Lawrence Leig,

Legal A�air

When ric ldred' cruade to ave the pulic domain reached the upreme Court, it

needed the help of a lawer, not a cholar.

IT I OVR A YAR LATR A I WRIT TH WORD. It i till atonihingl hard.

If ou know anthing at all aout thi tor, ou know that we lot the appeal. And if

ou know omething more than jut the minimum, ou proal think there wa no

wa thi cae could have een won. After our defeat, I received literall thouand of

miive well-wiher and upporter, thanking me for m work on ehalf of thi

nole ut doomed caue. And none from thi pile wa more igni�cant to me than the

e-mail from m client, ric ldred.

ut m client and thee friend were wrong. Thi cae could have een won. It hould

have een won. And no matter how hard I tr to retell thi tor to melf, I can't help

elieving that m own mitake lot it.

RIC LDRD, A RTIRD COMPUTR PROGRAMMR in New Hamphire, wa

frutrated that hi daughter didn't eem to like Nathaniel Hawthorne. And in 1995, he

decided to do omething aout it: put Hawthorne on the we. An electronic verion

with link to picture and explanator text, ldred thought, would make thi

19th-centur work come alive.

It didn't work—at leat for hi daughter. The didn't �nd Hawthorne an more

intereting than efore. ut ldred' experiment gave irth to a ho, and hi ho

egat a caue. ldred went on to uild a lirar of pulic-domain work canning

thee work and making them availale for free.

ldred' lirar wa not impl a cop of certain pulic-domain work. Jut a Dine

turned the Grimm' fair tale into �lm more acceile to a 20th-centur audience,

ldred put the work of Hawthorne, and man other, in a form more acceile

—technicall acceile—toda. Like Dine, ldred wa free to produce new verion

of work whoe copright had laped. Hawthorne' carlet Letter had paed into the

pulic domain in 1907.

In 1998, Roert Frot' poetr collection New Hamphire wa lated to pa into the pulic

domain. ldred wanted to pot that collection in hi free pulic lirar. ut Congre

got in the wa. For the 11th time in four decade, Congre extended the term of

exiting copright—thi time 20 ear. ldred would not e free to add an work

pulihed ince 1923 to hi collection until 2019. Under the new law, no coprighted

www.legala�air.org

work would pa into the pulic domain until that ear (and not even then, if Congre

extended the term again). contrat, in the ame period, more than one million

patent will pa into the pulic domain.

Thi wa the onn ono Copright Term xtenion Act, or CTA, enacted in memor

of the congreman and former muician. According to hi widow, Mar ono, onn

ono elieved that "copright hould e forever."

ldred decided to �ght thi law. He �rt reolved to �ght it through civil dioedience.

In a erie of interview, ldred announced that he would pulih a planned, the CTA

notwithtanding. ut ecaue of a econd law paed in 1998, the No lectronic Theft

Act, hi act of pulihing would make ldred a felon—whether or not anone

complained. Thi wa a dangerou trateg for a retired programmer to undertake.

It wa here that I ecame involved in ldred' attle. I am a contitutional cholar

whoe �rt paion i contitutional interpretation. And though contitutional law

coure never focu upon the progre claue of the Contitution, it had alwa truck

me a di�erent in an important wa. ver other claue granting power to Congre

impl a Congre ha the power to do omething—for example, to regulate

"commerce among the everal tate" or "declare War." ut in the progre claue, the

"omething" i omething quite peci�c—to "promote . . . Progre"—through mean

that are alo peci�c— "ecuring" "excluive Right" (i.e., copright) "for limited

Time."

In m view, our contitutional tem placed uch a limit on copright a a wa to

enure that copright holder do not too heavil in�uence the development and

ditriution of our culture. Yet, a ldred dicovered, copright have not expired, and

will not expire, o long a Congre i free to e ought to extend them again. And while

it i the valuale copright—Micke Moue and "Rhapod in lue"—that are

reponile for term eing extended, the real harm done to ociet i not that Micke

Moue remain Dine'. Forget Micke Moue. Forget Roert Frot. Forget all the

work from the 1920 and 1930 that till have commercial value. The real harm i to the

work that are not famou, not commerciall exploited, and no longer availale a a

reult.

