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<nettime> eldred v ashcroft transcript
t byfield on Fri, 18 Oct 2002 17:14:57 +0200 (CEST)


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<nettime> eldred v ashcroft transcript


the _eldred_ case is potentially very important, potentially a fiasco. 
if it turns out to be the latter, hopefully it'll also be the end of 
the popularity/dominance of reformists like lessig and their affirma-
tive critiques and maret worship. otoh, if the former pans out -- and
the sonny bono copyright term extension act gets shot down -- things 
may get pretty interesting. not necessarily good, but interesting.

here's the transcript or lessig's argument before the court, about as
hot off the presses as it gets.

cheers,
t


     <http://www.aaronsw.com/2002/eldredTranscript>

ERIC ELDRED, ET AL., Petitioners
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL

   No. 01-618

   SUPREME COURT OF THE UNITED STATES

   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.

   OPINION: PROCEEDINGS

   (10:03 a.m.)

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

   Mr. Lessig.

ORAL ARGUMENT OF LAWRENCE LESSIG
ON BEHALF OF THE PETITIONERS

   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 --

   (Laughter.)

   MR. LESSIG: Justice, the theory, which would advance the aim of
   limiting times in a way that is enforceable, is only applicable in the
   case that we brought before you here to the '98 act, and would not
   necessarily be applicable under the '76 act for the reasons the
   Government has offered. We would not advance this argument, but the
   Government has offered an argument in a parallel case that suggests a
   distinction between the '76 act and this case. That's not been briefed
   here. It's been grounded in their claim that the treaty power creates
   some special power. We wouldn't advance that claim, but the point is
   there are a number of issues that the '76 act --

   JUSTICE BREYER(?): In essence, you think it's at least arguable that
   the '76 act had various positive aspects to it in terms of [*8] the
   purpose of the Copyright Clause that this act lacks?

   MR. LESSIG: That's certainly true, and we also believe that, for the
   reasons averted to by amicus AOL in this case and the reasons you've
   just suggested, the disruption in that context under the
   retrospectivity cases Ryder and Reynoldsville Casket Company would be
   sufficient to fit it within the, quote, "severe disruption exception"
   to the retrospectivity.

   JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76
   act, too, should have been declared void, and that we might leave it
   alone because of the disruption, is that for all these years the act
   has impeded progress in science and the useful arts. I just don't see
   any empirical evidence for that.

   MR. LESSIG: Justice, we are not making an empirical claim at all.
   Nothing in our Copyright Clause claim hangs upon the empirical
   assertion about impeding progress. Our only argument is, this is a
   structural limit necessary to assure that what would be an effectively
   perpetual term not be permitted under the copyright laws.

   JUSTICE KENNEDY: Well, perhaps I misunderstood. I thought the whole
   thrust of your argument was that there is a great First Amendment
   force here that's being [*9] silenced, that's being thwarted.

   MR. LESSIG: Well, the thrust certainly --

   JUSTICE KENNEDY: I thought that's the whole underpinning of your case.

   MR. LESSIG: It's certainly the case that we are asserting, in light of
   the changed circumstances, that the opportunity to build upon works
   within the public domain is a fundamental First Amendment interest,
   and that the First Amendment values, the vital speech interest at
   stake of this case, is that the public domain be permitted as a source
   for cultivating work about our culture without unnecessary legal
   restriction.

   CHIEF JUSTICE REHNQUIST: Well, but you want more than that. You want
   the right to copy verbatim other people's books, don't you?

   MR. LESSIG: We want the right to copy verbatim works that should be in
   the public domain and would be in the public domain but for a statute
   that cannot be justified under ordinary First Amendment analysis or
   under a proper reading of the limits built into the Copyright Clause.

   JUSTICE GINSBURG: Mr. Lessig, on your First Amendment argument I don't
   see where the retroactivity-prospectivity comes in, because -- I
   follow your argument under the Copyright Clause, but if you're saying
   that the time is too long, the public domain [*10] should get this
   stuff sooner rather than later, would you explain to me how your
   prospectivity-retrospective line fits into your First Amendment claim?

   MR. LESSIG: Justice, we've argued that it would be inappropriate in
   this case for the Court to consider the prospective line until they
   decide whether the case, whether the prospective and retrospective is
   severable, and we submit it's an easy case to show that it's not.

   JUSTICE GINSBURG: On the First Amendment --

   MR. LESSIG: Yes.

