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: Moral Panics and the Copyright Wars

Is There Any Copyright Clause Constitutional Limit on Congress?

By William Patry, Esq

I made this statement in a prior post:

"The Constitution is quite clear that Congress can only grant copyright to promote the progress of science, and thus this ?burden? exists from the inception of the rights, and follows those rights for the duration of the copyright."

Ben replied in part by stating:

The way you phrase this I think points to a rather fundamental divide among copyright lawyers (and interested others) who think about these issues. ? There has long been a debate whether the "[t]o promote the progress of science and useful arts" is merely nice precatory language, or whether it places a substantive limit, enforceable by the courts, on Congress' power. It seems to me that Eldred v. Ashcroft pretty well resolved this issue. As Justice Ginsburg wrote for the seven-justice majority:

"As we read the Framers? instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body?s judgment, will serve the ends of the Clause."

In other words, within very broad limits, it's not for the courts to second-guess Congress' judgment about the best way "[t]o promote the progress of science and useful arts."

I agree with Ben?s statement that courts should generally not second-guess Congress?s judgment, limited of course to those subjects that involve the permissible exercise of judgment. Congress could not for example use its judgment to protect under copyright the telephone white pages struck down in the Feist case. I am also not sure what Ben means by ?very? broad. The Supreme Court?s stated deference to Congress seems to me entirely window-dressing. When the Court agrees with Congress, it righteously claims it is deferring, when in reality it merely reached the same conclusion. When by contrast, the Court disagrees with Congress, it doesn?t defer, and righteously claim it is merely exercising its Constitutional obligations, obligations the Court arrogated to itself from Marbury v. Madison forward. The Roberts Court is proving itself to be the most activist in history (and wait until it strikes down campaign finance reform), quite an accomplishment given the very activist record of its predecessor, the Rehnquist Court, which struck down a breathtaking number of statutes. The conservative majority on the Court appears to have as much regard for precedent as Congressman Joe Wilson has for precedents in the House of Representatives on decorum.

In a typically Jewish way, let me answer Ben?s question with a question: since you agree there are limits on what Congress can do under the Copyright clause, when are those limits reached, Ben, say especially in term extension? Let?s say that in 1998, Congress had instead increased the term of protection from life of the author plus 200 years. Would this have been OK, and if not why not? If it had been OK, at what point do you say it is not OK, and why not?

To be a mensch, I will now answer the questions Ben asked me. Here is his first question:

Do you think that in adjudicating individual copyright cases, judges should independently evaluate whether enforcing the plaintiff's statutory rights in that particular instance "promote[s] the progress of science and useful arts"?

By individual case, I assume Ben means that the case involves a particular work, and not as in Eldred, a broad based challenge to a class of works or to all works. Of course, even when a particular work is involved, courts can make broad pronouncements, as the Court did in Feist about the constitutional standard for originality. Under Ben?s theory I don?t think he would have permitted the Feist Court to act as it did. But, Feist aside, no, I don?t think Congress should make an independent analysis of whether the incentive of copyright was necessary for any single work. I have argued exactly that in my 8 volume treatise, saying this about the Second Circuit?s decision in County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001):

[T]he court of appeals also inquired into whether the county required the incentive of copyright to create the maps. The court of appeals indicated that if on remand it was found that the existence and content of the maps ?are purely dictated by law, it is likely that Suffolk County needed no additional incentive to create them.? On the other hand, ?[m]any works of government ? due to their expense, may require additional incentives in order to justify their creation.? Given the fact-specific nature of such inquiries, the court declined to ?declare a general rule that works by state governmental authors are automatically in the public domain from their inception.?
While the court is correct that no protection would be available if the existence of content of the maps was dictated, for the court to entertain the possibility that it is appropriate for courts, rather than Congress, to decide whether incentives are required for the fact of creation is a surprising violation of the separation of powers. Under the Constitution, it is only Congress that is empowered to grant copyrights, a power that perforce includes the weighing of whether incentives are necessary for protection to be granted. By excluding works of the federal government but not works of the states from protection, Congress could not have made clearer its intention to protect works of the states under standards no different than those for private works. Of course, states may decide for their own policy reasons not to assert copyright in their creations, but the choice is theirs, not the courts.
1 Patry on Copyright section 3:37.

