Perhaps you haven't seen my movies from Camping Out In Front Of Eldred yet.

There's a comprehensive video/article in the works, but I don't mind you peeking at the usable footage. (Yes it was too dark -- I had to lighten it up in Premiere. Yes it's one of the first films after taking a nearly ten year hiatus and yes, you can really tell.)

And yes, I am still pretty upset about the whole thing. But we gave it our best shot, right? And because of this, I know that I will feel just a little bit better when I'm explaining to the children of the future about what happened because I'll be able to tell them truthfully that we didn't go down without a fight.

It will be just like when I'm trying to explain to them about a world that used to exist before the soon-to-be-state-of-perpetual War. It will feel better than if I had done nothing and had to explain how we all just rolled over and let our country be stolen away from us from a man who was never elected.

I will be able to say proudly that we fought very hard to stop it from happening -- and I think it will feel better. Then.

I don't feel so good now though -- about either situation.

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!
[ Reply to This ]

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
(User Info | Send a Message) http://www.vamp.org/

"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.
[ Reply to This ]

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?
[ Reply to This ]

No note-taking please, This is the Supreme Court (Score: 1)
by Tim_Langeman on Thursday, October 10 @ 00:15:57 EDT
(User Info | Send a Message) http://www.openpolitics.com/tim/
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

I'm trying to get all of the Eldred Camping Stories in one place, so if you were there that night (and especially if I videotaped you!) please oh please email me with a link to it. Thanks!

Seth Schoen has written up his account of our little adventure.

Lisa Rein and a big group of us had planned to meet at the Supreme Court and camp out on the steps of the Court overnight in order to be certain of hearing the Eldred argument. (Amy Harmon recently called Lessig a "rock star" -- I guess it's really true.) We had a list of cell phone numbers and a specific plan and schedule to try to make sure that our group of about ten very dedicated people would definitely manage to hear the oral argument in the morning. We'd already heard that lines would form early and grow quickly.

Lisa, who really seems good at organizing things, had managed to go to an Army surplus store earlier in the day and buy a huge number of cheap, warm blankets, as well as making some tea. By the time Aaron Swartz and I got to the Court, shortly before midnight, Lisa had already been there for hours.

Indeed, by the time we got there, the group had already ordered pizza, and was having a late-night dinner. (The Supreme Court Police Department night shift told them where to call to get pizza delivered until 1:00a -- I guess it ought to come as no surprise that the SCPD would know that sort of thing.) It was strange to see a little camp with blankets, sleeping bags, clothing, backpacks, and pizza assembled with the Court (or the Capitol, if you looked from the other direction) as a backdrop. I briefly hung my suit from a tree.

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

http://vitanuova.loyalty.org/2002-10-13.html

Sunday, October 13, 2002

In the Supreme Court of the United States

I arrived in D.C. with Cindy on Tuesday evening and went to a party in honor of the petitioners, organized by EPIC's Marc Rotenberg, whom I'd never met before and unfortunately met only briefly at the party.

At that event, I met Eric Eldred for the first time, and talked to him about bookdealers, the publishing industry, electronic texts, DRM, and the prospects for being proactive in supporting the public domain and the public's rights in copyright. I wanted to get Eldred to autograph a copy of The Scarlet Letter, but I didn't manage to buy one in time. (I don't think Brewster Kahle's Bookmobile, which was there at the party, had a properly typeset edition of that work available for printing, although I'm fairly sure we could have printed a plain ASCII e-text of it.)

As I said, Brewster Kahle was there with his Bookmobile, looking none the worse for wear after driving all the way across the United States. Brewster and his friends printed up books, mainly classics of children's literature, for the partygoers, and the Bookmobile drove off to the Supreme Court later in the evening.

I also met for the first time two people I know on-line, and with whom it so happened that I'd been in an e-mail exchange (about CSS encryption) the night before: Ernest Miller of LawMeme, and Aaron Swartz of Creative Commons. Aaron was in town for the Eldred argument as a special guest of Larry Lessig, who recently called him "a favorite boy genius". Ernie drove down from Yale, where he's invited me to appear as a panelist at a one-day Yale Law School conference on blogging next month.

I also got to meet some of the EPIC staff, and James Boyle, who'd just received $1,000,000 from an anonymous donor for research on the public domain in copyright.

Lisa Rein and a big group of us had planned to meet at the Supreme Court and camp out on the steps of the Court overnight in order to be certain of hearing the Eldred argument. (Amy Harmon recently called Lessig a "rock star" -- I guess it's really true.) We had a list of cell phone numbers and a specific plan and schedule to try to make sure that our group of about ten very dedicated people would definitely manage to hear the oral argument in the morning. We'd already heard that lines would form early and grow quickly.

Lisa, who really seems good at organizing things, had managed to go to an Army surplus store earlier in the day and buy a huge number of cheap, warm blankets, as well as making some tea. By the time Aaron Swartz and I got to the Court, shortly before midnight, Lisa had already been there for hours.

Indeed, by the time we got there, the group had already ordered pizza, and was having a late-night dinner. (The Supreme Court Police Department night shift told them where to call to get pizza delivered until 1:00a -- I guess it ought to come as no surprise that the SCPD would know that sort of thing.) It was strange to see a little camp with blankets, sleeping bags, clothing, backpacks, and pizza assembled with the Court (or the Capitol, if you looked from the other direction) as a backdrop. I briefly hung my suit from a tree.

I hadn't eaten anything since morning, so I advocated a second pizza order, and so we had the unusual experience of calling up a pizza parlor and ordering four large pizzas and asking for delivery to the United States Supreme Court. (And we meant it, and they did deliver the pizzas there, and we ate them.)

Ernest Miller had come by and gotten in line with us (or "became the line with us"), with a LawMeme t-shirt and a big LawMeme banner, with the motto "Leges humanae nascuntur, vivunt, moriuntur" ("Human laws are born, live, and die"). I suspect the focus on this particular occasion may have been on "moriuntur".

The reverse of the banner, and the reverse of the t-shirt, quoted the Copyright Clause, which I think you would definitely have been considered lame if you hadn't already memorized.

