Camping Out At Eldred
October 15, 2002
Seth's Eldred Experience

Seth Schoen has written up his account of our little adventure.

Lisa Rein and a big group of us had planned to meet at the Supreme Court and camp out on the steps of the Court overnight in order to be certain of hearing the Eldred argument. (Amy Harmon recently called Lessig a "rock star" -- I guess it's really true.) We had a list of cell phone numbers and a specific plan and schedule to try to make sure that our group of about ten very dedicated people would definitely manage to hear the oral argument in the morning. We'd already heard that lines would form early and grow quickly.

Lisa, who really seems good at organizing things, had managed to go to an Army surplus store earlier in the day and buy a huge number of cheap, warm blankets, as well as making some tea. By the time Aaron Swartz and I got to the Court, shortly before midnight, Lisa had already been there for hours.

Indeed, by the time we got there, the group had already ordered pizza, and was having a late-night dinner. (The Supreme Court Police Department night shift told them where to call to get pizza delivered until 1:00a -- I guess it ought to come as no surprise that the SCPD would know that sort of thing.) It was strange to see a little camp with blankets, sleeping bags, clothing, backpacks, and pizza assembled with the Court (or the Capitol, if you looked from the other direction) as a backdrop. I briefly hung my suit from a tree.

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

Sunday, October 13, 2002

In the Supreme Court of the United States

I arrived in D.C. with Cindy on Tuesday evening and went to a party in honor of the petitioners, organized by EPIC's Marc Rotenberg, whom I'd never met before and unfortunately met only briefly at the party.

At that event, I met Eric Eldred for the first time, and talked to him about bookdealers, the publishing industry, electronic texts, DRM, and the prospects for being proactive in supporting the public domain and the public's rights in copyright. I wanted to get Eldred to autograph a copy of The Scarlet Letter, but I didn't manage to buy one in time. (I don't think Brewster Kahle's Bookmobile, which was there at the party, had a properly typeset edition of that work available for printing, although I'm fairly sure we could have printed a plain ASCII e-text of it.)

As I said, Brewster Kahle was there with his Bookmobile, looking none the worse for wear after driving all the way across the United States. Brewster and his friends printed up books, mainly classics of children's literature, for the partygoers, and the Bookmobile drove off to the Supreme Court later in the evening.

I also met for the first time two people I know on-line, and with whom it so happened that I'd been in an e-mail exchange (about CSS encryption) the night before: Ernest Miller of LawMeme, and Aaron Swartz of Creative Commons. Aaron was in town for the Eldred argument as a special guest of Larry Lessig, who recently called him "a favorite boy genius". Ernie drove down from Yale, where he's invited me to appear as a panelist at a one-day Yale Law School conference on blogging next month.

I also got to meet some of the EPIC staff, and James Boyle, who'd just received $1,000,000 from an anonymous donor for research on the public domain in copyright.

Lisa Rein and a big group of us had planned to meet at the Supreme Court and camp out on the steps of the Court overnight in order to be certain of hearing the Eldred argument. (Amy Harmon recently called Lessig a "rock star" -- I guess it's really true.) We had a list of cell phone numbers and a specific plan and schedule to try to make sure that our group of about ten very dedicated people would definitely manage to hear the oral argument in the morning. We'd already heard that lines would form early and grow quickly.

Lisa, who really seems good at organizing things, had managed to go to an Army surplus store earlier in the day and buy a huge number of cheap, warm blankets, as well as making some tea. By the time Aaron Swartz and I got to the Court, shortly before midnight, Lisa had already been there for hours.

Indeed, by the time we got there, the group had already ordered pizza, and was having a late-night dinner. (The Supreme Court Police Department night shift told them where to call to get pizza delivered until 1:00a -- I guess it ought to come as no surprise that the SCPD would know that sort of thing.) It was strange to see a little camp with blankets, sleeping bags, clothing, backpacks, and pizza assembled with the Court (or the Capitol, if you looked from the other direction) as a backdrop. I briefly hung my suit from a tree.

I hadn't eaten anything since morning, so I advocated a second pizza order, and so we had the unusual experience of calling up a pizza parlor and ordering four large pizzas and asking for delivery to the United States Supreme Court. (And we meant it, and they did deliver the pizzas there, and we ate them.)

Ernest Miller had come by and gotten in line with us (or "became the line with us"), with a LawMeme t-shirt and a big LawMeme banner, with the motto "Leges humanae nascuntur, vivunt, moriuntur" ("Human laws are born, live, and die"). I suspect the focus on this particular occasion may have been on "moriuntur".

