Last October, I camped out in front of the Supreme Court in order to witness the Eldred Argument.
We lost, and now, if copyright law stays the way it is right now, nothing is going to go into the public domain for at least 18 years. (Maybe longer, if the copyright term is extended again.)
However, as of yesterday, there is hope. "Phase Two" if you will, of the Eldred strategy to rebuild the public domain: The Public Domain Enhancement Act.
The Public Domain Enhancement Act is the same thing as the "Eldred Act" that many of you have been asking me about over the last few months. At the time, I couldn't explain it to anyone. But it turns out it's pretty simple.
The law would place works in the public domain after 50 years unless a copyright holder sent in a dollar to secure the later 80+ years of protection. That's it.
You can help out right now by signing this petition.
We'll figure out how to rebuild the public domain yet!
Better late than never!
As promised, here are MP3s, "small" and high resolution videos of Lessig's Sunday, March 9, 2003 presentation at SXSW 2003.
Please see the notes below each clip regarding its contents.
(Parts 1-3 of the MP3 don't match the Parts 1-3 of the "smalls," for instance.)
The notes will help you figure it out.
The Q and A clips that are available on their own have the questions edited out to save on file sizes. (And since my camera wasn't able to pick up the questions anyway.)
Lessig's answers make it pretty clear what the questions were.
I have dedicated this work to the Public Domain.
   | The Presentation and part of the Q and A in "Small" web video files in 3 Parts, plus a separate file of the Q and A: Lessig At SXSW 2003 - Part 1 of 3 (Small - 11 MB) Lessig At SXSW 2003 - Part 2 of 3 (Small - 14 MB) Lessig At SXSW 2003 - Part 3 of 3 (Small - 4 MB) Lessig At SXSW 2003 - Complete Q and A (Small - 22 MB)
Audio - Lessig At SXSW 2003 Part 1 of 3 (MP3 - 28 MB) Audio - Lessig At SXSW 2003 Part 2 of 3 (MP3 - 28 MB) Audio - Lessig At SXSW 2003 Part 3 of 3 (MP3 - 18 MB) Audio - Lessig At SXSW 2003 Q and A (MP3 - 15 MB) |
Hi-resolution Files of Presentation (Parts 1-6) and Q and A Answers Afterwards:
Lessig At SXSW 2003 Part 1 of 6 (Hi-Res - 150 MB)
(Includes Part 1 of Lessig's presentation.)
Lessig At SXSW 2003 Part 2 of 6 (Hi-Res - 153 MB)
(Includes Part 2 of Lessig's presentation.)
Lessig At SXSW 2003 Part 3 of 6 (Hi-Res - 167 MB)
(Includes Part 3 of Lessig's presentation.)
Lessig At SXSW 2003 Part 4 of 6 (Hi-Res - 160 MB)
(Includes Part 4 of Lessig's presentation.)
Lessig At SXSW 2003 Part 5 of 6 (Hi-Res - 144 MB)
(Includes Part 5 of Lessig's presentation.)
Lessig At SXSW 2003 Part 6 of 6 (Hi-Res - 60 MB)
(Includes Part 6 of Lessig's presentation.)
Lessig At SXSW 2003 - Q and A (Hi-Res - 268 MB)
(Includes Complete Answers during Q and A with Lessig after his presentation.)
This work is dedicated to the
Public Domain. (Take it and run, baby!)
As usual, Dan doesn't mince words:
Supreme Court Endorses Copyright
Swipe a CD from a record store and you'll get arrested. But when Congress authorizes the entertainment industry to steal from you -- well, that's the American way.We learned as much on Wednesday when the U.S. Supreme Court ruled that Congress can repeatedly extend copyright terms, as it did most recently in 1998 when it added 20 years to the terms for new and existing works.
The law, a brazen heist, was called the Copyright Term Extension Act. It was better known as the Sonny Bono act, so named after its chief sponsor even though Disney and other giant media corporations were the money and muscle behind it.
Who got robbed? You did. I did.
Who won? Endlessly greedy media barons will now collect billions from works that should have long since entered the public domain.
Web-friendly Eldred Ruling and Dissenting Opinions
We lost Eldred. We being "the people."
So the Public loses again. Par for the course these days.
This blog will wear black today in mourning of this decision.
Supreme Court Rules in Eldred v. Ashcroft, Upholding Copyright Term Extension (http://www.copyright.gov/pr/eldred.html)
I will, of course, have web-friendly formats of the PDF files up later today.
SUPREME COURT UPHOLDS COPYRIGHT TERM EXTENSION
The Supreme Court ruled today in Eldred v. Ashcroft, a
constitutional challenge to the 20-year extension of copyright
term in the Sonny Bono Copyright Term Extension Act. In an
opinion by Justice Ruth Bader Ginsburg, the Court concluded that
Congress's extension of the terms of existing copyrights did not
exceed Congress's power under the Copyright Clause and did not
violate the First Amendment. Justices Stevens and Breyer
dissented.
U.S. Copyright Office
NewsNet
January 15, 2003
Issue 184
**********************************************************
For additional information, visit the Copyright Office
homepage at
Copyright Website
**********************************************************
CONTENTS
* News *
Copyright Office
Supreme Court Upholds Copyright Term Extension
* Calendar *
* To Subscribe/Unsubscribe to NewsNet *
**********************************************************
* NEWS *
-----------Copyright Office------------------
SUPREME COURT UPHOLDS COPYRIGHT TERM EXTENSION
The Supreme Court ruled today in Eldred v. Ashcroft, a
constitutional challenge to the 20-year extension of copyright
term in the Sonny Bono Copyright Term Extension Act. In an
opinion by Justice Ruth Bader Ginsburg, the Court concluded that
Congress's extension of the terms of existing copyrights did not
exceed Congress's power under the Copyright Clause and did not
violate the First Amendment. Justices Stevens and Breyer
dissented.
To see the opinion, go to Supreme Court Decision
**********************************************************
* CALENDAR *
February 3: Due date for comments on the proposed
regulation governing termination of post-1977 transfers and
licenses under 17 U.S.C. section 203. (67 FR 77951)
February 19: Deadline for the second round of comments
in the Copyright Office triennial rulemaking proceeding on
exemptions from the prohibition on circumvention of
technological measures that control access to copyrighted
works. Those who oppose or support any exemptions proposed
in the initial comments will have the opportunity to respond
to the proposals made in the initial comments and to provide
factual information and legal argument addressing whether a
proposed exemption should be adopted. (67 FR 63578)
February 28, at 5 p.m. E.S.T.: Deadline for filing
2002 DART royalty claims by fax (67 FR 71477)
February 28, at 11:59 p.m. E.S.T.: Deadline for
receipt on the Copyright Office server of 2002 DART royalty
claims submitted online (67 FR 71477)
March 5: Due date for reply comments on the proposed
regulation governing termination of post-1977 transfers and
licenses under 17 U.S.C. section 203 (67 FR 77951)
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I've made the Eldred Oral Argument Transcript available in my usual web-friendly formats.
Aaron has made a transcript of the Eldred argument available:
http://www.aaronsw.com/2002/eldredTranscript
I'm late for a meeting just now, but I wanted to get this out there!
http://www.aaronsw.com/2002/eldredTranscript
ERIC ELDRED, ET AL., Petitioners
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL
No. 01-618
SUPREME COURT OF THE UNITED STATES
2002 U.S. TRANS LEXIS 47
October 9, 2002, Wednesday, Washington, D.C.
NOTICE: [*1] Transcribed by Alderson Reporting Company, Inc., 1111 14th Street, N.W., Suite 400, Washington D.C. 20005-5603, Telephone Number: 202-289-2260
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.
APPEARANCES: LAWRENCE LESSIG, ESQ., Stanford, California; on behalf of the Petitioners.
THEODORE B. OLSON, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.
OPINION: PROCEEDINGS
(10:03 a.m.)
CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 01-618, Eric Eldred v. John D. Ashcroft.
Mr. Lessig.
ORAL ARGUMENT OF LAWRENCE LESSIG
ON BEHALF OF THE PETITIONERS
MR. LESSIG: Mr. Chief Justice, may it please the Court:
Petitioners are before you this morning challenging Congress's 1998 Sonny Bono Copyright Term Extension Act, which extended the term of subsisting and future copyrights by 20 years. Petitioners submit such a blanket extension of existing terms exceeds Congress's power under the Copyright Clause and it violates the First Amendment.
Now, the Government has responded to petitioners' argument in a way that betrays a simple but fundamental confusion. The Government [*2] has argued as if petitioners had advanced a general theory of the Copyright Clause, or a general constraint under which Congress must operate. That is a mistake. This case is about limits to an enumerated power. It's not about general power of Congress to exercise its copyright authority. Petitioners have advanced a particular interpretation of the only express limits in the Copyright Clause designed to give those limits meaning.
JUSTICE O'CONNOR: Mr. Lessig, I'll tell you what bothers me about your position, and that is that Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.
MR. LESSIG: Justice, we do not believe that the very first act extended terms at all. Speaking technically, which for a lawyer means speaking accurately, the 1790 act did not extend a Federal term. The 1790 act granted a term for works that already existed in precisely the pattern that the English parliament had done in the Statute of Anne in 1710, and that the English parliament did with monopolies, general monopolies in the statute of --
JUSTICE O'CONNOR: But [*3] there have been a number of extensions since.
MR. LESSIG: That's right.
JUSTICE O'CONNOR: Even if you can get over the first hurdle.
MR. LESSIG: That's right. That's the important hurdle, and we'd like to jump that first, but the other ones, Justice, you're right, in 1831 and in 1909 Congress extended terms in a way that is inconsistent with the strongest form of the test that we have advanced. Those extensions, however, were never challenged in any court and certainly not considered by this Court.
CHIEF JUSTICE REHNQUIST: Well, doesn't that itself mean something, Mr. Lessig? The fact that they were never challenged, perhaps most people, and perhaps everybody felt there was no basis for challenging them.