At about midnight, a group of about eight law students from Virginia showed up. People trickled into line gradually after that. After looking around the Court, we sat down to play a round or two of Set. Next, after dropping my suitcase and suit off in Lisa's hotel room a few blocks away, Aaron and I went off for a while to use some wireless net access he'd discovered on a corner. We must have been a funny sight, standing together on a residential street corner after 1:00 in the morning, intently working on a couple of laptops. (Aaron's laptop backlight was also dead, so, when his laptop's display became too hard to read, he started up a VNC server on the laptop, I started a VNC client, and we used the wireless network to allow him to use my laptop as an interface into his laptop so he could run software there. However, in order to make the wireless reception work right, I had to walk about thirty feet away and hold his laptop up in the air!)

We returned to the camp site to find the line incrementally longer, but we were able to reclaim our positions in front with Lisa's group. A few of us who were unaccountably not tired then went off for a late-night walk around the Capitol, which gave me a better understanding of the geography of the whole thing (especially how the House and Senate office buildings are located with respect to the Capitol building itself). When we finally got back, I fell asleep listening to the other campers recounting practically the entire procedural history of a number of recent copyright-related court cases.

I only got about two hours' sleep. It wasn't quite light out when I woke up, a bit after 5:00, but the line already contained at least 50 people, which was the largest number we'd been told were likely to gain admission. We started to pack up our stuff and form a more formal line, and suddenly a large number of police cars converged on an intersection about a block down the street. The SCPD came out and told us all to move the entire line around the corner, which we did, and then about ten minutes later we were told to move back to the original position. The police wouldn't explain why we'd been asked to move. (There was a rumor about a bomb threat or something, but it was never officially confirmed.)

Some time after 7:00, the SCPD came around to hand out cards with numbers indicating our relative positions within the line. I was number 6; I had been in line for over eight hours at that point, with only minor interruptions. (Lisa and I did have to run back from the hotel room she was renting a few blocks away; we'd stepped out of line for a few minutes to go back to her room and change out of our line-standing clothes and into our court clothes.)

As I remember it, the first six cards were assigned in this order:

1. Jace
2. Lodrina
3. Macki
4. Lisa
5. Kevin Burton
6. Seth

All these people were members of our group.

Number 6 is a very, very good line position to have. As it turned out, about 200 members of the general public turned out to try to hear Eldred. How many do you suppose were admitted?

The public was given lowest priority, behind all journalists, all members of the Bar of the Supreme Court, all candidates and sponsors for motions of admission to the Bar of the Supreme Court, and all guests of parties, counsel, or Justices and officers of the Court. (That was a lot of people. The Supreme Court can hold hundreds of spectators in its gallery, and it was almost completely packed by the time the public began to be admitted at all.)

At 9:00, the great golden doors of the Court slid open (not "swung open"; they're sliding doors), and the line curved around the corner. That was the last I saw of it, but I maintain that there must have been about 200 people who came by hoping to hear the argument.

The first fifty people in line were permitted to enter the Court's antechamber, where we were subject to two searches, but we kept watching as more and more people streamed into the courtroom ahead of us -- from the higher-priority groups I mentioned above.

Something like twenty-five members of the public were eventually admitted to the argument. Since the original line positions were scrupulously observed, I was the sixth.

Just as you've heard, they actually do say "Oyez, oyez!"; they actually do say "God save the United States of America and this honorable Court"; they actually do say "Mr. Chief Justice, and may it please the Court" at the start of the argument. It was a real thrill to hear Lessig begin with "Mr. Chief Justice, and may it please the Court".

Maybe some year it will be "Madam Chief Justice, and may it please the Court".

I have no notes from the argument, because note-taking is banned completely for everyone but credentialled journalists (who sit in a special walled-off section, perhaps so their note-taking won't give anyone else any ideas) and members of the Supreme Court Bar (who have to swear a loyalty oath, as I observed some new admittees doing immediately before the oral argument). Since I have no notes, I'm just going to discuss a few points based on my personal recollection. You can probably get a better story if you read the accounts by journalists who were taking notes on paper. For the most part, I don't even remember which Justice asked which question.

So this is going to be rough and perhaps somewhat scattered. If anybody has specific questions which might help me clarify or make better sense out of what I experienced, please ask, and I'll try to answer them here.

The argument felt extremely short for all of us who'd been following the case. Cindy and I read over 160 pages of briefs while we were on the plane, so we were thoroughly familiar with the basic lines of argument which were before the Court. You can get those briefs from the Eldred v. Ashcroft site.

The Justices gave both sides a hard time. This seems like a key point to me. At the outset, when Lessig was being asked tough questions, it seemed natural to say that they disfavored his argument. But Olson received his share of tough questions, too. (And I remember attending an oral argument in DVD CCA v. Bunner before a California appeals court which asked really difficult questions of Bunner's attorney and then ended up ruling in favor of Bunner. So it's never wise to say that one side is definitely going to win just because the other side was thrown a series of challenging questions.)

Lessig was very composed, and I say that you'd never have believed that it was the second time in his life he'd appeared before a court, unless you already knew that. Even so, I kept thinking that he seemed right at home (which could make sense, since he was formerly a clerk to Justice Scalia). The Solicitor General did seem more experienced at Supreme Court argument, but by no means astonishingly or overwhelmingly so. Lessig's answers to the Court's questions were generally more direct and more confident; the Solicitor General's answers were typically more evasive and uncertain, which managed to irritate one Justice so much that he said something like "I didn't ask you 'probably', I asked you 'yes' or 'no', counselor!".

A clear conclusion: Many of the Justices believed that the Sonny Bono Copyright Term Extension Act was a bad idea. Several of them had strong and open criticism for it -- I emember something like "obviously diametrically opposed to the policy goals the Framers had in mind" or "obviously diametrically opposed to the Framers' vision of what copyright would accomplish" or something like that. Also something like "terrible policy" and (relying upon the economists' brief) something like "this Act costs the public billions of dollars, and the benefits are zero, to three decimal places". All the Justices who expressed any opinion at all were of the opinion that the CTEA was a bad law and that Congress had chosen poorly in enacting it. However, as many people (including the Justices in question themselves) pointed out, "a bad law" doesn't mean "an unconstitutional law", and the Court is reluctant to overturn a law merely because it believes Congress erred in enacting it.

