October 9, 2002 I've just come from the Eldred v. Ashcroft oral argument. My impression is that things didn't go very well for Lessig. He was unable to cleanly parry any of the Justices major concerns. Theodore Olson (the Solicitor General, arguing the other side of the case) was quite unimpressive, but he has a much easier argument to make. But, I'm not a lawyer, and certainly not a seasoned Supreme Court watcher. It's possible that I'm interpreting the aggressive, devil's-advocate style of Court questioning as more pointed than it was intended to be. For those who've never seen one of these things, they're short and somewhat rough-and-tumble. Lessig, as the petitioner, has half an hour, then Olson gets half an hour, then Lessig gets three minutes of summary. Except during the summary, the lawyers were rarely allowed to say two sentences before being interrupted by a Justice. The Justices choose the direction of the argument; the lawyers respond. Given the time constraints, the oral argument boiled down to just a few key points on each side: Lessig has framed a very conservative argument. Congress is constrained by the specific language of the copyright clause in two important ways: copyrights must be limited in their duration, and granted for the purpose only of "promot[ing] the Progress of Science and the useful Arts." Congress has retrospectively extended copyright -- ie, granted term extension to existing (as opposed to new) works -- numerous times. Doing so violates both of the constitutional limits on Congress's copyright-granting powers. In addition, Lessig advances a second, separate argument that extending the terms of existing copyright violates Freedom of Speech protections under Article I, because the "restrictions on speech" greatly outweigh any plausible societal "benefits". As I understand it, this test of restrictions/benefits is termed the "intermediate" test under First Amendment law, and is the general test applied to content-neutral regulation of speech. In Lessig's opening -- which lasted about thirty seconds before he was cut off by Justice O'Connor -- he said that "this is not a case" about the "general power" that Congress has over copyrights, but about "specific limits." The narrowness of this argument is frustrating to me, as a non-lawyer observer, but obviously Lessig fashioned a case that he thought this Court might be willing to rule on. He's trying to avoid asking the Justices to make new law, and certainly trying to avoid asking them to make policy. The government's argument, as advanced by Olson, is very simple: the language in the copyright clause is so general as to almost not restrict Congress' power at all. The only thing Congress wouldn't be allowed to do is grant copyrights (or patents) that are explicitly non-limited in term. Lessig's problems are several: 1) Congress has passed copyright extensions 11 times, and almost all of those extensions were retro- as well as prospective. This is the first court challenge of the constitutionality of retrospective copyright extension. The Justices wanted to know why, if this is such an important thing, there's never been a challenge before. Lessig's core answer to this is more or less "the Internet changes everything." The Justices didn't ask any follow-ups about this technology-driven argument. 2) If the retrospective extension in the 1998 law are unconstitutional, then certainly those same extensions in the 1976 law (the last major change) are also unconstitutional. And in both laws, the retrospective extensions are inseverable from the prospective extensions. Declaring both laws unconstitutional would cause, in Justice Breyer's words, great "chaos." There followed some back and forth about "retrospection" and "severe disruption," or the Court's latitude to explicitly leave alone the earlier law even if it throws out the later one. The Court didn't much want to talk about retrospection with Lessig. Breyer joked that if Lessig's argument about 1998 applied equally to 1976, then he'd better find another argument. Everyone laughed. (Everyone always laughed whenever a Justice made a joke.) When pressed about whether it was possible to distinguish between 1976 and 1998, Lessig said that according to his argument, there was no substantive difference. However, according to the government's argument, there were differences. I didn't really understand either his point, or where he expected to get making it, and the Justices didn't seem to much like it. 3) The retrospective/prospective distinction and the Free Speech argument don't seem to fit together very elegantly. Justice Ginsberg, joined by Souter and the Rehnquist, asked a long series of questions trying to get at the core of Lessig's Article I argument. Lessig didn't seem to do well on this topic. He kept talking about the "intermediate test," and the Justices kept asking why this content-neutral, equally-applied retrospective extension should be different from a content-neutral, equally-applied prospective grant. About the best argument Lessig made was that there's no such thing as an equally applicable retrospective extension, because a retrospective extension always applies to "particular authors." On the face of it, this is a weak argument, unless the Justices are looking for some bit of minutiae on which to hang new law. Suitor suggested that Lessig make a connection between the copyright clause "aim" and the First Amendment argument. Lessig refused this out, saying that the two arguments were independent. O'Connor then said that Lessig was asking the Court to consider the First Amendment argument as a kind of fall-back position, and that the court had never done such a thing -- that it was "without precedent" to frame the argument in that way. (At least, that's what I understood her to say, she didn't use the word "fallback," and I might have lost the thread of her criticism.) 