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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