There as skepticism about Lessig's claim that the 1998 act can be distinguished from the 1976 act and (less relevantly) from earlier "retrospective" copyright extensions. The Justices were not eager to believe that the 1976 act was unconstitutional, and Lessig argued that they didn't have to hold both unconstitutional in order to hold the CTEA unconstitutional. But they seemed to have a hard time distinguishing the two.

The film preservation issue was not discussed in detail. At one point, Lessig got confused because one of the Justices (Scalia?) started to ask a question about the effect of copyright extension on film preservation, and Lessig thought the Justice was saying that copyright extension harms preservation, where the Justice was actually asking about how copyright extension aids preservation. Amici urging affirmance and amici urging reversal each made independent arguments about preservation, coming to vastly different conclusions. Eldred's supporters, for their part, argued that allowing copyrights to expire would facilitate preservation, especially by non-profit organizations.

The MPAA argued in an amicus brief that extending copyrights would create a new financial incentive for preservation which wouldn't exist otherwise. (I already had a Valenti quotation on my wall: "I'm not saying the public domain is bad. But how does it benefit the consumer? If a film is in the public domain, who takes care of it? Who refurbishes it if the print goes bad? What incentive does anyone have to keep the movie alive and vibrant?")

I think both sides are right about this. If you extend copyrights, you favor preserving works with known commercial value (and a known copyright holder), by giving copyright holders a new incentive to engage in preservation work. If you allow copyrights to expire, you favor preserving works without known commercial value, or without a known copyright holder, by removing from non-copyright holders a significant disincentive to engage in preservation work.

Lessig has elsewhere suggested bringing back copyright renewal requirements. (That proposal was not at issue in the argument and it wasn't mentioned at all in his brief or before the Court. I should emphasize that this discussion was not at all part of the oral argument or even part of the Eldred case at all.) I think that such a requirement would narrow the gap on the issue of preservation. Commercially valuable works would be preserved because they could remain under copyright for long terms and continue to be exploited commercially by some copyright holder. Other works would be preserved because their copyrights would lapse, clearing the way for non-profit and other preservationists to do their work. As elsewhere argued, only around 2% of works have an ongoing commercial significance after the term prescribed by the 1976 act, so that 98% of works would presumably enter the public domain by the end of that period if there were a renewal requirement. This seems economically efficient, and, more important, especially beneficial to cultural continuity.

Requirements like deposit and renewal -- scuttled under Berne -- seem to me to have been in the public interest, and, equally importantly, to have made clear that the public interest was an essential, not incidental, part of copyright. They helped guarantee that works would enter the public domain quickly if copyright holders were no longer making money from them, and they helped guarantee that a good copy of a work would be available to the public whenever a copyright expired. Both of these are important; neither is the law today. I see those changes as an erosion of the belief that copyright law is exclusively or essentially about protecting authors' interests (since deposit and renewal were certainly inconvenient for authors and publishers). So I think they ought to be reversed.

Amy, infra, believes that frequent renewal requirements (and, I think, deposit requirements) would help the public domain but hurt copyleft, partly because free software changes so quickly (some projects have multiple releases every week!). If there were once again aggressive deposit and renewal requirements, it might be burdensome for free software developers to keep up; in that case, it would be difficult for them to hold onto current copyrights, which would make it difficult for copyleft licenses to be enforced. I think Amy has a point, and I don't know how to deal with it.

Renewal requirements might also help get orphaned software projects into the public domain quickly, while they're still useful. It continues to be incredibly wasteful that so much proprietary software is constantly being discontinued; I've written about that in the past. Useful code can simply disappear and never be seen again.

Back to the oral argument: it seemed that Lessig made a strategic decision not to challenge the holding of Schnapper v. Foley, which the majority below interpreted as precluding an application of "to promote the progress" as a substantive restriction on the power of Congress. It seems to me that reading "to promote the progress" as a restriction would be helpful to Eldred, and I don't understand the decision not to argue that point -- though I'm sure it was taken for a good reason.

Part of the petitioners' claim is that "99% of works" (elsewhere "98% of works") "have no commercial value". That didn't seem to be disputed at argument. I think this tends to substantiate the idea that there's a lot of collateral damage being done by copyright extension. There are 1% or 2% of works which are being sold and whose copyright holders get a benefit, and 98% or 99% of works for which the extension just creates trouble.

Famous people who were in the courtroom included (aside from the Justices, Lessig, and Solicitor General Olson) Alan Greenspan, Kenneth Starr, Jack Valenti (MPAA president), James Rogan (director of the Patent and Trademark Office), Eben Moglen (FSF General Counsel, legal scholar, and author), Rep. Mary Bono (sponsor of the CTEA), Rep. Zoe Lofgren, and very likely several other Members of Congress. (Sen. Orrin Hatch was amicus curiae and might have attended, but I don't know anyone who saw him.)

Mary Bono shook hands with Eric Eldred after the end of the argument.

There were also a lot of reporters I'd heard of sitting over in the press section.

Public Knowledge threw a party afterward. (Declan has a couple of pictures from that party; see the links below to Declan's work.) It was attended by many IP law professors (including those from Harvard's Berkman Center who'd worked on the case), many amici curiae who'd urged reversal, many different non-profit groups, many industry associations (an unusual, and, I thought, very productive connection), and many journalists.

I met Danny Weitzner, now of W3C, and Prof. Nesson, and several other people. I was really surprised that so many people kept asking me how the argument had gone. I didn't understand why they wanted my opinion; then I realized that almost none of them had actually made it into the Court.

It seemed odd to me that many of these people hadn't gotten into the oral argument, but it might have had something to do with the fact that they weren't all willing to sleep on the sidewalk under a blanket.

The whole experience was a rare thrill for which I'm grateful to many people, not least Lessig and the petitioners and amici. I hope Lessig manages to relax. When we saw him the following day, he was already back in front of a law school class, lecturing on copyrights; he told us that he'd re-argued the entire case (in his mind) several times that morning.

