Law Hacker

Reviving an Old Blog

2010-03-11T00:00:00Z

Near the end of the “digital” Millennium, I found myself handling a number of cases raising issues at the very heart of copyright and technology policy. At the time, I wrote a number of short articles in a blog, “lawhacker.com,” which received a fair amount of notice and commentary. I was disappointed to learn that the information had been lost shortly after moving to a new home. Thanks to the miracle of [archive.org] and its blessed “Wayback Machine,” I was able to recover archives of those stories and post them here. Hopefully, they may be of use to someone.

The Luddite's Lawyer and the Circumvention of Progress

2004-08-04T00:00:00Z

The Luddite lamented, “the Millennium is upon us and still they depend upon the machines. We have failed.”

“Yes, but it is a Digital Millennium,” said the Luddite’s Lawyer. “There is a way, but first you must write!”

“I don’t understand,” said the Luddite. “How can writing stop the machines?”

“First you write,” said the lawyer with a knowing smile. “Then I write writs.”

Still confused, but ever trustful, the Luddite wrote. He wrote furiously. He wrote from his heart and soul. He wrote with his all, trying to express in his stories how the machines have ruined us. Alas, he was no writer.

The Luddite bowed his head in dismay. Despite his passions, the words were vapid, dull and derivative. He knew this at once. Every theme, every motif, every character came from the far more enlightened works of those who have come before him. Every idea embodied in his words were that of another.

“That does not matter,” said the Lawyer. “All of that may be true, but these works are original, at least in the technical sense of originating from you. Since you have put quill to paper yourself, we have done what we set out to do.”

A work of original authorship was fixed in tangible media. A copyright was born.

First, the Luddite’s Lawyer took the stories, and made from them movies. He took the movies, and made from them DVDs, careful to effectively encrypt the content.

And then, the Luddite’s lawyer wrote writs. He sued machines. He sued the makers of the machines. He sued and served them all.

“Cease and desist!” he cried. “The machines must be enjoined, for they circumvent the encryption of the Luddite’s art! They permit the unauthorized to view the stories.”

I accuse these DVD player machines and the companies that make them. It cannot be, that the works so carefully encrypted may be actually viewed by persons without the consent of a Luddite.

Counsel for the machines were indignant. “The Luddite invented nothing, designed nothing, conceived nothing,” they said. “And yet the Luddite seeks to enjoin the manufacture and sale of our machines as though he had a patent on the technology itself. He is not asking us to stop copying, for we do not copy. He is asking us to stop using machines. Our machines, they are used legitimately by millions to view the works of others, and those are substantial and noninfringing uses. And, to be frank, his works are wholly unworthy of protection sufficient to stop the flow of progress.”

It did not matter, the Judge noted. The work may be vapid, but it was original enough. The amount of infringement might be nominal, but one copy was enough. The elements of infringement were made out, and that, at the end of the day, was that. Substantial noninfringing use might have helped the defendants last year, before the millenium, but the defendants here do not stand accused of infringement, or even of contributing to an infringement.

“You are accused of trafficking in technology whose primary purpose is to circumvent a technological measure that effectively controls access to a work protected under this title.” How do you answer that?

“We are licensed to do so,” the machines' counsel replied. “A consortium of copyright owners have approved our circumvention of their works, for which we paid dearly enough in promises and limitations on our machines, which might have been better but for those limitations.”

“The Luddite did not so license them, your honor,” the Luddite’s lawyer retorted. No act of a media consortium shall preempt the will of the Congress. ‘No person’ means no person! While they may have obtained the permission of a few, perhaps even many owners of blessed copyrighted works, the works of the Luddite are no less blessed by the Constitution or the Act. The Luddite has used technology that effectively protects his right as a copyright owner. If the machines want safety from circumvention of his work and those of others not in the consortium, they must obtain, of course, the license from all who own a copyright, not just that of the few."