The reverse of the banner, and the reverse of the t-shirt, quoted the Copyright Clause, which I think you would definitely have been considered lame if you hadn't already memorized.

At about midnight, a group of about eight law students from Virginia showed up. People trickled into line gradually after that. After looking around the Court, we sat down to play a round or two of Set. Next, after dropping my suitcase and suit off in Lisa's hotel room a few blocks away, Aaron and I went off for a while to use some wireless net access he'd discovered on a corner. We must have been a funny sight, standing together on a residential street corner after 1:00 in the morning, intently working on a couple of laptops. (Aaron's laptop backlight was also dead, so, when his laptop's display became too hard to read, he started up a VNC server on the laptop, I started a VNC client, and we used the wireless network to allow him to use my laptop as an interface into his laptop so he could run software there. However, in order to make the wireless reception work right, I had to walk about thirty feet away and hold his laptop up in the air!)

We returned to the camp site to find the line incrementally longer, but we were able to reclaim our positions in front with Lisa's group. A few of us who were unaccountably not tired then went off for a late-night walk around the Capitol, which gave me a better understanding of the geography of the whole thing (especially how the House and Senate office buildings are located with respect to the Capitol building itself). When we finally got back, I fell asleep listening to the other campers recounting practically the entire procedural history of a number of recent copyright-related court cases.

I only got about two hours' sleep. It wasn't quite light out when I woke up, a bit after 5:00, but the line already contained at least 50 people, which was the largest number we'd been told were likely to gain admission. We started to pack up our stuff and form a more formal line, and suddenly a large number of police cars converged on an intersection about a block down the street. The SCPD came out and told us all to move the entire line around the corner, which we did, and then about ten minutes later we were told to move back to the original position. The police wouldn't explain why we'd been asked to move. (There was a rumor about a bomb threat or something, but it was never officially confirmed.)

Some time after 7:00, the SCPD came around to hand out cards with numbers indicating our relative positions within the line. I was number 6; I had been in line for over eight hours at that point, with only minor interruptions. (Lisa and I did have to run back from the hotel room she was renting a few blocks away; we'd stepped out of line for a few minutes to go back to her room and change out of our line-standing clothes and into our court clothes.)

As I remember it, the first six cards were assigned in this order:

1. Jace
2. Lodrina
3. Macki
4. Lisa
5. Kevin Burton
6. Seth

All these people were members of our group.

Number 6 is a very, very good line position to have. As it turned out, about 200 members of the general public turned out to try to hear Eldred. How many do you suppose were admitted?

The public was given lowest priority, behind all journalists, all members of the Bar of the Supreme Court, all candidates and sponsors for motions of admission to the Bar of the Supreme Court, and all guests of parties, counsel, or Justices and officers of the Court. (That was a lot of people. The Supreme Court can hold hundreds of spectators in its gallery, and it was almost completely packed by the time the public began to be admitted at all.)

At 9:00, the great golden doors of the Court slid open (not "swung open"; they're sliding doors), and the line curved around the corner. That was the last I saw of it, but I maintain that there must have been about 200 people who came by hoping to hear the argument.

The first fifty people in line were permitted to enter the Court's antechamber, where we were subject to two searches, but we kept watching as more and more people streamed into the courtroom ahead of us -- from the higher-priority groups I mentioned above.

Something like twenty-five members of the public were eventually admitted to the argument. Since the original line positions were scrupulously observed, I was the sixth.

Just as you've heard, they actually do say "Oyez, oyez!"; they actually do say "God save the United States of America and this honorable Court"; they actually do say "Mr. Chief Justice, and may it please the Court" at the start of the argument. It was a real thrill to hear Lessig begin with "Mr. Chief Justice, and may it please the Court".

Maybe some year it will be "Madam Chief Justice, and may it please the Court".

I have no notes from the argument, because note-taking is banned completely for everyone but credentialled journalists (who sit in a special walled-off section, perhaps so their note-taking won't give anyone else any ideas) and members of the Supreme Court Bar (who have to swear a loyalty oath, as I observed some new admittees doing immediately before the oral argument). Since I have no notes, I'm just going to discuss a few points based on my personal recollection. You can probably get a better story if you read the accounts by journalists who were taking notes on paper. For the most part, I don't even remember which Justice asked which question.