Several of us worried about the lawyer equivalent of post-traumatic stress disorder.

Here's a little bit of coverage from after the fact: Lessig himself, Aaron Swartz, Ernest Miller (and his part II), Lisa Rein (and her part II), and Copyfight (passim).

However, what you should really look at is a series of collections of Declan's photographs from the event. Jace Cooke, of our group, is prominently featured. You can also see Lodrina and Macki from our group there, and other people you might recognize, or scenes you might find interesting. (See Declan's Lessig collection, Eldred collection, and Bookmobile collection.)

There's tons of other coverage out there.

Before the Federal Communications Commission

We had meetings on Thursday and Friday with advisors in the staff of Commissioners Martin, Copps, and Powell. On Friday, we also had a meeting with staff members from the Media Bureau and some of their colleagues in other Bureaus.

We tried to make the case to them that the broadcast flag mandate was unwarranted and a counterproductive idea. I think the staff members had varying degrees of receptiveness to this general message, but it was useful to have met them, and it was a valuable experience for us at least as much as for them. (While sitting in the FCC's cafeteria, I thought "You feel more experienced. Welcome to experience level 5.")

I believe we're going to be doing a couple of ex parte notices for these meetings, so you may soon be able to search public records on-line for a list of our meetings and a copy of an outline of our arguments. The FCC has rules designed to let everyone interested in an issue know (in many cases) what kinds of non-public contacts have taken place concerning that issue between advocates of a particular position and FCC staff, and roughly what kinds of arguments were presented.

I couldn't overstate how grateful I was to have Cindy with me for all of our presentations.

Library of Congress

Aaron and I paid a brief visit to the Library of Congress, the world's largest library. On display were incredibly rare things such as Edison's lab notebook (with its original handwritten account of the "Mr. Watson, come here" incident), and the items Abraham Lincoln was carrying in his pockets when he was assassinated (including two pairs of Lincoln's eyeglasses). We went up to the gallery and looked out on the main reading room. I felt that it was the most beautiful place I had ever seen, and I was briefly practically overcome with emotion.

Part of that emotion and that sense of beauty came from the reading room's form and majesty, and part of it from the reading room's function. I remembered a dispute in The Name of the Rose about what a library's function is; because of the setting of that book, the dispute was case in abstract theological terms (whether, if I remember the issue correctly, libraries fight the Devil or aid the Devil).

When I looked out on the reading room, I thought "Here they are fighting the Devil".

Elsewhere at the Library of Congress, I tracked down a particular corner or alcove of which Sumana gave me a picture from her own trip to D.C. (its inscription says "Words are also actions, and actions are a kind of words", which made me think of Bernstein and the other code-is-speech cases).

The biggest disappointment for me on that visit was that the Library's stacks are entirely closed to the public. (The reading rooms are closed to the public, too, but you can get in by becoming a registered researcher. But registering as a researcher can't get you access to the stacks; only getting a job with the Library of Congress can do that.)

Washington

I stayed in Washington with a woman I'll call Amy who works for a non-profit organization there. Visiting her was a tremendous amount of fun, and I'm very grateful for her hospitality.

Amy and I found that we had a lot of things to talk about, and so we started to make a list of topics, lest we should forget any. We never made it through the list. I still have it, and it seems to contain more than fifty outstanding conversation topics. I hope we have a chance to catch up on them.

Amy is studying Perl; I wanted to suggest that she learn Python, but she has some sensible practical reasons to learn Perl. Since she's already a C programmer, I don't think Perl ought to hold any great terrors for her (so long as it's possible to conceive of Perl failing to hold great terrors).

I think we did great honor to Eric Eldred and to the advancement of learning -- or, if you like, the promotion of science and useful arts. And I had an enjoyable and memorable visit.

I also spent some time with Mike Godwin. Some people I know may be vaguely surprised at the thought that Godwin is an actual person -- they may remember him best for "Godwin's Law" -- but indeed he is a real live lawyer, and one who's making useful contributions to our efforts. (Maybe I should say: "Godwin is not just a law but a lawyer".)

I was in Washington as the recent sniper attacks were going on, and it felt as though practically nothing else received news coverage during the week. I believe there were two or three new sniper attacks while I was there, all in the suburbs of Washington; many public events, especially those involving children, were being cancelled. All the parents I spoke to were extremely concerned about their kids, and typically weren't letting them go outside alone or walk anywhere alone.

Saturday

I went down to Claremont to see Don Marti and Tabinda Khan get married. The wedding was very elegant, with a nice delegation of Bay Area Linux activists, and many other communities represented. It was the first time I'd ever seen a Muslim wedding ceremony, and also the first time I heard a recitation of part of the Koran.

Both Tabinda and Don looked very good and very well. I also briefly had a chance to meet their families and to enjoy some excellent food.

Sunday

Riana came back to town with some friends from Walla Walla, and we went to the pirate store and then to hear the performance of Koyaanisqatsi at the Symphony Hall. (Philip Glass and his colleagues performed the music live as the film was shown on a screen without sound.) We also had some very nice meals. We saw Danny and Quinn briefly after the concert; Riana was wearing her NTK "iMachavellian" shirt, so she was very easily recognizable as an NTK fan.
Prev: October 7, 2002 /

I've written up some Notes on how the Ticket Line works at the Supreme Court based on what I've learned from my Eldred experience.

This batch seems to have taken the form of a "Guide to Obtaining Public Seats at the Supreme Court."

Soon I'll get around to writing up what I actually saw in there -- I'm still on the road and just wanted to make sure to get another batch of notes up today.

I will still be compiling these together into a comprehensive document when I'm done.

Thanks!

10/10/02 - 3:00 pm -- Notes on how the Ticket Line works at the Supreme Court

Note: The information in this guide was compiled from numerous knowledgeable sources. But the final conclusions I draw are my own (alas, detailed instructions for getting in aren't available anywhere else on the web that I could find). If you know anything below to be incorrect, please contact me so I can amend this post. Thanks!

