Eldred v. Ashcroft Oral Arguments

PMuse and others wrote in about the oral arguments held today in the Eldred v. Ashcroft case challenging the most recent 20-year retroactive extension of copyright terms. Google News will cover the mainstream news stories about it; transcripts of the arguments will eventually be posted; but as I write this the only first-hand reports appear to be LawMeme and the Associated Press. Reader McSpew adds a link to a piece by Steven Levy explaining the importance of Eldred v. Ashcroft and what's really at stake. Update: 10/09 19:12 GMT by T : khkramer links to his own summary of the arguments, writing "I have press credentials at the court, so I was able to take notes during the argument, and in the summary I tried to cover all of the major issues that the Justices asked about."

Not looking forward to the outcome

As much as I don't want it to happen, I'm 99% convinced that the Supreme Court will side with Disney, et al. I just don't see them actually taking a reasonable view of the Constitution and understanding that unlimited extensions equal an unlimited time.

And when they decide in Disney's favor, that will be a big flashing green light for Congress to sell out all other IP-related protections for the citizens without a second thought.

Say goodbye to the Public Domain. It was fun while it lasted. :-/

Re:Not looking forward to the outcome

Sadly, I have to agree with you. These days, legal battles aren't about who's right, but who has more money to toss around. See the Nissan v. Nissan case.

This is a very disturbing trend we're seeing - the eradication of public domain and fair use rights through one-sided court battles. The question is, how long till a) there's a large scale backlash, or b) we have no fair use rights at all.

This is genuinely scary stuff.

Re:Not looking forward to the outcome

Sadly, I have to agree with you. These days, legal battles aren't about who's right, but who has more money to toss around. See the Nissan v. Nissan case.
For each case you can name where money comes out on top, I can name a case where the party with more money came out on bottom.

Court isnt a place to undo bad legislation. It is a place to undo illegal legislation. Thats it. Period. The act congress passed probably was legal and will be declared so unless a million little things fall into place a certain way.

If you are pissed off about fair use, public domain, etc etc its NOT the courts fault. It is CONGRESS who made the laws. It is CONGRESS who passed the laws. It is the EXECUTIVE who signed them into law.

Courts are meant to be restrained. They are meant to take the word of the people (aka CONGRESS) unless the law is illegal.

This is exactly how things are supposed to work. If you dont like the laws, then get new ones passed.

Re:Not looking forward to the outcome

I'm not talking so much about the laws themselves as the precedents of interpretation of those laws set by the courts. Precedent is an amazingly powerful tool in today's legal system, and while laws are passed, it's up to the courts to determine their scope and applicability when those laws are questioned. The outcome of those cases can have a massive effect on the future of our rights. If the courts today favor corporate interests over personal rights today, then in 10 years, a judge will look at this case and say "based on the ruling in case X, I find the defendent guilty of offense Y through precedent Z".

This isn't about 1 ruling - it's about precedent.

Re:Not looking forward to the outcome

For each case you can name where money comes out on top, I can name a case where the party with more money came out on bottom

Well, sure. Our justice system isn't 100% broken, but that's hardly a defense. If someone who's clearly in the wrong can triumph even 10% of the time simply because they've got lots of resources, then something's badly wrong; you don't need to see a 100% success rate before you cry foul.

Courts are meant to be restrained. They are meant to take the word of the people (aka CONGRESS) unless the law is illegal

Congress is also meant to be restrained. If it wasn't, the Framers wouldn't have written in so many checks and balances on its power. The constitution would be a whole lot shorter.

Personally, I think the unlimited ability to retroactively extend copyright spits on the notion of "limited times", both as the Framers intended it and as the Court has previously ruled on such constitutional limitations (ie, if you can't point to a concrete limit on a Congressional power, you can't call it "limited".)

Therefore the law is clearly illegal. And from that point, there's not much else to say to your argument.

Re:Not looking forward to the outcome

The law isnt clearly illegal. The part of hte law about retroactivity may be illegal as you describe it. However, for new works, created today, the law is most likely valid.