Of all the creative work produced human anwhere, a tin fraction ha continuing

commercial value. For that tin fraction, the copright i a cruciall important legal

device. ut even for that tin fraction, the actual time during which the creative work

ha a commercial life i extremel hort. Mot ook go out of print within one ear.

The ame i true of muic and �lm. Commercial culture i harklike. It mut keep

moving. And when a creative work fall out of favor with the commercial ditriutor,

the commercial life end. Copright in thi context do no good.

Yet for mot of our hitor, the alo did little harm. When a work ended it

commercial life, there wa no copright-related ue that would e inhiited an

excluive right. When a ook went out of print, ou could not u it from a puliher.

ut ou could till u it from a ued ooktore, and when a ued ooktore ell it, at

leat in the United tate, there i no need to pa the copright owner anthing. Thu,

the ordinar ue of a ook after it commercial life ended wa a ue that wa

independent of copright law. The ame wa e�ectivel true of �lm. ecaue the cot

of retoring a �lm—the real economic cot, not the attorne' fee—were o high, it

wa never at all feaile to preerve or retore �lm.

Digital technologie have changed that. It i now poile to preerve and o�er acce to

all ort of knowledge. Digital technologie give new life to coprighted material after it

pae out of it commercial life.

And now copright law doe get in the wa. ver tep of producing thi digital archive

of our culture infringe on the excluive right of copright. To digitize a ook i to cop

it. To do that require permiion of the copright owner. The ame hold for muic,

�lm, and ever other artifact of our culture protected copright. The e�ort to make

thee thing availale to hitor, or to reearcher, or to thoe who jut want to explore

i now inhiited a et of rule that were written for a radicall di�erent context.

CONTITUTIONAL LAW I NOT OLIVIOU of the oviou. Or, at leat, it doe not

need to e. In m view, a pragmatic court committed to interpreting and appling our

framer' Contitution would ee that if Congre ha the power to perpetuall extend

exiting term, then the contitutional requirement that term e limited ha lot it

force.

It wa alo m judgment that thi upreme Court would not allow Congre to extend

exiting term. A anone cloe to the upreme Court' work know, thi court ha

increaingl retricted the power of Congre when, in it view, Congre overtepped

the power granted to it the Contitution. The mot notale example of thi wa the

court' 1995 United tate v. Lopez ruling, which truck down a federal law that anned

the poeion of gun near chool.

ince 1937, the upreme Court had interpreted Congre' granted power ver roadl;

o, while the Contitution grant Congre the power to regulate onl "commerce

among the everal tate" (aka "intertate commerce"), the court had interpreted that

power to include the power to regulate an activit that merel a�ected intertate

commerce.

A the econom grew, thi tandard increaingl meant that there wa no limit to

Congre' power to regulate, ince jut aout ever activit, when conidered on a

national cale, a�ect intertate commerce. A Contitution deigned to limit Congre'

power wa intead interpreted to impoe no limit.

Under Chief Jutice William Rehnquit' command, the court changed that in Lopez.

The government had argued that poeing gun near chool a�ected intertate

commerce. Gun near chool increae crime, crime lower propert value, and o on.

In the oral argument, the chief jutice aked the government whether there wa an

activit that would not a�ect intertate commerce under the reaoning the government

advanced. The government aid there wa not; if Congre a an activit a�ect

intertate commerce, then that activit a�ect intertate commerce. The upreme

Court, the government argued, houldn't econd-gue Congre.

"We paue to conider the implication of the government' argument," the chief jutice

wrote. If anthing Congre a i intertate commerce mut therefore e conidered

intertate commerce, then there would e no limit to Congre' power. The deciion in

Lopez wa rea�rmed �ve ear later in United tate v. Morrion.