MR. LESSIG: Well, Mr. Chief Justice, it's absolutely true that this case is here because of a fundamentally important changed circumstance that makes the Framers' limitations on the Copyright Clause much more significant. This is the first time I can remember where this Court has been pointed to changed circumstances as a reason to reaffirm the Framers' values, because for most of this period, Mr. Chief Justice, the only people who were regulated by copyright law under the Copyright Act would have been [*4] commercial publishers, primarily, and now for the first time the scope of this exclusive right has expanded because of the changed technology of the Internet to reach an extraordinarily broad range of creativity that never would have been imagined before.
Now, it's not the case that the earlier extensions were not questioned on constitutional grounds. In fact, Melville Nimmer, in the consideration of the 1976 act, suggested they were plainly under --
CHIEF JUSTICE REHNQUIST: Well, I'm talking about court challenges, not academic challenges.
MR. LESSIG: That's right, there is no court challenge.
JUSTICE SOUTER: Mr. Lessig, your theory, as I understand it, regardless of changed circumstances or not, your basic theory, which on your argument would have been appropriate at any time historically, is that there has at least got to be the possibility of a kind of a causal connection between the extension and the promotion or inducement for the creation of some subsequent work, but why is that any more plausible a reading of the Promotion Clause than simply a reading that says the Promotion Clause requires that there be a general scheme in place, which overall tends to promote or induce, and part of one aspect [*5] of that scheme can be that the -- that at the discretion of Congress the period of protection is extended from time to time?
Why do you require -- why do you say the clause has got to be read by this kind of specific causation theory as opposed to a kind of systemic theory of promotion?
MR. LESSIG: Justice Souter, the reason is exactly related to the point I began with, that this is a case about limits and not about discretion. If it's not the case that this Court --
JUSTICE SOUTER: No, but that's -- I mean, that's the issue in the alternative reading.
MR. LESSIG: That's right.
JUSTICE SOUTER: And why is it a limit case, rather than a discretion within a general scheme kind --
MR. LESSIG: That's right.
JUSTICE SOUTER: -- of clause?
MR. LESSIG: Because if this Court does not adopt a reading of the form we've offered, then there is no limit to the ability of Congress to extend subsisting terms.
JUSTICE GINSBURG: Do you say the same thing for scope? This case is about duration, but Congress from time to time -- in fact, you mentioned --
MR. LESSIG: Yes.
JUSTICE GINSBURG: -- the expanded applications of copyright, and Congress itself extends the scope from time to time.
MR. LESSIG: That's right.
JUSTICE GINSBURG: [*6] Would you make, as far as, say, translation rights that didn't exist before, the same argument?
MR. LESSIG: I --
JUSTICE GINSBURG: Why -- or -- and if you wouldn't, why not?
MR. LESSIG: I -- no, Justice Ginsburg, we would not, and the reason is again related to the method we have adopted to interpret "limited Times." We have not said that "promote the progress of science" is a general and independent constraint on the Copyright Clause authority. We've said it must be looked to to interpret the scope of "limited Times," and unless retrospective extensions are forbidden, it will eviscerate the meaning of "limited Times." That does not occur in the context of the scope of exclusive right, nor in the context of the power to secure. If that's --
JUSTICE BREYER: Could we then go back to Justice O'Connor's question? To make that very specific, if we agree with you, does that mean that we would, in principle, have to hold the 1976 extension unconstitutional? I mean, in 1976, Congress extended the term from 28 years. renewable once, to life of the author plus 50 years. Now they're extending it life of the author plus 70. If the latter is unconstitutional on your theory, how could the former not be? And [*7] if the former is, the chaos that would ensue would be horrendous.
MR. LESSIG: Justice Breyer, under our theory as we've advanced it, you're right; the 1976 act would be unconstitutional. Whether this Court would apply such a holding in this case to that act is a question that would have to be resolved under the retrospective --
JUSTICE BREYER: Maybe we ought to find another theory, then. Is there any --
(Laughter.)
MR. LESSIG: Justice, the theory, which would advance the aim of limiting times in a way that is enforceable, is only applicable in the case that we brought before you here to the '98 act, and would not necessarily be applicable under the '76 act for the reasons the Government has offered. We would not advance this argument, but the Government has offered an argument in a parallel case that suggests a distinction between the '76 act and this case. That's not been briefed here. It's been grounded in their claim that the treaty power creates some special power. We wouldn't advance that claim, but the point is there are a number of issues that the '76 act --
JUSTICE BREYER(?): In essence, you think it's at least arguable that the '76 act had various positive aspects to it in terms of [*8] the purpose of the Copyright Clause that this act lacks?
MR. LESSIG: That's certainly true, and we also believe that, for the reasons averted to by amicus AOL in this case and the reasons you've just suggested, the disruption in that context under the retrospectivity cases Ryder and Reynoldsville Casket Company would be sufficient to fit it within the, quote, "severe disruption exception" to the retrospectivity.
JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.
MR. LESSIG: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.
JUSTICE KENNEDY: Well, perhaps I misunderstood. I thought the whole thrust of your argument was that there is a great First Amendment force here that's being [*9] silenced, that's being thwarted.
MR. LESSIG: Well, the thrust certainly --
JUSTICE KENNEDY: I thought that's the whole underpinning of your case.
MR. LESSIG: It's certainly the case that we are asserting, in light of the changed circumstances, that the opportunity to build upon works within the public domain is a fundamental First Amendment interest, and that the First Amendment values, the vital speech interest at stake of this case, is that the public domain be permitted as a source for cultivating work about our culture without unnecessary legal restriction.
CHIEF JUSTICE REHNQUIST: Well, but you want more than that. You want the right to copy verbatim other people's books, don't you?
MR. LESSIG: 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 under ordinary First Amendment analysis or under a proper reading of the limits built into the Copyright Clause.
JUSTICE GINSBURG: Mr. Lessig, on your First Amendment argument I don't see where the retroactivity-prospectivity comes in, because -- I follow your argument under the Copyright Clause, but if you're saying that the time is too long, the public domain [*10] should get this stuff sooner rather than later, would you explain to me how your prospectivity-retrospective line fits into your First Amendment claim?
MR. LESSIG: Justice, we've argued that it would be inappropriate in this case for the Court to consider the prospective line until they decide whether the case, whether the prospective and retrospective is severable, and we submit it's an easy case to show that it's not.
JUSTICE GINSBURG: On the First Amendment --
MR. LESSIG: Yes.
JUSTICE GINSBURG: -- argument you're making that as, I take it, an argument independent of, it doesn't hang on your Copyright Clause argument.
MR. LESSIG: That's right. I --
JUSTICE GINSBURG: And so let's just take -- let's say that was your only argument in this case. How does that tie into a retrospective-prospective distinction?
MR. LESSIG: Well, the strongest First Amendment argument is about the retrospective extension, because of a fundamental change that occurs when Congress extends subsisting copyrights, rather than when Congress legislates prospectively.
When Congress legislates prospectively, it has no way to know who's going to benefit from its extension. It is simply evaluating what the term should be prospectively [*11] in a way that we presume this Court should presume is legitimate under the First Amendment. When it legislates retrospectively, it is, in effect, looking at particular authors and estates of authors who are before Congress asking for this extension, and it's choosing between these particular authors and the public at large.
Now, it may be that in exercising that choice in this case, Congress made an objective valuation of who would be in the best position to advance the interests of promoting the progress of science, or any --
JUSTICE GINSBURG: But you -- under your intermediate scrutiny test we would not be hypothesizing what might have been in Congress's mind. Your First Amendment test is a stringent one. You have to have an important purpose, and the means that you use is necessarily tied to that purpose. If you take that position, I don't see how you make the retroactive-prospective line work.
MR. LESSIG: Well, the line comes from deciding what the First Amendment interest is, and if this Court heed the First Amendment interest off of this difference between selecting who gets the benefit of 20 years of extension and just simply legislating in a general way prospectively, then this [*12] Court could hold, with respect to the prospective, that it's not even necessary to raise the intermediate scrutiny in that context, but again, for Ashwander reasons we don't think that this Court should address the prospective aspect of the CTEA even under the First Amendment.
JUSTICE GINSBURG: Even though Congress's pattern has been to treat all authors equally? I mean, the reason that it's been prospective and retrospective is that people should be, people who hold copyrights should be subject to the same regime and not have some people who got their copyrights the week before the law passed treated differently than people who got it the week after.
MR. LESSIG: Well, Justice, that certainly is the reason the Government offers for this pattern. It, of course, doesn't explain actually what Congress has done and, even in this case, when a work has passed into the public domain, then there is precisely the same week before/week after problem that you advert to, that extension does not extend to all subsisting works, it only extends to all subsisting copyrights. So that line is already drawn in the practice that Congress has adopted, but our point is, the only way to assure --
JUSTICE GINSBURG: But [*13] Congress has -- or, you're not disputing that Congress has always made these extensions, both retroactive and prospective?
MR. LESSIG: Well, in 1831 it did not. In 1831 it granted the benefit of its extension to a subset of all subsisting copyright holders.
JUSTICE GINSBURG: Let's stick with 1976.
MR. LESSIG: In 1976 --
JUSTICE GINSBURG: Because that was what you said -- that's -- the pattern under the CTEA is identical to the one in the '76 act.
MR. LESSIG: That's absolutely right, yes. So they have extended it to both. But our argument is, unless this Court draws a line about this extension, then for the reasons Judge Sentelle suggested below, there will be no limit to Congress's ability to --
QUESTION: Judge Sentelle did not deal with the First Amendment, as far as I --
MR. LESSIG: That's right.
QUESTION: -- recall.
MR. LESSIG: That's right.
QUESTION: And so I'm asking you -- perhaps I'm missing it. I haven't seen where you get the prospective-retrospective in connection with your First Amendment. It seems that you're just saying there that 70 years is an unreasonable -- is not necessary.
MR. LESSIG: Yes.
QUESTION: And it doesn't serve an important purpose.
MR. LESSIG: Yes. Precisely [*14] -- actually, we're not saying anything
about the 70 years in this case even under the First Amendment, because we believe it's unseverable, but --
QUESTION: But I thought you were saying that if you accept the Copyright Clause argument, then you have a way, in effect, of devaluing the Government's claim of its important interest and important objective when you get to the First Amendment intermediate scrutiny analysis. Whereas if you don't accept the Copyright Clause claim, then, in order to make the First Amendment analysis we've simply got to say, well, gee, is the promotion of useful art and so on more important than the public domain, and can we say that that allows a distinction between 50 years and 70 years?