Puzzled and disoriented, the machines' counsel thought for a moment. “But the consortium first used the means by which the Luddite encrypted. The Luddite cannot use that technology on one hand, and then claim protection under the law the consortium passed to protect that work. The Luddite doesn’t want his work seen, he wants the machines stopped. He will never give his consent to us. This is giving to him, for his vapid and unoriginal work, patent-like protections over the machine for so long as the term of his copyright shall last. And what is to stop him from coming up with new works even then? Indeed, your honor, without the machines, we cannot view the work to determine whether or not it is original for our defense, a clear fair use. The rights the Luddite here claims are a harsh and blatant regulation of technology, uncabined by any principle of balancing of interests.”

The Judge read the statute, and nodded to the Luddite’s Lawyer. The lawyer made his case:

Your honor. This statute gives remedy against circumvention, not only to a consortium, but to “[a]ny person injured.”

Perhaps before the Luddite wrote, all who owned copyrights might have consented, but that is not the case today.

That right granted by the Congress extends an award of damages and an injunction. The Luddite is a person, and a copyright owner who effectively encrypted. The machines must stop forthwith.

As to balance, the Congress is the guardian and architect of that balance. And Congress has spoken in the Digital Millennium. This Court is not at liberty to say otherwise.

Yes, it is the Luddite’s intent to stop these machines, and the machines can make no offer or consideration that would obtain his consent. But it is clear that the Congress passed this law fully cognizant of the complaints of technologists, quite similar to the defendants here, that this law would stunt and diminish the availability of important technologies disapproved of by a copyright owner.

Yes, it is true that compliance with this law might stunt a fair use or two. But it is likewise clear that the Congress passed this law fully cognizant of the complaints of many, quite similar to the defendants here, that this law would not permit certain fair uses. In three years, they may apply to the Register of Copyrights, and perhaps earn an exemption. But until then, they must cease and desist.

Yes, it is true that the Luddite did not himself invent the technology circumvented. But the Congress passed this law fully cognizant of the complaints that “effective protection,” need not be patentable, and need not even be owned or invented by the person asserting the claim. The technology in this case is such an example, for DVD in its basic form, while an effective protection, was not patentable or invented by the consortium of media who have traditionally asserted it. The Congress meant to protect works of authorship — for they are truly important.

And yes, it is true that the right to enjoin circumvention will mean that these allegedly legitimate uses of these machines must be stopped. But that too was the will of the Congress, who did not provide an exemption for technologies that permit lawful and fair use viewing, but also circumvention. The Luddite’s works must be protected from these foul machines, and they must be stopped during the Digital Millennium.

And with that, the Judge banged the gavel, and the edict issued. “Unless you change the machines to avoid circumventing this author’s works, you must stop selling them during the term of his copyright, and that of any other who might complain.”

The Luddite’s lawyer beamed, but the Luddite was concerned. “How long will I be able to stop these machines?” “For this work, until seventy years after you have died. However, for so long as you and those who want to stop the machines continue to create new works and assert those rights, the technology regulation will continue.”

And with that, the Luddite and his friends began to write anew.

The Fundamentals, Part IV - it's all about the balance

2004-07-31T00:00:00Z

Intellectual Property cannot promote progress without providing real and meaningful incentives to authors to invent. Strong and enforceable intellectual property rights are critical to that end. But promotion of progress also requires limits to those rights. One of my favorite jurists put it well, gathering some examples of such limits:

<Intellectual property rights aren’t free: They’re imposed at the expense of future creators and of the public at large. Where would we be if Charles Lindbergh had an exclusive right in the concept of a heroic solo aviator? If Arthur Conan Doyle had gotten a copyright in the idea of the detective story, or Albert Einstein had patented the theory of relativity? If every author and celebrity had been given the right to keep people from mocking them or their work? Surely this would have made the world poorer, not richer, culturally as well as economically.

<This is why intellectual property law is full of careful balances between what’s set aside for the owner and what’s left in the public domain for the rest of us: The relatively short life of patents; the longer, but finite, life of copyrights; copyright’s idea-expression dichotomy; the fair use doctrine; the prohibition on copyrighting facts; the compulsory license of television broadcasts and musical compositions; federal preemption of overbroad state intellectual property laws; the nominative use doctrine in trademark law; the right to make soundalike recordings. [FN20] All of these diminish an intellectual property owner’s rights. All let the public use something created by someone else. But all are necessary to maintain a free environment in which creative genius can flourish.

