in the way. Every step of producing this
digital archive of our culture infringes on the exclusive right of
copyright. To digitize a book is to copy it. To do that requires
permission of the copyright owner. The same holds for music, film, and
every other artifact of our culture protected by copyright. The effort to
make these things available to history, or to researchers, or to those who
just want to explore is now inhibited by a set of rules that were written
for a radically different context.

CONSTITUTIONAL LAW IS NOT OBLIVIOUS of the obvious. Or, at least, it does
not need to be. In my view, a pragmatic court committed to interpreting
and applying our framers' Constitution would see that if Congress has the
power to perpetually extend existing terms, then the constitutional
requirement that terms be limited has lost its force.

It was also my judgment that this Supreme Court would not allow Congress
to extend existing terms. As anyone close to the Supreme Court's work
knows, this court has increasingly restricted the power of Congress when,
in its view, Congress overstepped the powers granted to it by the
Constitution. The most notable example of this was the court's 1995 United
States v. Lopez ruling, which struck down a federal law that banned the
possession of guns near schools.

Since 1937, the Supreme Court had interpreted Congress's granted powers
very broadly; so, while the Constitution grants Congress the power to
regulate only "commerce among the several states" (aka "interstate
commerce"), the court had interpreted that power to include the power to
regulate any activity that merely affected interstate commerce.

As the economy grew, this standard increasingly meant that there was no
limit to Congress's power to regulate, since just about every activity,
when considered on a national scale, affects interstate commerce. A
Constitution designed to limit Congress's power was instead interpreted to
impose no limit.

Under Chief Justice William Rehnquist's command, the court changed that in
Lopez. The government had argued that possessing guns near schools
affected interstate commerce. Guns near schools increase crime, crime
lowers property values, and so on. In the oral argument, the chief justice
asked the government whether there was any activity that would not affect
interstate commerce under the reasoning the government advanced. The
government said there was not; if Congress says an activity affects
interstate commerce, then that activity affects interstate commerce. The
Supreme Court, the government argued, shouldn't second-guess Congress.

"We pause to consider the implications of the government's arguments," the
chief justice wrote. If anything Congress says is interstate commerce must
therefore be considered interstate commerce, then there would be no limit
to Congress's power. The decision in Lopez was reaffirmed five years later
in United States v. Morrison.

If a principle were at work here, then it should apply to the progress
clause as much as the commerce clause. And if it is applied to the
progress clause, the principle should yield the conclusion that Congress
can't claim the power to extend an existing term on a theory that puts no
effective limit on its power.

If, that is, the principle announced in Lopez was a genuine principle.
Many believed the decision in Lopez represented politics—a political
preference for states' rights, gun ownership rights, and so on. But I
rejected that view of the Supreme Court's decision. Shortly after the
decision, I wrote an article demonstrating the "fidelity" of such an
interpretation to the Constitution. The idea that the Supreme Court
decides cases based upon justices' political preferences struck me as
extraordinarily boring. I was not going to devote my life to teaching
constitutional law if these nine justices were going to be petty
politicians.

In January 1999, we filed a lawsuit on Eldred's behalf in federal district
court in Washington, D.C., asking the court to declare the Sonny Bono
Copyright Term Extension Act unconstitutional. We made two central claims:
that extending existing terms violated the Constitution's "limited Times"
requirement and that extending terms by another 20 years violated the
First Amendment.

The district court dismissed our claims without even hearing an argument.
A panel of the Court of Appeals for the D.C. Circuit also dismissed our
claims, though after hearing an extensive argument. But that decision at
least had a dissent, by one of the most conservative judges on that court,
Judge David Sentelle, who said the CTEA violated the requirement that
copyrights be for "limited Times" only.

We asked the Court of Appeals for the D.C. Circuit as a whole to hear the
case, but the court rejected our request to hear the case en banc. This
time, Judge Sentelle was joined by the most liberal member of the D.C.
Circuit, Judge David Tatel. The most conservative and the most liberal
judges on the D.C. Circuit each believed Congress had overstepped its
bounds.

