BY GREG LIPPER
This week features argument in the long-awaited Supreme Court case of Eldred v. Ashcroft, in which Larry Lessig and his jilted but loyal Berkman Center friends have challenged the 1998 Sonny Bono Copyright Term Extension Act. Passed at the behest of Walt Disney Company, which sought to prevent Mickey Mouse from entering the public domain, the Act retroactively extends copyright terms and allows for unlimited renewals, essentially extending copyright protection indefinitely. Those seeking free love on the Internet clicked their (non-Mickey) mice in protest and reached for their pocket copies of the Constitution. The legal jousting begins.
As always, Disney has capitalized on the scene. Peter Jennings is providing hard-hitting coverage for Disney’s ABC News. Those famished from intellectual stimulation find vendors selling honey jars featuring images of Winnie the Pooh. And those who believe that IP piracy is a crime can purchase stuffed dolls of Larry Lessig and Jonathan Zittrain dressed up as Pirates of the Caribbean. Walt Disney himself has been defrosted so that he can attend oral argument. He nearly found himself on the bench when he was mistaken for Justice Stevens.
The justices have also parlayed Disney’s presence into appearances on the silver screen. Chief Justice Rehnquist quickly landed the starring role in The Lion King, and Justices Ginsburg and Scalia will be headlining the remake of Beauty and the Beast. Justice Breyer’s attempt to benefit from his uncanny resemblance to Mr. Burns fell short, however, when he learned that The Simpsons is not a Disney vehicle.
Legally, things look glum for our favorite Palo Alto domiciliary. Lessig has never appeared before the Supreme Court. I’m not really sure if he’s ever even litigated a case, but since I am hesitant to make new defamation law as a mere RECORD columnist, I’ll leave that as a question mark. What I do know is that the Supremes will be salivating for the chance to teach this long-haired, ivory-tower hacker a thing or two about practicing law. And I for one will applaud their efforts. Because any “lawyer” so thin-skinned as to ban students from his preparatory exercise in the Ames Courtroom deserves to find himself in the prone position with Ted Olson looming overhead.
Adding to the Internet-hippies’ woes are their arguments and their allies. Lessig argues that the Copyright Clause has limits. For support, he analogizes the Supreme Court decisions in Lopez and Morrison, premised on the notion that there are limits to the commerce clause. One can’t help but cringe at his naivete: “Hey there Evil Supreme Court majority of five, I am trying to use your conservative revolution for liberal purposes, so please go along with me!” Imagine Rehnquist’s glee when he reaffirms that evil conservative decisions will be used for evil conservative purposes and evil conservative purposes alone, thank you.
Falling short on the merits (there is a First Amendment argument in there somewhere, to which the answer is fair use), Lessig has turned to a high-powered network of amici curiae. First are briefs written by the intellectual property professors and the con law professors, respectively. Finally recovered from their efforts to disseminate anti-Bush v. Gore propaganda, the legal academy will once again learn how to spell “ineffectual.” Even better is the brief written by economists, including Arrow, Coase and Friedman, who opine that the Act’s costs outweigh its benefits. Not eager to be told how to decide cases by anyone, let alone a bunch of out-of-work number-crunchers, the Supremes may take great pleasure in shouting, “Run a regression on this!” at a fleeing Lessig.
So have we lost hope? Will The Country Bears and Tarzan remain inaccessible to the next generation of frugal cinema aficionados?
Lessig does have an ace up his sleeve — this was an act of Congress. The Supreme Court majority hates Congress more than Sonny Bono hates obstacles on a ski course. Some say that the Federalism revolution is motivated not by a love for the states but by a hatred for Congress; some also say that Miranda is still good law because the only thing Rehnquist hates more than Miranda is Congress trying to tell him what the law is. Striking down this act would not only censure the current Congress, but censure every Congress that ever retroactively extended copyright protection — dating back to the 1790s.
There’s also Plan B. Eyeing the swing vote, Zittrain pretends to be a bright-eyed high school computer geek, sneaks into Justice Kennedy’s chambers, and begins playing a bootlegged copy of Bambi. Kennedy, always eager to prove that he’s not such a bad guy after all, pens a pro-Lessig opinion chock full of the sort of incoherent platitudes that betrays his BSA past. The Constitution is alive and well.