   JUSTICE GINSBURG: -- argument you're making that as, I take it, an
   argument independent of, it doesn't hang on your Copyright Clause
   argument.

   MR. LESSIG: That's right. I --

   JUSTICE GINSBURG: And so let's just take -- let's say that was your
   only argument in this case. How does that tie into a
   retrospective-prospective distinction?

   MR. LESSIG: Well, the strongest First Amendment argument is about the
   retrospective extension, because of a fundamental change that occurs
   when Congress extends subsisting copyrights, rather than when Congress
   legislates prospectively.

   When Congress legislates prospectively, it has no way to know who's
   going to benefit from its extension. It is simply evaluating what the
   term should be prospectively [*11] in a way that we presume this Court
   should presume is legitimate under the First Amendment. When it
   legislates retrospectively, it is, in effect, looking at particular
   authors and estates of authors who are before Congress asking for this
   extension, and it's choosing between these particular authors and the
   public at large.

   Now, it may be that in exercising that choice in this case, Congress
   made an objective valuation of who would be in the best position to
   advance the interests of promoting the progress of science, or any --

   JUSTICE GINSBURG: But you -- under your intermediate scrutiny test we
   would not be hypothesizing what might have been in Congress's mind.
   Your First Amendment test is a stringent one. You have to have an
   important purpose, and the means that you use is necessarily tied to
   that purpose. If you take that position, I don't see how you make the
   retroactive-prospective line work.

   MR. LESSIG: Well, the line comes from deciding what the First
   Amendment interest is, and if this Court heed the First Amendment
   interest off of this difference between selecting who gets the benefit
   of 20 years of extension and just simply legislating in a general way
   prospectively, then this [*12] Court could hold, with respect to the
   prospective, that it's not even necessary to raise the intermediate
   scrutiny in that context, but again, for Ashwander reasons we don't
   think that this Court should address the prospective aspect of the
   CTEA even under the First Amendment.

   JUSTICE GINSBURG: Even though Congress's pattern has been to treat all
   authors equally? I mean, the reason that it's been prospective and
   retrospective is that people should be, people who hold copyrights
   should be subject to the same regime and not have some people who got
   their copyrights the week before the law passed treated differently
   than people who got it the week after.

   MR. LESSIG: Well, Justice, that certainly is the reason the Government
   offers for this pattern. It, of course, doesn't explain actually what
   Congress has done and, even in this case, when a work has passed into
   the public domain, then there is precisely the same week before/week
   after problem that you advert to, that extension does not extend to
   all subsisting works, it only extends to all subsisting copyrights. So
   that line is already drawn in the practice that Congress has adopted,
   but our point is, the only way to assure --

   JUSTICE GINSBURG: But [*13] Congress has -- or, you're not disputing
   that Congress has always made these extensions, both retroactive and
   prospective?

   MR. LESSIG: Well, in 1831 it did not. In 1831 it granted the benefit
   of its extension to a subset of all subsisting copyright holders.

   JUSTICE GINSBURG: Let's stick with 1976.

   MR. LESSIG: In 1976 --

   JUSTICE GINSBURG: Because that was what you said -- that's -- the
   pattern under the CTEA is identical to the one in the '76 act.

   MR. LESSIG: That's absolutely right, yes. So they have extended it to
   both. But our argument is, unless this Court draws a line about this
   extension, then for the reasons Judge Sentelle suggested below, there
   will be no limit to Congress's ability to --

   QUESTION: Judge Sentelle did not deal with the First Amendment, as far
   as I --

   MR. LESSIG: That's right.

   QUESTION: -- recall.

   MR. LESSIG: That's right.

   QUESTION: And so I'm asking you -- perhaps I'm missing it. I haven't
   seen where you get the prospective-retrospective in connection with
   your First Amendment. It seems that you're just saying there that 70
   years is an unreasonable -- is not necessary.

   MR. LESSIG: Yes.

   QUESTION: And it doesn't serve an important purpose.

   MR. LESSIG: Yes. Precisely [*14] -- actually, we're not saying
   anything

   about the 70 years in this case even under the First Amendment,
   because we believe it's unseverable, but --

   QUESTION: But I thought you were saying that if you accept the
   Copyright Clause argument, then you have a way, in effect, of
   devaluing the Government's claim of its important interest and
   important objective when you get to the First Amendment intermediate
   scrutiny analysis. Whereas if you don't accept the Copyright Clause
   claim, then, in order to make the First Amendment analysis we've
   simply got to say, well, gee, is the promotion of useful art and so on
   more important than the public domain, and can we say that that allows
   a distinction between 50 years and 70 years?

