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[dvd-discuss] One In-Person Eldred Report

(Forwarded from New Yorkers for Fair Use list.  Website text
pasted below.  -- Seth)

-------- Original Message --------
Subject: Supreme Court Report
Date: Wed, 9 Oct 2002 15:56:29 -0400 (EDT)
From: Brett Wynkoop <wynkoop@wynn.com>
To: fairuse@nyfairuse.org

FYI folks interested in fairuse should take a look at this

> http://allafrica.com/staff/kwindla/eldred.txt



> http://allafrica.com/staff/kwindla/eldred.txt

October 9, 2002

I've just come from the Eldred v. Ashcroft oral argument. 

My impression is that things didn't go very well for Lessig.
He was unable to cleanly parry any of the Justices major
concerns. Theodore Olson (the Solicitor General, arguing the
other side of the case) was quite unimpressive, but he has a
much easier argument to make.

But, I'm not a lawyer, and certainly not a seasoned Supreme
Court watcher. It's possible that I'm interpreting the
aggressive, devil's-advocate style of Court questioning as
more pointed than it was intended to be. 

For those who've never seen one of these things, they're
short and somewhat rough-and-tumble. Lessig, as the
petitioner, has half an hour, then Olson gets half an hour,
then Lessig gets three minutes of summary. Except during the
summary, the lawyers were rarely allowed to say two
sentences before being interrupted by a Justice. The
Justices choose the direction of the argument; the lawyers

Given the time constraints, the oral argument boiled down to
just a few key points on each side:

Lessig has framed a very conservative argument. Congress is
constrained by the specific language of the copyright clause
in two important ways: copyrights must be limited in their
duration, and granted for the purpose only of "promot[ing]
the Progress of Science and the useful Arts." Congress has
retrospectively extended copyright -- ie, granted term
extension to existing (as opposed to new) works -- numerous
times. Doing so violates both of the constitutional limits
on Congress's copyright-granting powers.

In addition, Lessig advances a second, separate argument
that extending the terms of existing copyright violates
Freedom of Speech protections under Article I, because the
"restrictions on speech" greatly outweigh any plausibly
societal "benefits". As I understand it, this test of
restrictions/benefits is termed the "intermediate" test
under First Amendment law, and is the general test applied
to content-neutral regulation of speech.

In Lessig's opening -- which lasted about thirty seconds
before he was cut off by Justice O'Connor -- he said that
"this is not a case" about the "general power" that Congress
has over copyrights, but about "specific limits." The
narrowness of this argument is frustrating to me, as a
non-lawyer observer, but obviously Lessig fashioned a case
that he thought this Court might be willing to rule on. He's
trying to avoid asking the Justices to make new law, and
certainly trying to avoid asking them to make policy.

The government's argument, as advanced by Olson, is very
simple: the language in the copyright clause is so general
as to almost not restrict Congress' power at all. The only
thing Congress wouldn't be allowed to do is grant copyrights
(or patents) that are explicitly non-limited in term.

Lessig's problems are several:

  1) Congress has passed copyright extensions 11 times, and
almost all of those extensions were retro- as well as
prospective. This is the first court challenge of the
constitutionality of retrospective copyright extension. The
Justices wanted to know why, if this is such an important
thing, there's never been a challenge before. Lessig's core
answer to this is more or less "the Internet changes
everything." The Justices didn't ask any follow-ups about
this technology-driven argument. 

  2) If the retrospective extension in the 1998 law are
unconstitutional, then certainly those same extensions in
the 1976 law (the last major change) are also
unconstitutional. And in both laws, the retrospective
extensions are inseverable from the prospective extensions.
Declaring both laws unconstitutional would cause, in Justice
Breyer's words, great "chaos." There followed some back and
forth about "retrospection" and "severe disruption," or the
Court's latitude to explicitly leave alone the earlier law
even if it throws out the later one.

     The Court didn't much want to talk about retrospection
with Lessig. Breyer joked that if Lessig's argument about
1998 applied equally to 1976, then he'd better find another
argument. Everyone laughed. (Everyone always laughed
whenever a Justice made a joke.) When pressed about whether
it was possible to distinguish between 1976 and 1998, Lessig
said that according to his argument, there was no
substantive difference. However, according to the
government's argument, there were differences. I didn't
really understand either his point, or where he expected to
get making it, and the Justices didn't seem to much like it.

  3) The retrospective/prospective distinction and the Free
Speech argument don't seem to fit together very elegantly.
Justice Ginsberg, joined by Souter and the Rehnquist, asked
a long series of questions trying to get at the core of
Lessig's Article I argument.