I agree with you. Lawrence Lessig and the plaintiffs agree with you. Nobody is saying that Congress can't set any term they want for new works. Hell, the plaintiffs' brief makes that clear. However, Congress can't retroactively extend copyright terms, which is the crux of the case.

Now here's the problem: the way the law is written, if you throw out one portion (the retroactive extensions), the rest of the law can't stand on its own. I don't purport to understand the full legal reasoning-- it's pretty arcane-- but it has something to do with severability and the court having to substantially rewrite law in order to make the changes (and courts don't like to do that.)

Plaintiffs aren't saying that the court shouldn't do that if it wants to-- all they're saying is that they want to throw away the retroactive part. Period. If Congress wants to meet tomorrow and extend the protection for new works to say, a million years, they could do so without fear of legal challenges.

No, no. See, if money were the deciding factor, or even a factor at all, then you'd expect to see the side with the most money winning over 50% of the time.

You've sent statistics into a place where they just don't want to be. Here's an example that might clear things up: if a group of people goes to our legal system arguing that the United States is on the continent of Africa, they should see a 0% success rate. Anything other than a 0% success rate indicates that there's a problem with our system. You don't have to see a 100% or even a 50% rate in order to realize that something is wrong.

Now let's imagine that some percentage (say 10%) of the US-is-in-Africa plaintiffs are prevailing. Now it might be informative to look at the winners of this ridiculous case and see what percentage are wealthy. And if a huge percentage were, you'd have some evidence that maybe things weren't working right.

What you're doing is saying "well, sure 100 wealthy people won on the 'US-is-in-Africa' argument, but look over here; at least 100 poor people won on the 'US-is-in-North-America' argument. Since we've got just as many poor people winning as rich people, the system is clearly not broken." Overlooking the fact that the folks who won the second argument won it because they were right, while the folks who won on the first argument won despite the fact that they were wrong.

I'm not saying that every rich person has a bad case. I am saying that I believe there have been a fairly large number of cases where one side prevailed despite the fact that they had a crap case-- but simply had the legal resources to win out. Your argument-- that poor people sometimes win their cases too-- doesn't address this.

Re:Not looking forward to the outcome

I would disagree. When the Supreme Court finds the wording of the Constitution too vague, they look at the intent of the Founding Fathers, of whom Thomas Jefforson was quite clear on the issue - that one generation shall not have control over the next.

My fingers are crossed, of course, but I am more hopeful.

Re:Not looking forward to the outcome

This is a very good point -- and is an example of why it is so important to have strict constructivist judges on the Supreme Court. As long as it is understood that the Founders meant something by the words they put on paper, it is possible to say that the law means something. There may still be plenty of disagreements as to what the Founders meant, but they can generally be resolved. When the Constitution does need to `evolve', or `change', this can be done through the mechanism the Founders provided for it to do so -- Constitutional Ammendments.

In contrast, if we take the increasingly common, but frightening, view that the Constitution is a `living document', whose meaning `evolves' with the times, then the Constitution can be constantly reinterpreted to mean whatever each generation of judges think it would be best for society for it to mean.

Some may be willing to trust that this reinterpretation will always be done honestly, without reference to special interests, ideological aims, or corrupt goals, but IMHO it is much better for the stability of our system of government that we not make such trust the basis of the rule of law.

Re:Not looking forward to the outcome

It is certainly correct that there can be long-standing disagreements over the Founders' intent -- that's why we need a Supreme Court, so that such disagreements can be resolved. If we move to a system where the Constitution is a `living document', however, any disagreement over the law is grounds for court action, however, and chaos ensues.

To use the current case as an example, it is pretty clear that there is room for argument as to what the Founders meant by a `limited Times' when they said

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

but it is equally clear that an argument that the Constitution has to `evolve' to `meet the times' by interpreting `for limited Times' as `forever' would be out of line.

Re:Bush's Newspeak?