We're pretty much at sea, so I thought your Copyright Clause argument was necessary to give us some handle with which to deal with the First Amendment.
MR. LESSIG: Our Copyright Clause argument is certainly a way of framing why extensions of subsisting terms cannot be seen to promote the First Amendment interest of speech at all.
QUESTION: Okay. Let's assume we don't -- for the sake of argument here, let's assume we don't accept the Copyright Clause argument. Do you have [*15] an independent First Amendment argument in your brief?
MR. LESSIG: Yes, of course we do.
QUESTION: Okay, and it is -- tell me in a sentence or two what it is. I mean, at that point I'm where Justice Ginsburg is.
MR. LESSIG: Yes. The First Amendment argument we've argued in our brief is with respect to the retrospective extension, and the First Amendment argument is, that needs to --
QUESTION: No, but that's the Copyright Clause argument, and it seems to me you're saying, okay, we then apply that in First Amendment analysis, which allows us to make a coherent intermediate scrutiny argument.
If we don't accept the Copyright Clause retrospectivity argument --
MR. LESSIG: Yes.
QUESTION: -- then what is your First Amendment argument?
MR. LESSIG: That's right, I'm sorry, Justice. What I'm saying is not that it' s the retrospectivity that makes the First Amendment argument troubling -- I mean, that drives our First Amendment argument. All I'm saying is, we have addressed the retrospective portion of CTEA, and so I'm saying in the retrospective portion of CTEA you would apply ordinary, intermediate First Amendment review, and we would ask --
JUSTICE O'CONNOR: Well, this Court really has not [*16] -- if you say that the Copyright Clause is not violated, I don't think there are examples where this Court has then resorted to First Amendment analysis to invalidate the same act.
MR. LESSIG: Well --
JUSTICE O'CONNOR: I mean, this would be quite a new proposition.
MR. LESSIG: Well, Justice O'Connor, the First Amendment is always an independent limitation on what otherwise would be legitimate exercises of congressional authority, so this --
QUESTION: Yes, but the Framers seem to have adopted these two things at the same time --
MR. LESSIG: That's right.
QUESTION: -- in effect.
MR. LESSIG: That's right, and if --
JUSTICE O'CONNOR: And I think there are not examples that I can think of where we have said, well, we'll analyze it under the Copyright Clause, but if that fails we'll turn to the First Amendment.
MR. LESSIG: Justice, that's right. If only we had the Framers' copyright before us, because of course, again remember,the exclusive right the Framers spoke of was the right to print and publish. It didn't include the derivative rights, it didn't include the display rights, and it certainly --
JUSTICE O'CONNOR: Right. It has expanded very much, and they also envisioned a very short term, and I can [*17] find a lot of fault with what Congress did here --
MR. LESSIG: That's right.
JUSTICE O'CONNOR: -- because it does take a lot of things out of the public domain that one would think that someone in Congress would want to think hard about.
MR. LESSIG: That's right.
JUSTICE O'CONNOR: But having done that, it's very difficult to find the basis in the Constitution for saying it isn't a limited term. It's longer than one might think desirable --
MR. LESSIG: Right.
JUSTICE O'CONNOR: -- but is it not limited?
MR. LESSIG: Well, if it is limited, then there is no limit to the ability of Congress to extend subsisting terms, and that fundamentally destroys the objective that the --
JUSTICE O'CONNOR: Rule against perpetuities might jump in there at some point.
(Laughter.)
MR. LESSIG: Right, and we submit the Framers had something very different in mind than the rule against perpetuities. The point is, if this is permitted, then there is no limit to the ability to extend terms, and that is precisely contrary to what the Framers had in mind when they worried about this problem originally.
What was the problem they were solving? It was, as this Court stated in Graham --
JUSTICE O'CONNOR: Well, I could agree with you, in terms [*18] of policy, that this flies directly in the face of what the Framers had in mind, absolutely. But does it violate the Constitution?
MR. LESSIG: Well, if it flies in the face of what the Framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.
CHIEF JUSTICE REHNQUIST: Well, you know, certainly what is happening in the country today in the way of congressional -- under the Commerce Clause is totally different than what the Framers had in mind, but we've never felt that that was the criterion. What the Framers thought of, there weren't steamboats, there weren't railroads.
MR. LESSIG: That's right.
CHIEF JUSTICE REHNQUIST: We've said there was a general grant, and that Congress was free to run with it in many respects.
MR. LESSIG: In many respects, Mr. Chief Justice, but, as this Court has also said, there are limits to what Congress can do under the Commerce Clause.
QUESTION: But isn't --
JUSTICE STEVENS: Can I ask you about one of the limits, just focusing on the Copyright Clause and the progress of science and useful arts? In your view, does that -- is that limited to encouraging creativity by authors and inventors, or [*19] does it also include the distribution of materials that might not otherwise be distributed, like old films and so forth?
MR. LESSIG: We're happy to adopt a broader interpretation of what promote the progress is about, within the general framework that the Framers established in light of the English practice, which was a quid pro quo. The ability to facilitate distribution --
JUSTICE STEVENS: So that if the quid pro quo is that we can facilitate distribution of some old film by an additional monopoly grant, you'd think that's permissible?
MR. LESSIG: So long as the grant is conditioned upon the distribution. So long as the grant --
JUSTICE BREYER: In other words you could have -- right now, if Congress decides to have a law, and this law is going to give copyrights in 1) the Bible, 2) Shakespeare, 3) Ben Jonson, and the reason they do it is that they think that that would lead publishers to produce those and distribute them, and they're right, they will, okay? In your view, that's perfectly constitutional?
MR. LESSIG: No, that's the view of the Government's, Justice Breyer. My view is --
JUSTICE BREYER: Well, I thought that was the question you were getting, and I thought you were saying -- I must [*20] have misunderstood. I thought you were saying that was constitutional.
MR. LESSIG: No. What we were saying is, if Congress wants to permit restoration of films, for example, an issue that's been well briefed here, Congress can say, if you restore the film, then the restoration gets a copyright so long as it satisfies originality as outlined in Feist, and it gets a copyright for a period of time. But this Court's opinion in Graham and in Feist made clear that it could not extend copyrights to works in the public domain. The Government doesn't concede that, but we stand on that as a way of understanding why this Court --
JUSTICE BREYER: So your answer to Justice Stevens is no, they cannot give a copyright purely for purposes of dissemination to publishers, is that right?
MR. LESSIG: No.
QUESTION: Oh, all right.
MR. LESSIG: They cannot give a copyright purely for purposes of distribution to publishers.
(Laughter.)
MR. LESSIG: They would need to satisfy all of the implied limitations that this Court has expressed in the context of this, the most carefully limited clause in Article I, section 8. It is one of the --
JUSTICE GINSBURG: Mr. Lessig, the clause says, Congress shall, and suppose Congress [*21] decides in this expanded world of ours that it's going to make certain changes and demand other changes from our treaty partners. Suppose it says, well, the Germans led the fight for 70 years in the European Union, we'll go with that, but we're going to insist that they have a more expansive notion of, say, a fair use. Now, why couldn't that fit within the promotion of knowledge?
MR. LESSIG: Justice Ginsburg, we have no quarrel with the objective of harmonization fitting within the "promote the progress of science" understanding, subject to constitutional limitations.
If France adopted a rule that said you couldn't grant copyrights to hate speech, we could not harmonize with that rule consistent with our First Amendment and similarly, as Mary Beth Peters testified before Congress, ours is the only Constitution that has an express limitation on terms. That's got to mean something, and if it means that we are limited in our ability to agree with the Europeans as they continually expand the term in light of their own vision of what copyright is about, then that's the meaning of a constitutional restriction.
This Court's interpretation of "limited Times" could, of course, eviscerate [*22] that term of any meaning, but under the principle of enumeration as this Court has articulated it, this Court should interpret that clause in a way that gives its terms effect in a simple way. Just as a limited addition print is not a limited -- is not limited if each time a customer comes in a new print is printed, so, too, a limited term is not limited if each time copyright holders come to Congress they can extend the term.
JUSTICE SOUTER: Well, but the difference -- the reason that analogy doesn't cut it for me is that the limited edition print depends basically on an implied understanding between the person who makes the print and the person who buys it, and the understanding is, you won't go beyond 100, or whatever number you write.
We're not engaged in a contractual analysis under the Copyright Clause between the writer and the -- and somebody representing the public domain.
MR. LESSIG: That's right.
JUSTICE SOUTER: The analogy doesn't seem to work.
MR. LESSIG: That's right. All that I'm suggesting is, here is a plain meaning of the term that gives effect to the constitutional limit in a way that assures that, in fact, the limit is respected, contrary to the Government's argument, [*23] which, in effect, permits Congress the power perpetually to extend terms.
If I may reserve the remainder of my time.
CHIEF JUSTICE REHNQUIST(?): Very well, Mr. Lessig.
General Olson, we'll hear from you.
ORAL ARGUMENT OF THEODORE B. OLSON
ON BEHALF OF THE RESPONDENT
GENERAL OLSON: Mr. Chief Justice, and may it please the Court:
The questions today, especially the initial questions, suggest one of the many insurmountable obstacles to petitioners' petition in, position in this case. That is that the first Congress explicitly gave copyright protection to the authors of any books already printed as well as explicitly the owners of existing copyrights. Thereafter, in 1831, 1909, 1976, and 1998, and in numerous private copyright bills and temporary extensions of the copyright law and in repeated patent law revisions, Congress extended the terms of Federal copyright and patent protection of subsisting works.
As this Court explained 100 and some years ago in its Burrows-Giles opinion, such constructions are accorded very great weight and, as that Court went on to say, when consistent and unchallenged for over a century are almost conclusive that consistent construction by Congress of its authority under [*24] the Copyright and Patent Clause now has lasted from the 105th -- from the first through the 105th Congress. It has been sustained by Justices of this Court and early decisions of this Court. It is consistent with what the law of England was from the Statute of Anne --
JUSTICE STEVENS: Yes, but take one of the early extensions, just extending a -- an already granted patent to an inventor for an extra 10 years. How can that be squared with the language of the provision? Maybe Congress did it, but maybe it acted improperly when it did it.
