Forwarded with permission:
Date: Wed, 09 Oct 2002 19:59:46 -0400 (EDT)
From: [email protected]
Subject: Eldred v. Ashcroft oral arguments
To: Multiple recipients of list <[email protected]>
Here are some thoughts and observations on the Eldred v. Ashcroft oral
argument. As I did not take notes, this is not a complete write-up. The
transcript should be posted on the court's website by the end of this month.
In general, I was surprised that the justices asked relatively few questions
and allowed the two attorneys (Prof. Lessig and the Solicitor General, Ted
Olson) time to expand upon their statements. Critically, the usually
loquacious Justice Scalia did not ask any questions of his former law clerk,
and had only a few for Olson. Although I did not attend the following
argument, Marybeth Peters, the Register of Copyrights, commented during the
CUA symposium in the afternoon that J. Scalia asked far more questions during
the second case and evidently dominated that argument.
Anyway, it seemed obvious that the justices were troubled by the prospect of
indefinite extensions, yet uncertain whether they could do much if anything
about it, given the authority granted to Congress in the Copyright / Patent
clause. Several raised the fact that there had been a number of previous
extensions, all of which went unchallenged in the courts at the time.
The First Amendment issues, although extensively briefed, were scarcely
touched upon during the oral argument. As I recall, Justices Ginsburg and
Souter attempted to raise these issues, but didn't make much headway.
Even Justice Breyer, previously a strong advocate of recognizing that
Congress has extensive authority to legislate (see his dissents in the long
string of federalism cases), seemed troubled by the prospect of a series of
extensions into perpetuity.
When the S.G. was asked whether Congress could extend copyright even further
(such as 1,000 years), he hastily brushed off that question, claiming that
only the 20-year extension in the CTEA was before the court. Evidently he
did not want to make any admission that could come back to harm the
government should Congress in fact pass another and much longer extension.
The courtroom was packed, and I noticed that the public line to enter was
extremely long, with some people having camped out overnight! I could not
tell how many people got in from the public line, but did spot a few in the
back of the audience who looked unwashed, so to speak.
In the "guest of honor" seating row, immediately behind the bar, were three
individuals: Congresswoman Mary Bono (R. - Palm Springs) and former
Congressman James Rogan (R. - Pasadena, then known for his role as House
Impeachment Manager), now director of the Patent & Trademark Office, who were
belatedly joined by Zoe Lofgren (D. - San Jose). Their party affiliations
became quite obvious when former Judge Ken Starr, who was arguing the second
case, approached them before the session began -- two of the three stood up
and enthusiastically greeted him, while the third pointedly ignored the
former Independent Counsel and remained seated.
Jack Valenti was also in the audience, but was not to be seen at the press
conference afterwards on the front plaza (at least not before I left). The
press conference was interesting and was dominated by Nina Totenberg's
questions. Prof. Lessig spoke at length, followed by Ms. Bono (who talked,
in part, about what "Sonny" would have wanted), and then Mr. Eldred. Ms.
Bono conspicuously rolled her eyes and grimaced when Mr. Eldred started
talking.
I would not bet on the specific outcome, given all the cross-currents, and
that several if not all of the four justices who usually dissent on
federalism issues (i.e., are advocates of strong congressional authority to
enact statutes) seemed among the most skeptical of the CTEA. Even if the
Supreme Court upholds the D.C. Circuit's decision, I would still predict that
it would be on narrow grounds with a strong dissent, or even a concurring
opinion that attempts to narrow the scope of the majority. I certainly hope
that it doesn't end up with a fractured court that can only muster a
plurality decision that will be difficult to interpret (as for some of the
recent First Amendment and FCC cases).
Alan K.
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