This just in by Michael Grebb for Wired News:
Justices Doubt Free Speech Link

Eric Eldred, who brought the case in January 1999, runs a burgeoning website that has posted the text of some 50 rare and out-of-print books whose copyrights have expired. Outside the court, he said the justices sent mixed messages.

"They asked some tough questions," he said. "But it's hard to judge how they'll rule."

Gary Shapiro, president of the Consumer Electronics Association, said Congress will most likely overturn the CTEA on its own even if the court upholds it.

"Hollywood pushed something through Congress, and nobody was watching," Shapiro said. "There is no question that this legislation would not pass Congress today. Five years ago, we should have opposed this. We made a big mistake."

Shapiro, an industry veteran who's observed dozens of cases, said you can't always tell how the court will rule based on the questions they ask. "I don't read too much into the justices asking questions."

Here is the full text of the article in case the link goes bad:

http://www.wired.com/news/politics/0,1283,55684,00.html

Justices Doubt Free Speech Link
By Michael Grebb

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3:15 p.m. Oct. 9, 2002 PDT
WASHINGTON -- In a case that could affect how many digital works end up on the Internet and in other areas of the public domain, U.S. Supreme Court justices on Wednesday expressed measured skepticism that copyright law and the First Amendment are intertwined.

"This would be quite a new proposition," said Justice Sandra Day O'Connor during oral arguments for the case, Eldred v. Ashcroft.

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Plaintiffs want the court to overturn the 1998 Copyright Term Extension Act (CTEA), which extended current and future copyrights by 20 years.

Big media companies such as Walt Disney pushed for the law to protect early works whose copyrights were about to expire, which would have put some movies, recordings and books that included characters such as Mickey Mouse in the public domain.

Justices also said that throwing out the CTEA could affect the validity of past copyright extensions and the 1976 Copyright Act, which anchors current copyright law.

"The chaos that would ensue would be horrendous," said Justice Stephen Breyer.

But, First Amendment issues aside, justices also asked if CTEA violates the "limited time" copyright clause in the U.S. Constitution.

Justice Breyer wondered whether allowing Congress to extend copyright terms whenever it chooses could defeat the purpose of the copyright clause itself. "Isn't there no difference between this and a permanent copyright?" he asked.

Justice Antonin Scalia agreed, suggesting that allowing unlimited extensions makes the term "limited" in the copyright clause meaningless.

U.S. Solicitor General Theodore Olson defended the CTEA as necessary to repel piracy and create incentives for copyright holders.

When justices pressed Olson to explain why Congress should not be limited to extend copyright terms to just future works, Olson said the Constitution requires that Congress -- not the courts -- make that call.

"We're living in an era where piracy is a significant problem," Olson said. He added that the law also puts U.S. copyright holders on par with the European Union, which recently extended its copyright terms.

Lawrence Lessig, a professor at Stanford Law School and lead counsel for the plaintiffs, told the court that unless it "draws the line" by overturning the CTEA, the "limited term" envisioned by the framers of the Constitution would be moot.

On the marble rotunda outside the court, Lessig and his supporters continued to argue the point.

"No, there's no chaos," Lessig said in response to Breyer's courtroom comment. But Lessig acknowledged that the 1976 Copyright Act "would have to be evaluated" if the court sides with plaintiffs.

"But this case affects so many millions of people who use the Internet," Lessig said. "The First Amendment argument is fundamental to understanding what's important here."

Lessig said overturning the CTEA could also boost Internet peer-to-peer systems.

"There would be tons of content out there that people could trade freely," he said.

Eric Eldred, who brought the case in January 1999, runs a burgeoning website that has posted the text of some 50 rare and out-of-print books whose copyrights have expired. Outside the court, he said the justices sent mixed messages.

"They asked some tough questions," he said. "But it's hard to judge how they'll rule."

Gary Shapiro, president of the Consumer Electronics Association, said Congress will most likely overturn the CTEA on its own even if the court upholds it.

"Hollywood pushed something through Congress, and nobody was watching," Shapiro said. "There is no question that this legislation would not pass Congress today. Five years ago, we should have opposed this. We made a big mistake."

Shapiro, an industry veteran who's observed dozens of cases, said you can't always tell how the court will rule based on the questions they ask. "I don't read too much into the justices asking questions."

The Motion Picture Association of America (MPAA) wasn't immediately available for comment following oral arguments.