GENERAL OLSON: Well, the Congress --
JUSTICE STEVENS: And that's our question, really.
GENERAL OLSON: Well, that -- it seems to me that there may be -- this is -- the clause itself is a very, very broad grant. It says the --
JUSTICE STEVENS: Do you view it as entirely a grant, or do you think it also contains limitations?
GENERAL OLSON: Well, I think that to the extent that there may be limitations, Justice Stevens, they are -- require considerable deference by this Court to the judgment of Congress --
JUSTICE STEVENS: Well, I understand that, but do you -- I'd be interested in knowing, do you think it does contain limitations?
GENERAL OLSON: It contains -- the clause itself [*25] contains limitations, limited times, authors, exclusive rights and things of that nature. I don't think -- and the petitioners expressly disclaim the assertion that there are any substantive limitations in the "Promote the-Progress" Clause.
What the Framers were saying is, we want to give Congress the authority to promote the progress of useful arts and sciences, and --
JUSTICE STEVENS: How did the example we just talked about, a patentee giving an extra 10 years on his -- how does that promote the progress of science?
GENERAL OLSON: Well, it may provide additional incentives for the patentee to exploit and promote and disseminate that particular work. With respect to creative works like works of art, books and that sort of thing, it may provide many ways --
JUSTICE STEVENS: I'm just concentrating on our patentee, and I'm wondering how that fits into the notion that there was a bargain in effect between the inventor and the Government that at a certain period of time it would become part of the public domain. It seems to me it's inconsistent with that.
GENERAL OLSON: It isn't inconsistent, I submit, Justice Stevens, for the Congress to exercise its juris -- its responsibility under this broad [*26] grant of power to determine that there could be many ways in which the holder of an existing right may benefit the public by continuing to have that right for an additional period of time, the same reason that Congress -- same reasons that Congress had when it created the right in the first place. It's not just the --
QUESTION: No, the reason for the right in the first place was to encourage invention.
GENERAL OLSON: Well, but I -- we submit that specifically with respect to the Copyright Clause, but I think it applies to the patent portion of the clause at all, it isn't just the invention, it isn't just the writing of the work -- and this relates to the questions that were asked of my colleague a moment ago. It includes the dissemination of the work, not necessarily --
QUESTION: Dissemination alone?
GENERAL OLSON: Not necessarily the dissemination alone --
JUSTICE BREYER: Well, no, not -- don't say not necessarily. I'm -- for purposes of my thinking about it, I'd like to know, imagine we have just dissemination.
GENERAL OLSON: That something is already in the public domain.
JUSTICE BREYER: That's correct. The only justification for the extension, there is no other, is dissemination of [*27] a work that is already in existence.
GENERAL OLSON: I would not want to rule that out, Justice Breyer, for the very reason --
JUSTICE BREYER: Well, I want to say, do you think yes or no?
GENERAL OLSON: Well, I think that it could very well be yes, for the reason that in the 1790 statute the Congress specifically was aware of -- that there were State copyright laws which didn't last as long as the Federal statute. Several of the States hadn't finished enacting those copyright laws, and a couple of States hadn't enacted them at all.
JUSTICE BREYER: So in your opinion, in my example, if you recall it --
GENERAL OLSON: It's --
JUSTICE BREYER: -- your answer would be, if Congress tomorrow wants to give a copyright to a publisher solely for the purpose of reproducing and disseminating Ben Jonson, Shakespeare, it can do it?
GENERAL OLSON: It may --
JUSTICE BREYER: I hate to say may --
GENERAL OLSON: Well --
JUSTICE BREYER: -- because that really -- that's an important question.
GENERAL OLSON: Well, because I don't think that a per -- I don't think there is a per se rule that should apply here because this is a grant of Congress, to Congress to exercise its judgment as to what may be beneficial. There may be [*28] other constitutional provisions that come into play, or there may be --
JUSTICE BREYER: All right, let me explain to you why it's important to me. I have a list. This is an economic statute. The harms that seem to be caused by it, the extension, I've listed as follows, approximate numbers, made up, but magnitude correct.
The existing copyright holders who survive, their copyright survives 70 years, who have already been paid, on the numbers that were given, about $ 24 billion or more, will receive an extra $ 6 billion. That, I take it, is a harm. Their works have already been created.
Harm number 2. The fact that people, for the 99 percent of the copyrights that have no commercial value after 70 years, have to find the copyright holder to put them in databases. The cost of that, on my numbers in here, made up, at least a billion dollars, or they can't find the people at all and get permission, an innumerable cost, un -- valuable cost to people who want to use it. Those are costs.
On the plus side I see uniformity, dissemination, and -- now, you tell me.
GENERAL OLSON: Well, I also see compliance with international competitive markets and the laws that are being adopted, and the incentives [*29] --
JUSTICE BREYER: Uniformity. That's uniformity.
GENERAL OLSON: Well, that's not just uniformity. It's providing incentive to people to publish here, as opposed to publish in Europe, where longer terms might be available. There is an incentive to distribute existing works that may be necessary. It's the consistency that Congress is promoting by saying to individuals, as they might have said when they enacted the Copyright Clause in the first place, we will not only give you 14 years, but if we change our mind tomorrow, and think that a better, a longer period is necessary, we're -- this is consistency, but it's also a matter of fairness, and it's --
JUSTICE BREYER: Why -- on the last point, it's -- I've counted that as zero. The reason I've counted it as zero is it seems to me that the added value, incentive value to produce between life plus 50, or life plus 70, is zero. It's carried out, as the economists do, to three decimal points, divide by 100 for the probability of your ever having such a work, and you get virtually zero, no difference between this and a perpetual copyright.
GENERAL OLSON: Well, I think that that's a very good illustration of why the authority is granted to Congress, [*30] because if you are an 80-year-old writer, that may make a considerable difference in terms of what you decide to do.
JUSTICE BREYER: How could it?
GENERAL OLSON: It may -- because you may -- if you have no incentive, if you
know that this is going to go into the public domain sooner rather than later, it may affect your judgment with respect to --
JUSTICE BREYER: In -- I --
GENERAL OLSON: It might also affect whether the publisher -- what the publisher pays for your prospective work, Justice Breyer. We -- the Copyright Clause incentive provides incentives not just for -- not just to the creators, but to the disseminators, the publishers, the broadcasters, the film companies.
JUSTICE BREYER: So you think, say, Verdi, Othello, Verdi, Othello, 80 years old, the prospect of an extra 20 years way down the pike would have made a difference?
GENERAL OLSON: Well, I think again that illustrates why the authority is vested in Congress to make these judgments rather than in courts to make these judgments, because we're not talking about the effect on an individual author, or an individual creator. What the Framers of the Constitution were concerned about is a gross judgment with respect to what might generally [*31] provide incentives to the population --
JUSTICE O'CONNOR: But it is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that. I -- one wonders what was in the minds of the Congress, even if somehow they didn't violate the clause. But if we affirm here, is there any limiting principle out there that would ever kick in?
GENERAL OLSON: Well, that's a -- that is a difficult question to say whether there is any limiting principle when such a broad grant of power, authority is given to Congress and has been exercised so repeatedly that --
JUSTICE O'CONNOR: Well, if it's a limited term, as the Constitution says, is there indeed any limit out there?
GENERAL OLSON: What I submit -- well, first of all, even the petitioners acknowledge that, as far as prospective limits are concerned, that isn't a judgment that this Court is being made to ask and, in fact, the petitioners acknowledge that it isn't a judgment that this Court should make, so the only point that the petitioners --
CHIEF JUSTICE REHNQUIST: Well, if Congress says we're going to grant this copyright indefinitely, forever --
GENERAL OLSON: That would seem -- [*32]
CHIEF JUSTICE REHNQUIST: -- that violates the limited term, does it not?
GENERAL OLSON: I acknowledge that. And anything that --
JUSTICE KENNEDY: In Victorian England you could buy a box seat for 900 years. There was serene complacency about their culture, and God bless them, but --
(Laughter.)
JUSTICE KENNEDY: -- I really think this is an important question and, as Justice O'Connor points out, if we have to ask what's the most plausible explanation for this rule, to reward existing vested interest or to stimulate new works, it seems to me that it's probably the former.
GENERAL OLSON: Well --
JUSTICE KENNEDY: I mean, we know that.
GENERAL OLSON: It is -- well, it -- let me say with respond -- in response to both of those questions, an unlimited time would violate the Copyright Clause. Something that was the functional equivalent of an unlimited time would violate the Copyright Clause, but the Framers specifically did not put in numbers. They had the opportunity to do that. Thomas Jefferson suggested that a number should be put in. We submit that it would be -- even -- since the petitioners don't suggest that it's an appropriate function of this Court, certainly in this case, to pick a number, 133 years or something [*33] of that nature, but it is quite clear that Congress from the Statute of Anne, 1710, we have 300 years of history, of Congress thinking that it continues to benefit the process, not just of the productivity, of the creation of the work itself, but the dissemination of it to provide --
JUSTICE SCALIA: General Olson, you say that the functional equivalent of an unlimited time would be a violation, but that's precisely the argument that's being made by petitioners here, that a limited time which is extendable is the functionable, functional equivalent of an unlimited time, a limited time that 10 years from now can be extended, and then extended again, and extended again. Why -- their argument is precisely that, a limited time doesn't mean anything unless it means, once you have established the limit for works that have been created under that limit, that's the end.
GENERAL OLSON: Well, the Framers had an opportunity to say immutable, unalterable, unamendable. They didn't use that. They used the phrase, limited term, which means then, meant then and means now, a certain specified --
QUESTION: Okay, assuming --
GENERAL OLSON: -- number of years under the statute.
JUSTICE SOUTER: With the exception [*34] of a limitation which illustrates the distinction between forever on the one hand and a definite number on the other, is there any limitation in the clause? Does the promotion, does the preambular recitation of promotion as such place a limit on it?
GENERAL OLSON: I submit, Justice Souter, that there's no per se limitation, that if there is, as Justice Scalia suggested, for -- if it is true that Congress, having specified 14 years or 28 years, decides that doesn't work very well because of the economies of other countries, the parade of constraints on artists in other countries, the reasons that we want things to be preserved or distributed, it should be 2 more years, or 5 more years later --
JUSTICE STEVENS: Yes, but that argument would apply to new copyrights, but to extension of already existing copyrights your argument doesn't apply.