   We're pretty much at sea, so I thought your Copyright Clause argument
   was necessary to give us some handle with which to deal with the First
   Amendment.

   MR. LESSIG: Our Copyright Clause argument is certainly a way of
   framing why extensions of subsisting terms cannot be seen to promote
   the First Amendment interest of speech at all.

   QUESTION: Okay. Let's assume we don't -- for the sake of argument
   here, let's assume we don't accept the Copyright Clause argument. Do
   you have [*15] an independent First Amendment argument in your brief?

   MR. LESSIG: Yes, of course we do.

   QUESTION: Okay, and it is -- tell me in a sentence or two what it is.
   I mean, at that point I'm where Justice Ginsburg is.

   MR. LESSIG: Yes. The First Amendment argument we've argued in our
   brief is with respect to the retrospective extension, and the First
   Amendment argument is, that needs to --

   QUESTION: No, but that's the Copyright Clause argument, and it seems
   to me you're saying, okay, we then apply that in First Amendment
   analysis, which allows us to make a coherent intermediate scrutiny
   argument.

   If we don't accept the Copyright Clause retrospectivity argument --

   MR. LESSIG: Yes.

   QUESTION: -- then what is your First Amendment argument?

   MR. LESSIG: That's right, I'm sorry, Justice. What I'm saying is not
   that it' s the retrospectivity that makes the First Amendment argument
   troubling -- I mean, that drives our First Amendment argument. All I'm
   saying is, we have addressed the retrospective portion of CTEA, and so
   I'm saying in the retrospective portion of CTEA you would apply
   ordinary, intermediate First Amendment review, and we would ask --

   JUSTICE O'CONNOR: Well, this Court really has not [*16] -- if you say
   that the Copyright Clause is not violated, I don't think there are
   examples where this Court has then resorted to First Amendment
   analysis to invalidate the same act.

   MR. LESSIG: Well --

   JUSTICE O'CONNOR: I mean, this would be quite a new proposition.

   MR. LESSIG: Well, Justice O'Connor, the First Amendment is always an
   independent limitation on what otherwise would be legitimate exercises
   of congressional authority, so this --

   QUESTION: Yes, but the Framers seem to have adopted these two things
   at the same time --

   MR. LESSIG: That's right.

   QUESTION: -- in effect.

   MR. LESSIG: That's right, and if --

   JUSTICE O'CONNOR: And I think there are not examples that I can think
   of where we have said, well, we'll analyze it under the Copyright
   Clause, but if that fails we'll turn to the First Amendment.

   MR. LESSIG: Justice, that's right. If only we had the Framers'
   copyright before us, because of course, again remember,the exclusive
   right the Framers spoke of was the right to print and publish. It
   didn't include the derivative rights, it didn't include the display
   rights, and it certainly --

   JUSTICE O'CONNOR: Right. It has expanded very much, and they also
   envisioned a very short term, and I can [*17] find a lot of fault with
   what Congress did here --

   MR. LESSIG: That's right.

   JUSTICE O'CONNOR: -- because it does take a lot of things out of the
   public domain that one would think that someone in Congress would want
   to think hard about.

   MR. LESSIG: That's right.

   JUSTICE O'CONNOR: But having done that, it's very difficult to find
   the basis in the Constitution for saying it isn't a limited term. It's
   longer than one might think desirable --

   MR. LESSIG: Right.

   JUSTICE O'CONNOR: -- but is it not limited?

   MR. LESSIG: Well, if it is limited, then there is no limit to the
   ability of Congress to extend subsisting terms, and that fundamentally
   destroys the objective that the --

   JUSTICE O'CONNOR: Rule against perpetuities might jump in there at
   some point.

   (Laughter.)

   MR. LESSIG: Right, and we submit the Framers had something very
   different in mind than the rule against perpetuities. The point is, if
   this is permitted, then there is no limit to the ability to extend
   terms, and that is precisely contrary to what the Framers had in mind
   when they worried about this problem originally.

   What was the problem they were solving? It was, as this Court stated
   in Graham --

   JUSTICE O'CONNOR: Well, I could agree with you, in terms [*18] of
   policy, that this flies directly in the face of what the Framers had
   in mind, absolutely. But does it violate the Constitution?

