October 13, 2002
Lawrence Lessig has given his arguments before the Supreme Court for Eldred v. Ashcroft. Lessig's mostly been getting kudos from all over the web... although those pranksters at the Ayn Rand Institute seem to think that Lessig and his "gang" are Marxists of some sort (along with his Communist friends, Milton Friedman and Phyllis Schlafly, I suppose). Anyway, Lessig hardly seems fazed by this, and the Ayn Rand Institute's position appears to be a distinct minority opinion in the libertarian community, judging from the various eye-rolling reactions from Declan McCullagh and his compadres on Politechbot. M'ris also gives assurances that the Rand Institute's "orthodox Objectivist rant" was not in the mainstream. So, whew. I mean, take Declan McCullagh -- I don't agree with everything he says, but at least he is almost always thoughtful and worthy of respect. In contrast, that Objectivist paper was just plain loony.
Anyway, Lessig has some thoughts on how the arguments went:
The Court clearly got it. Though the other side had written literally 300 pages trying to show all the good CTEA did... the Court hadn't bought any of it. Congress was not acting to promote progress, it was acting to reward "court favorites." The only question the Court was struggling with is whether it has the power to do anything about it.
Now pause for a second to think about how important and good this struggle is. First: It is a rare but valuable exercise for any branch of government to worry about the scope of its own power. And the greatest virtue the Court exercises is the virtue of self-restraint. This is a reason to respect the Court, not criticize it (though how they exercise their restraint, or where, can be criticized, as I suggest below). But the general idea that it will restrain itself, despite believing a law is stupid, is a feature, not a bug in our constitutional tradition.
I thought Larry had done an awful job until Solicitor General Olson (the man who argued for Bush in Bush v. Gore) came up. The Justices had a field day with him. Rehnquist got him to admit that a perpetual copyright would violate the Constitution. Kennedy got him to admit that a functionally perpetual (900 year) copyright would also be a violation. "Isn't that what petitioners argue?" asked another Justice. "That if you keep extending the term of copyright it's the functional equivalent?"
It's hard to say how well Lessig did, particularly from the perspective of a non-lawyer. As one of Swartz's colleagues admitted, "it was a dance for which I don't know the steps." That said, the fact that Lessig might have looked weak is pretty much par for the course -- as far as I can tell, everyone looks bad in front of the Court. Every Supreme Court snippet I've ever heard consists of Scalia or one of the other justices just tearing the poor lawyer on the stand to shreds. This is why Nina Totenburg has the best gig on NPR.