Guide to Obtaining Public Seats at the Supreme Court

I have learned a lot about how tickets/guest lists work at the Supreme Court over these last few days. It is my hope that more of you will venture out to Washington DC to see the Supreme Court for yourselves. Hopefully, this guide will make it easier for you to plan your trip.

As confirmed by several of the Supreme Courts Federal Police Officers, every morning, between 3-5 am, people start lining up along the sidewalk beneath the steps of the Supreme Court (on the right side of the building if you're facing it).

Around 6-7 am, the line is moved to the "plaza" area, which is the stone plateau in-between the flights of stairs in the front.

Then, around 7-7:30 priority tickets are handled out to the members of the line.

Once you have a number you can leave and come back around 8:20, when they reform the line before the start letting people in around 9:15.

There are no substitutions. If you get caught selling or giving someone else your number, they'll take it away from you (them).

There are five sets of onlookers at a Supreme Court hearing:

1) People with actual tickets and/or on lists (guests of either side of a case)
2) Press
3) Members of the Supreme Court Bar
4) VIPs (People that can pop in at the last minute and bump members of the general public)
5) General Public

As you may have guessed, the top four categories take precedence over the fifth.

The VIP section was the group we hadn't counted on. We were expecting 60 seats to be available, and then some of the law students further down the line told us about the VIP section (important/connected people that can just sort of show up at a moment's notice if they feel like it, and get in).

Even if you have a priority ticket, there's no guarantee that you're getting in -- due to the fact that VIPs can bump you right up to the last second.

Even if they let you in to the courthouse, search you, and let you get into line right in front of the entrance, due to the VIP-ers, there's no guarantee that you will get in. In our case, 75 priority tickets were handed out, but only 50 people were let inside, and ultimately, only 25 of us actually got in.

There must have been more than 35 of them that day, because only 25 of us were eventually let in.

There are a ton of 25 cent lockers in side for jackets, cell phones, cameras, and anything you have with you. Said another way: you are not allowed to bring anything in with you. No purses. No coats. Nothing but the clothes on your body (and only a few layers of them).

Unfortunately for me, my wool blazer counted as a coat to Security, so I had to place it in a locker and was a bit chilly during the proceedings. It's pretty brisk in that stone building, so if you are sensitive to cold, like me, I'd plan on wearing a sweater in case your blazer gets classified as a "coat."

After giving you a minute or two to put your stuff away and go to the bathroom, the line reforms by the entrance in the ticketed order.

We stood there for half hour while all of the other groups of people were let in. We saw Lawrence Lessig go through the second security check, followed by none other than Ken Starr, who apparently set off the metal detectors and had to be personally checked with a hand held device before going in. (We all really enjoyed watching this happen.)

Next, the press was let in and we saw Declan, Steven Levy, and other familiar faces go in.

Then we waited while what seemed like a million military personnel going through (turns out they were a bunch of Supreme Court Bar prospects being sworn in that morning).

Finally, they said "Okay. You can go in."

The court room is awe-inspiring to say the least. The pews were already filled up and we were led to some chairs that had been placed in rows in the available space on either side of them.

We saw the press behind a set of wooden doors on the left side of the court room. There were some press people on the other side of the pillars too, right next to us, but I didn't notice them. (Steven Levy said he was so close he could have shot a spit ball at me.)

I was more concerned with how some of us had been stuck behind pillars, and if anything could be done. We all noticed that there seemed to be room for each of us to move our chairs to the left or right a little to see better, but doing so would definitely make too much noise. We all seemed to start moving our chairs and then realize the noise that ensued and stop dead in our tracks.

Then a miracle happened: everyone stood up for the Justices to walk in, causing just enough noise for us all to move our chairs accordingly!

More to come...

Aaron Swartz has written up his Eldred experience.

They dropped us off in front of the Supreme Court, where Lisa Rein and others set up camp. "We're an emerging society!" Lisa said, jumping up and down. Seth put down his bags and hung his suit on a tree. Lisa asked us all who we were and why we came and videotaped our answers. We talked, ate pizza (we asked them to deliver it to the Supreme Court (1 First Street), which they did) and played Set long into the night.

Here's the full text of Aaron's article in case the link ever goes bad:

http://www.aaronsw.com/weblog/000650

Mr. Swartz Goes to Washington
as seen on Aaron Swartz: The Weblog

« Trip Notes | Main
Mr. Swartz Goes to Washington

In which I see the Bookmobile, go to the Superparty, wait in line until 2AM, almost miss getting to the court, attend the case, go to the luncheon afterwards, visit the Library of Congress, play Set and head back home.

Bookmobile

"You want to make a book?" he asked. His head craned towards you, a curly mop of orange hair atop it and eyes with love and dedication burning like a fire behind them. He was scary and yet inviting at the same time. He was Brewster Kahle of the Internet Archive, the man who masterminded the Internet Archive Bookmobile.

The bookmobile itself wasn't too exciting: a Ford van, with lettering that announced "make your own book FREE!". On top was a large satellite dish, inside were a high-speed color duplex printer and a bunch of laptops and on a table behind were an industrial-strength paper chopper and a low-key bookbinder.

It was clearly far more than the equipment that made Brewster gus wife Mary, his son Calson, friends Art Medlar and Michael Robbin, as well as writer Richard Koman travel across the country from San Francisco to here in D.C.--surving, according to Brewster, "hurricane-speed winds and a tornado" along the way.

Unlike most Bookmobiles (of which they saw many at a Bookmobile conference on their trip), this one didn't contain any physical books. Instead, it connects to the Internet Archive's servers in the Presidio to download them. Then the high-speed printer prints out the pages. The chopper cuts them in half so you can fold them together to make a normal-sized book, and the binding machine heats up the glue-smeared cover to hold it all together. The whole process takes about fifteen minutes for a book (but they run many books in parallel so they can go much faster), and for the materials cost of a dollar, you have your own book. Brewster, of course, will give it to you for free if you help make it.

It's because of the public domain that they can do this. Brewster talks about how he sat down with book industry executives. He points out that they have thousands of out-of-print books, which they aren't selling and are making no money off of. He pulls out his checkbook. "How much do I have to pay to be able to make these books and give them to children?" he asks. They refuse, they will not let him make their books for any price.

