Public Nuisance

Random commentary and senseless acts of blogging.

The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Tuesday, January 21, 2003
Matthew Yglesias asks an interesting question: why are libertarian bloggers generally unhappy with the Eldred decision and the extension of copyrights? After all, IP is a legitimate form of property; weakening personal property rights in favor of a somewhat nebulous defense of the public good is, in libertarian circles, generally about as popular as peeing in the punch bowl.

Not being a libertarian myself, I will only venture a very tentative answer: libertarian bloggers Reynolds and Volokh are both professors, and professors are definitely a population that has been unfavorably impacted by extensions in copyright, and especially by narrowing of the Fair Use exception. The booklets of reading selections that were routinely distributed to classes or sold for a small fee when I was in college are now illegal, unless all copyrighted material has been removed or approved by the holder.

If this analysis of the Eldred ruling is correct, it may have other consequences that libertarians won't approve of. A law prof cited by Eugene Volokh says:

Basically the Court's opinion says this is constitutional because no one, especially the Framers' generation, ever thought it was
unconstitutional. That is a valid interprative principle (though particularly weak in this case for reasons I can explain later), but what is important about it is that this is the interpretive principle that singlehandedly sustains the Ten Commandments in courtrooms,
prayer at public gatherings, and various other de minimis intrusions of religion into public life. Indeed, having rested Eldred solely on this basis, the Court will be hard pressed to strike down such practices as violating the Establishment Clause. That is why the conservative justices -- who you thought might be swayed by the textualist argument -- sustained the Bono law. (Again, I think the consistent-usage-of-Congress argument works much better for the Establishment issues than for this Copyright issue, but that's another email.). So the bad news is we get a wrong interpretation of the copyright clause, but the good news is we'll probably get a right one of the Establishment Clause. Note that both the wrong and right interpretation have the effect of sustaining legislation in the face of plausible constitutional challenge.

The writer here only mentions issues concerning the Establishment clause, but if this principle is accepted, it has obvious ramifications on another highly politicized case the Court will be deciding in this session: whether to overturn Bowers v Hardwick, the 1986 case upholding sodomy laws. Glenn sort of predicts, and clearly hopes, that Bowers will go, and that outcome obviously would satisfy libertarians. The issues in the cases are entirely unrelated, but the reasoning described here would weaken that prospect. Sodomy laws were on the books in several states, perhaps all, when the Constitution was originally adopted, were widely adopted in new states joining the Union, and stayed in place for centuries before anybody started seriously suggesting they were unconstitutional.