An interesting smear, but you are aware that Bush has spoken strongly in favor of a strict `original intent' interpretation of the Constitution, and against such word games, right?

This is one of the largest factors differentiating the current administration from the previous one, by the way.

Re:Bush's Newspeak?

..you are aware that Bush has spoken strongly in favor of a strict `original intent' interpretation of the Constitution..

And yet he signed the US Patriot Act, which directly spits on the Constitution in so many ways. Has he vetoed anything since he's been in office ? or is he going to be known from here on out as George "Rubber Stamp" Bush.

Re:Not looking forward to the outcome

When the Supreme Court finds the wording of the Constitution too vague, they look at the intent of the Founding Fathers, of whom Thomas Jefforson was quite clear on the issue - that one generation shall not have control over the next.

Um...Isn't looking to Jefferson for the definitive answer in effect having one generation control the next?

Re:Not looking forward to the outcome

understanding that unlimited extensions equal an unlimited time.

Nah. the SC just needs to decide what the absolute limit to "reasonable time" is, and state that as their interpretation.

And when they decide in Disney's favor, that will be a big flashing green light for Congress to sell out all other IP-related protections for the citizens without a second thought.

Come again? (are you saying that IP protections are good or that they're bad? Hard to grammatically determine your meaning, even if I can guess it.)

Let's look at the various forms of IP law:

Trademarks: Allready long-term, with required renewal and defense. No real problems there.

Patents: Limited term, no extension, and it makes "trade secrets" a matter of the public record after 20 (or so) years.

Copyright: Good side -> artists and authors don't have to be paranoid about their work being stolen by shady producers. (Bad contracts, yes, but not simple theft.) Bad side -> it lasts so darn long...

Personally, I predict that Disney et all will win, but the SC will render an opinion with language that implies or outright states that the current setup is the extreme maximum that should be permitted to copyright--or at least that it's approaching a constitionally breaching overextension.

Re:Not looking forward to the outcome

Judges seem to have a tendency to reject overly literal interpretations that defy common sense.

I believe it was one of Eldred's briefs that said something like: by calling for "limited" copyright terms, the Founders couldn't have possibly meant this, because they never would have chosen that wording. They might have written "...blah blah exclusive rights for a duration of Congress's chusing..." or some such. Yes, strictly and mathematically speaking if you add a "limited" extension to a "limited" term you will still have a "limited" term, but that's a pedantic reading that no reasonable person would think of as the most obvious way to understand the text.

It would be like literally reading all the male pronouns in the Constitution in order to draw the conclusion that no woman should be allowed to serve in federal elected office. It's defensible only in the twisted logic of someone with an unhealthy agenda but makes no sense in a reasonable context.

Re:Not looking forward to the outcome

As much as I don't want it to happen, I'm 99% convinced that the Supreme Court will side with Disney, et al.

There's a lot of things the SC could do. One reasonably likely possibility is that they disallow retroactive extensions -- thus placing "Steamboat Willie" and "Rhapsody in Blue" in the public domain -- but leave it up to Congress to decide what the limited time is. The argument that retroactive extensions don't "promote the arts and sciences" is a strong one; the argument that 75 years (or whatever it is now) is not a limited time isn't quite as strong.

Flaw with the legal system

We as laymen are so completely unprepared as lawmen that any one of our arguments on a matter like this one would probably be laughed out of court in two minutes.

And this, my friend, is the BIGGEST problem with our legal system. The power of law has been taken out of the hands of the citizenry by ever more arcane reasoning and procedures, and placed totally into the hands of a group whose continued professional employment REQUIRES that the field becomes even more arcane and obscure. This is why your previous quote:

While we (the laymen) prefer to debate the moral and ethical sides of the issue, the Supreme Court has no choice and no interest in any arguments other than legal and Constitutional ones. Right or wrong, that's the rules they play by.