So instead, Brewster turned to the public domain. He used the hard work of Project Gutenberg, whose volunteers sit and type in the full contents of public domain books by hand. And his friend Raj Reddy has organized the Million Book Project, which sends books to India to be scanned in and then puts the full-color high-quality images on the Web. And Brewster himself bought a high-end color book scanner and spent hours in San Francisco turning pages to scan The Wizard of Oz. Now the bookmobile prints the pictures of the pages in full color, duplicating that one book many times over.

During its drive across the country, the Bookmobile stopped at poor inner-city schools that can't afford a large library, or even a small one. He explains to the librarians how they can make their own bookmobile, and have a library of a million books--far more than they would ever normally be able to fit or afford.

Everywhere he went, he found the kids loved it. They would stay after making books, helping the other kids with getting the cover just right. "There's just something about making your own book," Brewster says. They would clutch and carefully protect them--these books that they had worked so hard to make. It changed the way they felt about books. "There were a couple of kids at every stop...I just don't think their lives are going to be the same now."

"People have a hard time understanding the public domain," Brewster says. "It's an abstract concept; it's hard to grasp. The bookmobile changes that." He picks up one of the books he's made. "This is the public domain! The public domain means giving books to children. You want to extend copyright? You want to steal books from children? No one wants to steal books from children."

One kid they met was a poet who wondered if he could use the Bookmobile to print his own books. "These kids have no distribution mechanism," Brewster pointed out. "No one else is going to print their books." Some Amish he met asked if he could print old important Amish texts. No publisher was willing to do the work to make the books for such a small community, but it was easy for the Bookmobile to.

Superparty

Inside the party, I felt more out-of-place. There was no one I recognized and no nametags. Luckily for me, Seth Schoen and other EFFers showed up. Then some of my Creative Commons co-horts like Ben Adida (who is building our website) and Glenn Brown (whose our executive director) stopped by. Ben and Glenn kept introducing me to people in ways that made my face blush in 20 different colors.Later, when people recognized me and introduced themselves, each time their comments got exaggerated. "Ah, I heard you're working for the Creative Commons." "Oh, I heard you help develop the Creative Commons website." "You're the guy that runs the super-coder Creative Commons website!" "Hey, it's the kid that runs the Creative Commons."

Seth Schoen looks like his pictures and speaks like he writes. He has perfect diction and sentence structure and speaks with a rigorous logical thought. He is very kind.

When I stepped back outside into the dark night to get some air, I began watching the rhythmic processes of the Bookmobile. Then I felt a hand pinch my shoulder. I jumped around, it was Larry. "How's it going?" he asked nonchalantly as he made his way inside. Once inside, he gave a short speech.

I've received a lot of letters since I started this case. Everything from "Good luck! I hope you win." to "We need some sort of victory. You better win this one, dammit." Let's not get our hopes up too high. This is a crazy case, we've got a slim chance of winning. I put everything I can into this case, I've tried my best, but we've got to understand that this movement we've created is far more important than what five smelly old guys in Washington think.

Four years ago, when we filed this case, people laughed us out of their office. "You want to take away people's property?" they exclaimed. No one understood what the public domain was, the media thought we wanted to get rid of copyright. That's not the case now. Every article understands the issues, people know what the public domain is. That's an important victory.

Even more important is that we have a group like this. We've got a team of people here fighting for our freedom. Whatever happens tomorrow, whatever the court decides, let's not lose this, let's not stop the momentum. There are many battles to fight, and we need to keep going.

(Needless to say, Larry said it far more eloquently.)

After some applause, Larry was dragged off by the group, told to go get some sleep before his case tomorrow. As the night wore on, we popped champaign bottles for the new Duke University Center for the Study of the Public Domain and toasted EPIC, whose founders were hosting the party.

The Line

When it was getting late, Seth Schoen, Cindy Cohn, someone else whose name I can't remember (sorry!) and I hopped into a cab. Seth, who hadn't been to Washinton since he was 8, kept looking at all the famous landmarks and saying "Wow!". When he passed SunTrust Bank, he broke into laughter. "SunTrust Bank!" he said. Everyone looked puzzled. "No, SunTrust Bank v. Houghton Mifflin co.." (The case over Alice Randall's The Wind Done Gone.) The lawyers got it. "Seth, I think you've got law on the brain. You're going to go crazy," Cindy said.

They dropped us off in front of the Supreme Court, where Lisa Rein and others set up camp. "We're an emerging society!" Lisa said, jumping up and down. Seth put down his bags and hung his suit on a tree. Lisa asked us all who we were and why we came and videotaped our answers. We talked, ate pizza (we asked them to deliver it to the Supreme Court (1 First Street), which they did) and playes Set long into the night.

Eventually, around 2AM, I went back to the B&B I was staying at to get some sleep. I set the alarm clock for 6:30AM ("That should give me plenty of time," I thought), plugged my laptop in, and went to sleep.

The Court

Ring ring. "Hello?" I answered sleepily. It was Brewster (he's up early, I thought), he wanted to know how to get his ticket to the Supreme Court. I gave him the info I had. After I hung up, I looked at the clock on my phone. It was already 8AM. I realized that when I plugged in my laptop I'd unplugged the alarm clock. I hurried to change into my suit and go downstairs.

It was 8:30. I realized there was no way I was going to make it to the lawyer's offices to pick up my ticket. I went straight to the courthouse. The camp that had been set up had disappeared, and now Lisa and the gang were at the front of a line that stretched down the many steps of the court, and all the way around the block. There was no way they'd all get in.

Remembering that my email said if I couldn't make it to the office, I should go to the Marshal's Office in the Supreme Court. Seth showed me how to get into the courthouse and I was informed by the guard that I should wait until 9AM. I milled around with a bunch of other lawyers. Brewster later appeared with a toasted buttered bagel in a bag and a bottle of water, which he offered to share.