White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1993) (Kozinski, J., dissenting). It’s all about the balance. Too much protection, and you squelch innovation and creativity, as our brightest and best minds opt instead to go to law school. Too little protection, and you squelch innovation and creativity, as our brightest and best minds opt instead to go to law school.

In the most meaningful way, IP is NOT about protecting those who have created — it is about assuring that those who can create in the future will create. We invest, by making society give to past inventors and authors, so that new inventors and authors are deeply motivated to make great things. We limit those rights, however, in order to assure that new inventors and authors are able to make great things.

Note that the balance ties in, too, with the nuances of pioneering invention versus incremental improvement — if we preclude improvements for the benefit of pioneers, great inventions may never be made practical. If we permit improvements without recognizing the work of pioneers somehow, pioneers instead go to law school.

It’s all about the balance.

Inducement of Copyright Infringement Act of 2004

2004-07-31T00:00:00Z

I recently testified before the Senate Judiciary on the Inducement of Copyright Infringement Act, a bill that would grant to copyright holders the right to sue non-infringing persons selling equipment capable of both infringing and noinfringing uses, if their sale can be taken by a jury to have induced third parties to infringe.

I testified that secondary liability for copyright infringement (the holding of noninfringers liable for the infringement of others) must be carefully circumscribed, particularly when holding technologists liable for technologies, or else you are giving jingle-writers effective patents on technologies they did not invent. While inducement is a responsible basis for secondary liability, the ICIA does not do an adequate job to assure that future technologies will not be chilled.
Whether or not it was the intent its proponents, the bill as drafted would create uncertainties that would have both the real and practical effect of circumventing the protections in the Betamax case. We proposed an alternative that could more fairly balance these concerns: (i) codifying the Betamax case, (ii) permitting actions against actual wrongdoers acting with knowledge and specific intent to induce infringement; and (iii) limiting the scope of uncertainty to protect those making legitimate sale of devices having both infringing and non-infringing uses.

A fairly decent summary of the testimony can be found here. My testimony is available at the IEEE-USA web site. A quicktime video of the entire testimony is available here.

The Luddite's Lawyer and the Perils of Technology Regulation

2004-05-02T00:00:00Z

The Luddite worked in the coal plant for years. Convinced that the machines destroyed his lungs, and, indeed, the lives of so many of his friends, he dedicated himself to a simpler life.

“We failed,” the Luddite lamented. “They give no heed to our warnings, and technology proceeds apace. People now depend on the machines, and even enjoy them. I see no way to halt it.”

“There is a way,” said the Luddite’s lawyer. “But first, you must paint.”

“I don’t understand,” the Luddite asked. “How can painting stop the machines?”

“First, you paint,” said the lawyer, turning a knowing smile. “Then, I write writs.”

Confused, but trustful, the Luddite painted. He painted furiously. He painted from his heart and soul. He painted with his all, trying to express how the machines have ruined us. Alas, he was no artist.

The Luddite bowed his head in dismay. Despite his passions, the works were vapid, dull and derivative. He knew this at once. Every theme, every motif, every stroke came from the far more enlightened works of those who have come before him. Every idea embodied in the work was that of another.

“That does not matter,” said the Lawyer. “All of that may be true, but these works are original, at least in the technical sense of originating from you. Since you have put them on that canvas yourself, we have done what we set out to do.”

A work of original authorship was fixed in tangible media. A copyright was born.

The Luddite’s lawyer wrote writs. He sued machines. He sued the makers of the machines, and he sued the sellers of the machines. He sued and served them all.

“Cease and desist!” he cried. “The machines must be enjoined, for they permit reproduction of the Luddite’s art! They permit distribution of the Luddite’s art. They permit derivation. They contribute to the infringement of a miner.”

I accuse the television, for transmitting images of his work! I accuse the VCR for recording the work! I accuse the DVD! The Digital Camera! The Internet! These devices may stand, lest the Luddite’s works be taken with impunity.

