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."

Comments

Not looking forward to the outcome

[lunenburg]

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

[Moonshadow]

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

[Planesdragon]

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

[dachshund]

I suppose I shouldn't expect much from someone who writes "Therefore the law is clearly illegal". So, if it's all so clear, why the debate?

Lighten up. You could just as easily look at a statement in the Plaintiffs' brief-- like "the decision of the [appeals court] ... was in plain error"-- and say, "if it was in plain error, why are we arguing about this now?" Of course, you'd be right, and you'd be missing the point-- it's just a manner of arguing.

The US Constitution includes the copyright clause , but doesn't specify a limit, rather states that any such grant must be limited. So, it seems apparent to me that the framers intended for Congress to modify the duration. Modifying the duration implies the ability to decrease or increase the duration. It seems we've only had increases, but I don't see anything unconstitutional about that ... Would you be happier if Congress decided: "OK, this is the last increase ever. We're fixing the copyright term at 50,000 years". That's limited.

To begin with, it has nothing to do with my happiness. That, as you say, must be satisfied through the political process. If Congress increased the copyright term for new works to 50,000 years, I would find that personally abhorrent. But it would be constitutional, and nobody's arguing that.

The problem with retroactive term modifications is nothing to do with the lengths of the term or the fact that the modifications have all been increases. It's the fact that Congress has been granted a power with clear limits, but have found a technical way to achieve unlimited power by sticking to the letter (rather than the spirit) of the law. From the plaintiffs' brief:

The limits of the Copyright Clause, like the limits of the Commerce Clause, are both express and "inherent in [the] text and constitutional context." Morrison, 529 U.S. at 619. As Judge Sentelle argued in dissent below, to determine their scope, a court must identify a "stopping point" to the enumerated power. [] If the government cannot articulate a practical stopping point to the expansion of Congress's power, then its understanding of that enumerated power is incomplete.

In this case, the government could identify no such stopping point. So long as each extension of copyright terms was itself fixed, the government argued that the constitutional requirement was met. That reading, Judge Sentelle rightly found, renders the constitutional restriction meaningless. "[T]here is no apparent substantive distiction between permanent protection and permanently available authority to extend originally limited protection." [] Indeed, as is demonstrated below [], the government's interpretation creates precisely the destructive incentives that the Framers were trying to avoid. Thus under the principle of enumeration, a different interpretation of "limited Times" is required-- one that forbids retroactive extensions of existing terms.

You're right that it's certainly possible to read the clause in the narrowest, legalistic sense possible. But to do so you would basically have to ignore the intent of the Framers, which was not compatible with a potentially unlimited copyright term through unlimited renewals.

Furthermore, Congress saying "this is the last extension we'll ever pass, really" is meaningless. This Congress has no legal authority to prevent future Congresses from passing further extensions. Only guidance from the Court can do that.

Oh, and as for promoting progress? That should be for Congress to decide as well. Retrospective extensions can't promote progress you say? Interesting point, but flawed. When you are going to produce a work, you know that copyright duration can be changed, either up or down. You might be more likely to produce the work if the U.S. has a long history of keeping the duration high.

Or even keeping the duration unlimited :)

You could just as easily make the following argument against that point of view: artists who created back in the 1920s could reasonably assume that their works would enter the public domain after a certain number of years (even if they or their heirs didn't care enough to do so explicitly). Therefore, a film-maker from that era had an expectation that his/her work might be free from restrictions before it completely degraded. Now, however, it's doomed to rot in a vault.

I don't argue that there are some limited arguments to be made that retroactive extensions might promote progress. For instance, giving Disney a few billion in extra copyright royalties could very well lead directly to the creation of new works that wouldn't have been created otherwise. What Lessig et al. argue is that a) Congress has other means by which it can insure these ends (tax relief, prospective term extensions, etc.), and that b) on balance, the benefits don't bear out such an imposition on speech as guaranteed by the First Amendment.

Incidentally, I'm very curious to see how this court rules on the First Amendment issue. The Appeals Court basically said that the First Amendment doesn't apply to copyright issues, and in support of this they referenced a case which may very well argue the opposite. Any way this comes down it may provide an instructive pile of precedents.

Re:Not looking forward to the outcome

[lynx_user_abroad]

...if retroactive copyright extensions are constitutional, a retroactive copyright contraction [would] also be constitutional.