It was here that most expected Eldred v. Ashcroft to die, for the Supreme
Court rarely reviews any decision by a court of appeals. And it
practically never reviews a decision that upholds a statute when no other
court has yet reviewed the statute. But in February 2002, the Supreme
Court surprised the world by granting our petition to review the D.C.
Circuit opinion. Argument was set for October of 2002. The summer would be
spent writing briefs and preparing for argument.

THE MISTAKE WAS MADE EARLY, though it became obvious only at the very end.
Our case had been supported from the very beginning by an extraordinary
lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day,
Reavis & Pogue. There were three key lawyers on the case from Jones Day.
Stewart was the first; then, Dan Bromberg and Don Ayer became quite
involved. Bromberg and Ayer had a common view about how this case would be
won: We would only win, they repeatedly told me, if we could make the
issue seem "important" to the Supreme Court. It had to seem as if dramatic
harm were being done to free speech and free culture; otherwise, the
justices would never vote against "the most powerful media companies in
the world."

I hate this view of the law. Of course I thought the Sonny Bono Act was a
dramatic harm to free speech and free culture. But I was not persuaded
that we had to sell our case like soap. In any event, I thought, the court
must already see the danger and the harm caused by this sort of law. Why
else would the justices have granted review?

I was, however, convinced that the court would not hear our arguments if
it thought these were just the arguments of a group of lefty loons. I made
sure that the briefs on our side were about as diverse as it gets,
including both the economist Milton Friedman and Hal Roach Studios, which
said the Sonny Bono Copyright Term Extension Act will, if left standing,
destroy a whole generation of American film that is no longer commercially
viable to sell. The same effort at balance was reflected in the legal team
we gathered to write our own briefs. When the case got to the Supreme
Court, we added three lawyers to the Jones Day team: Alan Morrison of
Public Citizen, a Washington group that had made constitutional history
with a series of victories in the Supreme Court on individual rights; my
colleague and dean at Stanford Law School, Kathleen Sullivan, who is an
experienced advocate before the court, and who had advised us early on
about a First Amendment strategy; and, finally, former solicitor general
Charles Fried.

Fried was a special victory for us. Every other recent solicitor general
was hired by the other side to defend Congress's power to give media
companies the special favor of extended copyright terms. Fried was the
only one who turned down that lucrative assignment to stand up for
something he believed in. He had been Ronald Reagan's chief lawyer in the
Supreme Court. He had helped craft the line of cases that limited
Congress's power deriving from the commerce clause. And while he had
argued many positions in the Supreme Court that I disagreed with, his
joining the cause was a vote of confidence in our argument.

The government, in defending the statute, had its collection of friends as
well. Significantly, however, none of these "friends" included historians
or economists. The briefs on the other side of the case were written
exclusively by major media companies, congressmen, and copyright holders.

The media companies were not surprising. They had the most to gain from
the law. The congressmen were not surprising either—they were defending
their power and, indirectly, the gravy train of contributions that such
power brought them. And of course it was not surprising that the copyright
holders would defend the idea that they should continue to have the right
to control who did what with the content that they had long controlled.

Those who represented the estate of Dr. Seuss (Theodore Geisel) argued
that it was better to leave control of his work in the hands of his estate
than to allow it to fall into the public domain, where people could use it
to "glorify drugs or to create pornography." The Gershwin estate had a
similar rationale for its "protection" of the work of George Gershwin. His
estate refuses, for example, to license Porgy and Bess to anyone who does
not use African-Americans in the cast. That's its view of how this part of
American culture should be controlled, and it wanted this law to help it
maintain that control.

This point is rarely made, but it has far-reaching implications, and it
was a key theme of our brief. When Congress decides to extend the term of
existing copyrights, it is making a choice about which speakers it will
favor. Not only would upholding the CTEA mean that there was no limit to
the power of Congress to extend copyrights and further concentrate the
market; it would also mean that there was no effective limit to Congress's
power to play favorites, through copyright, with who has the right to
speak.