Counsel for the machines were indignant. “The Luddite invented nothing, designed nothing, conceived nothing,” they said. “And yet the Luddite seeks to enjoin their manufacture and sale as though he had a patent on the technology itself. He is not asking us to stop copying, for we do not copy. He is asking us to stop using machines. And, to be frank, these works are wholly unworthy of protection sufficient to stop the flow of progress.”

It did not matter. The work may be vapid, but it was original enough. The amount of infringement might be nominal, but one copy was enough. The elements of infringement were made out, and that was that.

The Luddite’s lawyers prevailed at the District Court. He prevailed at the Circuit Court.

And then, at the last minute, the Supreme Court saved the machines from the Luddites:

“These machines do not exist to infringe — but they also have, or at least are capable of, other substantial, non-infringing uses. They are tools of infringement, but also tools valuable for other things. If you want to stop their use, you will have to sue the users who use them to infringe”

And with that, the Supreme Court told the Luddite that he cannot regulate machines just because he paints, so long as the machines can be used legitimately otherwise.

It seemed reasonable enough. It seemed right. It was, so we thought, the law. Again, the Luddite lamented.

His lawyer, however, was not troubled. “Bide your time, my friend. The technology is moving apace, and with it, soon, there will be other laws to help us. The Digitial Millenium is upon us, and circumvention is an evil. Soon, once more, we can stop the machines.”

The Fundamentals, Part III - the OTSOG Principle

2004-05-01T00:00:00Z

Closely related to the notion of balancing the importance of pioneering invention against incremental improvement, is the importance of balancing the IP monopolies against the “Sciences,” in the Constitutional sense of technique of writing and inventing — the ability of facilitating those who follow not only to improve upon the works before, but to evolve new works by genuinely evolving entirely new works.

That is, not only making a “better old thing,” but also “almost a new thing.” Both paths are important, and lead to essential progress. This is not unlike the modes of progress identified by Arthur Koestler in “the Act of Creation,” distinguishing between incremental improvements of prior works (“pink plane”) and paradigm shifts nevertheless derived from prior works (“blue plane”).

In each case, however, fundamental progress derives from what has happened beforehand, a principal later described by Merton as “OTSOG,” an acronym for “On The Shoulders of Giants.”

OSTOG has been attributed variously in modern era to Newton’s famous line:

If I have seen further it is by standing on ye shoulders of Giants.
and others, it would appear that the notion has been also attributed to Bernard of Chartres, in the early twelfth century, who taught that:
we are like dwarfs tanding upon the shoulders of giants, and so able to see more and farther than the ancients.

Now Bernard, of course, did not devise that grand concept on his own. Before him was Priscian, a sixth-century gramarrian, who wrote:

The younger the scholars, the more sharp-sighted.

And of course, there is always Ecclesiastes 1:9-10

[T]here is no new thing under the sun. Men may say of something, ‘Ah, this is new!’— but it existed long ago before our time.

Of course, Ecclesiastes and Priscian only touched at the notion, but Bernard, standing on the shoulders of giants, put them together to arrive at the dwarf-and-giant metapor. Newton’s restatement, standing on the shoulders of giants, placed in more modern tongue the metaphor in the context of scientific progress.

And the notion has long been recognized in American Jurisprudence:

In truth, in literature, in science and in art, there are and can be few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.

Emerson v. Davis, 8 F. Cas. 615, 619 (C.C. D. Mass 1845) (No. 4,436) (Story, J).

And of course, my survey of these issues here is nothing new under the sun. If I have seen farther into the subject, it is because I have borrowed from the District Court opinion in Lotus Development Corp. v. Paperback Software, Int'l, 740 F. Supp. 37, 77 & n.3 (D. Mass. 1990). Not that the Judges themselves created that jurisprudence. but rather stood on the shoulders of those briefing the argument and the research of all their respective associates and clerks. Still, in turn, these things depend upon prior scholarship, such as that of R. Merton, who coined, I think, the acronym OTSOG, in his book “On the Shoulders of Giants: A Shandean Postscript.”

