MR. LESSIG: Justice Breyer, under our theory as we've advanced it, you're right; the 1976 act would be unconstitutional. Whether this Court would apply such a holding in this case to that act is a question that would have to be resolved under the retrospective --

JUSTICE BREYER: Maybe we ought to find another theory, then. Is there any --

(Laughter.).... Fascinating, go check out the rest. This is history.

UPDATE
We also have the full government response to the Eldred petition, summary as follows:

SUMMARY OF ARGUMENT
I. Every congressional modification of copyright terms in United States history has been applied to both future and subsisting works. Since the CTEA's term of life-plus-70-years is not unlimited or perpetual, it satisfies the constitutional mandate that copyrights last only for "limited Times." Within that one constraint, Congress's choice of particular copyright terms, and of works protected thereby, is entitled to great deference and must be upheld if that choice is a necessary and proper exercise of legislative power.

Congress's decision to apply the CTEA to subsisting works meets that test. First, it is rational for Congress to treat authors' original works equally, regardless of whether created before or after the CTEA's enactment. Congress reasonably determined that demographic, economic, and technological changes warrant a longer term for all un-expired copyrights. Allowing fair compensation for holders of existing copyrights accomplishes that goal directly, and is also necessary and proper as an ancillary means of pro-tecting future works. Congress might be less likely to respond to a perceived need to modify the term of copyright protection if it could not do so in a manner it deemed equitable.

Further, this country's practice of granting evenhanded protection to authors of existing works - a tradition followed in statutes dating from the 1790 Copyright Act for-ward - increases incentives for the creation of future works and for initially publishing those works in the United States.

Especially in a global market, Congress's decision to conform to certain international copyright standards rationally allows United States copyright holders to meet foreign competitionand thereby provides revenues to be invested in producing new works. Congress also rationally concluded that the CTEA's longer term would encourage holders of existing copyrights to make substantial investments in restoring and distributing their works, to the benefit of public discourse.

Petitioners in effect ask this Court to rewrite the governing constitutional language to allow Congress to secure copyrights only for "inalterable limited times that promote the creation of new works." Neither the Constitution's text nor its history supports such substantial revisions, and two centuries of legislative practice and judicial decisions stand to the contrary.

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