The legal system is less concerned about doing right and fair by the citizens, and more concerned about maintaining their staus quo. It has gotten so bad that the common citizen cannot even adequately represent himself in court because he does not know the necessary procedures. It's like trying to go to court in a foreign country with a translator: you can say what you want, but is the translator getting it right on the other side? For a citizen to have a chance in court, he HAS to hire a lawyer. And this reliance on things other than right and wrong (ideas a citizen could use in court), things like obscure laws and precedents, is a manifestation of that trend toward obscuring the legal workings from the common man. As a result, we as citizens are losing a valuable part of the system that was established for our protection.

I, for one, think that adhering to the letter of a payola funded law instead of serving the common good is a mockery of what the legal system was meant to be.

Just my $0.02, this post was not a troll but is my true thoughts on the matter, flamebait though they are.

Re:Flaw with the legal system

And this, my friend, is the BIGGEST problem with our legal system. The power of law has been taken out of the hands of the citizenry by ever more arcane reasoning and procedures, and placed totally into the hands of a group whose continued professional employment REQUIRES that the field becomes even more arcane and obscure.

Actually, it was designed that way.

The US Legal system was designed by lawyers (OK, some of them made more money from farming, but they were almost all trained as lawyers). This doesn't mean they consciously sat down and said "How can we write the Laws of Our New Nation in such a manner as to exclude almost all of Its Citizens...", it just means they built a system (after a lot of argument) which they were familiar with. Thus, though the names and powers of the different levels of court in the USA may be different from English Common Law, the foundational procedures and assumptions are identical.

English Common Law is based on 1500 years of 'person 1 accuses person 2 of a crime, they make their cases in front of someone of higher social status, who may (after King John and the Magna Carta) use the opinions of people of the same social status as the accused person to come to a decision of guilt and appropriate punishment.' This is an old system, and works, after a fasion. The problem is when the laws became so complex that it became necessary for a special group of people to spend their time doing nothing but keeping up with them. These were the first professional Lawyers. (Rome had people like Cicero, who would plead for people in the Senate and Courts, but he was foremost a brilliant speaker, and some of his greatest 'achievements' were convincing the Senate to do utterly illegal things.)

Because Lawyers knew so much about laws and how they worked, they were invited first by Kings, then by parliaments to write new laws. Because they already knew the language (Norman French in England, until the time of the Tudors) and jargon, they made the laws more and more abtruse and complicated until only an expert could make any sense of them.

Jefferson was a lawyer, trained in the old English tradition.

This is not the only form of Justice System. Francophone countries, for example, have a system based on the primacy of Judges, who are given special training as Judge, and investigator. If a Judge in France is trying a case, and requires more information, he or she is empowered to go and get it. They are not restricted to what the two advocates choose to tell them.

I am not saying here that the English Common Law Syatems throughout the world should be discarded in favour of the French system. I am just trying to point out that the Adversarial system has been twisted over the centuries, and has not been open for 'normal people' to understand or influence for over a thousand years. It has not been meant to be. Campaigns that all new laws must be written in plain English are probably our best hope to changing this. (eg., "The Party of the First Part has been accused of the Unlawful killing of three persons, but has been found non compos mentis, and is therefore remandered in custody in a house of mental treatment until such time as they are found compos mentis when they shall be brought to trial again." = "This person has been accused of murder. Investigating Doctors have determined that he is mentally unwell, and not able to stand trial. He will be imprisoned in a mental hospital until he is sane. If he is ever found sane, he will be brought back to court, and will then be tried.")

All I'm trying to say is, it is sad, but this is way it was designed to be. It is not broken.

The power has never been in the hands of the citizenry. Deliberately.

My $0.02, and probably also will be considered a troll. I just think the first requisite of an intelligent life is memory

So where are the raw materials?

After all, if there's no incentive for people to create things, nothing good will be created.

