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Legal A air

Lawrence Leig, www.legala air.org

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 workat 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 acceiletoda. 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 coprightthi 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

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 felonwhether 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 omethingfor example, to regulate
"commerce among the everal tate" or "declare War." ut in the progre claue, the
"omething" i omething quite peci cto "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 coprightMicke 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 lmthe real economic cot, not the attorne' feewere 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 politica 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 eitherthe 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 powerthe onl kind
of power Congre hamut e interpreted in a wa that make it limited.
The ret were the four jutice who had trongl oppoed limit on Congre' power.
Thee fourJutice John Paul teven, David outer, Ruth ader Ginurg, and
tephen reerhad 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 harmpaionatel 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 courtin particular, the conervativewould 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 nave 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 reaonalefor 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 parallelwithout
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.