Between February and October, I did little besides prepare for this case.
Early on, as I said, I set the strategy. The Supreme Court was divided
into two important camps. One camp we called "the conservatives." The
other we called "the rest." In the first group we placed Chief Justice
Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia,
Anthony Kennedy, and Clarence Thomas. These five had been the most
consistent in limiting Congress's power. They were the five who had
supported the Lopez/Morrison line of decisions, which said that an
enumerated power—the only kind of power Congress has—must be interpreted
in a way that makes it limited.

The rest were the four justices who had strongly opposed limits on
Congress's power. These four—Justices John Paul Stevens, David Souter,
Ruth Bader Ginsburg, and Stephen Breyer—had repeatedly argued that the
Constitution gives Congress broad discretion to decide how best to
implement its powers. In case after case, these justices had argued that
the Supreme Court should defer to the legislative branch. Though I had
personally agreed with these four justices' votes in most cases, they were
also the votes that we were least likely to get in this one.

The least likely of all was Ginsburg's. In addition to her general view
about deference to Congress (except where issues of gender are involved),
she had been particularly deferential in the context of intellectual
property protections. She and her daughter (an excellent and well-known
intellectual property scholar) were cut from the same intellectual
property cloth. We expected she would agree with the writings of her
daughter: that Congress had the power in this context to do as it wished,
even if what Congress wished made little sense.

Close behind Ginsburg were two justices whom we also viewed as unlikely
allies, though possible surprises. Souter strongly favored deference to
Congress, as did Breyer. But both were also very sensitive to free speech
concerns. And we believed retrospective extensions raised important free
speech issues.

The only vote we could be confident about was Stevens's. History will
record Stevens as one of the greatest judges on this Court. His votes are
consistently eclectic, which just means that no simple ideology explains
where he will stand. But he had consistently argued for limits in the
context of intellectual property. We were fairly confident that he would
recognize limits here.

ORAL ARGUMENT WAS SCHEDULED for the first week in October. I arrived in
D.C. two weeks before the argument and was repeatedly "mooted" by lawyers
who had volunteered to help in the case. To win, I was convinced that I
had to keep the court focused on the idea that just as with the Lopez
case, under the government's argument here, Congress would always have
unlimited power to extend existing terms of copyright. I found ways to
take every question back to this central idea.

In the moot before the lawyers at Jones Day, Don Ayer was skeptical. Don
had served in the Reagan Justice Department with Solicitor General Charles
Fried and had argued many cases before the Supreme Court. "I'm just afraid
that unless they really see the harm, they won't be willing to upset this
practice that the government says has been a consistent practice for 200
years. You have to make them see the harm—passionately get them to see the
harm. For if they don't see that, then we haven't any chance of winning,"
he said.

He may have argued many cases before this court, I thought, but he didn't
understand its soul. As a clerk for Justice Scalia, I had seen the
justices do the right thing, not because of politics but because it was
right. As a law professor, I had spent my life teaching my students that
this court does the right thing, not because of politics but because it is
right.

The night before the argument, a line of people began to form in front of
the Supreme Court. The case had become a focus of the press and of the
movement to free culture. Hundreds stood in line for the chance to see the
proceedings. Scores spent the night on the steps of the court so that they
would be assured a seat.

Not everyone has to wait in line. People who know the justices can ask for
seats they control. (I asked Justice Scalia's chambers for seats for my
parents, for example.) Members of the Supreme Court Bar can get a seat in
a special section reserved for them. And senators and congressmen have a
special place where they get to sit, too. Finally, of course, the press
has a gallery, as do clerks working for the justices. As we entered that
morning, there was no place that was not taken. This was an argument about
intellectual property law, yet the halls were filled. As I walked in to
take my seat, I saw my parents sitting on the left. As I sat down at the
table, I saw Jack Valenti, the chairman of the Motion Picture Association
of America, sitting in the special section ordinarily reserved for family
of the justices.

When the chief justice called me to begin my argument, I began where I
intended to stay: on the question of the limits on Congress's power. This
was a case about enumerated powers, I said, and whether those enumerated
powers had any limit.

O'Connor stopped me within one minute of my opening. The history was
bothering her:

    Congress has extended the term so often through the years, and if you
are right, don't we run the risk of upsetting previous extensions of
time? I mean, this seems to be a practice that began with the very
first act.