So this is going to be rough and perhaps somewhat scattered. If anybody has specific questions which might help me clarify or make better sense out of what I experienced, please ask, and I'll try to answer them here.

The argument felt extremely short for all of us who'd been following the case. Cindy and I read over 160 pages of briefs while we were on the plane, so we were thoroughly familiar with the basic lines of argument which were before the Court. You can get those briefs from the Eldred v. Ashcroft site.

The Justices gave both sides a hard time. This seems like a key point to me. At the outset, when Lessig was being asked tough questions, it seemed natural to say that they disfavored his argument. But Olson received his share of tough questions, too. (And I remember attending an oral argument in DVD CCA v. Bunner before a California appeals court which asked really difficult questions of Bunner's attorney and then ended up ruling in favor of Bunner. So it's never wise to say that one side is definitely going to win just because the other side was thrown a series of challenging questions.)

Lessig was very composed, and I say that you'd never have believed that it was the second time in his life he'd appeared before a court, unless you already knew that. Even so, I kept thinking that he seemed right at home (which could make sense, since he was formerly a clerk to Justice Scalia). The Solicitor General did seem more experienced at Supreme Court argument, but by no means astonishingly or overwhelmingly so. Lessig's answers to the Court's questions were generally more direct and more confident; the Solicitor General's answers were typically more evasive and uncertain, which managed to irritate one Justice so much that he said something like "I didn't ask you 'probably', I asked you 'yes' or 'no', counselor!".

A clear conclusion: Many of the Justices believed that the Sonny Bono Copyright Term Extension Act was a bad idea. Several of them had strong and open criticism for it -- I emember something like "obviously diametrically opposed to the policy goals the Framers had in mind" or "obviously diametrically opposed to the Framers' vision of what copyright would accomplish" or something like that. Also something like "terrible policy" and (relying upon the economists' brief) something like "this Act costs the public billions of dollars, and the benefits are zero, to three decimal places". All the Justices who expressed any opinion at all were of the opinion that the CTEA was a bad law and that Congress had chosen poorly in enacting it. However, as many people (including the Justices in question themselves) pointed out, "a bad law" doesn't mean "an unconstitutional law", and the Court is reluctant to overturn a law merely because it believes Congress erred in enacting it.

There as skepticism about Lessig's claim that the 1998 act can be distinguished from the 1976 act and (less relevantly) from earlier "retrospective" copyright extensions. The Justices were not eager to believe that the 1976 act was unconstitutional, and Lessig argued that they didn't have to hold both unconstitutional in order to hold the CTEA unconstitutional. But they seemed to have a hard time distinguishing the two.

The film preservation issue was not discussed in detail. At one point, Lessig got confused because one of the Justices (Scalia?) started to ask a question about the effect of copyright extension on film preservation, and Lessig thought the Justice was saying that copyright extension harms preservation, where the Justice was actually asking about how copyright extension aids preservation. Amici urging affirmance and amici urging reversal each made independent arguments about preservation, coming to vastly different conclusions. Eldred's supporters, for their part, argued that allowing copyrights to expire would facilitate preservation, especially by non-profit organizations.

The MPAA argued in an amicus brief that extending copyrights would create a new financial incentive for preservation which wouldn't exist otherwise. (I already had a Valenti quotation on my wall: "I'm not saying the public domain is bad. But how does it benefit the consumer? If a film is in the public domain, who takes care of it? Who refurbishes it if the print goes bad? What incentive does anyone have to keep the movie alive and vibrant?")

I think both sides are right about this. If you extend copyrights, you favor preserving works with known commercial value (and a known copyright holder), by giving copyright holders a new incentive to engage in preservation work. If you allow copyrights to expire, you favor preserving works without known commercial value, or without a known copyright holder, by removing from non-copyright holders a significant disincentive to engage in preservation work.

Lessig has elsewhere suggested bringing back copyright renewal requirements. (That proposal was not at issue in the argument and it wasn't mentioned at all in his brief or before the Court. I should emphasize that this discussion was not at all part of the oral argument or even part of the Eldred case at all.) I think that such a requirement would narrow the gap on the issue of preservation. Commercially valuable works would be preserved because they could remain under copyright for long terms and continue to be exploited commercially by some copyright holder. Other works would be preserved because their copyrights would lapse, clearing the way for non-profit and other preservationists to do their work. As elsewhere argued, only around 2% of works have an ongoing commercial significance after the term prescribed by the 1976 act, so that 98% of works would presumably enter the public domain by the end of that period if there were a renewal requirement. This seems economically efficient, and, more important, especially beneficial to cultural continuity.