GENERAL OLSON: It does apply, Justice Stevens, because --
QUESTION: The work has already been created.
GENERAL OLSON: The work has already been created, but the artists that are creating works day in and day out take into consideration the fact that Congress has decided, there's an ease of administration --
QUESTION: But for them, they get the benefit [*35] of the longer term if you don't apply it to an existing copyright. I mean, if you say you need 70 years because of changes in the economy to encourage works, you grant 70 for the future, but why does that, making that apply to somebody who created his work 20 years ago and has already provided what he, the quid pro quo, why do you need it for him?
GENERAL OLSON: We're not just -- because we're not just talking about the author. If we -- we're talking about --
QUESTION: The Constitution refers to the authors and the inventors, doesn't it? They're certainly the prime actors in this scene, aren't they?
GENERAL OLSON: Yes, but all of the history of the development of these clauses suggests that -- and this Court has indicated in its decisions with respect to copyright, that the Framers were concerned and the Congress is legitimately concerned not just in providing the spark of creativity, but to make sure that that's distributed widely and available, and there may be many reasons why -- we're -- we --
QUESTION: And that it gets into the public domain at the expiration of the term. That was an important part of the bargain.
GENERAL OLSON: Yes, and what -- but the definition of the [*36] term was a responsibility vested in Congress, because it has the power -- the legislative history of the 1998 act itself suggests what was going on here and suggests why the Framers gave this authority to Congress. There were numerous hearings, there were testimony by the folks that represent the same position as petitioners here as to why this shouldn't be done, why it should be done.
Congress weighed -- as this Court, the phrase that this Court used, I think it was in the Feist case, the delicate balance that was so difficult for Congress to --
QUESTION: How --
QUESTION: Okay, but you --
JUSTICE BREYER: -- what weighs in that balance, because to go back for one second, in practical, economic terms I gather the difference between a copyright that lasts for 100 years, lasts for 1,000 years, lasts forever, is probably something less than 1,000 -- on $ 1,000 a penny. I mean, it's a penny on 1,000, or probably a lot less than that, frankly. So I can not only not imagine a person whose decision to write would be governed by such a thing, I cannot imagine a European who would come to America to copyright his work for such a reason. Indeed, I wonder why that European wouldn't come anyway, [*37] even if the term were 10 years, because if he doesn't come, he's not going to get protection.
GENERAL OLSON: Well, the --
JUSTICE BREYER: I mean, who are these people that are going to be moved by that incentive?
GENERAL OLSON: The -- as we described in our brief, in pages 34 through 36, I believe it is in our brief, that the concerns about the limitation on exploitation and the limitation of a copyright period in Europe is based upon the country of origin of the work and the shortest time available. So that there may be differences, and we describe that, but that illustrates, Justice Breyer, the difference between 1 cents and 10 cents and $ 100 with respect to this particular author who's this particular age, or a particular author like Melville, whose works weren't -- weren't -- didn't -- or Schubert, whose works weren't properly appreciated or exploitable until many years after their death.
All of these variations are quintessentially legislative judgments. It would be very difficult for the Framers to have eschewed deciding 14 years was a constitutional limitation, and for this Court to say 99 years is, and again, even the petitioners aren't asking the Court to make that judgment. [*38] The petitioners are only saying that there shall be a per se rule that the word "limited Times" means unchangeable times.
JUSTICE GINSBURG: But there has to be a limit, as you acknowledge. Perpetual copyright is not permitted. Who is the judge of -- within that line? Who is the judge of when it becomes unlimited? Is there, in other words, judicial review and, if there is, what standard will this Court apply to determine whether something short of perpetual is still unlimited?
GENERAL OLSON: Well, the issue before this Court, I hasten to say, as I said before, is only whether, once the Congress makes that judgment, it can ever change it retrospectively. The issue before this Court is not whether, in the future, a certain length of time would be appropriate. That -- but the answer to that, Justice Ginsburg, I submit, is found in the Necessary and Proper Clause, and this Court's interpretation of the Necessary and Proper Clause as to the extent that this Court would find or not find that the judgment made by Congress with respect to the implementation of this very broad power is convenient or useful in terms of the achievement of the goals.
JUSTICE SOUTER: Okay, and is your argument that we should [*39] so find and hold against their retrospective argument, because there is some, at least plausible basis to say that there can be a causal connection between the retrospective extension and some benefit that can be traced to those particular works through the retrospective extension, like dissemination? Is that your argument?
GENERAL OLSON: That is among our arguments, Justice Souter.
QUESTION: Is it also your argument that even if you cannot trace that kind, or at least plausibly argue that there could be that kind of a causal benefit, that it would still be constitutional, because you should judge the extension simply as contributing to a general system, one feature of which is that from time to time there may be retrospective extensions, and so long as that general system induces the creation of works, or the dissemination of works, or the preservation of works, so long as the general system works, there is no review, no limitation on the tinkering that can be done, even retrospectively? Is that also your argument?
GENERAL OLSON: I think that's a fair statement of an argument that we have made and articulated in the brief --
QUESTION: Okay.
GENERAL OLSON: -- that unless there [*40] is a -- the Court is -- because the circumstances change, that we are living in an era now where piracy is a significant problem, there's question of administrative ease, of administering a system where copyrights may be different for one set of authors, or different for another set of authors, there's changes that are taking place internationally, so that what we're saying is that not only could this Court conceive of reasons why Congress thought it was accomplishing the objectives of this clause, but that there are numerous objectives that are entirely legitimate in --
QUESTION: Do you also argue that the Necessary and Proper Clause alone will justify the retroactive extension simply as a matter of equity?
GENERAL OLSON: Yes.
JUSTICE SCALIA: That is, that the Copyright Clause justifies the extension for works not yet created, but it would be enormously inequitable to have other authors who put in the same amount of work get a lesser protection, so the Necessary and Proper Clause now allows you to do the retrospective?
GENERAL OLSON: Yes, Justice Scalia, and the examples that are --
QUESTION: Can I ask you, why is it enormously inequitable if they get exactly what they were entitled [*41] to at the time they made the work?
GENERAL OLSON: The implicit promise that --
JUSTICE STEVENS: I mean, they have some right to expect that they will be -- you know, an additional grant, later on?
GENERAL OLSON: I think that's not an unreasonable expectation at all, Justice Stevens, because that was the premise of the --
QUESTION: That is the way it's always been done. There hasn't been any copyright extension that hasn't applied to subsisting work.
GENERAL OLSON: That's --
QUESTION: But there was one -- Justice Breyer brought up Ben Jonson, so -- this case doesn't involve works that are already in the public domain.
GENERAL OLSON: That is correct.
QUESTION: This is subsisting copyrights.
GENERAL OLSON: That is correct.
QUESTION: So --
QUESTION: But why wouldn't it?
QUESTION: Why? Why not?
JUSTICE SOUTER: Why wouldn't it? If the equity argument under the Necessary and Proper Clause justifies extension of the copyright for those whose copyright will expire tomorrow if it's not extended, in order to put them on parity with those getting copyrights for new works, why doesn't it apply to the copyright, the holder of the copyright that expired yesterday?
GENERAL OLSON: You could arguably [*42] -- you could conceivably make that argument, Justice Souter, but there is a bright line there. Something that has already gone into the public domain, which other individuals or companies or entities may then have acquired an interest in, or rights to, or be involved in disseminating --
QUESTION: And if you don't --
GENERAL OLSON: This is a rational --
QUESTION: If you don't throw out a line there, then Ben Jonson certainly gets recopyrighted.
QUESTION: Well, the difficulty --
QUESTION: If we're just looking for a bright line, the line that they suggest between unexpired patents and copyrights and brand new ones is also just as bright.
GENERAL OLSON: Oh, I concede that it's a bright line, but it's a bright line
that would have --
QUESTION: Except Congress chose this one and didn't choose the other one. That's --
GENERAL OLSON: Congress --
QUESTION: Basically you're saying the presumption ought to be in the congressional judgment about how to draw the line as well as in how long a line to draw.
GENERAL OLSON: I agree, and this Court has -- we're not just talking about the judgment of the Congress of the -- the 105th Congress in 1998. This is the way the Statute of Anne was [*43] written. This is the way the State copyright laws were written when this country became a Nation. This is the way the 1790 copyright statute, the number of --
QUESTION: Well, of course, the original statute was replacing a bunch of State statutes or State rules, partly common law, partly statutory, that -- they had kind of a mixed up legal situation, and there was an interest in having one uniform rule for the first time around.
GENERAL OLSON: Well, there was an interest in having a uniform rule, and that's precisely why the Framers created the Copyright Clause in the Constitution, but there was copyright protection in some States, there wasn't copyright protection in other States, and what we know from the decision of this Court in the Wheaton decision is that there was not a common law copyright in existence. This Court explicitly held that.
Now, the petitioners make this quid pro quo argument that somehow implicitly the initial 1790 copyright statute was saying to people, you get a copyright if you exchange whatever existing rights you have. That simply does not make any sense. There is no language, and it's a relatively late-discovered argument, because it sees its full -- [*44]
QUESTION: I want you to finish that, but I want you to go back to the -- I have one question on the equity principle. Are you -- I want you to finish.
GENERAL OLSON: I wasn't finished, but I'm happy to come back.
QUESTION: Go ahead. No, no, you finish first.
GENERAL OLSON: Well, I was going to say there's no language whatsoever of preemption, abandonment, abrogation, or exchange in the 1790 copyright, but compare -- Copyright Act. But compare that to the 1793 Patent Act under the same clause, where there is that exchange there.
The other thing, as this Court has said, there is no implied abrogation of common law rights which would be a doctrine which would be inconsistent with what the petitioner is arguing. Now --
JUSTICE BREYER: Why -- I mean, I think you have a point on this equity principle. I wonder, is there any review there? That is, suppose you have a statute, as this one arguably is, where 99.9 percent, many billions of dollars of benefits, are going to the existing holders of copyright on grounds of equity, and the effect of the statute in eliciting new works is near zero. I mean, that would seem -- where this equity idea is the camel and the production idea is the gnat, [*45] and is there any -- can we say something like that, or does Congress have total leeway in respect to --
GENERAL OLSON: Well, it --
JUSTICE BREYER: -- who they want to give the money to, basically?
