May 12, 2003
(Via Greplaw) Professor Lessig recently wrote an editorial for Financial Times. He lauds Judge Wilson’s restraint, hoping that others in the judiciary will also leave these decisions to Congress. The key clarification (emphasis added): “Within the limits of the constitution, the balance that is copyright protection is not meet for judicial review.”
And that’s the peculiar thing about this article. I’ve rarely thought that the problem with the court’s treatment of copyright has been too little restraint and deference to Congress. In fact, the real problem is that courts have showed plenty of restraint when addressing the “limits of the Constitution.” In the DeCSS and Verizon cases, I’d say it isn’t even a matter of activism v. restraint. It is, as Lessig wrote in Code, a matter of “translation.” In this article, Lessig asserts that courts shouldn’t try to preserve the copyright status quo and should let Congress deal with technological changes. Sure. But, we also need courts to maintain parts of the status quo by placing basic values in new contexts.