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LawMeme Live at Eldred v. Ashcroft
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< Microsoft v. Lindows.com Summary Judgment
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LawMeme Live at Eldred v. Ashcroft
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From the article I'm just trying to count heads.
It sounds like Breyer is a definite yes. Stevens is a "very likely". O'Connor's quote leads me to put her in the "somewhat likely" category. Scalia's only comment seemed negative towards the government (and Lessig was his clerk) which warrents a "more likely than not". Thomas usually follows Scalia, so it seems that five votes might just be there. I would expect Souter to go as Breyer & Stevens go, so there is even a little insurance.
Ginsberg goes in the "unlikely" category, at least on the First Amendment argument. (I would have thought she would be very positive on Eldred's argument). Rehnquist was skeptical of making too big of a change, but then later seemed pleased with the Lopez argument (he authored Lopez and will likely consider it his legacy). There was no mention of Kennedy. I'd put them both in the toss-up category.
The O'Connor quote really encouraged me. She is often the coalition builder. I was really surprised by Ginsberg. I'd have thought she was an easy "yes", now it appears she is the strongest "no".
Overall, I'm more optomistic now than I was yesterday. I would expect Breyer to lobby hard for this one. All he has to do is convince Rehnquist that it isn't a big upheaval legally. He also has to convince O'Connor of what she appears to want to believe. Cross your fingers.
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I stand by my earlier prediction that the court will strike the part of the Sonny Bono Act that applies retroactively. I predict that a new rule of law will be set forth that says any future extensions to the copyright term cannot be retroactive.
As for the rest of the Plaintiff's arguments, I just don't see the court being convinced that 90 years somehow crosses a threshhold that simply has no defined existence. I wonder if any of the questions were along the lines "Counselor (Olson), do you see that there is any limit on the copyright term under the constitution, and if so, how would such a limit would be determined?" Whatever the answer to that question, the mood of the court does not seem to indicate that they can get majority agreement on the idea that 90 years is the answer to the latter part of it. I also agree with the assessment by Ernest Miller and the LawMeme gang that the court probably was not impressed with the First Amendment argument raised by the Plaintiffs.
MD
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Severability refers to how courts may find a law unconstitutional. If, when the unconstitutional sections are struck, that which remains is meaningful, then it may remain in force. That is an example of a severable law.
Congress could have written the CTEA so that it were severable in this manner, but they did not do so. If the retroactive extension is struck, the prospective extension is struck.
They could have written it: Sec 1. the term for all works fixd after the effective date shall be x. Sec 2. The term for all existing works for which the current term has not expired, shall also be x. Then section 2 could be struck leaving an effective amd meaningful section 1.I have discovered a truly marvelous sig, however the sig limit is too small to contain i
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I did not, and that was one question I was very much wondering about. Then, of course, the entire law must and will be struck. (prepares to eat foot).
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Humanity has the stars in its future, and that future is too important to be
lost under the burden of juvenile folly and ignorant superstition.
- Isaac Asimov
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