On the other hand, if there's no raw materials for people to create things, nothing good will be created. You can already start to see this happening in fields such as songwriting, where some songwriters are having trouble getting around the theoretical limit on the number of distinct melodies in the Western musical scale, which is fewer than 50,000 [everything2.com].

what i heard from someone who was there

I heard that Lessig did a superior job of presenting the Eldred's case that Solicitor General Olson presenting the Government's case. Also, the Justices were having a hard time reconciling how they can strike this law down w/o striking down the 76 term extension, which Lessig helped provide guidance on (unsure of what was said here). The point being, the Court seemed to be troubled not by the legal challenges, but how they strike down, what they seem to feel is a silly law, and not muddle the whole copyright issue up, esp with past extensions. This seems to be positive, and while a decision is not expected till June, indicates that they will strike down, some, parts, are all of the CTEA as unconstitutional.

Re:what i heard from someone who was there

UPI says [upi.com]:

From the bench, Justice Sandra Day O'Connor pointed out that, besides 1998, Congress extended copyrights in 1831, 1909 and 1976. "If you are right," O'Connor asked, "don't we run the risk of upsetting previous extensions of time?"

Lessig conceded that under his argument those extensions could also be considered unconstitutional. But he argued that no one was challenging the earlier changes, and they were not in danger.

Re:what i heard from someone who was there

But he argued that no one was challenging the earlier changes, and they were not in danger.

To add to this, I don't see how voiding the retroactive 1976 extensions, or any of the previous retroactive ones, would matter significantly - because all of the copyrights on the works benefitting from those extensions would have already expired by now anyway had the 1998 law not been passed! So declaring those previous retroactive extensions unconstitutional (even if anyone is asking for that, and Eldred certainly isn't) would not in itself affect the present-day copyright status of anything.

It would only be relevant for people pursuing copyright violations committed when a work was under the protection of the 1976 extensions, I would think.

Not convenient enough for O'Connor?

From the bench, Justice Sandra Day O'Connor pointed out that, besides 1998, Congress extended copyrights in 1831, 1909 and 1976. "If you are right," O'Connor asked, "don't we run the risk of upsetting previous extensions of time?"

I like her notion, though. We should potentially uphold an unconstitutional law because it would be too inconvenient to change it.

Yes, that's the sound of the Framers spinning in their graves.

Difference between Bono and previous extensions...

I'll fall back to a very simple difference though it makes the potential crime and (gasp!) invokes religion. The Biblical life span is "threescore and ten," or seventy years. Considering modern statistics, that's not a bad number, reaching widespread achievement in the US in the last century. So it can be said to have secular support, as well.

Assuming standard lifespan, prior to Bono, material copyrighted about the same time I was born might expire before I die. Therefore, it's limited-term. After Bono, copyrights all live longer than me. From my perspective, or any but the oldest living people, that qualifies as "unlimited time."

The hole in this argument is that it probably messes with the 76 term extension, as well. But that's probably good. I'd favor "threescore and nine" as a maximum copyright term over what we have, today.

The trend itself needs to be considered, and the eventual damage. If this stands, we all expect another extension in just under 20 years. Are we ready to declare the Public Domain dead? Do we understand all that that means to our country?

Did anyone notice...

The Lawmeme report was filed from an 802.11-enabled PDA using a warchalked access point in the vicinity of the Supreme court. How cool is that!

-Robert

DMCA is toothless without the Bono Act

"Sorry, permission to use this Mickey Mouse doll has been denied due to DRM hardware reporting timeout on copyright extension laws."

The DMCA is toothless without the Bono Act because it's perfectly legal to hack a DRM system in order to retrieve a perfect digital copy of a public domain work. The DMCA's circumvention ban (17 USC 1201) [cornell.edu] applies only to "works protected under this title", i.e. works under a subsisting copyright, and makes an exception for devices that are designed and marketed for a substantial use other than breaking DRM on copyrighted works without permission. Without the Bono Act, the DVD containing "Steamboat Willie" would no longer be entirely a "work protected under this title", as compilation copyrights apply only to the compilation as a whole, not to the original works. Thus, there would be a substantial legitimate use for DeCSS.

The day is going to come...

When DRM-free motherboards from Asia are going to be smuggled into the USA like drugs are now...

Re:The day is going to come...

You are clueless. There is no way this will happen.