As we waited together, I began to realize what an extraordinary person Brewster is. Despite his gruelling journey, he didn't seem the least bit tired. He was always selfless, thinking of how to help others, not himself. He was patient when people would talk, and talk, and talk to him. He talked about how hateful the anti-Scientologists were. "Clearly those people were very hurt," he noted. "I just don't like being around people so filled with hatred, even if it's for the 'right' side." When someone mentioned an "enemy", he said "It must be so hard to be her" sympathetically. And of course, he's spent his life building the world's biggest library and making it available to everyone.

We took the elevator up to the Marshall's office, and put our stuff away in the quarter-operated lockers. We got in line. I realized I had no ID, and that the Supreme Court probably wouldn't recognized be. But it turned out not to be a problem: when I got to the front of the line, they simply asked my name and crossed it off a list before seating me.

The Case

The courtroom itself was an impressive structure. Everything was very, very tall. We entered through tall gates into long rows of red-padded benches. I ended up sitting next to Jake Shapiro, formerly Assistant Director of the Berkman Center who is now started his own project, the Radio Exchange. He was a quiet person and good at recognizing famous people. He would catch my attention, look in their direction and then whisper their name: "Ken Starr".

Alan Greenspan sat several row in front of us. Jack Valenti came in a little late and sat down in front of him. Apparently Steven Levy, Declan McCullaugh, Rep. Mary Bono (whose law we were trying to overturn) and Rep. Boucher (whose almost certainly our side) were also there. Everyone in our group got in. Jace was #1, Lisa #2, Seth #6. They estimate only 25-50 people out of the hundreds waiting got a seat.

There was a loud crack, which sounded sort of like some speaker blowing out. As if pulled by some invisible force, everyone's legs immediate snapped straight and we all rised to stand as one. "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting." (I looked, the justices were still standing.) "God Save the United States and this Honorable Court!" The crack sounded again, and I realized it was a gavel. We all took our seats, not as simultaneously as we had stood up.

They called someone to the stand. "Muh, muh, muh, Mr. Chief Juh, Jih, Justice and mih, mih, may it please the court." Oh no, I thought, Larry was really nervous. Luckily, it turned out not to be Larry. Instead, people were asking for other people to be sworn into the Supreme Court Bar. The Chief Justice granted their requests. It was all very formal, with the same dialog replayed each time. The new members were sworn in.

Larry came up to the stand. "Mr. Chief Justice and may it please the court, Plaintiffs..." Larry got a few minutes of speaking in before he was interrupted. One of the female justices interrupted and pressed him on the First Ammendment issues. They went back and forth a few times with Larry doing a poor job of explaining. They gave up and moved on to what distinguished the '76 copyright extension from the '97 one. Larry stated that nothing did, his theory would have overturned both. "Perhaps we should find another theory then," said one of the male justices. I kept waiting for Larry to explain that Congress could set the copyright to any reasonable limit, but then they had to stick to it, and not retroactively extend it when it expired. But he didn't. Of course, as Brewster later noted, "it was a dance for which I don't know the steps."

I thought Larry had done an awful job until Solicitor General Olson (the man who argued for Bush in Bush v. Gore) came up. The Justices had a field day with him. Rehnquist got him to admit that a perpetual copyright would violate the Constitution. Kennedy got him to admit that a functionally perpetual (900 year) copyright would also be a violation. "Isn't that what petitioners argue?" asked another Justice. "That if you keep extending the term of copyright it's the functional equivalent?"

Justice Breyer seemed to have the economist's spreadsheet going in his head. "Alright, so $2.4 billion dollars have gone to vested copyright holders. This bill will give them $6 billion more dollars. And the additional incentive that gives is zero--to three decimal places as the economists say. I consider that on the harm side. It will also introduce, let's say $1 billion dollars in searching for copyright holders in this legal thicket--and for many you won't be able to find them, an immeasurable cost! So those are the costs. On the benefit side, I see unification [and two other things I forgot - ASw]. What do you see as the benefits?" "Well, there's harmonizing with Europe," said Olsen, "that lowe--". "That's unification," said Breyer. (Lessig(?) noted, that if France passed a law that didn't give copyright to hate speech, because of the First Ammendment, we wouldn't be able to harmonize with it. Similarly, if the EU extends copyright such that it violates the Copyright Clause we also can't harmonize.) Olson couldn't think of any other benefits.

One Justice asked how extending the copyright of a dead person by twenty years would give them extra incentive to promote science and the useful arts. "Was [famous classical dead author] sitting there and thinking, well I'd write some more if only copyright lasted another 20 years after my death? (Laughter from the crowd.)" Olson said that the publisher would be able to distribute more. Ah, one Justice joked, I guess we should give someone the copyright to Shakespeare, since there apparently is no incentive to distribute his works.

Many Justices repeatedly said that they felt it was a dumb law, that it took things out of the public domain without justification. But they were having trouble finding a way to declare it unconstitutional without also having to overturn the '76 extension, something they clearly didn't want to do. No Justices said they felt that the law was a good idea.

I was impressed by how smart the Justices were. These were people who very thoroughly understood the issues and thought quickly on their feet. They were interested in long-lasting effects and classics, I doubted many cared much for Mickey or Steamboat Willie. It's sad we don't have this level of intellectualism and intelligence in the rest of our government today.

However, it was extremely funny that in such a formal setting, with imposing red drapes surrounding the room and the Justices sitting high above the supplicants in big chairs that the Justices were so informal. They interrupted each other, spun around and tipped back and forth in their chairs, and some even pretended to go to sleep with their head on their desks. The whole thing looked like a bunch of kids and school, all of which would almost certainly be diagnosed with ADD for their curiosity and inability to resist asking questions. Macki mentioned that Justice Clarence Thomas looked like he was chewing gum, trying hard to hide it from the teacher.

During the argument, one of the security guards busted someone who was taking notes and made him put his paper and pen away.

Soon enough the case was over, and we got up and left the building.

Luncheon

Outside, news media surrounded Larry, who gave a short speech I was unable to hear. Rep. Mary Bono showed her friendlyness by speaking afterwards and shaking hands with Eric Eldred. Eldred spoke third, before the media cloud dissipated. After we all got sick of talking to journalists, we walked across the street to a luncheon hosted by Public Knowledge at a Women's Suffrage museum. A carboard Mickey-head behind bars was at the top of the building, marking the place.

