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Features: Live From Eldred v. Ashcroft - II
Posted by Raul Ruiz on Wednesday, October 09 @ 19:38:38 EDT
Contributed by Anonymous (Name Withheld on Advice of Counsel)
Copyright
Anonymous (Name Withheld on Advice of Counsel) writes "I was one of the people who made it in to see the oral argument this morning. Here is my take. Please keep in mid that people in the peanut gallery (except press and clerks) are not allowed to have recording devices or even take notes.

First, I have to say that getting up at 3am to head to the courthouse this morning sucked! I actually got there at about 4:30am and ended up being number 28 (even though I was around 15 around 4:30...gotta love people materializing in the front of the line). Once the first group got let into the foyer of the court house (about 40 people), they let the first 25 go into the courtroom. Luckily they were just letting the first group get in and then the let me, and probably 5-10 people after me, into the courtroom.

Keep in mind while reading this that I am not an expert on the court! :)

I thought both sides got hammered on some points. The biggest concern of the Court seemed to be having to declare the past extensions unconstitutional if the most recent one was. Here are some of the points I have jotted down since I got back to the office. I'll try to break it down by side.

Eldred (through Lessig)
1.) The first big issue that Lessig was asked about was what the ramifications of declaring the Sonny Bono Act unconstitutional. The Justices specifically wanted to know what effect it would have on the other copyright extensions. Lessig said it would be a problem and at least the 1976 extension would be overturned as well. (This was later clarified to indicate that the first two extensions would be okay).

2.) The other big issue Lessig was asked a lot about was his First Amendment argument. Lessig seemed to be combining the Copyright provision of the Constitution (Article 1, Section 8) with the 1st Amendment to get his violation. Ginsberg wanted to separate the two arguments and know what happened if the Article 1, Section 8 analysis was taken out of the picture and what the 1st Amendment argument was on its own. I never heard a very compelling answer to this inquiry.

3.) Lessig gave good analysis comparing international law (mainly talking about the EU in general) to the US. He pointed out that our Constitution is one of the only ones in the world that provide for a "limited" copy protection.

Ashcroft (through Solicitor General Olson)

1.) The economic arguments. Breyer was very big on the economics of extending copyrights. He touched on a couple different aspects:
a.) Retroactivity -- He did not see any benefit to having it apply retroactively. He said the people who had already created the works that were protected would not be getting the "incentive" since the works were already created. He also said he could not think of a single reason why someone who had not created a work yet would do so based on the extension, that if they were going to create the work the extra 20 years would be irrelevant. Olson said that artists would see other artists benefiting from the extensions and be more likely to want to avail themselves of the copyright protections by creating new(original) works.
b.) He [Breyer] criticized the idea if the extension from 50-70 years and basically said that the only one who wins is the big copyright holders (to the tune of multiple billions of dollars). He further said that the benefit to the public is trivial at best.

2.) Article 1, Section 8. There were questions about how an extra 20 years actually benefited the "useful arts and sciences" since the work took longer to get into the public domain. Olson's answer was that there would be more work created...or something to that effect.

3.) O'Conner got on the topic of the Framer's Intent. She questioned that while modern copyright flies in the face of what the framers had in mind, does that make it unconstitutional? She also inquired whether the Supreme Court had appropriate "judicial review" powers to look at this. Olson agreed that just b/c the framers would not have wanted copyright like this did not make it unconstitutional. He also said that Congress is the proper body to determine what limited means in the context of Article 1, Section 8.

4.) There was debate as to what a "limited" time was. Some of the justices (I think it was Souter and Kennedy, but I don't remember) questions whether extending the copyright term (and applying it retroactively) did in fact act limitless. They further explained that technically a copyright for 900 years is a limit, but for all practical purposes it is limitless. They wanted to know how far Congress could go before it crossed the threshold, but never really got a straight answer.


Overall, I thought both sides did a good job presenting their cases. The questions that were being asked were difficult ones. Both sides had flaws in their cases. The Justices (especially Scalia) seemed happy that there appeared to be a way to just declare the Sonny Bono act unconstitutional without reversing the other extensions. I while I don't think Lessig won his 1st Amendment argument, I do not think he lost the case entirely. *IF* the court rules in favor of Eldred, I would expect it to be a VERY narrowly tailored opinion that got rid of the Bono extension and at the same time sent a message to Congress that they are watching. I would not expect them to give any firm numbers about how many years are okay to extend copy protection for, only that what Congress has done is too much.

I also found it interesting that Kennedy was talking about copyrights AND patents.


It will also be interesting to see what implications this has on the Berne Convention. One of the reasons claimed for passing the Bono Act was to harmonize US copyright law with that if the European Union.

These are my preliminary observations that I am recalling at the moment. I'll post more as it comes to me.

--Brian
"
 
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