Ernest Miller and Raul Ruiz from Yale's Lawmeme Blog were there all night with us in front of the Supreme Court last Tuesday night.
(Good thing I had extra blankets!)
They have posted recently regarding the event:
Lawmeme: Live From Eldred v. Ashcroft - I
Justice Breyer was particularly hard on the government's position. He brought in a number of economic arguments. Basically, he made the point that the expected value of the extended copyright was so small as to be virtually zero. He also asked whether the government could recopyright Ben Johnson. The government did not say "no." Justice Stevens appeared skeptical of the government's arguments. The government made much of the inequities of not providing retroactive and prospective extension together. Scalia questioned whether the inequities argument could be turned around. J. Breyer, in essence, answered "yes" by claiming that existing copyright owners get all the benefit and, inequitably, prospective copyright owners get very little benefit.Although four justices were not satisfied with the government's arguments on retrospective copyright extensions, it is far from clear or even likely that Eldred will get the 5 votes necessary to overturn the statute. However, hope springs eternal.
Here's the full text of the article in case the link goes bad:
Lawmeme: Live From Eldred v. Ashcroft - I
http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=392
Features: Live From Eldred v. Ashcroft - I
Posted by Raul Ruiz on Wednesday, October 09 @ 11:18:34 EDT
Your humble reporters (Ernest Miller and Raul Ruiz) have just exited from the Supreme Court after hearing oral arguments in the case of Eldred v. Ashcroft. We are providing you this first report from memory as members of the public are not permitted to take notes in the Supreme Court.
As representative for petioner, Larry Lessig spoke first. His first questions from Justice O'Connor regarded whether or not all copyright laws passed by Congress included retrospective extension. Prof. Lessig distinguished the first copyright law of 1790 from subsequent laws and characterized the first law as not truly a retrospective extension. There was a great deal of concern whether or not accepting Eldred's position would lead to the court having to invalidate many previous laws, in particular the copyright act of 1976. Justice Breyer gave Prof. Lessig an out by asking whether or not the court could refuse to invalidate the copyright act of 1976 due to the chaos it would create. More to come.. batteries
UPDATE 1335 EDT
UPDATE 1350 EDT
UPDATE 1355 EDT
Chief Justice Rehnquist also seemed skeptical of changing a pattern in lawmaking with such a long pedigree. Justice Breyer raised an analogy he would repeat with the Solicitor General. He asked whether under Eldred's argument it would be permissible to recopyright the bible, Ben Johnson, or Shakespeare. Justice Ginsberg was very tough on Eldred's First Amendment arguments. She couldn not see why the First Amendment arguments were different for prospective and retrospective copyright. She seemed to think this was a bad thing.
Justices Scalia and Thomas asked no questions of Lessig. Scalia possibly because Lessig had been his clerk. Thomas because he seldom asks questions anyway.
The most disturbing thing about the Solicitor General's argument was that no questions were asked regarding the First Amendment issues. Conclusion: Eldred loses the First Amendment issues completely.
Justice Breyer was particularly hard on the government's position. He brought in a number of economic arguments. Basically, he made the point that the expected value of the extended copyright was so small as to be virtually zero. He also asked whether the government could recopyright Ben Johnson. The government did not say "no." Justice Stevens appeared skeptical of the government's arguments. The government made much of the inequities of not providing retroactive and prospective extension together. Scalia questioned whether the inequities argument could be turned around. J. Breyer, in essence, answered "yes" by claiming that existing copyright owners get all the benefit and, inequitably, prospective copyright owners get very little benefit.
Although four justices were not satisfied with the government's arguments on retrospective copyright extensions, it is far from clear or even likely that Eldred will get the 5 votes necessary to overturn the statute. However, hope springs eternal.
It would appear that Jack Valenti, who also attended the oral argument, has a number of reasons to justify the smile he wore as he entered the courtroom.
UPDATE 1335 EDT
We just want to emphasize that this is our impression of the oral argument. We were not permitted to take notes and are working from memory. Press accounts will certainly provide more information. Also, the fine art of "Justice Counting" is not something in which we are experts. Look for more subtle analysis on how Justices are likely to vote from various Professors and the usual suspects.