First of all, where are you going to find a condom big enough to hold a motherboard?

Second, I'm a fat bastard, and I don't think I can swallow a motherboard whole.

Third, not even the goatse.cx guy could shit one out the other end.

Justices often ask the opposite...

LawMeme's summary was quite informative. However, Justices usually try to ask difficult questions of both sides - that is their job. And they often ask the toughest questions of the side they are leaning towards - that way they hear the best counter-argument. So you can't count up the tough questions and decide who will win that way.

sPh

Re:Justices often ask the opposite...

I think Lessig did slip in his response to the question about the 76 extension. I heard a partial transcript on NPR, and he basically replied that "under his current theory, there is no difference between the 98 extension and the 76 one".

An obvious answer to the 76 vs 98 question is that a pattern of continual renewal is emerging that could not be forseen before 1998. Copyright is hardly limited if congress has the power to renew it retroactively every time existing copyrights would begin to expire.

It would be cool if Mr. Lessig would post in this thread, I'd like to know his thoughts on why he answered this way, but he's probably far too tired/busy to be reading Slashdot at a time like this.

Oral?

Use of the word "Oral" is in violation of a recent Presidential order made on the request of John Ashcroft, shortly after he decided that the Supreme Court building was indecent. [fredericksburg.com]

Ashcroft v. ${Everyone}

Having voted for a dead man, simply to see Ashcroft loose his Senate seat, I get a special feeling to see so many people (at least on paper) seem to be against Ashcroft. (I'm still waiting for Preditor v. Ashcroft and Aliens v. Ashcroft)

In retrospect, however, I wish he had won his re-election bid for Senate. He's doing much more harm now than he ever did as a Senator.

I'm not much of an Ashcroft fan ..

.. but this case really has nothing to do with him. It was originally filed as Eldred v. Reno. The reason that the defendant was Reno (and is now Ashcroft) is because as United States Attorney General, (s)he is the one who is (presumably) responsible for making sure that the law(s) in question will be enforced.

This has nothing to do with personal statements or actions that have been made by either Reno or Ashcroft.

Lessig for Supreme Court?

We should all use some hacktivism points to start a grassroots campaign to get Lessig nominated by some party for a Supreme Court seat when one is up.

Gigantic Loophole of American System of Law

The fact is that even if the Supreme Court agrees with the idea that unlimited extension means unlimited time, it must turn to Congress to police itself and enact a "limit on limits" for copyright extension (unless, of course, there is a constituional ammendmant in the works, which i dont see happening in this climate).

However, once the matter goes back to Congress, we are presented with the same problem yet again. Congress now can pass a placation act which will satisfy the Supreme Courts demand, and then in the future extend the "limit on limits". Its a giant loophole whereas they are not actually extending the limits themselves, merely the amount of times the limits can be extended. IANAL, but there is a term for this kind of layered system of laws.

In such a case another lawsuit may be brought, but what will the climate of the Supreme Court be at that point, after another x amount of years of corporate lobbying (or, for the positive thinking, of lobbying for the public domain)? A corporation thinking in the long term is probably not worried at all.

Re:Gigantic Loophole of American System of Law

It's not a loophole but there is a cyclic nature to the way that legislation is enacted, challenged, and refined. (And re-challenged, etc., etc.) This is a good thing.

Federal legislation is often broad-brushed and implemented with big clumsy fists. Sometimes it's not enough. Sometimes it is enough. Sometimes it's a little too much but it's tolerated. And sometimes, it really stops something that "outta be allowed". So we have Eldred v. Ashcroft saying that the copyright law extensions are now really too long to be sensible.

Given the relatively few cases the Supreme Court takes up, I think it's a really good sign that this one was. The corporations now have to hold their breath--you can't lobby the Supreme Court.
And, although there are plenty of experts that can speculate, it's hard to say whether they will uphold the existing legislation or declare it unconstitutional (and for what reasons). Whatever the outcome, there's a newly painted guidepost in U.S. intellectual property law to work with.