She was quite willing to concede "that this flies directly in the face of
what the framers had in mind." But my response again and again was to
emphasize limits on Congress's power:

    Well, if it flies in the face of what the framers had in mind, then
the question is, Is there a way of interpreting their words that gives
effect to what they had in mind? And the answer is yes.

There were two points in this argument when I should have seen where the
court was going. The first was a question by Kennedy, who observed,

    Well, I suppose implicit in the argument that the '76 act, too, should
have been declared void, and that we might leave it alone because of
the disruption, is that for all these years the act has impeded
progress in science and the useful arts. I just don't see any
empirical evidence for that.

Here follows my clear mistake. Like a professor correcting a student, I
answered,

    Justice, we are not making an empirical claim at all. Nothing in our
copyright clause claim hangs upon the empirical assertion about
impeding progress. Our only argument is, this is a structural limit
necessary to assure that what would be an effectively perpetual term
not be permitted under the copyright laws.

That was a correct answer, but it wasn't the right answer. The right
answer was to say that there was an obvious and profound harm. Any number
of briefs had been written about it. Kennedy wanted to hear it. And here
was where Don Ayer's advice should have mattered. This was a softball; my
answer was a swing and a miss.

The second came from the chief, for whom the whole case had been crafted.
For the chief justice had crafted the Lopez ruling, and we hoped that he
would see this case as its second cousin.

It was clear a second into his question that he wasn't at all sympathetic.
To him, we were a bunch of anarchists:

    Well, but you want more than that. You want the right to copy verbatim
other people's books, don't you?

I responded as follows:

    We want the right to copy verbatim works that should be in the public
domain and would be in the public domain but for a statute that cannot
be justified under ordinary First Amendment analysis or under a proper
reading of the limits built into the copyright clause.

Things went better for us when the government gave its argument; for now
the court picked up on the core of our claim. Scalia made this comment to
Solicitor General Theodore Olson:

    You say that the functional equivalent of an unlimited time would be a
violation [of the Constitution], but that's precisely the argument
that's being made by petitioners here, that a limited time which is
extendable is the functional equivalent of an unlimited time.

When Olson was finished, it was my turn to give a closing rebuttal.
Olson's flailing had revived my anger. But my anger still was directed to
the academic, not the practical. The government was arguing as if this
were the first case ever to consider limits on Congress's copyright and
patent clause power. Ever the professor and not the advocate, I closed my
argument by pointing out the long history of the court's imposing limits
on Congress's power in the name of the copyright and patent clause; the
very first case striking a law of Congress as exceeding a specific
enumerated power was based upon the copyright and patent clause. All true.
But it wasn't going to move the justices over to my side.

As I left the court that day, there were a hundred points I wished I could
remake. There were a hundred questions I wished I had answered
differently. But one way of thinking about this case left me optimistic.

The government had been asked over and over again, What is the limit? Over
and over again, it had answered there was no limit. The solicitor general
had made my argument for me; in those rare moments when I let myself
believe that we may have prevailed, it was because I felt this court—in
particular, the conservatives—would feel itself constrained by the
principles that they had established in cases like Lopez and Morrison.

The morning of January 15, 2003, I was five minutes late to the office and
missed the 7 a.m. call from the Supreme Court clerk. Listening to the
message, I could tell in an instant that she had bad news to report. The
Supreme Court had affirmed the decision of the court of appeals. Seven
justices had voted in the majority. There were two dissents.

A few seconds later, the opinions arrived by e-mail. I took the phone off
the hook, posted an announcement of the ruling on our blog, and sat down
to see where I had been wrong in my reasoning. My reasoning. Here was a
case that pitted all the money in the world against reasoning. And here
was the last naïve law professor, scouring the pages, looking for
reasoning.

I first scoured the majority opinion, written by Ginsburg, looking for how
the court would distinguish the principle in this case from the principle
in Lopez. The reasoning was nowhere to be found. The case was not even
cited. The core argument of our case did not even appear in the court's
opinion. I couldn't quite believe what I was reading. I had said that
there was no way this court could reconcile limited powers with the
commerce clause and unlimited powers with the progress clause. It had
never even occurred to me that they could reconcile the two by not
addressing the argument at all.