If a principle were at work here, then it hould appl to the progre claue a much a

the commerce claue. And if it i applied to the progre claue, the principle hould

ield the concluion that Congre can't claim the power to extend an exiting term on a

theor that put no e�ective limit on it power.

If, that i, the principle announced in Lopez wa a genuine principle. Man elieved the

deciion in Lopez repreented politic—a political preference for tate' right, gun

ownerhip right, and o on. ut I rejected that view of the upreme Court' deciion.

hortl after the deciion, I wrote an article demontrating the "�delit" of uch an

interpretation to the Contitution. The idea that the upreme Court decide cae aed

upon jutice' political preference truck me a extraordinaril oring. I wa not going

to devote m life to teaching contitutional law if thee nine jutice were going to e

pett politician.

In Januar 1999, we �led a lawuit on ldred' ehalf in federal ditrict court in

Wahington, D.C., aking the court to declare the onn ono Copright Term

xtenion Act uncontitutional. We made two central claim: that extending exiting

term violated the Contitution' "limited Time" requirement and that extending term

another 20 ear violated the Firt Amendment.

The ditrict court dimied our claim without even hearing an argument. A panel of

the Court of Appeal for the D.C. Circuit alo dimied our claim, though after hearing

an extenive argument. ut that deciion at leat had a dient, one of the mot

conervative judge on that court, Judge David entelle, who aid the CTA violated the

requirement that copright e for "limited Time" onl.

We aked the Court of Appeal for the D.C. Circuit a a whole to hear the cae, ut the

court rejected our requet to hear the cae en anc. Thi time, Judge entelle wa joined

the mot lieral memer of the D.C. Circuit, Judge David Tatel. The mot

conervative and the mot lieral judge on the D.C. Circuit each elieved Congre had

overtepped it ound.

It wa here that mot expected ldred v. Ahcroft to die, for the upreme Court rarel

review an deciion a court of appeal. And it practicall never review a deciion

that uphold a tatute when no other court ha et reviewed the tatute. ut in Feruar

2002, the upreme Court urpried the world granting our petition to review the D.C.

Circuit opinion. Argument wa et for Octoer of 2002. The ummer would e pent

writing rief and preparing for argument.

TH MITAK WA MAD ARLY, though it ecame oviou onl at the ver end.

Our cae had een upported from the ver eginning an extraordinar lawer,

Geo�re tewart, and the law �rm he had moved to, Jone, Da, Reavi & Pogue.

There were three ke lawer on the cae from Jone Da. tewart wa the �rt; then,

Dan romerg and Don Aer ecame quite involved. romerg and Aer had a

common view aout how thi cae would e won: We would onl win, the repeatedl

told me, if we could make the iue eem "important" to the upreme Court. It had to

eem a if dramatic harm were eing done to free peech and free culture; otherwie,

the jutice would never vote againt "the mot powerful media companie in the

world."

I hate thi view of the law. Of coure I thought the onn ono Act wa a dramatic

harm to free peech and free culture. ut I wa not peruaded that we had to ell our

cae like oap. In an event, I thought, the court mut alread ee the danger and the

harm caued thi ort of law. Wh ele would the jutice have granted review?

I wa, however, convinced that the court would not hear our argument if it thought

thee were jut the argument of a group of left loon. I made ure that the rief on

our ide were aout a divere a it get, including oth the economit Milton Friedman

and Hal Roach tudio, which aid the onn ono Copright Term xtenion Act will,

if left tanding, detro a whole generation of American �lm that i no longer

commerciall viale to ell. The ame e�ort at alance wa re�ected in the legal team

we gathered to write our own rief. When the cae got to the upreme Court, we

added three lawer to the Jone Da team: Alan Morrion of Pulic Citizen, a

Wahington group that had made contitutional hitor with a erie of victorie in the

upreme Court on individual right; m colleague and dean at tanford Law chool,

Kathleen ullivan, who i an experienced advocate efore the court, and who had

advied u earl on aout a Firt Amendment trateg; and, �nall, former olicitor

general Charle Fried.