4) No matter how convincing Lessig's argument that Congress is being slippery, or foolish, or failing to really promote progress might be, he has a very steep hill to climb. The Justices have to decide that Congress' retrospective extension of copyright expressly violates either the copyright clauses limitations, or the First Amendment's requirements, or both. Neither is clear cut. The final part of the half hour was devoted to questioning Lessig about what "test" the Court should apply to decide if an extension is valid under the copyright law. Because there's no specific time-frame given in the constitution, it's very difficult for the Justices to say that 70 years is okay, but 90 years is too long (or something similar). In addition, the hard test of "promoting progress" that Lessig wants to be definitive isn't really that concrete. So the argument hinges on the pattern of Congress's actions, versus the intent of the framers. O'Connor said that she may well be convinced that the 1998 law is bad policy, but the Court obviously doesn't do policy. Stevens asked whether a retrospective extension that does promote progress is permissible. Lessig said yes. Stevens then said that the 1998 law, at least on its face, does that. Lessig: well, that's the government's position. Stevens: but that's what you just said. Lessig: no, Congress still has to abide by the constitutional limits. We were all confused. As mentioned above, Olson's argument was quite straight-forward. No matter how the wind blew, he just said the equivalent of, "that's nice, but Congress gets to do almost whatever it wants, here." He gave lots of equivocal answers to specific questions and hypotheticals, but when pressed said the government's position is that there is no judicial review for any piece of copyright law, short of some explicitly unconstitutional language like "permanent grant" or "unlimited term." The one really interesting line of questioning was pursued (several times) by Justice Breyer, who wanted Olson to come to terms with an economic argument that showed significant "harms" from the 1998 law's retrospective extension as set aside nebulous "benefits." His harms were: 1) $6B in additional royalties for a small number of copyright holders 2) $1B in costs borne by people who need to track down copyright holders of non-revenue-producing works that are to be included in collections, databases, etc. 3) "innumerable" harm when those holders cannot be found, and the works cannot be used. The "benefits" are: 1) "uniformity," which includes "harmonization" with European law. Harmonization is one of the government's big arguments in favor of the 1998 law. 2) "consistency," meaning that new and old copyrights are subject to the same terms. Breyer asked Olson to give more benefits, and Olson gave "harmonization. Breyer said that's part of "uniformity." Olson talked some about the importance of harmonization, including an argument that there needs to not be a "disincentive" to publish in the United States. On the face of it, a laughable argument. Breyer said that the "additive value" of a 70 year term versus a 50 year term is "essentially zero." Olson said that wasn't true, if you were 80 years old the additional 20 years might encourage you to produce, or if you were a publisher, the additional 20 years might change your economic calculation. Breyer pressed on this point, saying he didn't see why the 80-year-old author would see a difference. Olson said, well, really that's for congress to decide. The one non-obvious tack Olson's argument took was to continually emphasize that the "promot[ing] progress" language wasn't intended to apply just to authorship, but also to distribution. Making things widely available required that publishers have a strong economic interest in the copyright system. By implication, the 1998 law was intended to promote progress by strengthening publishers' interest. ---- Well, I've written more than I intended to. There's more stuff in my notes, but that's most of the substance (at least as I understood it) of the hour. It was a fascinating experience, sitting in the courtroom listening to Lessig answering questions from the Supremes. I would, personally, have liked to hear the Justices ask some more questions about how the "regime" that this law is part of changes in the context of the Internet, but perhaps we'll have to wait another generation before we're all ready for that. Kwin