Requirements like deposit and renewal -- scuttled under Berne -- seem to me to have been in the public interest, and, equally importantly, to have made clear that the public interest was an essential, not incidental, part of copyright. They helped guarantee that works would enter the public domain quickly if copyright holders were no longer making money from them, and they helped guarantee that a good copy of a work would be available to the public whenever a copyright expired. Both of these are important; neither is the law today. I see those changes as an erosion of the belief that copyright law is exclusively or essentially about protecting authors' interests (since deposit and renewal were certainly inconvenient for authors and publishers). So I think they ought to be reversed.

Amy, infra, believes that frequent renewal requirements (and, I think, deposit requirements) would help the public domain but hurt copyleft, partly because free software changes so quickly (some projects have multiple releases every week!). If there were once again aggressive deposit and renewal requirements, it might be burdensome for free software developers to keep up; in that case, it would be difficult for them to hold onto current copyrights, which would make it difficult for copyleft licenses to be enforced. I think Amy has a point, and I don't know how to deal with it.

Renewal requirements might also help get orphaned software projects into the public domain quickly, while they're still useful. It continues to be incredibly wasteful that so much proprietary software is constantly being discontinued; I've written about that in the past. Useful code can simply disappear and never be seen again.

Back to the oral argument: it seemed that Lessig made a strategic decision not to challenge the holding of Schnapper v. Foley, which the majority below interpreted as precluding an application of "to promote the progress" as a substantive restriction on the power of Congress. It seems to me that reading "to promote the progress" as a restriction would be helpful to Eldred, and I don't understand the decision not to argue that point -- though I'm sure it was taken for a good reason.

Part of the petitioners' claim is that "99% of works" (elsewhere "98% of works") "have no commercial value". That didn't seem to be disputed at argument. I think this tends to substantiate the idea that there's a lot of collateral damage being done by copyright extension. There are 1% or 2% of works which are being sold and whose copyright holders get a benefit, and 98% or 99% of works for which the extension just creates trouble.

Famous people who were in the courtroom included (aside from the Justices, Lessig, and Solicitor General Olson) Alan Greenspan, Kenneth Starr, Jack Valenti (MPAA president), James Rogan (director of the Patent and Trademark Office), Eben Moglen (FSF General Counsel, legal scholar, and author), Rep. Mary Bono (sponsor of the CTEA), Rep. Zoe Lofgren, and very likely several other Members of Congress. (Sen. Orrin Hatch was amicus curiae and might have attended, but I don't know anyone who saw him.)

Mary Bono shook hands with Eric Eldred after the end of the argument.

There were also a lot of reporters I'd heard of sitting over in the press section.

Public Knowledge threw a party afterward. (Declan has a couple of pictures from that party; see the links below to Declan's work.) It was attended by many IP law professors (including those from Harvard's Berkman Center who'd worked on the case), many amici curiae who'd urged reversal, many different non-profit groups, many industry associations (an unusual, and, I thought, very productive connection), and many journalists.

I met Danny Weitzner, now of W3C, and Prof. Nesson, and several other people. I was really surprised that so many people kept asking me how the argument had gone. I didn't understand why they wanted my opinion; then I realized that almost none of them had actually made it into the Court.

It seemed odd to me that many of these people hadn't gotten into the oral argument, but it might have had something to do with the fact that they weren't all willing to sleep on the sidewalk under a blanket.

The whole experience was a rare thrill for which I'm grateful to many people, not least Lessig and the petitioners and amici. I hope Lessig manages to relax. When we saw him the following day, he was already back in front of a law school class, lecturing on copyrights; he told us that he'd re-argued the entire case (in his mind) several times that morning.

Several of us worried about the lawyer equivalent of post-traumatic stress disorder.

Here's a little bit of coverage from after the fact: Lessig himself, Aaron Swartz, Ernest Miller (and his part II), Lisa Rein (and her part II), and Copyfight (passim).

However, what you should really look at is a series of collections of Declan's photographs from the event. Jace Cooke, of our group, is prominently featured. You can also see Lodrina and Macki from our group there, and other people you might recognize, or scenes you might find interesting. (See Declan's Lessig collection, Eldred collection, and Bookmobile collection.)

There's tons of other coverage out there.

Before the Federal Communications Commission

We had meetings on Thursday and Friday with advisors in the staff of Commissioners Martin, Copps, and Powell. On Friday, we also had a meeting with staff members from the Media Bureau and some of their colleagues in other Bureaus.