Fried wa a pecial victor for u. ver other recent olicitor general wa hired the

other ide to defend Congre' power to give media companie the pecial favor of

extended copright term. Fried wa the onl one who turned down that lucrative

aignment to tand up for omething he elieved in. He had een Ronald Reagan'

chief lawer in the upreme Court. He had helped craft the line of cae that limited

Congre' power deriving from the commerce claue. And while he had argued man

poition in the upreme Court that I diagreed with, hi joining the caue wa a vote of

con�dence in our argument.

The government, in defending the tatute, had it collection of friend a well.

igni�cantl, however, none of thee "friend" included hitorian or economit. The

rief on the other ide of the cae were written excluivel major media companie,

congremen, and copright holder.

The media companie were not urpriing. The had the mot to gain from the law. The

congremen were not urpriing either—the were defending their power and,

indirectl, the grav train of contriution that uch power rought them. And of

coure it wa not urpriing that the copright holder would defend the idea that the

hould continue to have the right to control who did what with the content that the

had long controlled.

Thoe who repreented the etate of Dr. eu (Theodore Geiel) argued that it wa

etter to leave control of hi work in the hand of hi etate than to allow it to fall into

the pulic domain, where people could ue it to "glorif drug or to create

pornograph." The Gerhwin etate had a imilar rationale for it "protection" of the

work of George Gerhwin. Hi etate refue, for example, to licene Porg and e to

anone who doe not ue African-American in the cat. That' it view of how thi part

of American culture hould e controlled, and it wanted thi law to help it maintain that

control.

Thi point i rarel made, ut it ha far-reaching implication, and it wa a ke theme of

our rief. When Congre decide to extend the term of exiting copright, it i making

a choice aout which peaker it will favor. Not onl would upholding the CTA mean

that there wa no limit to the power of Congre to extend copright and further

concentrate the market; it would alo mean that there wa no e�ective limit to

Congre' power to pla favorite, through copright, with who ha the right to peak.

etween Feruar and Octoer, I did little eide prepare for thi cae. arl on, a I

aid, I et the trateg. The upreme Court wa divided into two important camp. One

camp we called "the conervative." The other we called "the ret." In the �rt group we

placed Chief Jutice Rehnquit and Aociate Jutice andra Da O'Connor, Antonin

calia, Anthon Kenned, and Clarence Thoma. Thee �ve had een the mot

conitent in limiting Congre' power. The were the �ve who had upported the

Lopez/Morrion line of deciion, which aid that an enumerated power—the onl kind

of power Congre ha—mut e interpreted in a wa that make it limited.

The ret were the four jutice who had trongl oppoed limit on Congre' power.

Thee four—Jutice John Paul teven, David outer, Ruth ader Ginurg, and

tephen reer—had repeatedl argued that the Contitution give Congre road

dicretion to decide how et to implement it power. In cae after cae, thee jutice

had argued that the upreme Court hould defer to the legilative ranch. Though I had

peronall agreed with thee four jutice' vote in mot cae, the were alo the vote

that we were leat likel to get in thi one.

The leat likel of all wa Ginurg'. In addition to her general view aout deference to

Congre (except where iue of gender are involved), he had een particularl

deferential in the context of intellectual propert protection. he and her daughter (an

excellent and well-known intellectual propert cholar) were cut from the ame

intellectual propert cloth. We expected he would agree with the writing of her

daughter: that Congre had the power in thi context to do a it wihed, even if what

Congre wihed made little ene.

Cloe ehind Ginurg were two jutice whom we alo viewed a unlikel allie,

though poile urprie. outer trongl favored deference to Congre, a did reer.

ut oth were alo ver enitive to free peech concern. And we elieved

retropective extenion raied important free peech iue.

