That said, there was lots I was unhappy we didn't get more of a chance to discuss. Here's an enumeration of what's open and what we've got to win.

(1) 1790 Act: We lose if they are not careful about the interpretation of the 1790 Act. We need the originalists; we therefore need to defeat the government's claim that "CTEA = the 1790 Act." The arguments here are not even close if you pay attention to the history. It is simply and absolutely false to say that the 1790 Act "undoubtedly extended existing terms" as the government says. The 1790 Act (1) did not extend any term (since there was no federal term before 1790); (2) it did not, on balance, effectively extend existing terms (because the law at the time included both state common law and statutory law granting copyrights, and while it may have extended the term of the works protected by the state statutes, it shortened the term of works protected under the common law); and finally (3) even for works protected under the state statute, 3 states expressly stated they didn't mean their statute to displace the common law. Thus, it is more likely the 1790 Act shortened, not lengthened, terms.

That conclusion is supported by the numbers reported by William Maher. He actually counted the number of copyrights granted to works published before 1790. Of the 21,000 works published between 1790 and 1800, we have record of just 699 copyrights. Of the 699 copyrights, only 12 are for works published before 1790. Of the 12, 5 are for works protected by state statute. The remaining 7 were presumptively protected by the common law. Thus, of the records we have, the majority of terms were plainly shortened, rather than lengthened. And the clearest reading of what the framers thought they were doing was simply moving to a new federal regime, and ending the continuing effect of the old state regime.

We need to win this point. Of all the arguments in this case, it is the only one that I am 100% certain of (the rest I'm at 99.8%). But it wasn't discussed much, which creates lots of anxiety.

(2) The Lopez-Eldred link: The other point that seemed lost on the Chief Justice was that this was a Lopez case — or more importantly, it was a Lopez-plus case. If the Commerce Clause must be interpreted to imply limits, then the Copyright Clause must be interpreted to give effect to express limits. There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. Yet the Chief Justice (author of Lopez and this line of authority) didn't seem to recognize the link. If it is not made, then again, we lose. Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.