We have been following the Supreme Court copyright challenge closely. Now Lawrence Lessig blogs on his Supreme Court appearance:

the aim

Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress's power — the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress's power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that "affects" interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez, the Court said we need a different interpretation of "commerce" that actually recognizes limits. Limits, not control of Congress's discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.

We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government's interpretation of that clause, "limited times" has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term "limited" (limited as in limited edition print) that would also produce an effective limit on Congress's power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham, "court favorites," but instead to create an incentive for "new" creativity only).

Now that strategy was controversial from the start, especially because some of our natural allies (Stevens, Souter, Breyer) were so strongly opposed to the Lopez line of cases. But our call early on in this case was that they could be brought around to see that even if they oppose the results in Lopez, there was no reason to oppose the same reasoning in this case. Indeed, they could use this case to show why they were right in Lopez: They could argue that unlike the Copyright Clause, the Commerce Clause has no express limitation built into it; unlike the Copyright Clause, the limit the Court has found is wholly implied; thus, they could say, it is not appropriate to imply limits where not expressed. But, they could also say, where a limit is plainly express (as it is in the copyright clause, which is one of only six clauses in Article I, sec. 8 (the part of the constitution with the core grants of power to Congress) that expressly limits a grant of power (the others are clauses 1, 12, 15, 16, 17)), then it is appropriate for the Court to find a way to enforce those limits. In other words, they could write, "for the reasons given in Lopez, you were wrong in Lopez, but it would be right to limit Congress here."

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