My point was that no one objects when copyright terms are extended, because the party (the public) which is "paying for it" (by losing access to those works for the term of the extension) doesn't realize that they are incurring the cost. (With the recent extensions, the people losing access would not even be born yet.) When the situation is reversed, and the party paying for it becomes the authors (or the publishing companies as their representatives) they are sure to bring up the fact that contraction is going to cost them money. Anyone who agrees that such a contraction does cost an author/publisher money should have no problem agreeing that the reverse (the extension) costs the public money.

I'll agree that if an extension is constitutional, then a contraction is just as constitutional. But one could go further to say that both the expansion and the contraction are unconstitutional, because they represent an uncompensated "taking" of private property (in one case from the public, in the other from the author) by the government. I won't make this argument; instead I raise it to show that the whole concept of treating Intellectual Property as real property has fundamental flaws which cannot be worked around.

The Court has indicated it's reluctance to deal with this issue: that was the first question; If the Bono extension was unconstitutional, then all others were, and that's way too much for even the Supreme Court to bite off and chew.

Instead, I would argue (as Jefferson did) that an Idea, once expressed, has no owner, and that it can only be treated as a property (and only has a value at all) because we have collectively chosen to pretend that it has a value; we have chosen to act as though the author can own it for a limited time and we assign the economic value to the author because of it. Should we collectively choose to no longer pretend that this illusion exists (as many P2P file swappers appear to have done) then such property (and the value associated with it) disappears as quickly as the waking from a dream. In this manner, then Disney has no claim to SteamBoat Willie other than the claim we have chosen to grant, and no protest to the contrary from Disney should be tolerated. Congress, however, appears to read things differently.

Now, how we square "than the claim we have chosen to grant" and "Congress reads things differently" and "Congress represents us" is something I haven't fathomed."

Ashcroft v. ${Everyone}

[bay43270]

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.

Re:Ashcroft v. ${Everyone}

[Door-opening Fascist]

The interesting thing is that Ashcroft actually spoke out for copyrights when he was a senator. Here's one of things he had to say:

Product manufacturers should remain free to design and produce the best available products, without the threat of incurring liability for their design decisions. Technology and engineersnot lawyersshould dictate product design. This provision reflected the working assumption that this bill is aimed fundamentally at so-called 'black boxes' and not at legitimate products that have substantial non-infringing uses. . . making it crystal clear that nothing in this legislation should be interpreted to limit manufacturers of legitimate products with substantial non-infringing uses.

Citation: EFF

He seems to have done a 180 since he became AG.

So where are the raw materials?

[yerricde]

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.

Re:So where are the raw materials?

[richieb]

The 50,000 figure is a bit misleading. It's the number of distinct 4 note melodies possible with the 12 note western scale, without counting repetition that occur an octave apart.

I thought this was a great quote...

[lobos]

From Levy article, "They can wrap it in the rhetoric of protecting copyright, but at the end of day they are trying to exert as much control over the marketplace as possible," says Greg Ballard, interim CEO of SonicBlue (which makes the Replay DVR.)

I wish we had an extend by paying setup

[starseeker]

No, not for lobbyists. That's what we've got now. I mean the following:

Undoubtedly, Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright, and it is in their interests to do whatever it takes to preserve it. I can in fact sympathize with that. It is a huge corporate symbol for them, and losing it would hurt bad.

But in order to keep Mickey Mouse, they utterly trash the copyright system, totally destroying the idea of public domain. Some would argue that this is intended, but I'm not quite that cynical. (Yet.)

Why can't we have a sliding scale, where if a corporation wants to hold onto copyright longer than the default, they pay some nontrivial amount of money every few years past the default time in order to renew. That way symbols like Mickey Mouse, which are still viable moneymakers for corporations, can be maintained as long as they are profitable. And anything which isn't lapses into the public domain. Why should that bother them? A few tens of thousands wouldn't even make Disney blink.

Really, I don't think we are out to grab Mickey Mouse away from Disney. What happened to finding a middle ground? I thought that's what American politics was all about.

Re:Gigantic Loophole of American System of Law

[mr_teem]

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.

Pooh, not Mickey.

[yerricde]

Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright

The Bono Act wasn't designed to preserve the monopoly on Mickey Mouse as much as it was designed to preserve the monopoly on nu-skool Winnie-the-Pooh (a relatively recent Disney creation) and old-skool Winnie the Pooh (to which Disney bought the rights from the Milne family). Disney makes much more annually from sales of Pooh merchandise than from sales of Mickey merchandise.

