Eldred vs. Ashcroft
October 10, 2002
NY Times On Yesterday's Eldred Argument

Justices Hear Arguments in Challenge to Copyrights
By Linda Greenhouse.


The justices appeared to agree that there should be a limit somewhere, but not that they should be the ones to impose it. "I can find a lot of fault with what Congress did here," Justice Sandra Day O'Connor told Professor Lessig. But she added that "it's very difficult to find the basis in the Constitution for saying" lawmakers do not have the right to set the limit even if "it's longer than one might think desirable...

"Is there any limiting principle out there that would ever kick in?" Justice O'Connor asked. An explicitly perpetual copyright would be unconstitutional, Mr. Olson conceded. He said that even if extending existing copyrights did not induce new creative efforts, Congress was entitled to have other goals in mind, like giving copyright holders a continued financial incentive to keep their works in distribution.

Professor Lessig's argument was exactly the opposite. The Internet had brought about a "fundamentally important changed circumstance" in the traditional copyright equation, he said, by making the public domain so readily accessible and therefore raising the stakes in keeping copyrighted material flowing into the public domain.

Here is the full text of the article in case the link goes bad:

http://www.nytimes.com/2002/10/10/business/10BIZC.html

Justices Hear Arguments in Challenge to Copyrights
By LINDA GREENHOUSE

WASHINGTON, Oct. 9 No member of the Supreme Court had a good word today for the 1998 law that added 20 years to all existing copyrights. But that did not make the job any easier for Professor Lawrence Lessig of Stanford Law School, who faced an uphill battle to persuade the justices that the extension, which Congress adopted at the behest of the Walt Disney Company and other powerful corporate copyright holders, was not only bad policy but unconstitutional.


Hadn't Congress granted copyright extensions numerous times since the country's earliest years, the justices wanted to know. Didn't this challenge to the latest extension necessarily call into question the validity of the major rewriting of federal copyright law in 1976? Wouldn't accepting Professor Lessig's theory mean that "the chaos that would ensue would be horrendous?" Justice Stephen G. Breyer asked.

"Under our theory as we've advanced it, you're right," Professor Lessig conceded, adding that the court would not have to go so far.

Justice Breyer responded, "Maybe we ought to find another theory."

Before the court opened this morning, the line of people hoping to get a glimpse of the most important argument in years about intellectual property was already around the block. The lucky few who got in witnessed a fast-moving tutorial in which the justices clearly came prepared to listen and learn. Although they had many questions for Professor Lessig and Solicitor General Theodore B. Olson, who argued in defense of the law, the justices uncharacteristically appeared to go out of their way to permit the lawyers to answer with a minimum of interruptions.

The basis for Professor Lessig's challenge to the Copyright Term Extension Act is the text of the clause in Article I, Section 8 of the Constitution authorizing Congress "to promote the progress of science and useful arts" by issuing exclusive copyrights for "limited times." The first federal copyright law, enacted in 1790, provided for a 14-year copyright, renewable for another 14 years. The latest law extended individual copyrights to 70 years after the creator's death and copyrights held by corporations to 95 years.

Not only is this the functional equivalent of a perpetual copyright, Professor Lessig argued, but extending existing copyrights fails to serve the constitutional purpose of promoting creativity. His role in organizing the lawsuit on behalf of a coalition of Internet publishers and others seeking access to the public domain has given Mr. Lessig a kind of cult status as a cyberspace guru. An article in the current Wired magazine proclaims him "the great liberator" who is "about to tell the Supreme Court to smash apart the copyright machine."

While Professor Lessig's low-key argument reflected a narrower goal, it is nonetheless true that after losing in two lower federal courts, he managed to take the case further than most people expected. He persuaded the Supreme Court to hear his appeal, Eldred v. Ashcroft, No. 01-618, with a petition that played into the current majority's interest in placing limits on the exercise of Congressional power. He said today that the Copyright Clause was "the most carefully limited" of all the clauses in Article I, Section 8 that define Congress's powers. "This case is about limits to an enumerated power," he said, adding that if the latest extension was permissible, "there is no limit" to Congress's ability to extend copyright terms.

The justices appeared to agree that there should be a limit somewhere, but not that they should be the ones to impose it. "I can find a lot of fault with what Congress did here," Justice Sandra Day O'Connor told Professor Lessig. But she added that "it's very difficult to find the basis in the Constitution for saying" lawmakers do not have the right to set the limit even if "it's longer than one might think desirable."

In his defense of the law, Solicitor General Olson said Congress operated under a "broad grant of power" and made "quintessentially legislative judgments" when it passed copyright laws.

"Is there any limiting principle out there that would ever kick in?" Justice O'Connor asked. An explicitly perpetual copyright would be unconstitutional, Mr. Olson conceded. He said that even if extending existing copyrights did not induce new creative efforts, Congress was entitled to have other goals in mind, like giving copyright holders a continued financial incentive to keep their works in distribution.

Professor Lessig's argument was exactly the opposite. The Internet had brought about a "fundamentally important changed circumstance" in the traditional copyright equation, he said, by making the public domain so readily accessible and therefore raising the stakes in keeping copyrighted material flowing into the public domain.

"You want the right to copy verbatim other people's books, don't you?" Chief Justice William H. Rehnquist demanded.

Professor Lessig replied, "We want the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified" either under the First Amendment or Congress's copyright power.

Eric Eldred, the named plaintiff in the case, wanted to publish some Robert Frost poems that will now be copyrighted for another 20 years. Other plaintiffs include a church choir director, an orchestral sheet music company, a company that restores old films, and Dover Publications, a publisher of books that have passed into the public domain.

And without the extension, Disney's copyright on the earliest version of Mickey Mouse would have expired next year.

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