Get it?

We are lost without being able to borrow from those who have come before us. Both for our truly pioneering invention and works, OTSOG restatements of existing works and incremental improvements on each. IP policy must carefully balance not only the interest of the author and inventor in their own works, but also the interest of society, not only in appropriating the entire invention after the public domain dedication, but in improving and OTSOG.

The Fundamentals, Part II - Pioneering Invention and Incremental Improvement

2004-05-01T00:00:00Z

If all we did was to give a single author or pioneering scientist strong incentives to create one breakthrough work or invention, the promotion of that small sliver of progress could hardly justify the Constitutional status and societal importance of the Intellectual Property Clause.

Intellectual Property is not merely about giving incentive by grant of monopoly, it is also about stirring and supporting the next generation of works and invention, so that those who follow can not only devise their own pioneering works, but also to build incrementally but fundamentally on the works of those who have come before.

The IP Clause recognizes this, in one way, by a Congressional injunction to grant monopoly rights only “for limited Times.” After some period of time, no matter how seminal the work, no matter how valuable and earth-shattering the new invention — every single aspect of monopoly protection associated with the protection of Copyright and Patent evaporates and is dedicated to the public domain, for use and appropriation by those who follow.

Of course, notwithstanding that wisdom of the Founding Fathers, neither the Congress nor the Supreme Court seem to be willing to treat the inunction as a meaningful constraint, having serially extended the terms of copyrights every few decades at the request of the content industries, so that no works at all have fallen into the public domain in the lifetime of many readers of these words.

What has kept the juices of authors flowing is, in part, a never-ending stream of truly pioneering innovation and insight, but also the fact that IP, such as Copyright, is clearly limited in various ways. This will be covered elsewhere in greater detail, but I note that Copyright is not only limited in time, but also in scope of subject matter (excluding ideas, as opposed to expression) and in scope of protection (excluding protection of well-established themes —or scenes a faire—, protection against fair use, and protection after exhaustion of rights by first sale) and reach of protection (with respect to who may be sued, for what, and what remedies shall be granted). Likewise, Patents are limited, not only in time, but also in scope of subject matter and protection.

The limitations are necessary to the promotion of progress, although it is not obviously why at first blush. Why not give a pioneering inventor or breakthrough playright total control of every aspect of their invention? It is because there really is no such thing as a truly pioneering invention. Nothing truly comes out of a vacuum. Every work of authorship, every invention arises from works of those who have gone before. We all owe greatly to those who have gone before.

And the pioneers are neither necessary nor sufficient for the contributions to society achieved by their works. Invention is not the same as innovation, and neither translate to greatness. The story of technology and innovation is that of incremental improvement perfecting and making practical, and sometimes even useful, the pioneering works. While the improvements may seem modest in terms of measuring how much was created, they are no less inventive or important in practice. Indeed, sometimes the monopoly granted to a pioneer, improperly managed, can be a drag on the improvements necessary to promote the progress of the useful Arts.

The Wright flying machine, by itself, would not have been enough to change life as has the airplane. It is the works of those who followed that made the airplane, and then the airline a practical reality. Of course, distinguishing between genuine incremental invention and mere free-riding of original works is at times a subtle point, but there is no doubt that a patent or copyright monopoly, if too strong, can ultimately squash, rather than promote progress. And the reasons for this are simple and as old as our society itself.

On Hacking the Law

2004-04-26T00:00:00Z

In my view, hacking is the means by which technique is transcended to art. The Internet Society defines the term thus:

hacker. A person who delights in having an intimate understanding of the internal workings of a system, computers and computer networks in particular. The term is often misused in a pejorative context, where “cracker” would be the correct term. See also: cracker.

See RFC1983

enjoys exploring the details of … systems and how to stretch their capabilities [and is o]ne who enjoys the intellectual challenge of creatively overcoming or circumventing limitations.