The onl vote we could e con�dent aout wa teven'. Hitor will record teven a

one of the greatet judge on thi Court. Hi vote are conitentl eclectic, which jut

mean that no imple ideolog explain where he will tand. ut he had conitentl

argued for limit in the context of intellectual propert. We were fairl con�dent that he

would recognize limit here.

ORAL ARGUMNT WA CHDULD for the �rt week in Octoer. I arrived in D.C.

two week efore the argument and wa repeatedl "mooted" lawer who had

volunteered to help in the cae. To win, I wa convinced that I had to keep the court

focued on the idea that jut a with the Lopez cae, under the government' argument

here, Congre would alwa have unlimited power to extend exiting term of

copright. I found wa to take ever quetion ack to thi central idea.

In the moot efore the lawer at Jone Da, Don Aer wa keptical. Don had erved

in the Reagan Jutice Department with olicitor General Charle Fried and had argued

man cae efore the upreme Court. "I'm jut afraid that unle the reall ee the

harm, the won't e willing to upet thi practice that the government a ha een a

conitent practice for 200 ear. You have to make them ee the harm—paionatel get

them to ee the harm. For if the don't ee that, then we haven't an chance of

winning," he aid.

He ma have argued man cae efore thi court, I thought, ut he didn't undertand

it oul. A a clerk for Jutice calia, I had een the jutice do the right thing, not

ecaue of politic ut ecaue it wa right. A a law profeor, I had pent m life

teaching m tudent that thi court doe the right thing, not ecaue of politic ut

ecaue it i right.

The night efore the argument, a line of people egan to form in front of the upreme

Court. The cae had ecome a focu of the pre and of the movement to free culture.

Hundred tood in line for the chance to ee the proceeding. core pent the night on

the tep of the court o that the would e aured a eat.

Not everone ha to wait in line. People who know the jutice can ak for eat the

control. (I aked Jutice calia' chamer for eat for m parent, for example.)

Memer of the upreme Court ar can get a eat in a pecial ection reerved for them.

And enator and congremen have a pecial place where the get to it, too. Finall, of

coure, the pre ha a galler, a do clerk working for the jutice. A we entered that

morning, there wa no place that wa not taken. Thi wa an argument aout

intellectual propert law, et the hall were �lled. A I walked in to take m eat, I aw

m parent itting on the left. A I at down at the tale, I aw Jack Valenti, the

chairman of the Motion Picture Aociation of America, itting in the pecial ection

ordinaril reerved for famil of the jutice.

When the chief jutice called me to egin m argument, I egan where I intended to

ta: on the quetion of the limit on Congre' power. Thi wa a cae aout

enumerated power, I aid, and whether thoe enumerated power had an limit.

O'Connor topped me within one minute of m opening. The hitor wa othering

her:

Congre ha extended the term o often through the ear, and if ou are right,

don't we run the rik of upetting previou extenion of time? I mean, thi

eem to e a practice that egan with the ver �rt act.

he wa quite willing to concede "that thi �ie directl in the face of what the framer

had in mind." ut m repone again and again wa to emphaize limit on Congre'

power:

Well, if it �ie in the face of what the framer had in mind, then the quetion i,

I there a wa of interpreting their word that give e�ect to what the had in

mind? And the anwer i e.

There were two point in thi argument when I hould have een where the court wa

going. The �rt wa a quetion Kenned, who oerved,

Well, I uppoe implicit in the argument that the '76 act, too, hould have een

declared void, and that we might leave it alone ecaue of the diruption, i that

for all thee ear the act ha impeded progre in cience and the ueful art. I

jut don't ee an empirical evidence for that.

Here follow m clear mitake. Like a profeor correcting a tudent, I anwered,

Jutice, we are not making an empirical claim at all. Nothing in our copright

claue claim hang upon the empirical aertion aout impeding progre. Our

onl argument i, thi i a tructural limit necear to aure that what would

e an e�ectivel perpetual term not e permitted under the copright law.