GENERAL OLSON: Justice Breyer, it's conceivable that the Court might do that if that situation was present, but it's not remotely the situation here. We have the adoption of copyright terms which are consistent, generally speaking, with copyright terms which exist in the European Union, our principal competitor, and in connection with international treaties.
We have a copyright term that's consistent with the concept of the creator plus the creator's first generation heirs. We have a copyright term, remember, which supersedes the earlier copyright provisions that were added to the period between creation and publication, so that the limited number of years in the first, the 1790 and the 1831 statute were the number of years plus the relatively unlimited period of time between creation and publication, so we don't have anything remotely like that in this situation.
We have a process which, as you suggested, or one of the questions suggested, is -- may not have been the policy that you as a [*46] Member of Congress would have supported. You might have made the balance, that delicate balance that this Court has referred to, in another way, but that is something that Congress, through its ability to gather facts and make balances, is quintessentially capable of doing, and that is where the Framers vested the responsibility, and what this statute does is to favor, if at all, the creator with respect to the utilization of these rights, as opposed to the person who wishes to copy the creator. That's an entirely rational distinction for Congress to make.
Thank you.
QUESTION: Thank you, General Olson.
Mr. Lessig, you have 3 minutes remaining.
REBUTTAL ARGUMENT OF LAWRENCE LESSIG
ON BEHALF OF THE PETITIONERS
MR. LESSIG: General Olson has been perfectly clear in setting out the structure of the Government's argument. It is that there is no effective limit on Congress's power under the Copyright Clause. Now, were this the first time this Court had considered Congress's copyright authority, that might be a plausible argument, but the very first time this Court ever struck down a law of Congress as exceeding Article I, section 8 power was in the context of the Copyright Clause. [*47]
We have 125 years of history of this Court making sure that the limits, both express and implied, in the Copyright Clause, have some meaning. The Feist opinion very clearly sets out the implied limits, a per se limit for originality, for the reasons Justice Breyer was trying to get me to say. The Harper as well as Graham set out very clear limits on the context of the ability to extend works in the public domain. Those limits make no sense under the reasoning the Government has offered. The Government's reasoning would make all of those opinions irrelevant and wrong.
Now, we offer a simple way to make this clear, express limit make sense, and that is precisely the understanding we suggest that existed in 1790. The only precedents that existed in 1790 were precedents of setting a term, and then when parliament was asked in 1735, '37, and '39 to extend it, they rejected it, and as amicus historians said, they rejected it because, as a pamphleteer described it, that would be effectively a perpetual term.
Now, this delicate balance that the Government invokes, Justice Breyer, let me give you the numbers. The delicate balance is that, under the most reasonable assumptions of copyright [*48] royalty income and under our interest rate of 7 percent, as the amicus economists note at page 6, note 6 of their brief, the current term gives authors 99.8 percent of the value of a perpetual term.
Now, that might be a delicate balance, that they give the author 99.8 percent and the public .2 percent, but in my mind, that's delicate in a very different sense of that term.
Thank you very much.
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lessig.
The case is submitted.
(Whereupon, at 11:01 a.m., the case in the above-entitled matter was submitted.)
Larry clears things up a bit about how things went last week at the Eldred argument.
I am obviously extremely happy with where we are. The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law.I am obviously also unhappy with those "swings-and-a-miss" that happened in the argument. As I said before the argument, if we win it will be because 4 years of activism by many many people have changed the public's view about the importance of these issues. But as someone who believes this the rare case where the law, properly and carefully read, yields one right answer, there is no way I will ever be able to escape the thought that if we lose, it is because I am not the advocate that some could have been. It is the particular hell for lawyers that after an argument, we live in the purgatory of constantly reliving the argument. Every night since Wednesday I have awoken in the middle of the night, to spend the rest of the night reanswering Justice Ginsburg, or asking Chief Justice Rehnquist just how he could distingiush Commerce from Copyright. The kind words of so many notwithstanding, I know and have always known I am not Larry Tribe, or Kathleen Sullivan. And if, after getting this so close to the right result, I have lost this by not being them, then I am not quite sure how I will live with that fact.
Here's the full text of the link in case the link goes bad:
http://cyberlaw.stanford.edu/lessig/blog/archives/2002_10.shtml#000531
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from the front line
So there's an extraordinary (and extraordinarily interesting) range of reporting about the argument before the Court. As I was on the front line, let me add a bit more. My hope in doing this is to put this in a bit of context, and to highlight at least what we should be looking for. (EV predicts a 6-3 victory, which is significant, because he and I have a bet, and he took the other side.)
Aaron reports Brewster's statement to him that "it was a dance for which I don't know the steps." That's close. I think the better analogy for someone viewing an oral argument for the first time is the first time you see a cricket match. There are some moves you are certain you know are bad (a swing and a miss); but there's lots that plays into something you can't quite get till you know the context of the game. Here, then, the context of the game, as well as the moves from last Wednesday.
the aim
Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress's power -- the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress's power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that "affects" interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez, the Court said we need a different interpretation of "commerce" that actually recognizes limits. Limits, not control of Congress's discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.
We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government's interpretation of that clause, "limited times" has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term "limited" (limited as in limited edition print) that would also produce an effective limit on Congress's power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham, "court favorites," but instead to create an incentive for "new" creativity only).
Now that strategy was controversial from the start, especially because some of our natural allies (Stevens, Souter, Breyer) were so strongly opposed to the Lopez line of cases. But our call early on in this case was that they could be brought around to see that even if they oppose the results in Lopez, there was no reason to oppose the same reasoning in this case. Indeed, they could use this case to show why they were right in Lopez: They could argue that unlike the Copyright Clause, the Commerce Clause has no express limitation built into it; unlike the Copyright Clause, the limit the Court has found is wholly implied; thus, they could say, it is not appropriate to imply limits where not expressed. But, they could also say, where a limit is plainly express (as it is in the copyright clause, which is one of only six clauses in Article I, sec. 8 (the part of the constitution with the core grants of power to Congress) that expressly limits a grant of power (the others are clauses 1, 12, 15, 16, 17)), then it is appropriate for the Court to find a way to enforce those limits. In other words, they could write, "for the reasons given in Lopez, you were wrong in Lopez, but it would be right to limit Congress here."
the fear
The greatest fear we had about this strategy (beyond the backfiring point) was that it all presupposed that the Court got it. It presupposed that the Court understood the problem with extensions of existing terms; that it understood the harm that would do to the internet, and the ability of people to build on the internet; that it saw the law as useless. And before the argument we struggled over and over again with how best to focus the Court on the costs, if in fact they didn't get it.
the argument
(1) The most important first indication that was absolutely clear from the argument is that our fear was misplaced. The Court clearly got it. Though the other side had written literally 300 pages trying to show all the good CTEA did (and pronounce it like it is a disease -- sateeeya), the Court hadn't bought any of it. Congress was not acting to promote progress, it was acting to reward "court favorites." The only question the Court was struggling with is whether it has the power to do anything about it.
Now pause for a second to think about how important and good this struggle is. First: It is a rare but valuable exercise for any branch of government to worry about the scope of its own power. And the greatest virtue the Court exercises is the virtue of self-restraint. This is a reason to respect the Court, not criticize it (though how they exercise their restraint, or where, can be criticized, as I suggest below). But the general idea that it will restrain itself, despite believing a law is stupid, is a feature, not a bug in our constitutional tradition.
And second: that they are struggling with this question of restraint means they clearly get the problem. They are motivated to do the right thing; they are resisting the right thing for the right reasons. Both sides are good.
(2) Though it took some hammering, they clearly understood by the end of my argument the dynamic of the argument that we were making. I said, over and over again, that we were advancing an interpretation of "limited times" that had the virtue of actually imposing limits, because otherwise the clause would have no limits. The aim, and I think effect, was to repeat this idea so many times that they had in their heads a simple picture: There was a way to read "limited" so that Congress would not have unlimited power.
Thus, for example, when I said that limited should be read like "limited edition print," Justice Souter interrupted to say that this was a different kind of case (not a contract, etc.), and I said, yes, but we are simply showing you that there is a plain meaning of the term "limited" that actually produces a limit. He's a very careful justice; he got the point, as did the court by the end. That's not to say he bought it, but he clearly gets the dynamic of the argument: if you believe you must impose a limit on Congress's power, here's a way to impose that limit.
(3) The government then helped us immensely by simply confirming what we had said: under their theory of the case, there was no constitutional limit on Congress's power to extend terms; it was always a matter of Congress's discretion. Congress could perpetually extend existing terms; it could even extend a copyright to works within the public domain.
The Court clearly did not like this answer. They had bought the idea that the Constitution intended there to be a limit; the government's interpretation meant that this was a limit that was solely a matter of legislative grace. (Compare: "Under our written Constitution the limitation of congressional authority is not solely a matter of legislative grace.") They were not comfortable with the idea that they would simply say that though the constitution expressly limits Congress's power, it is Congress that gets to say what that limit is.
(4) This gave me the opening I wanted in the rebuttal to say: On the government's view, the Copyright Clause means Congress has total discretion; but that is plainly inconsistent with 125 years of Supreme Court authority. The very first time the Supreme Court ever struck down a law of Congress because it exceeded a particular grant of power in Article I, sec. 8, was in 1879 in a Copyright Clause Case. Since that time, the Court has repeatedly and unanimously imposed limits on Congress's power in the name of Copyright Clause. All of those limits so far have been implied limits. The Court has held that of all the "authors" and "writings" that might be granted copyright, only those that are "original" are allowed copyright; and it has held that of all the inventions or writings that can get patent or copyright protection, only works that are not in the public domain can get the benefit of the copyright and patent clause protection. Both of these limits are implied. Yet here, with the only express limit on Congress's Copyright Clause power, the government was arguing that in effect, the limit was limitless. This, I argued, is fundamentally inconsistent with this 125 year history, and shows the government must be wrong in its view.
