Re: [dvd-discuss] eldred change

["Roy Murphy" <murphy(at)panix.com>]

'Twas brillig when someone somewhere scrobe:
>01-618 ELDRED, ERIC V. ASHCROFT, ATTY. GENERAL
>The order granting the petition for a writ of of certiorari is amended >to
read as follows: The petition for a writ of certiorari is granted >limited to
Questions 1 and 2 presented by the petition.

Those were the two important questions.  From the Cert Petition at 
http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cert-petition.html

    QUESTIONS PRESENTED

    Did the D.C. Circuit err in holding that Congress has the power 
    under the Copyright Clause to extend retrospectively the term of 
    existing copyrights?

    Is a law that extends the term of existing and future copy-
    rights “categorically immune from challenge[] under the First 
    Amendment”?

    May a circuit court consider arguments raised by amici, different 
    from arguments raised by a party, on a claim properly raised by a 
    party? 

The petition itself notes that the third question is not one that the 
court needs to address here.

    Footnote: 13     This case also presents a question for review 
    about whether a Court of Appeals must ignore an argument made by an 
    Amicus for a claim properly raised simply because a party has not 
    expressly adopted that argument in its brief. In the court below, 
    Amicus Eagle Forum argued that the “promote the Progress of 
    Science” clause was an independent constraint on Congress’ 
    Copyright Clause power. While petitioners expressly embraced that 
    argument at oral argument, App. 29a (Sentelle, J., dissenting), the 
    D.C. Circuit held that Ashwander v. Tennessee Valley Authority, 297 
    U.S. 288, 346 (1936) (Brandeis, J., concurring), required that it 
    could not consider the argument of Amicus. This conclusion is wrong 
    as an application of Ashwander, but this Court need not resolve 
    this error. Because there is no doubt that petitioners have raised 
    and properly preserved the claim that the extension of copyright 
    terms is beyond Congress’ Copyright Clause power, App. 31a 
    (Sentelle, J., dissenting), and because the court below nonetheless 
    considered and rejected the argument of Amicus, App. 11a-12a , 
    25a , there is technically no need for the Court to review this 
    question in this appeal. Nonetheless, petitioners raise the 
    question, and would defend the Amicus’s right, to give this Court 
    the opportunity to clarify the role of amici in argument. 
 
-- 
Roy Murphy      \ CSpice -- A mailing list for Clergy Spouses
murphy@panix.com \  http://www.panix.com/~murphy/CSpice.html