That wa a correct anwer, ut it wan't the right anwer. The right anwer wa to a

that there wa an oviou and profound harm. An numer of rief had een written

aout it. Kenned wanted to hear it. And here wa where Don Aer' advice hould

have mattered. Thi wa a oftall; m anwer wa a wing and a mi.

The econd came from the chief, for whom the whole cae had een crafted. For the

chief jutice had crafted the Lopez ruling, and we hoped that he would ee thi cae a it

econd couin.

It wa clear a econd into hi quetion that he wan't at all mpathetic. To him, we

were a unch of anarchit:

Well, ut ou want more than that. You want the right to cop veratim other

people' ook, don't ou?

I reponded a follow:

We want the right to cop veratim work that hould e in the pulic domain

and would e in the pulic domain ut for a tatute that cannot e juti�ed

under ordinar Firt Amendment anali or under a proper reading of the

limit uilt into the copright claue.

Thing went etter for u when the government gave it argument; for now the court

picked up on the core of our claim. calia made thi comment to olicitor General

Theodore Olon:

You a that the functional equivalent of an unlimited time would e a violation

[of the Contitution], ut that' preciel the argument that' eing made

petitioner here, that a limited time which i extendale i the functional

equivalent of an unlimited time.

When Olon wa �nihed, it wa m turn to give a cloing reuttal. Olon' �ailing had

revived m anger. ut m anger till wa directed to the academic, not the practical.

The government wa arguing a if thi were the �rt cae ever to conider limit on

Congre' copright and patent claue power. ver the profeor and not the advocate,

I cloed m argument pointing out the long hitor of the court' impoing limit on

Congre' power in the name of the copright and patent claue; the ver �rt cae

triking a law of Congre a exceeding a peci�c enumerated power wa aed upon

the copright and patent claue. All true. ut it wan't going to move the jutice over to

m ide.

A I left the court that da, there were a hundred point I wihed I could remake. There

were a hundred quetion I wihed I had anwered di�erentl. ut one wa of thinking

aout thi cae left me optimitic.

The government had een aked over and over again, What i the limit? Over and over

again, it had anwered there wa no limit. The olicitor general had made m argument

for me; in thoe rare moment when I let melf elieve that we ma have prevailed, it

wa ecaue I felt thi court—in particular, the conervative—would feel itelf

contrained the principle that the had etalihed in cae like Lopez and Morrion.

The morning of Januar 15, 2003, I wa �ve minute late to the o�ce and mied the 7

a.m. call from the upreme Court clerk. Litening to the meage, I could tell in an

intant that he had ad new to report. The upreme Court had a�rmed the deciion

of the court of appeal. even jutice had voted in the majorit. There were two

dient.

A few econd later, the opinion arrived e-mail. I took the phone o� the hook,

poted an announcement of the ruling on our log, and at down to ee where I had

een wrong in m reaoning. M reaoning. Here wa a cae that pitted all the mone in

the world againt reaoning. And here wa the lat naïve law profeor, couring the

page, looking for reaoning.

I �rt coured the majorit opinion, written Ginurg, looking for how the court

would ditinguih the principle in thi cae from the principle in Lopez. The reaoning

wa nowhere to e found. The cae wa not even cited. The core argument of our cae

did not even appear in the court' opinion. I couldn't quite elieve what I wa reading. I

had aid that there wa no wa thi court could reconcile limited power with the

commerce claue and unlimited power with the progre claue. It had never even

occurred to me that the could reconcile the two not addreing the argument at all.

