It’s been over a year now since a decision was announced in the Eldred v. Ashcroft copyright extension case. Lawrence Lessig the chief counsel in that case, has written a retrospective analysis of what went wrong, and why the decision went against the commons and for the copyright holders.
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 naÃ¯ve 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 reasonableâ€”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.