Dastar: Boyle's brilliance
So if you get a chance to read the Supreme Court's opinion in Dastar, keep in mind this brilliant observation by Duke Law Professor James Boyle:
So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitiations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental.
Got it.
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Comments (14)
A rather disingenuous comment by Boyle since DASTAR was about the Lanham Act, so its terms need to be defined. There was no ruling re: copyrighht law, so there was no need to define terms rigidly. Boyle is engaging in a logical fallacy, possibly the Fallacy of Exclusion, but most likely just an Irrelevant Conclusion. That rather tarnishes the 'brilliance.'
-dave
I think you are missing the point. If so much care in defining terms is necessary to the Lanham act, why was the same care not required when interpretting the Constitution in the Eldred case? I hold the U.S. Constitution to be a much more important document than the Lanham Act and thus deserving of greater care, not less. Boyle is engaged in pointing out what appears to be the unbalanced thought process used by the U.S. Supreme Court in different cases.
yes, sorry, I should have made that clearer. Boyle is contrasting the opinion in Dastar with the opinion in Eldred. In Eldred, we believed that if the copyright clause had gotten the sort of careful, balanced analysis that Scalia gave to the word "origin" in the Lanham Act (or "legislature" in Bush v. Gore for that matter), then at least he would not have been able to vote as he did. The frustration in Eldred was precisely that the words of the Constitution didn't seem to matter -- what mattered was unreviewed congressional practice.
Not to rehash Eldred, but the biggest hurdle was always the first copyright law. If the first copyright law was viewed as increasing existing terms, then the rest of the case never had a chance because the acts of the first congress are presumptively constitutional. Reading the decision, it's clear that Eldred never got the justices over that big hump. The rest of the decision was a foregone conclusion.
Not that this reflects poorly on the briefs and oral arguments which were masterful. It just didn't happen this time.
Surely the words "promote" and "progress" in the Copyright Clause are more debatable, because they only seek to define the purpose of the Clause. As such, it's a more radical to suggest that they constrain the power of Congress than the an actual operand. Furthermore, again it's more tricky (though perhaps convincing) to successfully argue that a pattern of extending limited copyrights makes them not limited at all.
I think it's clear that the Justices were bothered by the process that could circumvent the "limited" requirement. However, none of the particular Acts of Congress, in and of itself, violated the "limited" requirement. How then, would one decide which Act went too far in extending copyright? Certainly not an easy question, not as obvious as this decision.
The right of an author to sell one's authorship rights is rather clearly established as well, (including in English common law at the time of the Constitution's adoption), as is the established legal status of corporations. Again, if the copyright is entrusted to an author, certainly they can sign contracts giving enforcement rights and such on their behalf to someone else.
While I agree with your public policy recommendation, I think that the unfair, inaccurate, and snarky comment does you no good, Professor.
John, I don't know what you mean about the comment. My criticism of the court's opinion was that it didn't attempt to interpret these words at all. Of course it is difficult to interpret, etc., just as interpreting "origin" is difficult. But one would have thought that the court would at least try to give meaning to "limited times" in light of the "promote the progress of science" clause.
The court's principle could be principled; strict statutory construction is not oppressively burdensome (because Congress can revisit the issue if the Court gets it horribly wrong), but strict constitutional construction is much more problematic (because harder to amend).
I'm sure that's not their principle, but it seems a defensible one if it were.
Who's talking about "strict." How about any. The problem with the opinion in Eldred is that there is no effort to explain what the words "to promote the Progress of Science by securing for limited Times" means at all.
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