     Lessig didn't seem to do well on this topic. He kept
talking about the "intermediate test," and the Justices kept
asking why this content-neutral, equally-applied
retrospective extension should be different from a
content-neutral, equally-applied prospective grant. About
the best argument Lessig made was that there's no such thing
as an equally applicable retrospective extension, because a
retrospective extension always applies to "particular
authors." On the face of it, this is a weak argument, unless
the Justices are looking for some bit of minutiae on which
to hang new law.

     Suitor suggested that Lessig make a connection between
the copyright clause "aim" and the First Amendment argument.
Lessig refused this out, saying that the two arguments were
independent. O'Connor then said that Lessig was asking the
Court to consider the First Amendment argument as a kind of
fall-back position, and that the court had never done such a
thing -- that it was "without precedent" to frame the
argument in that way. (At least, that's what I understood
her to say, she didn't use the word "fallback," and I might
have lost the thread of her criticism.)

  4) No matter how convincing Lessig's argument that
Congress is being slippery, or foolish, or failing to really
promote progress might be, he has a very steep hill to
climb. The Justices have to decide that Congress'
retrospective extension of copyright expressly violates
either the copyright clauses limitations, or the First
Amendment's requirements, or both. Neither is clear cut. The
final part of the half hour was devoted to questioning
Lessig about what "test" the Court should apply to decide if
an extension is valid under the copyright law.

     Because there's no specific time-frame given in the
constitution, it's very difficult for the Justices to say
that 70 years is okay, but 90 years is too long (or
something similar). In addition, the hard test of "promoting
progress" that Lessig wants to be definitive isn't really
that concrete. So the argument hinges on the pattern of
Congress's actions, versus the intent of the framers.
O'Connor said that she may well be convinced that the 1998
law is bad policy, but the Court obviously doesn't do

     Stevens asked whether a retrospective extension that
does promote progress is permissible. Lessig said yes.
Stevens then said that the 1998 law, at least on its face,
does that. Lessig: well, that's the government's position.
Stevens: but that's what you just said. Lessig: no, Congress
still has to abide by the constitutional limits. We were all
confused.       As mentioned above, Olson's argument was
quite straight-forward. No matter how the wind blew, he just
said the equivalent of, "that's nice, but Congress gets to
do almost whatever it wants, here." He gave lots of
equivocal answers to specific questions and hypotheticals,
but when pressed said the government's position is that
there is no judicial review for any piece of copyright law,
short of some explicitly unconstitutional language like
"permanent grant" or "unlimited term."

The one really interesting line of questioning was pursued
(several times) by Justice Breyer, who wanted Olson to come
to terms with an economic argument that showed significant
"harms" from the 1998 law's retrospective extension as set
aside nebulous "benefits." His harms were:

  1) $6B in additional royalties for a small number of
copyright holders

  2) $1B in costs borne by people who need to track down
copyright holders of non-revenue-producing works that are to
be included in collections, databases, etc.

  3) "innumerable" harm when those holders cannot be found,
and the works cannot be used.

The "benefits" are:

  1) "uniformity," which includes "harmonization" with
European law. Harmonization is one of the government's big
arguments in favor of the 1998 law.

  2) "consistency," meaning that new and old copyrights are
subject to the same terms.

Breyer asked Olson to give more benefits, and Olson gave
"harmonization. Breyer said that's part of "uniformity."
Olson talked some about the importance of harmonization,
including an argument that there needs to not be a
"disincentive" to publish in the United States. On the face
of it, a laughable argument.

Breyer said that the "additive value" of a 70 year term
versus a 50 year term is "essentially zero." Olso said that
wasn't true, if you were 80 years old the additional 20
years might encourage you to produce, or if you were a
publisher, the additional 20 years might change your
economic calculation. Breyer pressed on this point, saying
he didn't see why the 80-year-old author would see a
difference. Olson said, well, really that's for congress to

The one non-obvious tack Olson's argument took was to
continually emphasize that the "promot[ing] progress"
language wasn't intended to apply just to authorship, but
also to distribution. Making things widely available
required that publishers have a strong economic interest in
the copyright system. By implication, the 1998 law was
intended to promote progress by strengthening publishers'


Well, I've written more than I intended to. There's more
stuff in my notes, but that's most of the substance (at
least as I understood it) of the hour. It was a fascinating
experience, sitting in the courtroom listening to Lessig
answering questions from the Supremes. I would, personally,
have liked to hear the Justices ask some more questions
about how the "regime" that this law is part of changes in
the context of the Internet, but perhaps we'll have to wait
another generation before we're all ready for that.