It is interesting to read Lessigs view and how he thought he lost the case: http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp http:

It is interesting to read Lessigs view and how he thought he lost the case: http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp http://www.legalaffairs.org/issues/March-April-2004/story_le... ------------------------------- There were two points in this argument when I should have seen where the court was going. The first was a question by Kennedy, who observed, "Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that." Here follows my clear mistake. Like a professor correcting a student, I answered, "Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws." That was a correct answer, but it wasn't the right answer. The right answer was to say that there was an obvious and profound harm. Any number of briefs had been written about it. Kennedy wanted to hear it. And here was where Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.