Why can't we have a sliding scale, where if a corporation wants to hold onto copyright longer than the default, they pay some nontrivial amount of money every few years past the default time in order to renew.

Others have proposed similar plans on both Slashdot and Kuro5hin. An interesting plan would make the renewal fees increase exponentially for every subsequent re-extension.

FREE THE BEAR!

New amendment

[Dan D.]

No one should be allowed to run for re-election if they *EVER* voted in a bill that became an unconstitutional law. The president should be impeached (even if he doesn't get kicked out) for signing a new law which violates the highest in this country. Signing an unconstitutional law into being should be just as high if not higher on the list than bonking Monkey Lewinski.

At the very least congress-persons should be suspended for a period immediately after. The state that loses their vote will think twice about being *stupid* in the future.

Of course it would make congress-persons think at least twice whether or not the lobby money is worth it, but they'd probably just up their sellout price.

Its not a checks and balances if anyone can do what they want until (and if ever) someone has enough money or time to actually fight a "silly" law. That's just chaos with an upper bounds.

Re:Lessig for Supreme Court?

[Stonehand]

It is, however, extremely ideological and replete with litmus tests, most obviously on Roe v. Wade, and has been the subject of rather mean-spirited conflict ever since, oh, the Bork episode. Hell, leftists even procured and published the man's video rental records (an act which is now illegal due to this very incident), and involving some $20M spent by both sides on advertising.

Ex Post Facto

[Noren]

(Warning: IANAL) If a law is passed which makes an action illegal(e.g. banning a specific drug) it is expressly forbidden to prosecute people for 'breaking' that law before it went into affect. You can't change law in order to make an action which has already happened illegal after the fact.

The law applied to copyrights should be the law that was in place at the time of their creation, not subsequent law, for similar reasons. The intention of copyright law is to encourage creativity; changing the length of copyright after the work has been created inherently cannot do this. Similarly, it would be unfair to those who created works under the 1976 and 1998 versions of copyright law for the rules of their copyright to be ex post facto altered to their (and their heirs) detriment. Any ex post facto change to copyright law is unfair.

Re: It's a wonderful life

[CodeShark]

Guess you missed part of the news a ways back. "It's a Wonderful Life" is effectively back under copyright by a corporation (not the original authors, composers, etc.) because they realized that copyright on the music or at least the sound track hadn't lapsed, and they renewed it.

My understanding was that in theory you could have copied the film, done derivative works, etc. ad nauseum -- but to sell your copy you'd have to totally replace the musical track -- which is not so easy because you have to totally cut the voices, etc. out of the musical background.

So in essence, the copyright extension pulls this back into private hands for what, another 40 years or so?

And you were wrong...

[dachshund]

Olson's reponse was to point out that that is not the issue before this court, and I have to agree. While the Court is certainly free to say that the Congress's extensions are subject to judicial review on the grounds that "limited" need be reasonable or something like that, and establish some guidelines for that review, it has not been asked to do that in this case. More importantly, despite the Justices' feelings that there should be judicial review, lack of an explicit Constitutional limit on Congress's interpretation of "limited" does not create that power for the Court. It simply may be the case that Congress has the power to extend it however long it wants, as long as it is not "unlimited."

The argument is pretty straightforward. The court has ruled that where the Constitution grants a limited Congressional power, there must be a demonstrable limit to Congress's authority. The Supreme Court has made this ruling in the past.

In this case, there is no demonstrable limit. The government is arguing that it may extend copyright as many times as it wishes-- an unlimited number of times, if necessary. That interpretation clearly clashes with the straightforward requirement of "limited times". Thus there is no guaranteed limit on the power, and thus the law is not Constitutional. The notion of "reasonable" times doesn't really enter into it.

The recourse for that, of course, is elections. Olson pointed out that the Framers had the power to put a specific length of time in the Constitution, and Jefferson actually encouraged it, but they eventually chose not to; they chose to give that power to Congress.

You're going to have to fight that one out with the Framers. Clearly they did not feel that the political process provided a strong enough check on government power, so they wrote a strong constitution and created a Judicial branch to oversee it.

If you agree with my interpretation of "limited", the court has all the legal and moral authority it needs to rule against the law. If you don't, then you'll probably feel that it's a political issue. The court is in the process of making this determination, so let's not jump the gun.

Re:"promote the progress of science and useful art

[hey!]

