25 May 2005

Yesterday's decision by the DC Circuit in Luck's Music Library, Inc. v. Gonzales, No. 04–5240 (D.C. Cir. May 24, 2005) addresses the "re-copyrighting" of some foreign works that had fallen into the public domain in the US, but were brought back into copyright through the Uruguary Round of GATT. The opinion has several virtues… and several defects.

Not least among its virtues is its brevity and clear writing. Unlike too many decisions on copyright matters—particularly decisions from outside of the 9th and (to a lesser degree) 7th Circuits in the last decade—one can tell exactly what the panel decided. It does not rely upon long string cites containing references to dubious dicta in decisions that do not cleanly implicate the 1976 Act (let alone as amended). The opinion decides the main argument up front and then deals with the variations in a clear, nonrepetitive manner.

Similarly, the method of reasoning is very clear indeed. Judge Williams clearly and properly describes not just what the appellants' arguments were, but where those arguments fit among the plethora of legal reasoning methods. His opinion also very clearly distinguishes between judicial skepticism at the wisdom of a legislative decision and judicial disapproval of the legislature's power to so decide.

Unfortunately, this very clarity is also the foundation of the greatest defects of the opinion. Bluntly, the opinion is too simple, too simplistic, and too absolutist in its tone. Professor Patry notes:

I did not believe that the legislation provided a direct incentive for the creation of new works, nor that, divorced from the Berne obligation, restoration represented good policy. But honesty in treaty adherence is good policy, and retroactive protection for U.S. works overseas is of benefit to both U.S. copyright owners and to the system as a whole. I thought those two objectives sufficient, from a policy and constitutional standpoint. And I say this as someone who believes, more fervently than even Larry Lessig, that the "Promotion of the Progress of Science" language in Article I, section 8, clause 8 is a real substantive limitation on Congress's power. But I also believe that one must look to the system as a whole to see whether there has been a benefit provided by legislation, and in the case of GATT restoration, I answer that question affirmatively.

This reflects the "ends/means" distinction again. Even though the ends will surely be shaped by the means and therefore cannot ignore them, neither can the means (or literalistic interpretation of a broad grant of powers concerning those means) be interpreted as ends in themselves. This, unfortunately, is the trap into which Justice Breyer's dissent in Eldred fell. It fails to deal with the unstated hole implicit in the entire intellectual property debate:

  • Society benefits from the synergistic sum of all innovation.
  • Economic motivation to individuals is the least-intrusive means to encourage those individuals to engage in a particular course of nonhazardous action.
  • Economic motivation to all actors, including collectives and nonindividuals, has a comparable motivational impact on the individuals whose altered behavior is the actual target of the economic policy.

The subtle problem here is in the third step. For many "collectives" and "nonindividuals," this is a false statement—because, rightly or wrongly, economic benefit has become an identity with short-term financial profit. This is a problem of scalability comparable in scope (although not direction) to crossing the divide between classical and quantum mechanics.

And why does a rather bizarre analogy to physics have anything to do with copyright policy? As too many of my physics and chemistry professors were fond of saying, that's an exercise for the student. (Of course, I'm still a student here, too—as are we all.)