Here is Ben?s second question:

Let's say that in 2010 Studio A releases a very successful superhero movie, centered around an original set of superheroes. It announces that it will release a sequel in 2013. But in 2012, Studio B, hoping to cash in on Studio A's success, makes a movie based on the exact same superheroes -- a blatant rip-off that's a clear violation of Studio A's exclusive right to "prepare derivative works based upon the copyrighted work." But let's say Studio B's movie is actually really good, garnering rave reviews for taking Studio A's film "to the next level." Should Studio B be able to prevail in a copyright suit by arguing, "Our movie is a significant creative achievement, that added greatly to the world's cultural heritage. Enjoining our movie and imposing huge damages on us won't 'promote the progress of science and useful arts'; it will inhibit it."?

Ben answered that Studio B?s work was infringing and I agree if, on the facts as Ben created them, the second work was a ?blatant rip-off,? that is, a non-transformative derivative work. But that?s also why Ben?s facts are internally inconsistent: no blatant rip-off would be a ?significant creative achievement, that added greatly to the world's cultural heritage.? So Ben, how about Shepherd Fairey?s Obama poster? On March 11, 2009, on your blog, you said: ?The more I learn about this case, and think about the relevant case law, the more skeptical I become of the AP's claim. Remember: the question is not "Did Fairey copy the AP's photo?" (which I think he clearly did). Rather, the legally relevant question is ?Did Fairey copy protectable elements of the AP's photo??"

I ask Ben: what about fair use even if Fairey did copy protectable elements? Certainly his work is a ?significant creative achievement,? and didn?t it add greatly to the political if not cultural discourse? So bite the bullet, is it fair use or not? I think it is. But the Fairey case doesn't impact on what the constitutional clause means, any more than the Studio A & B hypo did. My problem with Eldred is not so much the result (was L+50 really constitutional but L+70 wasn't?), but rather that the majority totally gutted the clause, through the absurd characterization of the very grant of the right, the power to promote the progress of science, as "precatory language," as so many pretty words, as meaning absolutely nothing. It is very true as Josh Wattles noted in a comment on Ben's piece that Eldred was terribly strategized and terribly briefed from the challenger's standpoint, but the majority opinion is worse, because (1) it is an opinion of a court and our highest Court at that, and, (2) its almost unseemly battles with the forces of those who question the idea of unfettered Congressional power. With 7 votes, the majority could have written a short, sweet opinion, without flinging the mud it did and without gutting the Constitutional clause as it did. Sometimes when you win, it's better for all of us that you least pretend you're above the fray. But since the Court didn't, those of us who think the Constitutional clause means something have a much, much harder time, something we should forthrightly admit.

To return to the beginning of this post, though: the purpose of my quotation about the Constitutional clause had nothing to do with Eldred -- Ben was using my quotation to make the point he wanted to make, but not to respond to the point I had made. (Very clever!) Instead, my quotation served the idea that promoting the progress of science includes doctrines like fair use, something I would hope Ben agrees with. Indeed, a number of courts have observed that without fair use, the Copyright Clause of the Constitution would run afoul of the First Amendment, so I don't think my point is an idle one. The point is, succinctly this: the characterization of copyright as a property right, and not as property, ignores that doctrines like fair use play an important constitutional role: they are not limitations or exceptions or "bizarre departures" from the norm, as Judge Leval warned, but rather they play just as important role as the grant of rights. One would have a hard time recognizing this, though, in the way many content owners describe their "property rights."

Full post as published by Moral Panics and the Copyright Wars on September 12, 2009 (boomark / email).