(5) Finally, the government's repeated invocation of the "delicate balance" that Congress has struck became too much to ignore by the end. My final point before the Court is ultimately the most compelling politically, though not directly relevant to the constitutional argument: Under the current term of 95 years, under the most conservative assumptions about royalty income and interest rates, the current term gives authors 99.8% of the value of a perpetual term. Put differently, the current "delicate balance" between author and the public is 99.8% to the author, .2% to the public. (Check out footnote 6, page 6 of the economists' brief if you want to do the numbers.)
after thoughts and advice on interpretation (read: clues on the game)
Lots of people have made tons of noise about what the court asked questions about and what it did not ask questions about. In my experience, this is not an indicator of anything. One hour is an extraordinarily small amount of time to consider the issues in this case. They ask question about things that need to be discussed. They let go things that they get from the briefs. When I clerked, oral argument was irrelevant to 90% of the cases; that is because they do their work based on the writing, and unlike most branches of government, they actually do their work.
That said, there was lots I was unhappy we didn't get more of a chance to discuss. Here's an enumeration of what's open and what we've got to win.
(1) 1790 Act: We lose if they are not careful about the interpretation of the 1790 Act. We need the originalists; we therefore need to defeat the government's claim that "CTEA = the 1790 Act." The arguments here are not even close if you pay attention to the history. It is simply and absolutely false to say that the 1790 Act "undoubtedly extended existing terms" as the government says. The 1790 Act (1) did not extend any term (since there was no federal term before 1790); (2) it did not, on balance, effectively extend existing terms (because the law at the time included both state common law and statutory law granting copyrights, and while it may have extended the term of the works protected by the state statutes, it shortened the term of works protected under the common law); and finally (3) even for works protected under the state statute, 3 states expressly stated they didn't mean their statute to displace the common law. Thus, it is more likely the 1790 Act shortened, not lengthened, terms.
That conclusion is supported by the numbers reported by William Maher. He actually counted the number of copyrights granted to works published before 1790. Of the 21,000 works published between 1790 and 1800, we have record of just 699 copyrights. Of the 699 copyrights, only 12 are for works published before 1790. Of the 12, 5 are for works protected by state statute. The remaining 7 were presumptively protected by the common law. Thus, of the records we have, the majority of terms were plainly shortened, rather than lengthened. And the clearest reading of what the framers thought they were doing was simply moving to a new federal regime, and ending the continuing effect of the old state regime.
We need to win this point. Of all the arguments in this case, it is the only one that I am 100% certain of (the rest I'm at 99.8%). But it wasn't discussed much, which creates lots of anxiety.
(2) The Lopez-Eldred link: The other point that seemed lost on the Chief Justice was that this was a Lopez case -- or more importantly, it was a Lopez-plus case. If the Commerce Clause must be interpreted to imply limits, then the Copyright Clause must be interpreted to give effect to express limits. There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. Yet the Chief Justice (author of Lopez and this line of authority) didn't seem to recognize the link. If it is not made, then again, we lose. Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.
(3) Which Bright Line: Justices Souter and Scalia were trying to figure out which bright line made most sense: that Congress can't restore copyright to works in the public domain, or that Congress can't extend the term of existing copyrights. The obvious question which no one asked is: Why do we expect works will be allowed to pass into the public domain again? Look at the pattern:
The effect of term extension is to toll (stop) the passing of works into the public domain. In the first 100 years of the republic, the public domain was tolled like this for only 14 years (14%). In the next 50 years, the public domain was tolled for 14 years again (28%). But when CTEA expires, the public domain will have been tolled for 39 out of 55 years, or 70% of the time since 1962. If the Supreme Court says ok to this, then why would anyone expect 70% won't become 100%? The line that says Congress can't restore copyrights to works in the public domain may be bright, but it is in a very dim world indeed.
final thoughts
I am obviously extremely happy with where we are. The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law.
I am obviously also unhappy with those "swings-and-a-miss" that happened in the argument. As I said before the argument, if we win it will be because 4 years of activism by many many people have changed the public's view about the importance of these issues. But as someone who believes this the rare case where the law, properly and carefully read, yields one right answer, there is no way I will ever be able to escape the thought that if we lose, it is because I am not the advocate that some could have been. It is the particular hell for lawyers that after an argument, we live in the purgatory of constantly reliving the argument. Every night since Wednesday I have awoken in the middle of the night, to spend the rest of the night reanswering Justice Ginsburg, or asking Chief Justice Rehnquist just how he could distingiush Commerce from Copyright. The kind words of so many notwithstanding, I know and have always known I am not Larry Tribe, or Kathleen Sullivan. And if, after getting this so close to the right result, I have lost this by not being them, then I am not quite sure how I will live with that fact.
So please, no more of the bullshit about "rockstars" or "visionary." I've lived this struggle every moment of the last 4 years; it will take a long time for me to escape it, especially if we don't prevail. I want to turn my head elsewhere, and my heart elsewhere too. So I apologize if I don't follow up on this, or the arguments this might begin. Please, in the spirit of the best of this sphere, carry these argument along, and correct the many mistakes I have made. But I need a night when the limits of this lawyer don't keep this lawyer awake.
I am grateful to an extraordinary number of people, most importantly, Eric Eldred, but also the hundreds who have worked on this case, the people, like Lisa, who slept out at the court to watch this argument, and Brewster who drove across the country to teach the lessons -- too many to count. If we have won, it is your work that has made this happen. That the press chooses to focus differently does not change that fact. At least this space can speak the truth about this fact.
Peace, quiet, and may terms be limited.
posted on [ Oct 13 02 at 4:51 AM ] to [ eldred.cc ] [ 9 Comments ]
keeping focus
Tomorrow the Supreme Court will hear arguments in Eldred v. Ashcroft. In the past weeks, and especially the past week, I've received an extraordinary amount of mail, ranging from wishes of good luck, to demands that I "win." And as well has the press been extraordinary. (Check out Google's cool new service for a list. Even Declan is reporting the story, if only to report that the Ayn Rand Institute has pronounced me a Marxist (along with Milton Friedman, Ronald Coase, James Buchanan and Phyllis Schlafly I assume.)).
When we brought this case 4 years ago, there were many allies who said that there was no way we could win. The reason they were right four years ago is that the world did not yet see how important these issues are, and just what's at stake. In four years, that has changed. Not because we brought this case, or because of anything I've done in this case, but because of an extraordinary number of people who have been pushing to make this issue understandable.
It is extremely hard to win a case like this. I have given it everything I have, and I believe we are right, and have a good shot in showing it. But the important lesson from the attention this case is getting now is this: There is an extraordinary passion and energy out there for the ideals that Eric Eldred and others represent, and that if we do something to push these ideas, we can have an effect.
Thank you for the extraordinary outpouring of support. But please, regardless of what happens here, let us not lose the momentum. Freeing culture is what our framers did; we can do it again, regardless of what 5 justices on the Supreme Court say.
posted on [ Oct 9 02 at 5:09 AM ] to [ eldred.cc ] [ 18 Comments ]
I've written up some Notes on how the Ticket Line works at the Supreme Court based on what I've learned from my Eldred experience.
This batch seems to have taken the form of a "Guide to Obtaining Public Seats at the Supreme Court."
Soon I'll get around to writing up what I actually saw in there -- I'm still on the road and just wanted to make sure to get another batch of notes up today.
I will still be compiling these together into a comprehensive document when I'm done.
Thanks!
10/10/02 - 3:00 pm -- Notes on how the Ticket Line works at the Supreme Court
Note: The information in this guide was compiled from numerous knowledgeable sources. But the final conclusions I draw are my own (alas, detailed instructions for getting in aren't available anywhere else on the web that I could find). If you know anything below to be incorrect, please contact me so I can amend this post. Thanks!
Guide to Obtaining Public Seats at the Supreme Court
I have learned a lot about how tickets/guest lists work at the Supreme Court over these last few days. It is my hope that more of you will venture out to Washington DC to see the Supreme Court for yourselves. Hopefully, this guide will make it easier for you to plan your trip.
As confirmed by several of the Supreme Courts Federal Police Officers, every morning, between 3-5 am, people start lining up along the sidewalk beneath the steps of the Supreme Court (on the right side of the building if you're facing it).
Around 6-7 am, the line is moved to the "plaza" area, which is the stone plateau in-between the flights of stairs in the front.
Then, around 7-7:30 priority tickets are handled out to the members of the line.
Once you have a number you can leave and come back around 8:20, when they reform the line before the start letting people in around 9:15.
There are no substitutions. If you get caught selling or giving someone else your number, they'll take it away from you (them).
There are five sets of onlookers at a Supreme Court hearing:
1) People with actual tickets and/or on lists (guests of either side of a case)
2) Press
3) Members of the Supreme Court Bar
4) VIPs (People that can pop in at the last minute and bump members of the general public)
5) General Public
As you may have guessed, the top four categories take precedence over the fifth.
The VIP section was the group we hadn't counted on. We were expecting 60 seats to be available, and then some of the law students further down the line told us about the VIP section (important/connected people that can just sort of show up at a moment's notice if they feel like it, and get in).
Even if you have a priority ticket, there's no guarantee that you're getting in -- due to the fact that VIPs can bump you right up to the last second.
Even if they let you in to the courthouse, search you, and let you get into line right in front of the entrance, due to the VIP-ers, there's no guarantee that you will get in. In our case, 75 priority tickets were handed out, but only 50 people were let inside, and ultimately, only 25 of us actually got in.
There must have been more than 35 of them that day, because only 25 of us were eventually let in.
There are a ton of 25 cent lockers in side for jackets, cell phones, cameras, and anything you have with you. Said another way: you are not allowed to bring anything in with you. No purses. No coats. Nothing but the clothes on your body (and only a few layers of them).
Unfortunately for me, my wool blazer counted as a coat to Security, so I had to place it in a locker and was a bit chilly during the proceedings. It's pretty brisk in that stone building, so if you are sensitive to cold, like me, I'd plan on wearing a sweater in case your blazer gets classified as a "coat."
After giving you a minute or two to put your stuff away and go to the bathroom, the line reforms by the entrance in the ticketed order.
We stood there for half hour while all of the other groups of people were let in. We saw Lawrence Lessig go through the second security check, followed by none other than Ken Starr, who apparently set off the metal detectors and had to be personally checked with a hand held device before going in. (We all really enjoyed watching this happen.)
