Eldred v. Ashcroft was argued on Monday, May 6, 2002. The case was real. The judges who heard it were real. But the court was moot.
It was the final round of competition for the Morris Tyler Moot Court of Appeals at Yale.
On behalf of the petitioner, Eric Eldred, stood Travis LeBlanc '02 and Chimene Keitner '02. The counsel for the respondents, representing Attorney General John Ashcroft in this hypothetical forum, were Adam Hickey '02 and Kimberly Zelnick '03.
These four were finalists in a process that began early in the term. They had passed through two previous rounds by briefing and making oral arguments on other cases. They then had to research Eldred v. Ashcroft for the final round and write extensive briefs outlining their arguments. Read the brief for Eldred and brief for Ashcroft [PDF].
The oral presentation would be the last step.
The conditions and requirements of the moot court mimic a real appellate court as closely as possible. And for the final round, they had three genuine appeals court judges — Morris S. Arnold from the Eighth Circuit, Hugh H. Bownes from the First Circuit, and John M. Walker from the Second Circuit — performing in the role of justices.
Background of the Case
Following intense lobbying by media conglomerates such as Disney and Time Warner, Congress in 1998 enacted the Sonny Bono Copyright Term Extension Act (CTEA) [PDF], extending the term of all existing and future copyrights by twenty years.
Petitioner Eric Eldred maintains a website that gives readers free access to materials whose copyrights have expired and that have thus passed into the public domain. Petitioner Laura Bjorklund operates a publishing company (Higginson Book Company) that specializes in genealogy texts and out-of-print histories. Because of the CTEA, many copyrights that were set to expire — including Disney's 1928 copyrights on Mickey Mouse and other famous cartoon characters — will now not expire until after 2020. Eldred and Bjorkland sued the U.S. Attorney General, John Ashcroft, seeking to have the CTEA declared unconstitutional.
Petitioners argue that the CTEA exceeds Congress's authority under the Copyright Clause of the Constitution and that it conflicts with the First Amendment. The Copyright Clause grants Congress authority to:
promote the Progress of Science and useful Arts, by securing for limited Times to Authors ... the exclusive Right to their respective Writings.
Petitioners argue that be extending the length of existing copyrights, the CTEA exceeds this authority, because it does not "promote the Progress of Science and useful Arts." Petitioners further argue that the CTEA conflicts with the "limited Times" requirement as well as the rule that copyrights may only be granted to original works. Finally, Petitioners contend that the CTEA violates the First Amendment by burdening more speech than necessary.
Defending the CTEA, Respondent points out that Congress has extended the term of existing copyrights on occasions dating back to the country's founding. The Copyright Act of 1790 applied to existing works, as did copyright term extensions passed in 1831, 1909, and 1976. Respondent claims that the phrase "promote the Progress of Science and useful Arts" is merely a preamble that does not place an enforceable limit on Congress's exercise of the copyright power. Even if this phrase does place limits on Congress, Respondent claims, the Copyright Act promotes progress in a number of ways — it harmonizes U.S. copyright protection with that granted by the European Union, it gives copyright owners an incentive to preserve and restore old films and other deteriorating media, and it compensates copyright owners for unforseen changes in technology and human lifespan.
The District Court for the District of Columbia dismissed the Petitioners' suit, reasoning that the CTEA did not violate the "limited Times" requirement, because it extended the length of existing copyrights by only a specified time period.
The D.C. Circuit Court of Appeals affirmed in a 2-1 decision. The court held that, as an exercise of the copyright power, the CTEA is "categorically immune" from First Amendment challenge, and that free speech values are adequately served by the rule that copyright protection does not extend to a work's underlying ideas. The court rejected the claim that the CTEA protects nonoriginal works, reasoning that a work does not lose its originality merely because it was previously copyrighted.
Judge Sentelle dissented. He argued that the extension of an existing copyright does not provide an incentive for the production of new creative works, and that the CTEA therefore does not promote creative progress.
The full D.C. Circuit Court of Appeals declined to rehear the case en banc, with Judges Sentelle and Tatel dissenting. The Supreme Court granted [PDF] review of the case on February 19, 2002, to determine whether the CTEA is constitutional.
The Oral Argument
Each contestant was allotted twenty minutes to speak, and the petitioners chose to reserve three of those minutes for rebuttal of the government's case. Travis LeBlanc, a native of New Orleans and student not only of law but of government at the John F. Kennedy School somewhere near Boston, made the argument that Congress had exceeded its power under the copyright clause of the Constitution in providing for retroactive extension of copyright. LeBlanc asked how the CTEA could provide incentives for Walt Disney who, unfortunately, is dead (or is he?).
View Travis LeBlanc's Presentation [MOV] - [Requires Quicktime]:
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The judges acted as a "hot bench, frequently interrupting the presenters with questions, probing the weaknesses of their arguments. And, as one of the moot court chairs, Robert Kry '02, pointed out, the judges on the panel do this every day — they are experts at it. If a contestant makes a mistake, "they will nail you on it," he said.
Adam Hickey, a native of Ft. Lauderdale, former newspaper reporter and graduate of some college in Massachusetts, countered LeBlanc's presentation by arguing that it was Congress, not the courts that should determine the appropriate length of copyright. Moreover, the copyright term was limited, which was all the Constitution requires.
View Adam Hickey's Presentation [MOV] - [Requires Quicktime]:
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Chimene Keitner, another graduate of a certain Massachusetts educational facility, Rhodes Scholar and future Canadian jurist, was next for the petitioner. She made the argument that copyright must be tempered by the First Amendment, and that neither retroactive copyright extension nor the 20 year prospective extension met Constitutional muster. Any extension of copyright terms, she said, must be judged by an "intermediate scrutiny" standard, which forces a significant burden of proof on the government to justify legislation.
View Chimene Keitner's Presentation [MOV] - [Requires Quicktime]:
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Kimberly Zelnick, San Diego native and Williams College graduate, gave the last presentation, arguing that fair use, the idea/expression dichotomy and other limitations on copyright already reconciled the First Amendment and copyright law. Indeed, she claimed that copyright is the very "engine of free expression."
View Kimberly Zelnick's Presentation [MOV] - [Requires Quicktime]:
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The Decision
Following the final rebuttal, the judges withdrew to consider criteria such as use of authorities, articulation of the argument, deference to the judges, and tone of voice. When they returned to the bench, they declared the contest to be "extremely close" and that "everybody did an excellent job." Nevertheless a choice had to be made, and the judges declared that the team that had most persuasively argued their case in the brief and the oral presentation was Travis LeBlanc and Chimene Keitner. The prize for best oral argument went to Chimene Keitner.
View the decision [MOV] - [Requires Quicktime]:
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The only question remaining is how the Supreme Court will handle what the Morris Tyler Court has already mooted.
Additional News
In related news, Law.com examines the infighting over this case in the American Bar Association (Split IP Bar Feuds Over Copyright Law). Business Week interviews Prof. Larry Lessig, who is leading the fight against the CTEA (Lawrence Lessig: The "Dinosaurs" Are Taking Over).
Prof. Eugene Volokh of the UCLA School of Law debated Judge Alex Kozinski on the constitutionality of the CTEA. Prof. Volokh believes the extension is unconstitutional, although he finds the issue very close.