One point we didn't initially mention is that the issue that had intrigued a number of legal commentators is whether or not the court was interested in extending the precedent set in Lopez, which for the first time in many years constrained Congress' power to regulate interstate commerce. Some have thought that this issue would be raised by analogy from the commerce clause to the copyright clause. The Chief Justice is the only one who raised the issue in a single question to Prof. Lessig. The question was oblique, and only implied the question, but Prof. Lessig recognized it and provided the appropriate answer, which seemed to please the Chief Justice. It was not raised by any other justice, nor was the Solicitor General provided a similar question.
The New York Times has an AP wirestory (High Court Debates Copyright Case).
PS. This blogging brought to you via 802.11b equipped PDA (please excuse typos, etc.) and warchalked wireless access point, somewhere in the vicinity of the Supreme Court building (thanks warchalkers!)
UPDATE 1350 EDT
Only 25 members of the general public were permitted to watch the oral arguments. Anyone who lined up after three AM, did not get in (thankfully, it didn't rain).
Doc Searls has a second hand report that is more optimistic (I Blew It). We believe the "I blew it" refers to not getting into see the oral argument.
UPDATE 1355 EDT
Well, we are heading back to New Haven from Washington, D.C. We will be back online and following the coverage later this evening. Thanks for stopping by.
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1976 law is a different case (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 12:18:29 EDT
The Justices are silly if they think that striking down the 1998 extension automatically invalidates the 1976 extension. The two laws are distinguishable, first of all by the copyright term itself: 95 years is longer than 75 years. Monopolies, James Madison noted (quotation here for the time being) are objectionable in proportion to their scope and duration. (He was talking about banks at the time, but the general principle applies more widely. That's what general principles do.) So a law that creates a 95 year term can be treated differently from a law that creates a 75 year term, because it imposes heavier burdens on the public.
Then there is the matter of termination rights. The 1976 law allowed the authors' heirs to file to recapture the additional 19 years. The 1998 law allows the heirs of some authors to file to recapture the additional 20 years, but forbids others from doing so. Leaving aside the question of whether authors' grandnephews can constitutionally stand for authors at all, how can this partial impliementation of termination rights satisfy the requirement that Congress create rights "for authors" ?
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 1)
by mattperkins on Wednesday, October 09 @ 13:15:22 EDT
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This post is the first detailed account of today's argument that I have found. Thank you. My addiction to Eldred news has been, for the moment, fed. :)
--matt
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 1)
by filter_editor on Wednesday, October 09 @ 13:27:17 EDT
(User Info | Send a Message) http://cyber.law.harvard.edu/wentworth.html
Bravo, guys!
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Re: Live From Eldred v. Ashcroft - I (Score: 1)
by DerekSlater on Wednesday, October 09 @ 13:36:17 EDT
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This does not sound good. While my Eldred fixation has been temporarily sated, I feel compelled to read all the other blogs, praying that someone will post something confident, something screaming WE'RE GOING TO WIN!
Waiting months for the decision will not make it any easier...
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 1)
by juanfe on Wednesday, October 09 @ 13:50:39 EDT
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Just got back home from The Hallowed Halls of Justice--let us not say anything about the high barrier of entry it is to actually see the Court in session!
I think that a crucial points of Lessig's argument which got lost in the discussion of retrospective extension (and which he made much more clearly during the post-argument press recap) is that copyright law now affects many more people and much more broadly than it would have in 1976 because of Internet-based publish-at-will. Basically, the inability to establish a firm limit to how far Congress can continue sliding the protection blanket can have a limiting effect on everyday people's sharing of cultural capital without being potentially liable for violations of really old copyrights.
Still, I think that Lessig had a difficult time making his "stifling of speech" argument because it seemed, from the questions presented by the Justices, that they were still conceptualizing publication (of derivative or new works that incorporate others' materials) as something done only by a relative few rather than the many.
