Friday , January 21 2022

Transcript of Eldred

Aaron Swartz has a transcript of Eldred vs Ashcroft, argued before the Supreme Court October 9, 2002:

    Thanks to some friends, I’ve been able to get a copy of the Eldred case transcript. I’ve cleaned it up, added the names of the justices where possible (searching my memory, the responses in the text, and press reports) and HTMLized it. So, I’m probably not supposed to post this but I feel doing so will promote the progress of science and the useful arts, so here goes:

    ERIC ELDRED, ET AL., Petitioners
    No. 01-618


    2002 U.S. TRANS LEXIS 47

    October 9, 2002, Wednesday, Washington, D.C.

    NOTICE: [*1] Transcribed by Alderson Reporting Company, Inc., 1111 14th Street, N.W., Suite 400, Washington D.C. 20005-5603, Telephone Number: 202-289-2260

    The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

    APPEARANCES: LAWRENCE LESSIG, ESQ., Stanford, California; on behalf of the Petitioners.

    THEODORE B. OLSON, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.


    (10:03 a.m.)

    CHIEF JUSTICE REHNQUIST: We’ll hear argument now in Number 01-618, Eric Eldred v. John D. Ashcroft.

    Mr. Lessig.

    MR. LESSIG: Mr. Chief Justice, may it please the Court:

    Petitioners are before you this morning challenging Congress’s 1998 Sonny Bono Copyright Term Extension Act, which extended the term of subsisting and future copyrights by 20 years. Petitioners submit such a blanket extension of existing terms exceeds Congress’s power under the Copyright Clause and it violates the First Amendment.

    Now, the Government has responded to petitioners’ argument in a way that betrays a simple but fundamental confusion. The Government [*2] has argued as if petitioners had advanced a general theory of the Copyright Clause, or a general constraint under which Congress must operate. That is a mistake. This case is about limits to an enumerated power. It’s not about general power of Congress to exercise its copyright authority. Petitioners have advanced a particular interpretation of the only express limits in the Copyright Clause designed to give those limits meaning.

    JUSTICE O’CONNOR: Mr. Lessig, I’ll tell you what bothers me about your position, and that is that Congress has extended the term so often through the years, and if you are right, don’t we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.

    MR. LESSIG: Justice, we do not believe that the very first act extended terms at all. Speaking technically, which for a lawyer means speaking accurately, the 1790 act did not extend a Federal term. The 1790 act granted a term for works that already existed in precisely the pattern that the English parliament had done in the Statute of Anne in 1710, and that the English parliament did with monopolies, general monopolies in the statute of —

    JUSTICE O’CONNOR: But [*3] there have been a number of extensions since.

    MR. LESSIG: That’s right.

    JUSTICE O’CONNOR: Even if you can get over the first hurdle.

    MR. LESSIG: That’s right. That’s the important hurdle, and we’d like to jump that first, but the other ones, Justice, you’re right, in 1831 and in 1909 Congress extended terms in a way that is inconsistent with the strongest form of the test that we have advanced. Those extensions, however, were never challenged in any court and certainly not considered by this Court.

    CHIEF JUSTICE REHNQUIST: Well, doesn’t that itself mean something, Mr. Lessig? The fact that they were never challenged, perhaps most people, and perhaps everybody felt there was no basis for challenging them.

    MR. LESSIG: Well, Mr. Chief Justice, it’s absolutely true that this case is here because of a fundamentally important changed circumstance that makes the Framers’ limitations on the Copyright Clause much more significant. This is the first time I can remember where this Court has been pointed to changed circumstances as a reason to reaffirm the Framers’ values, because for most of this period, Mr. Chief Justice, the only people who were regulated by copyright law under the Copyright Act would have been [*4] commercial publishers, primarily, and now for the first time the scope of this exclusive right has expanded because of the changed technology of the Internet to reach an extraordinarily broad range of creativity that never would have been imagined before.

    Now, it’s not the case that the earlier extensions were not questioned on constitutional grounds. In fact, Melville Nimmer, in the consideration of the 1976 act, suggested they were plainly under —

    CHIEF JUSTICE REHNQUIST: Well, I’m talking about court challenges, not academic challenges.

    MR. LESSIG: That’s right, there is no court challenge.