See Eric Raymond’s Jargon File. In his book, 1984 book, Hackers, Rolling Stone Technology Editor, Steven Levy attributed the origin of the term to members the Tech Model Railroad Club at MIT, which rejoiced in building complex and wonderful model railroad layouts by pushing the limits of simple and straightforward technologies, and ultimately merging them with (and into) the state of the art.

Alas, the term has been largely co-opted over the years, and many harbor misconceptions when they hear the term today:

Hacking is Beautiful, not Shoddy. The term “hack” is sometimes used pejoratively to refer to people who perform shoddy work. Not so with true hackers. Hacks, the result of true hacking, are often quite subtle and elegant — quite the opposite of a “kludge.” Like the chess grandmaster, the hacker finds a master play among myriad alternatives. The masterplay, once made, appears almost like an error at first glance. There is a genuine sense of “aha!” as one thinks deeper, and discovers that it is clearly and inevitably the winning move. It requires not only brilliant intuition, but solid and sound technical skill. The masterplay is not an accident, but the result of a comprehensive analysis and understanding of the system.

Hacking is Not Evil . The term “hacker” has been largely co-opted to describe the conduct of individuals who engage in computer fraud and asuse, breaking into or compromising the security of computer systems not their own. Most technologists will understand the difference between “hacking” as defined in the RFC, and “cracking” as is the proper term for the latter, conduct. The two notions are wholly unrelated. Cracking is not necessarily hacking, but it can be. Crackers who routinely exploit existing programs and technology to break into a computer are not hacking — such “script kiddies” are neither using nor pushing the state of the art, and are simply computer users performing evil and illegal acts. On the other hand, a few crackers, who have pushed the limits of a system to discover new ways to engage in computer fraud, may well be hacking in the strictest sense. Accordingly, there are good hackers and bad hackers, but all share a delight for having an intimate understanding of the internal workings of a system.

In short, Hacking is the art of studying a complex system and finding ways to make it do astonishing and new things, often but not always unintended by the creators of the system. Hacking, therefore, is wonderful and beautiful.

Hacking the law is no different from hacking a computer system. A law hacker delights in having an intimate understanding of the workings of the legal system, and enjoys exploring its details and enjoys the intellectual challenge of creatively overcoming and circumventing its limitations. Law hacking may be accomplished by lawyers, judges or even juries and legislatures. Few systems are as complex and deep as the rules governing the interactions of people in a society — and the stakes at risk in the smooth and orderly operation of the system are tremendous. Accordingly, opportunities to hack the law abound and are of great importance.

I hope in the months to come to detail examples of law hacking, current and historical, and hopefully to use the notion to identify important patterns in jurisprudence and thereby improve the state of the art of the law.

Marbury v. Madison - Our First Legal Hack?

2004-04-26T00:00:00Z

The year is 1803, the time of what was, perhaps, America’s first legal hack. The Hacker is Supreme Court Justice John Marshall. The ink on our constitution was barely dry, and each branch of government was still flexing its newfound powers to determine how our new government would work.

Since 1789, the Federalist Party controlled all three branches, and Federalist Presidents Washington and Adams have appointed, and Federalist legislatures ratified, the entire federal judiciaries. The election of 1800 saw a sea-change, with Republican party President Jefferson taking office, together with a Republican-controlled Congress.

The Setup. Alas for the Republicans, the judiciary remained completely controlled by Federalists, since federal judges hold their positions for life. The first Act of the Republicans was to repeal a last-minute act of congress that created certain judgeships, several of which President Adams had filled just prior to the end of his term.

Thus enters William Marbury, appointed and ratified to be a Justice of the Peace under an act recently repealed. Although appointed by the President and ratified by the Senate, the Federalists did not complete the paperwork to install Mr. Marbury, failing to deliver a “commission,” the certificate of his lifetime service as judge.

Marbury asked the new Secretary of State to deliver the paperwork. Jefferson’s Secretary of State, James Madison, simply refused. Marbury sued Madison, asking the Court to issue a “writ of mandamus,” a legal order directing Secretary Madison to finish his paperwork.