Larry and Eldred gave short talks, then Larry went home for a nap. Many interesting people, like Eben Moglen (of the FSF) and Danny Weitzner (of the W3C) were there. Seth kept mentioning that the leaders of major trade associations were there, and that he felt bad for not talking to them about the broadcast flag he is fighting.

Library of Congress

After talking with lots of people for a while, Seth and I went to the Library of Congress. Seth exclaimed that the LOC Reading Room was the most beautiful thing he'd ever seen. Unfortunately, no one was allowed in the stacks because people stole books when they were and even the reading room could only be used if you were a Congressman, a student or a registered researcher with photo ID. Seth bought many postcards of the building.

However, they did have a display room with many of their most famous works and it was very interesting.

Set Puzzles

We went back to the hotel and played Set for a bit. Seth left me with two interesting puzzles: What's the largest number of Set cards you can lay out that have no valid set? and What's the largest number of Set cards that can be left at the end of a legal game of Set? (which, by definition have no valid set).

Heading Home

I took a cab back to the airport. When I got there, I realized I'd left my ticket at the hotel. I asked at the desk if I could get a new ticket. They said normally cost $100. I didn't have $100. They said they would waive the fee for me because I couldn't pay. They started punching keys into the computer, muttering. Soon four people joined in. It looked like they were playing a computer game. "Try PQRS! No, wait that won't work. PQRH." "Oh yeah, then you try!" They switched positions. "Hah! You've got to remand and reverse before you insert." After what seemed like an eternity, they presented me with a boarding pass.

When they put the pass through the machine, I was marked for screening. They searched me and my luggage pretty thoroughly. I was let on board. THe plane was pretty empty, I slept most of the way back. At one point I woke up and the plane was shaking. The captain announced that we should buckle our seat belts and outside the window a lot of gray stuff surrounded the planes. I thought we were going to crash.

I made it home safely, and went to sleep. I didn't wake up until 10AM. Then I wrote this. Now it is 1PM.

Thanks

Many, many, many, many thanks to Larry Lessig who made something for me to come to and let me come. It was such an incredible experience, I am forever in your debt. Thanks to Seth, for putting up with me, teaching me, helping me and showing me around. Thanks to everyone who said nice things about me and made me feel at home. Thanks to Lisa for arranging the line. Thanks to Eric Miller for not going, which is the reason (I suspect) I was able to. (I'm sorry you couldn't make it, though!) Thanks to the Justices for taking the case. Thanks to Eric Eldred and the other plaintiffs for raising the issue. Thank you for reading this. Thanks to everyone I forgot to thank, please let me know.

Posted by Aaron Swartz at October 10, 2002 01:02 PM in Personal
Aaron Swartz (me@aaronsw.com)
All text above by me is placed in the public domain.

Below is what I managed to write at 3am from the front steps of the Supreme Court. I meant to post it that night, but things started getting really hectic as the hour of 6am approached because we had to all take turns going back to a room I had rented close by so we could all change into our court clothes and dump off all of our blankets and stuff.

I'm going to keep posting these in small segments, but I will be putting them all together into some kind of a comprehensive document next week (I'll be on the road till next Tuesday.)

Enjoy!

10/09/02 - 3:00am -- From in front of the Supreme Court Building, Washington DC

Tonight has been a really great time so far waiting in line.

I thought there would be a ton of people in line, but it has turned out to be just us for the first few hours (from 7pm till around 10 or 11pm). So we may have overdone it a bit showing up at 7pm, but there was just no way to know for sure and we didn't want to risk it. (As it turns out, only 25 members of the general public were admitted!)

Jace Cooke got there first at 7pm (right when I asked him too!) -- I was still packing up my friend Doug McVay's car with the blankets and things I was bringing, so that made me second in line when I got there around 7:30.

We were on the steps very briefly before the Police Officer on duty asked us very nicely to move down to the sidewalk where the "first line" usually forms. (I will be posting more details about how the lines work in another posting...)

We laid out the blakets I had brought to cover about two or three ten foot squares so we would have enough room for our group as they arrived. I had never met Jace before this, so the time flew by really quickly talking about things. We ordered a pizza and yapped the time away.

Lodrina and Macki showed up around 10pm. Then Seth Schoen and Aaron Swartz showed up around 10:30, and Kevin Burton got there around 11pm.

There were a few other small groups of mostly law students that showed up too over the course of the evening between 11pm - 1am. We had coupons from our earlier pizza now, so we ordered four more pizzas and some people got a SET game going. The entire Internet Bookmobile gang showed up around midnight too!

The U.S. Supreme Court Federal Police Officers were consistently helpful and courteous over the course of the evening. Each time a new officer came on duty, he or she would walk over and ask what the case was about. They seemed really interested too -- and they all "got it" pretty quickly in terms of what the public was losing as a result of these multiple extensions to what what originally intented to be a "limited" copyright term of 14 years, renewable once to 28 years.

All of the Officers seemed rather impressed that we would feel so strongly about it to wait in line all night to see the Argument first hand. When the outdoor patrols stopped soon after midnite, one of the Officers gave us his card so we'd have his phone number if we needed anything over the course of the night. There was a police car and/or truck about 200 yards away kitty-corner to the Supreme Court for most of the evening too -- that made me feel a little safer as I attempted to close my eyes and get some sleep.

Good thing I brought extra blankets just in case -- some of the law students that showed up later that weren't in our weren't as well prepared, so I gave them a blanket and a cup of hot tea. I also had toe warmers if necessary but only Macki ended up needing them. I also had a couple extra pairs of gloves that we were rotating as needed.

So now it's 3:00am in front of the Supreme Court and I can't sleep. Jace, Kevin and Seth have gone for a walk around the Capitol, and most of the others are bundled up in blankets sleeping or trying to sleep. (I can hear snoring so I know somebody's sleeping.) It's extremely quiet and beautiful here out in front of the Supreme Court. I'm taking video of it so you can all see for yourselves when I get back home next week. (Sorry for the hold up, but my travel Mac isn't equipped for video editing.)

It's not as cold as I had feared, but I sure wish I could get some sleep. Guess I'm just too excited...