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 13:53:25 EDT
He asked whether under Eldred's argument it would be permissible to recopyright the bible, Ben Johnson, or Shakespeare.
Should that be "the government's argument". Under Eldred's the answer is "NO!".
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 1)
by vample on Wednesday, October 09 @ 15:24:54 EDT
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"Only 25 members of the general public were permitted to watch the oral arguments. Anyone who lined up after three AM, did not get in"
Actually slightly more than this got in, I'd guess about 40-45, including those that probably arrived around 5am. I was 29th in line, arrived around 4:30 am and was able to get in, despite the large number of those with reservations or other special connections. I think the confusion arose because after letting in about 40-45 people from the general public, they split the group between the first 25 and the rest, but all of the latter group was let in before arguments began.
[ Reply to This ]
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 15:45:18 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 17:25:36 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Sunday, October 13 @ 15:14:05 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, October 15 @ 14:16:40 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Monday, October 14 @ 02:18:48 EDT
Re: Live From Eldred v. Ashcroft - I (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 15:27:21 EDT
You are correct about the title of I Blew It. It's particularly bitter as I'd abandoned trying for press credentials on the theory that I'd be able to get in as a member of the public with my good memory. The lawyers for the government I overheard discussing the case are not expecting an easy time back in lower court, and they are expecting to go there--take it for what it's worth.
[ Reply to This ]
Lopez? (Score: 1)
by MurphysLaw on Wednesday, October 09 @ 15:27:23 EDT
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Could someone expand on what C.J. Renquist was getting at by referencing Lopez?
[ Reply to This ]
* Re: Lopez? by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 15:48:55 EDT
* Re: Lopez? by 188 on Wednesday, October 09 @ 16:23:37 EDT
* Re: Lopez? by 188 on Wednesday, October 09 @ 16:25:42 EDT
Re: Live From Eldred v. Ashcroft - I (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 15:38:13 EDT
Life imitates art: In The Ballad of Dennis Karjala the "movie barons" are made to say "we hate the public domain". Now an apologist for the CTEA all but admits it. He seems to want to abolish the public domain except in the case of works that their authors voluntarily contribute to it.
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 15:47:29 EDT
Wouldn't the distinction between the 1976 law and the current law be that no (or almost no) copyrights have expired since the 1976 law, and that therefore the retrospection has effectively extended copyrights which pre-existed the 1976 law indefinitely (i.e., it made sure that nearly all existing copyrights would continue for as long as it has been since the last time the law was changed, setting a legislative example for future extensions)?
Not well expressed, but you see my point.
[ Reply to This ]
Re: Live From Eldred v. Ashcroft - I (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 16:25:33 EDT
Pardon for not looking around before posting, but does anyone know if Oyez is going to post the audio from this, and if so when? -- and in the alternative, where a transcript might be available?
[ Reply to This ]
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 18:46:14 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 23:46:40 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 10 @ 18:18:31 EDT
* Transcripts will be freely available in a couple of weeks :-/ by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 10 @ 14:15:41 EDT
Difference with 1976 (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 16:46:10 EDT
The biggest difference I see between this law and 1976 (and all previous laws) is that 1976 was the first year that all works were copyrighted upon creation. So although there was incentive created to publish and copyright works which were unpublished after the 1976 law, there was no such incentive following the 1998 law, because everything was already copyrighted, regardless of whether it was published.
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Re: Live From Eldred v. Ashcroft - I (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 09 @ 18:39:47 EDT
Why would the S.C. remand this case to a lower court?
How would that be beneficial in anyway to Lessig?
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No note-taking please, This is the Supreme Court (Score: 1)
by Tim_Langeman on Thursday, October 10 @ 00:15:57 EDT
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Can anyone explain to me why the policy against note-taking isn't a common-sense infringement of the first amendment?
It may not be a law written by Congress but knowing that people on the Court are willing to tolerate this sort of policy doesn't make me optimistic about the Court's ability to see the link between IP and freedom of expression.