Ginsburg simply ignored the enumerated powers argument. Consistent with
her view that Congress's power was not limited generally, she had found
Congress's power not limited here. Her opinion was perfectly
reasonable—for her, and for Souter. Neither believes in Lopez. But what
about the silent five? By what right did they get to select the part of
the Constitution they would enforce? We were back to the argument that I
said I hated at the start: I had failed to convince them that the issue
here was important, and I had failed to recognize that however much I
might hate a system in which the court gets to pick the constitutional
values that it will respect, that is the system we have.

Breyer and Stevens wrote very strong dissents. Stevens's reasoning was
internal to the law: He argued that the tradition of intellectual property
law did not support this unjustified extension of terms. He based his
argument on a parallel analysis of the law of patents. (So had we.) But
the rest of the court discounted the parallel—without explaining how the
very same words in the progress clause could come to mean totally
different things depending upon whether the words were about patents or
copyrights. The court was content to let Stevens's charge go unanswered.

Breyer's opinion, perhaps the best opinion he has ever written, did not
focus on the Constitution. He argued that the term of copyrights has
become so long as to be effectively unlimited. We had said that under the
current term, a copyright gave an author 99.8 percent of the value of a
perpetual term. Breyer said we were wrong, that the actual number was
99.9997 percent of a perpetual term. Either way, the point was clear: If
the Constitution said a term had to be "limited," and the existing term
was so long as to be effectively unlimited, then the extension is
unconstitutional.

These two justices understood all the arguments we had made. But because
neither believed in the Lopez case, neither was willing to push it as a
reason to reject this extension. The case was decided without anyone
having addressed the central argument that we had carried from Judge David
Sentelle. It was Hamlet without the prince.

DEFEAT BRINGS DEPRESSION. They say it is a sign of health when depression
gives way to anger. My anger came quickly, but it didn't cure the
depression.

It was at first anger with the five conservatives. It would have been one
thing for them to have explained why the principle of Lopez didn't apply
in this case. That wouldn't have been a very convincing argument, I don't
believe, having read it made by others, and having tried to make it
myself. But it at least would have been an act of integrity. These
justices in particular have repeatedly said that the proper mode of
interpreting the Constitution is "originalism"—starting by understanding
the framers' text, interpreted in the original context, in light of the
original structure of the Constitution. That method had produced Lopez and
many other "originalist" rulings. Where was their "originalism" now?

My anger with the conservatives quickly yielded to anger with myself. For
I had let a view of the law that I liked interfere with my view of the law
as it is.

Most lawyers and law professors have little patience for idealism about
courts in general and this Supreme Court in particular. Most have a much
more pragmatic view. As I read back over the transcript from that argument
in October, I can see a hundred places where the answers could have taken
the conversation in different directions, where the truth about the harm
that this unchecked power will cause could have been made clear to this
court. Kennedy in good faith wanted to be shown. I, idiotically, corrected
his question. Souter in good faith wanted to be shown the First Amendment
harms. I, like a math teacher, reframed the question to make the logical
point. I had shown them how they could strike down this law of Congress if
they wanted to. There were a hundred places where I could have helped them
want to, yet my stubbornness, my refusal to give in, stopped me. I have
stood before hundreds of audiences trying to persuade; I have used passion
in that effort to persuade; but I refused to stand before this audience
and try to persuade with the passion I had used elsewhere. It was not the
basis on which a court should decide the issue.

Would it have been different if I had argued it differently? Would it have
been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen
Sullivan?

The image that will always stick in my head comes from an editorial that
ran in The New York Times. While the reaction to the Sonny Bono Act itself
was almost unanimously negative, the reaction to the court's decision was
mixed. The press coverage that attacked the decision did so because it
left standing a silly and harmful law. That "grand experiment" that we
call "the public domain" is over, the paper said. When I can make light of
it, I think, "Honey, I shrunk the Constitution." But I can rarely make
light of it. We had in our Constitution a commitment to free culture. In
the case that I fathered, the Supreme Court effectively renounced that
commitment. A better lawyer would have made them see differently.