Re: [dvd-discuss] Eldred Transcript Online (aka Olson GOT SLAMMED!)

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Seth Johnson <seth.johnson@realmeasures.dyndns.org> wrote:

> The transcript from the Eldred oral argument of a couple
> weeks ago is now online.  My own impression of it is that
> our side did better than it sounded from the earlier reports
> I'd read, including Lessig's own; the Court seemed to be a
> lot harder on the Government's argument, and the
> Government's representative seemed less able to put forward
> a compelling presentation, than on our side.  [[[snip]]]
> 
> > http://www.aaronsw.com/2002/eldredTranscript
> 
> -- 
> Matthew Skala

Wow!!!! The early reports didn't do our side justice at all. I absolutely agree
with Matthew that the Court was SLAMMING Olsen, big time. Scalia's first
question of the day seemed to be the coup de gras of a tag team beating that
started off by Rehnquist, was continued by Kennedy and concluded when Scalia
absolutely nutshelled the whole case and basically makes Olson eat his words.

I am VERY optimistic now. They got it!!! I really think they got it!!! This
line of questioning has NO REBUTAL. It's over. Retroactive extension =
functional equivalent of an unlimited times, QED.

----- Questioning of OLSEN:

CHIEF JUSTICE REHNQUIST: Well, if Congress says we're going to grant this
copyright indefinitely, forever --

GENERAL OLSON: That would seem -- [*32]

CHIEF JUSTICE REHNQUIST: -- that violates the limited term, does it not?

GENERAL OLSON: I acknowledge that. And anything that --

JUSTICE KENNEDY: In Victorian England you could buy a box seat for 900 years.
There was serene complacency about their culture, and God bless them, but --

(Laughter.)

JUSTICE KENNEDY: -- I really think this is an important question and, as
Justice O'Connor points out, if we have to ask what's the most plausible
explanation for this rule, to reward existing vested interest or to stimulate
new works, it seems to me that it's probably the former.

GENERAL OLSON: Well --

JUSTICE KENNEDY: I mean, we know that.

GENERAL OLSON: It is -- well, it -- let me say with respond -- in response to
both of those questions, an unlimited time would violate the Copyright Clause.
Something that was the functional equivalent of an unlimited time would violate
the Copyright Clause, but the Framers specifically did not put in numbers. They
had the opportunity to do that. Thomas Jefferson suggested that a number should
be put in. We submit that it would be -- even -- since the petitioners don't
suggest that it's an appropriate function of this Court, certainly in this
case, to pick a number, 133 years or something [*33] of that nature, but it is
quite clear that Congress from the Statute of Anne, 1710, we have 300 years of
history, of Congress thinking that it continues to benefit the process, not
just of the productivity, of the creation of the work itself, but the
dissemination of it to provide --

JUSTICE SCALIA: General Olson, you say that the functional equivalent of an
unlimited time would be a violation, but that's precisely the argument that's
being made by petitioners here, that a limited time which is extendable is the
functionable, functional equivalent of an unlimited time, a limited time that
10 years from now can be extended, and then extended again, and extended again.
Why -- their argument is precisely that, a limited time doesn't mean anything
unless it means, once you have established the limit for works that have been
created under that limit, that's the end.

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