Next, the press was let in and we saw Declan, Steven Levy, and other familiar faces go in.
Then we waited while what seemed like a million military personnel going through (turns out they were a bunch of Supreme Court Bar prospects being sworn in that morning).
Finally, they said "Okay. You can go in."
The court room is awe-inspiring to say the least. The pews were already filled up and we were led to some chairs that had been placed in rows in the available space on either side of them.
We saw the press behind a set of wooden doors on the left side of the court room. There were some press people on the other side of the pillars too, right next to us, but I didn't notice them. (Steven Levy said he was so close he could have shot a spit ball at me.)
I was more concerned with how some of us had been stuck behind pillars, and if anything could be done. We all noticed that there seemed to be room for each of us to move our chairs to the left or right a little to see better, but doing so would definitely make too much noise. We all seemed to start moving our chairs and then realize the noise that ensued and stop dead in our tracks.
Then a miracle happened: everyone stood up for the Justices to walk in, causing just enough noise for us all to move our chairs accordingly!
More to come...
Here's a video file of it, but it requires Windows Media Player, so I can't watch it on my Mac.
Anyone want to convert it to a more usable format please, so more of us could enjoy it? Thanks ahead of time!
A number of people have sent me
(It's still a pain in the ass to have to use a format that requires its own player.)
This is a very interesting article because it explores the political solution to Copyright extension that will have to be pursued if we lose with the Supremes.
By Steven Levy (with John Horn, Eleanor Clift, and Brad Stone):
Lessig worries about letting his supporters down. "If I thought that this was a case where it's hard to know what the right answer was, I'd feel less pressure," he says. Lessig knows that Eldred v. Ashcroft is the best chance to turn the tide in Silicon Valley's war against Hollywood-a conflict where Hollywood has won every round so far. If he fails in court, the fight "would have to shift to the political arena," he says. "And there, we're outgunned."
Here's the full text of the article in case the link goes bad:
http://www.msnbc.com/news/817175.asp?cp1=1
Oct 14
Glitterati vs. Geeks
Two heavyweights, Hollywood and Silicon Valley, take the fight over content to the Supremes
By Steven Levy
NEWSWEEK
Oct. 14 issue - Larry Lessig admits it: he's nervous. Who wouldn't be? This week the brainy Stanford law professor makes his first appearance before the U.S. Supreme Court-barely a decade after clerking for Justice Antonin Scalia-to argue a case that could redirect millions of dollars, rejigger the entertainment menu of the entire nation and liberate Mickey Mouse.
IN ITS NARROWEST context, Eldred v. Ashcroft deals with the seemingly arcane issue of the length of copyrights for books, films and music. But it's actually a high-noon showdown between two great industries at odds in the age of the Internet. In one corner there are the big studios and record labels, intent on protecting their property and their turf; their success in winning congressional goodies has been more reliable than a Hollywood happy ending. In the other stand the forces of high-tech innovation, who until recently wore their distrust of government like a badge of pride. Now the techie crowd understands that if Big Media gets the government to help lock up its content, consumers will have less reason to buy new computers and software.
Lessig, 41, is firmly in the Silicon Valley camp, not so he can help boost chip sales but to prevent what he sees as an intellectual-property train wreck. Though a fervent adherent of geek values, Lessig doesn't buy the canard that the Internet is impervious to corporate or governmental attempts to stem that glorious (and sometimes shady) flow of information. In two books ("Code" and "The Future of Ideas") and countless speeches, Lessig has made the case that Hollywood, while whining about digital piracy, has used the courts and Congress to increase its grip on its properties-even to the point where "fair use" of legally obtained copyrighted material is under siege.
EXTENDING CONTROL
Now Lessig has his chance to shift the momentum by overturning the 1998 Sonny Bono Copyright Term Extension Act. The most recent of 11 extensions of copyright terms, it stretches exclusive control of a work from 50 to 70 years after the creator's death (thus assuring that the estate of the bill's namesake, the late pop singer turned legislator, will garner royalties on "I Got You Babe" until 2068). Commercial works like films get a straight 95 years. Because the bill lengthened the term of "Steamboat Willie," Walt Disney's first cartoon featuring the company mascot, it was nicknamed the Mickey Mouse Preservation Act. But it also denies free access to every film made in the 1930s and early '40s, as well as innumerable books and songs.
To Lessig and his legal team, this perverts the original intent of America's Founding Fathers. The Constitution specifies that "to promote the progress of science and useful arts," Congress should secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The payoff for creating something isn't permanent possession of the words or images, but temporary control of what will eventually enter the public domain. Lessig charges that by making the term extensions retroactive, the Bono Act grants an unnecessary windfall to copyright holders of songs and films made long ago. And he fears that subsequent bills-probably keyed to the next times Disney would lose its grip on Mickey-will keep extending the terms so that copyright is perpetual.
The lead plaintiff is Eric Eldred, a 59-year-old computer administrator who put up a Web site where people can download versions of books whose copyrights have expired. Before the Bono Act, Eldred had planned to post Robert Frost's early poems. Now not only will these not enter the public domain, but also for the next 20 years nothing will be added. And if the term was extended again, nothing might ever fall out of copyright. We'd have the greatest way to distribute free information and no new free information to distribute. Is this what the Founders meant by "limited"?
MEET THE SUPREMES
So far, Lessig has lost at every level-"if a limited time is extended for a limited time then it remains a limited time," wrote the district court-but surprisingly got his case to the Supremes. Now, backed by amicus briefs from everyone from Intel to the Phyllis Schlafly's Eagle Forum, he's in a must-win venue.
The backdrop of the Eldred case is a concentrated effort by Hollywood to blunt the impact of the Internet. There's a sense of deja vu to this. Television was supposed to be the death of movies. And in 1982, the film industry's silver-tongued lobbyist Jack Valenti testified that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." (Video sales are now the studios' biggest moneymaker.) Naturally, Hollywood regards the computer/Internet combo as scarier than "Nightmare on Elm Street."
Silicon Valley-ites, accustomed to flying by the pants-seat, urge La-La Land to cool it. "We love disruptive technologies," says Intel's Donald Whiteside. "At first they're threatening, but if you embrace them, they provide opportunities." And, to be fair, Hollywood execs say they are excited by the Internet's promise, and they will adjust their business models to take advantage of the medium. "We don't want to inhibit the computer or stop new devices, just protect our movies," says Valenti. Talks between the two sides are ongoing. But studio heads will withhold the embraces, thank you, until they can be assured that new laws lock down content. In the meantime they obsess about the "thieves" who download free stuff over the Internet. And accuse Silicon Valley of pandering to crooks. "There are supposed to be business ethics in this country," says Peter Chernin, CEO of Fox. "I'm not sure big, important companies should be encouraging the theft of anything, copyright included."
Hollywood has brilliantly leveraged its Beltway know-how-and its clear lead in campaign contributions-to get congressional response. "They've done a great job of setting up laws which really hammer anyone who wants to be innovative," complains Michael Robertson, who was CEO of MP3.com.
NO BACKUPS
Techies particularly loathe certain provisions of 1998's Digital Millennium Copyright Act (DMCA). It outlaws attempts to break any form of copy protection on electronic media. But copy-protection schemes not only stop illegal copying, but legal uses of a product, like making a backup, playing a song or movie on your computer or grabbing a single frame of a movie and putting it on a Web site. Critics call the DMCA a tool that denies the public those forms of fair use.
For instance, as Lessig likes to point out, commercial e-books come with a checklist of permissions that were unheard of in the creaky days of pulp and ink. Depending on the book, you may not be able to lend it to a friend, print out a page, copy and paste a passage into a term paper or even read the book aloud. None of these would violate the copyright, but anyone who hacks the e-book's software to perform these legal acts violates the law.
Such laws offer studios and record labels ammunition in the courts. No one was really shocked that the music industry sued Napster out of existence. But the Valley is outraged that under the DMCA, a Russian company, Elcomsoft, is facing criminal charges for selling a few copies of a program to make legal backups of e-books. And the makers of innovative digital video recorders have had to face a series of legal challenges from Hollywood interests. "They can wrap it in the rhetoric of protecting copyright," says Greg Ballard, interim CEO of SonicBlue (which makes the Replay DVR), "but at the end of day they are trying to exert as much control over the marketplace as possible."
Meanwhile, Hollywood has a new set of laws to push through. Sen. Fritz Hollings's Consumer Broadband and Digital Television Promotion Act mandates hardware-based copy protection in every computer, DVD player, radio and telephone. Silicon Valley hates the idea. "Anything like that is going to be harder to use and more expensive," says Gateway's Brad Williams.
FRUSTRATED FILE-SWAPPERS
Then there's the Peer to Peer Piracy Prevention Act introduced by Rep. Howard Berman of Los Angeles. Berman has described it as authorizing copyright holders to "use reasonable, limited self-help measures" to frustrate Internet file-swappers, and his staffers bristle at charges that it would allow studios and labels to hack into people's computers in dragnets for the latest Eminem tune or "Spider-Man" bootleg. But if the copyright holders' schemes are so benign, why do they need a law to be indemnified before employing these measures?
The Valley is trying hard to play catch-up. Just last week two tech-friendly representatives introduced bills that would roll back restrictive parts of the DMCA. "If the rights of consumers are not protected in a copyright-product scheme, that scheme is doomed to failure," says Zoe Lofgren, whose district includes Silicon Valley. And the geeks themselves are starting to organize. DigitalConsumer.org is barely six months old but already has almost 50,000 members; the organization urges them to fax legislators before key votes. (E-mail doesn't seem to make an impact on Congress critters.) The group's head, former Excite cofounder Joe Kraus, has a long-term plan that he hopes will lead to passage of a Digital Bill of Rights.
This week, though, the action is in the Supreme Court. Since the issues in the case don't break down into liberal or conservative, legal handicappers are at a loss to predict the outcome. But everyone expects a vivid session as the justices grill Lessig and, representing Congress and its Hollywood backers, Solicitor General Ted Olsen. Outside, there will be wireheads wearing T shirts emblazoned with Article I, Section 8 of the Constitution, which contains the copyright clause.
Lessig worries about letting his supporters down. "If I thought that this was a case where it's hard to know what the right answer was, I'd fee