[1] US Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
For most people it would seem obvious that a 95 years in additional to the life time of the author is counter productive if the goal is to promote the progress of Science and useful Arts, and the limited time part lose its meaning when it keep getting extended, but that is the situation we are in. The meta interpretation I heard after that decision is that the supreme court do not want challenge Congress on the topic of copyright law.
> Clause 8. The Congress shall have Power * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
https://law.justia.com/constitution/us/article-1/50-copyrigh...
All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would.
The First Amendment wasn't even drafted, let alone ratified, before the US Constitution and its Copyright Clause came into effect.
The Copyright Clause exists because the Federal government's expansive Commerce Clause powers wouldn't exist for at least another 100 years. Without an express grant, the Federal government wouldn't have had any power to grant and regulate copyrights.
Under modern jurisprudence, the Copyright Clause is unnecessary to grant the Federal government jurisdiction as copyrights are an archetype of a national commercial domain; even the most conservative rollback of Commerce Clause jurisprudence would be unlikely to change this. Instead, many legal scholars, including several justices in uncontended dicta, have opined that the clause effectively limits the Federal government's powers by restricting the scope of Federal copyrights (copyrightable subject matter, defenses to infringement, etc) to what was cognizable under the Common Law in 1789. (Indeed, the majority said exactly that regarding time limits, though AFAIK it's only in dicta have they said the clause implicitly limits copyright powers more generally.)
So, for example, Congress could never completely legislate away a Fair Use defense. Likewise for doctrines like the Idea-Expression dichotomy, which Google heavily relied upon in their first trial (less so in their second trial because of appeal court decisions) to argue that APIs weren't copyrightable in the first place.
It's true that the First Amendment is used--and used more often--to restrain the reach of copyright. But that's mostly because the First Amendment has undergone an expansive reinterpretation similar to the evolution of the Commerce Clause. The drafters would have perceived little, if any, tension, between the Copyright Clause and the First Amendment--mostly because of how they understood terms of art like free speech, but also because times were simpler then and the flaws and ambiguity in their legal concepts hadn't yet been revealed by 100+ years of litigation.
Programmers like to think of laws like they are code, and you just need a computer to compute the results. This isn't how the law works, nor could it ever.
There is always ambiguity in the law, and the supreme court's job is to use their knowledge of the law, combined with their understanding of the world as it exists, and come up with the best decision that aligns with the law and the current state of the world.
Supreme Court justices have the authority to determine the constitutionality of a law, and they have the authority to determine how a law should be interpreted in a given case (with essentially unlimited discretion for applying their own judicial ideology).
However, they have no authority whatsoever to determine the social merit of a law. The legislature has the sole authority to legislate, and the constitution prohibits either of the other branches from usurping that power. It is far beyond the jurisdiction of the Supreme Court to determine the merit of a law in any way other than its constitutionality.
Anybody who expects the Supreme Court to act as a safe guard against otherwise constitutional law, that they simply don’t like, is undermining the separation of powers detailed in the constitution, and will be sorely surprised when they find out that’s not what the Supreme Court does.
No, the current state is in constant flux. The only ambiguity the court should be resolving is the intent of the law. Not whether or not it “makes sense given the current politics of the day”. If the law no longer makes sense in the current state of the world, a new one should be passed by legislation.
On the fair use, if not the copyrightability, issue, social impact is an express consideration of the law. (Though given that the copyright power is expressly contingent on a particular social purpose, it arguably is on copyrightability even if the statute doesn't invoke it.)
It is, but in a very narrow sense. The fair use test is a part of the law, some of the factors it considers relate to social impact (for example allowance made for education), but it has no general ‘social impact’ criteria.
https://www.law.cornell.edu/uscode/text/17/107
This is the only definition of “fair use” that Google will be arguing they comply with.
However, I do have problem with your statement "without any consideration at all for the social impact". I fear this statement goes to an extreme which would never be hold by any judge in real life.
By the way, it's not only the judges and the law make the case, lawyers of both sides are also important in the process.
A lower court judge?
Absolutely not. They have huge amounts of discretion in making their judgements.
The Supreme Court justice?
Absolutely yes. In cases where the Supreme Court is exercising it’s appellate jurisdiction, the only authority it has it to determine constitutionality, and interpret existing legislation. If the legislature passes bad legislation, as long as it doesn’t violate the constitution, then the Supreme Court has no authority to over turn it. This isn’t an extreme position, it’s the constitutionally prescribed role of the Supreme Court.
Art. III, Sec. 2 directly refutes this narrow view of the appellate role of the Supreme Court.
Nothing I’ve said is even remotely controversial. No Supreme Court justice has ever claimed to have legislative power. It’s honestly quite shocking that people are willing to dispute the most basic concepts in civics.
And, contrary to your description, that power is expressly not a power limiting it only to “determine constitutionality, and interpret existing legislation” whereas trial judges have “huge amounts of discretion in making their judgements” that the Supreme Court lacks (in fact, as the Supreme Court has, but rarely exercises, appellate power over fact decisions as well as law, its domain is broader, in jury trials, than that of the trial judge, who is the original trier of law but not fact.)
However, none of that is to distract from the fact that, contrary to your misinterpretation of Article III, judicial powers do not bestow any legislative powers whatsoever.