Live blogging from the Eldred hearing

[Dave Farber <dave () farber net>]

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From: Cory Doctorow <doctorow () craphound com>
Date: Wed, 09 Oct 2002 10:41:27 -0700
To: dave () farber net
Subject: Live blogging from the Eldred hearing

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 Copyright

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 Beyey 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 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 governmen 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.
-- 
Cory Doctorow
doctorow () craphound com http://www.craphound.com

Blog: http://boingboing.net


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