The problem. Although the case was styled “Marbury v. Madison,” the case was more properly thought of as “Marshall v. Jefferson.” Thomas Jefferson truly placed Justice Marshall on the horns of a dilemma. If the Supreme Court issued a writ, the president would surely ignore it — the Supreme Court would be truly exposed as the “weakest branch.” On the other hand, if Justice Marshall did not order the President to give this man his commission, a man who was clearly appointed and ratified to serve as a justice of the peace, the Supreme Court would likewise be exposed as powerless.

The hack. The nation was watching to see what would happen. President Jefferson was rather enjoying the situation, but Justice Marshall found a hack that completely resolved our nation’s earliest constitutional crisis.

And it was brilliant! Justice Marshall neither issued the futile writ, nor cowered under Jefferson’s agression against the judiciary.

Instead of confronting Jefferson directly, Justice Marshall looked ever deeper into the case, and found that the Court could not proceed without first resolving an even more fundamental legal issue: the jurisdiction of the Supreme Court to issue a writ of mandamus. He found that the Supreme Court’s mandamus jurisdiction depended on the Judiciary Act of 1789, which gave the Supreme Court the right to issue writs of mandamus in an appropriate case.

But Justice Marshall was ever mindfull of the Constitution, which provided in Article III that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”

In other words, Justice Marshall concluded, the Supreme Court’s jurisdiction was limited in this case to serving as an appellate court, and thus, the Congress acted unconstitutionally when it tried to give the Supreme Court original jurisdiction over this case.

The result. And so, for the first time ever, the Supreme Court declared an act of Congress unconstitutional, that is, the act giving the Supreme Court jurisdiction to grant this writ. No, some lower court would have to do that first, and then the Supreme Court would review. The Supreme Court refused to issue the writ, but in doing so, held that the Supreme Court would be the arbiter of what is and what is not a constitutional act of Congress.

And thus, Constitutional Review was born. And now, the great Jiu-Jitsu of Justice Marshall turned Jefferson’s catch-22 on its head. Jefferson had no power to make Marshall rule on the case, and thus had to accept the Supreme Court’s declaration of a law of Congress was unconstitutional. In the Federalist Papers No. 78, Hamilton wrote that the judiciary was the weakest branch of government. Ironically, by quoting other portions of No. 78 in his opinion, Justice Marshall turned those words on its head, making it the strongest: the branch that can nullify the act of the other two with a word — unconstitutional.

Was Constitutional Review was our nation’s earliest legal hack? Perhaps. But certainly, it was among the most important.

The Fundamentals, Part I - Promote the Progress

2004-03-01T00:00:00Z

Article I, Section 8 grants Congress the 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.

While much is written both before and after the Eldred case about the operative significance of this language, that is, the extent to which this language constrains or limits, there is no doubt about its philosophy. Copyrights and Patents exist to promote the progress.

As a mere aside, it is amusing that the phrase “Sciences” refers to writing of authors, and “useful Arts,” to inventions. The term “sciences,” as used there, referred to the general technique of writing — that is the capacity of authors to be authors, as opposed to the subject of their authorship.

The basic idea here is that promotion of the progress is accomplished, at least in part, by giving writers incentives to write and inventors and incentive to invent. We can debate until the end of the day whether the Copyright is necessary for authors to author — clearly we had great writing before the Statute of Anne, but that isn’t the point. The question is whether the Copyright promotes authorship and, in particular, the incentive for smart people to learn to pen beautiful writings, as opposed to going to less important endeavors, like going to law school.

The progress is promoted, in the case of copyright, by giving an exclusive right to the copying, republication and distribution of the writings. This gives publishers an incentive to publish and advertise works, an incentive to fund author’s writings, and hence an incentive for authors to be come good authors. Progress is promoted yet another way: if the law is done right, authors are given broader incentives to distribute their works, disseminating the examples of their art for review by others.

And in that review, the others learn to stand on the shoulders of those who have gone before, and thus the progress is promoted. That is, so long as the monopoly does not reach so far as to stunt the growth of the next generation of artists, which brings me to the second part of this survey of IP Fundamentals: Incremental Improvement versus Pioneering Invention.