[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

[dvd-discuss] LawMeme In-Person Eldred Report

> http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=392

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

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 


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 could not see why the First
Amendment arguments were different for prospective and
retrospective copyright. She seemed to think this was a bad

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

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. 


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!) 


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. 


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.