IANACL, but it's my understanding that the intent with which a power is granted to a branch of government doesn't matter much. The problem is that the likely outcome of any given law is a matter of opinion. This is why we need legislatures to begin with: to decide what laws would be beneficial and which would be harmful. Clearly, the constitution does not intend to have congress pass bad laws, but it necessarily empowers them to do so. Once a power is in legislative hands, they can, in effect, use it for whatever purpose they want.

That's why arguments that say excessive copyright and patent terms retard progress don't carry much weight. It's often a matter of opinion; any particular law is likely to have mixed results. The courts don't want to get into the business of deciding what kinds of laws are beneficial -- just which ones are legal.

Copyright abuse opponents have to resort to careful parsing of the copyright clause to see if abusive copyright laws exceed the powers literally granted to congress. Lessig's approach is the most promising -- the clause doesn't say that congress has the power to modify copyright terms that have already been granted. I've heard other approaches, such as one judge who asserted that the nature of the power granted to congress was a specifically a power to promote progress. It's a bit of a stretch though. Accepting this argument brings the courts back into the business of judging whether a law is wise or not.

As much as we in the US revere it, the Constitution has over the years been proven to be pretty poorly drafted in many places. The copyright clause is a perfect example. Clearly the framers wanted copyright to be limited and their perosnal experience would have shown them that long copyrights are bad. At the time of the US Revolution, copyrights on literary works were perpetual and held by booksellers. If you wanted Paradise Lost, you paid Tonson's whatever Tonson's wanted to charge you, and you accepted a copy with whatever printing errors they didn't feel like correction. Clearly, the men of learning among the framers intended to remedy this situation by limiting the copyright term.

However, what they actually accomplished in article 2 was to effectively give Congress the power to grant perpetual copyrights. A term of a billion years is, literally speaking, limited, even though none of nor any of our descendents will ever see that term expire. Of course, such a law would be so obviously capricious and repulsive that the court would feel justified in stepping in.

The problem with gradual copyright extension is that it ever so gradually conditions us to accept the absurd. At the outset, a copyright term of seventy five years would have been absurd. However over the course of two hundred years, gradual encroachment has got us here. Most importantly, the term of a copyright is now a full human lifespan. That means few people alive have experienced having works they remember from their youth becoming part of the public domain.

Because of copyright extension, we have reached the point where the common person's experience doesn't provide him with any commonsensical checks on copyright terms at all.

It's extremely important that Mr. Lessig win his case.

Tax copyrights annually like real estate

[Paul Fernhout]

How about going one step further?

If copyrights are now effectively indefinite, copyright holders should have to pay taxes like real estate owners to keep works out of the public domain. A starting amount would be 3% per year of a self-assessed value, where anyone could pay the entire self-assessed value to the copyright owner to force the work to be placed immediately in the public domain.

Re:+1, Finally Gets the Fricken Point

[swb]

Here's the problem. Elections never end. Even after you win the November vote, you *have* to keep the election machinery oiled as well as start stockpiling cash *now* to meet the spending needs of the next session. What's a senate campaign cost? $2M average, $20M in places like NYC and Cal?

These kinds of costs (war chests, constant campaigning) are expensive. So you have to constantly solicit donors, aka special interests to get the money. They expect legislative concierge service, which they get.

I don't see any way out because the supply of congressional seats is limited to 535 total (100 sentate, 435 house), and we all know how supply-demand works. I'd guess the best thing to do would be to add 3 new senators per state and double the number of house reps. More seats = more representation @ lower cost.

Of course this would be a procedural nightmare in the congress, which could be worse than the problem it solves, but it would dilute the amount of money spent and increase representation.

An alternative viewpoint:

[Kaya]

http://www.aynrand.org/medialink/copyrightlaw.shtm l Would-Be Intellectual Vandals Get Their Day in the Supreme Court Those who are spearheading the current legal challenge to the copyright law favor intellectual cannibalism masquerading as creativity and free speech.

Re:I thought this was funny...

[aronc]

From khkramer's summary, "Breyer joked that if Lessig's argument about 1998 applied equally to 1976, then he'd better find another argument. Everyonelaughed. (Everyone always laughed whenever a Justice made a joke.)"

I don't. Quite the opposite. If the justices are going to rule against the law because it would invalidate other laws, that's wrong. It shouldn't matter how many laws are effected when deciding if some particular legislation is or is not unconstitutional. Choosing to stay as-is because it would be difficult to fix the law is a horrible way to judge your current legal framework.