    JUSTICE SOUTER: Mr. Lessig, your theory, as I understand it, regardless of changed circumstances or not, your basic theory, which on your argument would have been appropriate at any time historically, is that there has at least got to be the possibility of a kind of a causal connection between the extension and the promotion or inducement for the creation of some subsequent work, but why is that any more plausible a reading of the Promotion Clause than simply a reading that says the Promotion Clause requires that there be a general scheme in place, which overall tends to promote or induce, and part of one aspect [*5] of that scheme can be that the — that at the discretion of Congress the period of protection is extended from time to time?

    Why do you require — why do you say the clause has got to be read by this kind of specific causation theory as opposed to a kind of systemic theory of promotion?

    MR. LESSIG: Justice Souter, the reason is exactly related to the point I began with, that this is a case about limits and not about discretion. If it’s not the case that this Court —

    JUSTICE SOUTER: No, but that’s — I mean, that’s the issue in the alternative reading.

    MR. LESSIG: That’s right.

    JUSTICE SOUTER: And why is it a limit case, rather than a discretion within a general scheme kind —

    MR. LESSIG: That’s right.

    JUSTICE SOUTER: — of clause?

    MR. LESSIG: Because if this Court does not adopt a reading of the form we’ve offered, then there is no limit to the ability of Congress to extend subsisting terms.

    JUSTICE GINSBURG: Do you say the same thing for scope? This case is about duration, but Congress from time to time — in fact, you mentioned —

    MR. LESSIG: Yes.

    JUSTICE GINSBURG: — the expanded applications of copyright, and Congress itself extends the scope from time to time.

    MR. LESSIG: That’s right.

    JUSTICE GINSBURG: [*6] Would you make, as far as, say, translation rights that didn’t exist before, the same argument?

    MR. LESSIG: I —

    JUSTICE GINSBURG: Why — or — and if you wouldn’t, why not?

    MR. LESSIG: I — no, Justice Ginsburg, we would not, and the reason is again related to the method we have adopted to interpret “limited Times.” We have not said that “promote the progress of science” is a general and independent constraint on the Copyright Clause authority. We’ve said it must be looked to to interpret the scope of “limited Times,” and unless retrospective extensions are forbidden, it will eviscerate the meaning of “limited Times.” That does not occur in the context of the scope of exclusive right, nor in the context of the power to secure. If that’s —

    JUSTICE BREYER: Could we then go back to Justice O’Connor’s question? To make that very specific, if we agree with you, does that mean that we would, in principle, have to hold the 1976 extension unconstitutional? I mean, in 1976, Congress extended the term from 28 years. renewable once, to life of the author plus 50 years. Now they’re extending it life of the author plus 70. If the latter is unconstitutional on your theory, how could the former not be? And [*7] if the former is, the chaos that would ensue would be horrendous.

    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 —


Fascinating, go check out the rest. This is history.

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

    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.

    Petitioners suggest that, although the CTEA’s term is not impermissibly long, future courts might be unable to distinguish “limited Times” such as the CTEA’s term from hypothetically unlimited, perpetual copyrights that Congress might someday enact. Congress has significantly revised the federal copyright term only five times in 210 years, however, and there is no basis for believing that upholding the CTEA would either lead Congress to adopt unlimited copyright extensions or require the courts to uphold such extensions.

    Ultimately, petitioners wish to displace Congress’s preference for copyright-based dissemination of works during the CTEA’s prescribed proprietary term, and instead to allow indiscriminate exploitation by public domain copyists like petitioners. But the Constitution assigns such policy choices to Congress, not the courts.

    II. The CTEA does not impermissibly abridge freedom of speech. All copyright law, including the CTEA, protects authors’ writings from unrestricted exploitation by others for “limited Times.” This Court has recognized that the copyright system does not offend the First Amendment because it allows unrestricted use of the ideas and facts within copyrighted works, and also allows “fair use” of copy-righted expression itself. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). Since the CTEA fully preserves copyright’s traditional safeguards for free speech, it satisfies First Amendment standards under this Court’s jurisprudence.

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About Eric Olsen

Career media professional and serial entrepreneur Eric Olsen flung himself into the paranormal world in 2012, creating the America's Most Haunted brand and co-authoring the award-winning America's Most Haunted book, published by Berkley/Penguin in Sept, 2014. Olsen is co-host of the nationally syndicated broadcast and Internet radio talk show After Hours AM; his entertaining and informative America's Most Haunted website and social media outlets are must-reads: [email protected],, Pinterest America's Most Haunted. Olsen is also guitarist/singer for popular and wildly eclectic Cleveland cover band The Props.

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