Ginurg impl ignored the enumerated power argument. Conitent with her view

that Congre' power wa not limited generall, he had found Congre' power not

limited here. Her opinion wa perfectl reaonale—for her, and for outer. Neither

elieve in Lopez. ut what aout the ilent �ve? what right did the get to elect the

part of the Contitution the would enforce? We were ack to the argument that I aid I

hated at the tart: I had failed to convince them that the iue here wa important, and I

had failed to recognize that however much I might hate a tem in which the court

get to pick the contitutional value that it will repect, that i the tem we have.

reer and teven wrote ver trong dient. teven' reaoning wa internal to the

law: He argued that the tradition of intellectual propert law did not upport thi

unjuti�ed extenion of term. He aed hi argument on a parallel anali of the law of

patent. (o had we.) ut the ret of the court dicounted the parallel—without

explaining how the ver ame word in the progre claue could come to mean totall

di�erent thing depending upon whether the word were aout patent or copright.

The court wa content to let teven' charge go unanwered.

reer' opinion, perhap the et opinion he ha ever written, did not focu on the

Contitution. He argued that the term of copright ha ecome o long a to e

e�ectivel unlimited. We had aid that under the current term, a copright gave an

author 99.8 percent of the value of a perpetual term. reer aid we were wrong, that

the actual numer wa 99.9997 percent of a perpetual term. ither wa, the point wa

clear: If the Contitution aid a term had to e "limited," and the exiting term wa o

long a to e e�ectivel unlimited, then the extenion i uncontitutional.

Thee two jutice undertood all the argument we had made. ut ecaue neither

elieved in the Lopez cae, neither wa willing to puh it a a reaon to reject thi

extenion. The cae wa decided without anone having addreed the central argument

that we had carried from Judge David entelle. It wa Hamlet without the prince.

DFAT RING DPRION. The a it i a ign of health when depreion give

wa to anger. M anger came quickl, ut it didn't cure the depreion.

It wa at �rt anger with the �ve conervative. It would have een one thing for them

to have explained wh the principle of Lopez didn't appl in thi cae. That wouldn't

have een a ver convincing argument, I don't elieve, having read it made other,

and having tried to make it melf. ut it at leat would have een an act of integrit.

Thee jutice in particular have repeatedl aid that the proper mode of interpreting the

Contitution i "originalim"—tarting undertanding the framer' text, interpreted in

the original context, in light of the original tructure of the Contitution. That method

had produced Lopez and man other "originalit" ruling. Where wa their "originalim"

now?

M anger with the conervative quickl ielded to anger with melf. For I had let a

view of the law that I liked interfere with m view of the law a it i.

Mot lawer and law profeor have little patience for idealim aout court in general

and thi upreme Court in particular. Mot have a much more pragmatic view. A I read

ack over the trancript from that argument in Octoer, I can ee a hundred place

where the anwer could have taken the converation in di�erent direction, where the

truth aout the harm that thi unchecked power will caue could have een made clear

to thi court. Kenned in good faith wanted to e hown. I, idioticall, corrected hi

quetion. outer in good faith wanted to e hown the Firt Amendment harm. I, like a

math teacher, reframed the quetion to make the logical point. I had hown them how

the could trike down thi law of Congre if the wanted to. There were a hundred

place where I could have helped them want to, et m tuornne, m refual to give

in, topped me. I have tood efore hundred of audience tring to peruade; I have

ued paion in that e�ort to peruade; ut I refued to tand efore thi audience and

tr to peruade with the paion I had ued elewhere. It wa not the ai on which a

court hould decide the iue.

Would it have een di�erent if I had argued it di�erentl? Would it have een di�erent

if Don Aer had argued it? Or Charle Fried? Or Kathleen ullivan?

The image that will alwa tick in m head come from an editorial that ran in The New

York Time. While the reaction to the onn ono Act itelf wa almot unanimoul

negative, the reaction to the court' deciion wa mixed. The pre coverage that

attacked the deciion did o ecaue it left tanding a ill and harmful law. That "grand

experiment" that we call "the pulic domain" i over, the paper aid. When I can make

light of it, I think, "Hone, I hrunk the Contitution." ut I can rarel make light of it.

We had in our Contitution a commitment to free culture. In the cae that I fathered,

the upreme Court e�ectivel renounced that commitment. A etter lawer would have

made them ee di�erentl.