We tried to make the case to them that the broadcast flag mandate was unwarranted and a counterproductive idea. I think the staff members had varying degrees of receptiveness to this general message, but it was useful to have met them, and it was a valuable experience for us at least as much as for them. (While sitting in the FCC's cafeteria, I thought "You feel more experienced. Welcome to experience level 5.")

I believe we're going to be doing a couple of ex parte notices for these meetings, so you may soon be able to search public records on-line for a list of our meetings and a copy of an outline of our arguments. The FCC has rules designed to let everyone interested in an issue know (in many cases) what kinds of non-public contacts have taken place concerning that issue between advocates of a particular position and FCC staff, and roughly what kinds of arguments were presented.

I couldn't overstate how grateful I was to have Cindy with me for all of our presentations.

Library of Congress

Aaron and I paid a brief visit to the Library of Congress, the world's largest library. On display were incredibly rare things such as Edison's lab notebook (with its original handwritten account of the "Mr. Watson, come here" incident), and the items Abraham Lincoln was carrying in his pockets when he was assassinated (including two pairs of Lincoln's eyeglasses). We went up to the gallery and looked out on the main reading room. I felt that it was the most beautiful place I had ever seen, and I was briefly practically overcome with emotion.

Part of that emotion and that sense of beauty came from the reading room's form and majesty, and part of it from the reading room's function. I remembered a dispute in The Name of the Rose about what a library's function is; because of the setting of that book, the dispute was case in abstract theological terms (whether, if I remember the issue correctly, libraries fight the Devil or aid the Devil).

When I looked out on the reading room, I thought "Here they are fighting the Devil".

Elsewhere at the Library of Congress, I tracked down a particular corner or alcove of which Sumana gave me a picture from her own trip to D.C. (its inscription says "Words are also actions, and actions are a kind of words", which made me think of Bernstein and the other code-is-speech cases).

The biggest disappointment for me on that visit was that the Library's stacks are entirely closed to the public. (The reading rooms are closed to the public, too, but you can get in by becoming a registered researcher. But registering as a researcher can't get you access to the stacks; only getting a job with the Library of Congress can do that.)


I stayed in Washington with a woman I'll call Amy who works for a non-profit organization there. Visiting her was a tremendous amount of fun, and I'm very grateful for her hospitality.

Amy and I found that we had a lot of things to talk about, and so we started to make a list of topics, lest we should forget any. We never made it through the list. I still have it, and it seems to contain more than fifty outstanding conversation topics. I hope we have a chance to catch up on them.

Amy is studying Perl; I wanted to suggest that she learn Python, but she has some sensible practical reasons to learn Perl. Since she's already a C programmer, I don't think Perl ought to hold any great terrors for her (so long as it's possible to conceive of Perl failing to hold great terrors).

I think we did great honor to Eric Eldred and to the advancement of learning -- or, if you like, the promotion of science and useful arts. And I had an enjoyable and memorable visit.

I also spent some time with Mike Godwin. Some people I know may be vaguely surprised at the thought that Godwin is an actual person -- they may remember him best for "Godwin's Law" -- but indeed he is a real live lawyer, and one who's making useful contributions to our efforts. (Maybe I should say: "Godwin is not just a law but a lawyer".)

I was in Washington as the recent sniper attacks were going on, and it felt as though practically nothing else received news coverage during the week. I believe there were two or three new sniper attacks while I was there, all in the suburbs of Washington; many public events, especially those involving children, were being cancelled. All the parents I spoke to were extremely concerned about their kids, and typically weren't letting them go outside alone or walk anywhere alone.


I went down to Claremont to see Don Marti and Tabinda Khan get married. The wedding was very elegant, with a nice delegation of Bay Area Linux activists, and many other communities represented. It was the first time I'd ever seen a Muslim wedding ceremony, and also the first time I heard a recitation of part of the Koran.

Both Tabinda and Don looked very good and very well. I also briefly had a chance to meet their families and to enjoy some excellent food.


Riana came back to town with some friends from Walla Walla, and we went to the pirate store and then to hear the performance of Koyaanisqatsi at the Symphony Hall. (Philip Glass and his colleagues performed the music live as the film was shown on a screen without sound.) We also had some very nice meals. We saw Danny and Quinn briefly after the concert; Riana was wearing her NTK "iMachavellian" shirt, so she was very easily recognizable as an NTK fan.
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