[ Reply to This ]
* Re: No note-taking please, This is the Supreme Court by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 10 @ 09:26:10 EDT
* Re: No note-taking please, This is the Supreme Court by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 10 @ 10:27:54 EDT
* Re: No note-taking please, This is the Supreme Court by Tim_Langeman on Thursday, October 10 @ 20:01:00 EDT
* Re: No note-taking please, This is the Supreme Court by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 09:39:07 EDT
* Good news: Transcripts will be posted after all by Tim_Langeman on Friday, October 11 @ 18:21:46 EDT
* Re: No note-taking please, This is the Supreme Court by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 10 @ 16:32:38 EDT
Re: Live From Eldred v. Ashcroft - I (Score: 2, Informative)
by MCSquared on Friday, October 11 @ 14:18:50 EDT
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If you have not been to the Supreme Court, you really must go. This was my first visit, and it was pretty amazing. The architecture is very impressive. The fact that simply waiting on line for a few hours will grant anyone entrance to the heart of one of the three branches of government is important. The fact that Supreme Court hearings are not simulcast on television or over the Internet is disappointing, though. The fact that the Court decided to hear the Eldred case on the third day of the session made waiting outside for over 4 hours bearable.
For those who are curious, I got there with some friends just before 5am. At 7:30am, police officers handed out numbered tickets to approximately the first 100 people in line. The highest number in my group of friends was 44, and we were told that the first 50 people would definitely be able to hear the entire argument. After we received our numbers, we were free to leave the area to get food and use the bathroom, as long as we were back in line by 8:20am. At about 9am, the first 50 people were allowed into the building. Once inside, we went thru a metal detector, had to place all personal belongings into lockers or leave at the coat-check, and then waited in a second line for a second set of metal detectors. After everyone with reserve tickets was seated, they ushered the general admission people thru the second set of metal detectors and into the courtroom.
I was seated one row in from the back wall, all the way to the right side and behind a large column. From where I was sitting, I had to squint and look for lips moving to figure out which Justice was talking. When we got there, the Court was approving some judge appointments. After just a few minutes, they were finished and the oral arguments for Eldred v. Ashcroft began.
Seated in the row in front of me was a man who was fascinated by some cracks in the marble column next to him (the same marble column that was obstructing my view of the left side of the bench). I had seen this guy waiting on line in front of me, and I was surprised by the fact that this man who had waited so long for his seat in the courtroom seemed more fascinated by the marble column than the hearing. I honestly did not see him look up even once. As I watched him look at the cracks, I thought about the cracked column symbolizing the cracks forming in the American copyright system. I thought of the mailman character in the Keenan Ivory Wayans film “Don't Be a Menace to South Central While Drinking Your Juice in the Hood” who simply shows up and yells “Message” when there is a real social comment being made in an otherwise funny film. Then I thought about how such a film (even just the title) would probably be impossible to release in today’s litigious environment. Yes, dear reader, one tends to free-associate a lot when one has had only 3 hours of sleep.
My impression of the argument itself is hazier still. Lessig went first, and I thought he got a good drumming from the Justices. But then Solicitor General Olson made his argument, and I thought he received a worse beating. Because of the difficulties hearing, seeing, and staying awake, I honestly wasn’t able to follow Lessig’s arguments. I was awed that the facts surrounding the Statute of Anne were cited and precedent in 2002. I thought we learned history just for the sake of knowledge. I would never have guessed that events of almost 300 years ago would be as relevant as they seemed in that courtroom Wednesday.
I was a bit more awake for General Olson’s argument, and I followed it well enough to disagree with most of it. Olson stressed the idea that retroactive copyright extensions are necessary to incentivize publishers to continue publishing old works. This idea seemed just silly to me, so I took the opportunity to ask Professor Lessig about its history when he spoke on the Georgetown campus last night. He explained that it was a response to the claims that there were a large number of movies that were literally disintegrati
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* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 15:54:54 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 11 @ 17:31:21 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Sunday, October 13 @ 15:16:07 EDT
* Re: Live From Eldred v. Ashcroft - I by Anonymous (Name Withheld on Advice of Counsel) on Monday, October 14 @ 02:22:27 EDT
Leges humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die
