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Live blogging from the Eldred hearing

This major case is of interest to all on this list.  FYI, the Moderators

---------- Forwarded message ----------
Date: Wed, 09 Oct 2002 16:30:01 -0400
From: Dave Farber <dave@farber.net>
To: ip <ip@v2.listbox.com>
Subject: [IP] Live blogging from the Eldred hearing

------ Forwarded Message
From: Cory Doctorow <doctorow@craphound.com>
Date: Wed, 09 Oct 2002 10:41:27 -0700
To: dave@farber.net
Subject: Live blogging from the Eldred hearing


Features: Live From Eldred v. Ashcroft - I

Posted by Raul Ruiz on Wednesday, October 09 @ 11:18:34 EDT Copyright

Your humble reporters (Ernest Miller and Raul Ruiz) have just exited from
the Supreme Court after hearing oral arguments in the case of Eldred v.
Ashcroft. We are providing you this first report from memory as members of
the public are not permitted to take notes in the Supreme Court.

As representative for petioner, Larry Lessig spoke first. His first
questions from Justice O'Connor regarded whether or not all copyright laws
passed by Congress included retrospective extension. Prof. Lessig
distinguished the first copyright law of 1790 from subsequent laws and
characterized the first law as not truly a retrospective extension. There
was a great deal of concern whether or not accepting Eldred's position
would lead to the court having to invalidate many previous laws, in
particular the copyright act of 1976. Justice Beyey gave Prof. Lessig an
out by asking whether or not the court could refuse to invalidate the
copyright act of 1976 due to the chaos it would create. More to come..

Chief Justice Rehnquist also seemed skeptical of changing a pattern in
lawmaking with such a long pedigree. Justice Breyer raised an analogy he
would repeat with the Solicitor General. He asked whether under Eldred's
argument it would be permissible to recopyright the bible, Ben Johnson, or
Shakespeare. Justice Ginsberg was very tough on Eldred's First Amendment
arguments. She couldn not see why the First Amendment arguments were
different for prospective and retrospective copyright. She seemed to think
this was a bad thing.

Justices Scalia and Thomas asked no questions of Lessig. Scalia possibly
because Lessig had been his clerk. Thomas because he seldom asks questions

The most disturbing thing about the Solicitor General's argument was that
no questions were asked regarding the First Amendment issues. Conclusion:
Eldred loses the First Amendment issues completely.

Justice Breyer was particularly hard on the government's position. He
brought in a number of economic arguments. Basically, he made the point
that the expected value of the extended copyright was so small as to be
virtually zero. He also asked whether the governmen could recopyright Ben
Johnson. The government did not say "no." Justice Stevens appeared
skeptical of the government's arguments. The government made much of the
inequities of not providing retroactive and prospective extension
together. Scalia questioned whether the inequities argument could be
turned around. J. Breyer, in essence, answered "yes" by claiming that
existing copyright owners get all the benefit and, inequitably,
prospective copyright owners get very little benefit.

Although four justices were not satisfied with the government's arguments
on retrospective copyright extensions, it is far from clear or even likely
that Eldred will get the 5 votes necessary to overturn the statute.
However, hope springs eternal.

It would appear that Jack Valenti, who also attended the oral argument,
has a number of reasons to justify the smile he wore as he entered the


Cory Doctorow
doctorow@craphound.com http://www.craphound.com

Blog: http://boingboing.net

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