   MR. LESSIG: Well, if it flies in the face of what the Framers had in
   mind, then the question is, is there a way of interpreting their words
   that gives effect to what they had in mind, and the answer is yes.

   CHIEF JUSTICE REHNQUIST: Well, you know, certainly what is happening
   in the country today in the way of congressional -- under the Commerce
   Clause is totally different than what the Framers had in mind, but
   we've never felt that that was the criterion. What the Framers thought
   of, there weren't steamboats, there weren't railroads.

   MR. LESSIG: That's right.

   CHIEF JUSTICE REHNQUIST: We've said there was a general grant, and
   that Congress was free to run with it in many respects.

   MR. LESSIG: In many respects, Mr. Chief Justice, but, as this Court
   has also said, there are limits to what Congress can do under the
   Commerce Clause.

   QUESTION: But isn't --

   JUSTICE STEVENS: Can I ask you about one of the limits, just focusing
   on the Copyright Clause and the progress of science and useful arts?
   In your view, does that -- is that limited to encouraging creativity
   by authors and inventors, or [*19] does it also include the
   distribution of materials that might not otherwise be distributed,
   like old films and so forth?

   MR. LESSIG: We're happy to adopt a broader interpretation of what
   promote the progress is about, within the general framework that the
   Framers established in light of the English practice, which was a quid
   pro quo. The ability to facilitate distribution --

   JUSTICE STEVENS: So that if the quid pro quo is that we can facilitate
   distribution of some old film by an additional monopoly grant, you'd
   think that's permissible?

   MR. LESSIG: So long as the grant is conditioned upon the distribution.
   So long as the grant --

   JUSTICE BREYER: In other words you could have -- right now, if
   Congress decides to have a law, and this law is going to give
   copyrights in 1) the Bible, 2) Shakespeare, 3) Ben Jonson, and the
   reason they do it is that they think that that would lead publishers
   to produce those and distribute them, and they're right, they will,
   okay? In your view, that's perfectly constitutional?

   MR. LESSIG: No, that's the view of the Government's, Justice Breyer.
   My view is --

   JUSTICE BREYER: Well, I thought that was the question you were
   getting, and I thought you were saying -- I must [*20] have
   misunderstood. I thought you were saying that was constitutional.

   MR. LESSIG: No. What we were saying is, if Congress wants to permit
   restoration of films, for example, an issue that's been well briefed
   here, Congress can say, if you restore the film, then the restoration
   gets a copyright so long as it satisfies originality as outlined in
   Feist, and it gets a copyright for a period of time. But this Court's
   opinion in Graham and in Feist made clear that it could not extend
   copyrights to works in the public domain. The Government doesn't
   concede that, but we stand on that as a way of understanding why this
   Court --

   JUSTICE BREYER: So your answer to Justice Stevens is no, they cannot
   give a copyright purely for purposes of dissemination to publishers,
   is that right?

   MR. LESSIG: No.

   QUESTION: Oh, all right.

   MR. LESSIG: They cannot give a copyright purely for purposes of
   distribution to publishers.

   (Laughter.)

   MR. LESSIG: They would need to satisfy all of the implied limitations
   that this Court has expressed in the context of this, the most
   carefully limited clause in Article I, section 8. It is one of the --

   JUSTICE GINSBURG: Mr. Lessig, the clause says, Congress shall, and
   suppose Congress [*21] decides in this expanded world of ours that
   it's going to make certain changes and demand other changes from our
   treaty partners. Suppose it says, well, the Germans led the fight for
   70 years in the European Union, we'll go with that, but we're going to
   insist that they have a more expansive notion of, say, a fair use.
   Now, why couldn't that fit within the promotion of knowledge?

   MR. LESSIG: Justice Ginsburg, we have no quarrel with the objective of
   harmonization fitting within the "promote the progress of science"
   understanding, subject to constitutional limitations.

   If France adopted a rule that said you couldn't grant copyrights to
   hate speech, we could not harmonize with that rule consistent with our
   First Amendment and similarly, as Mary Beth Peters testified before
   Congress, ours is the only Constitution that has an express limitation
   on terms. That's got to mean something, and if it means that we are
   limited in our ability to agree with the Europeans as they continually
   expand the term in light of their own vision of what copyright is
   about, then that's the meaning of a constitutional restriction.

   This Court's interpretation of "limited Times" could, of course,
   eviscerate [*22] that term of any meaning, but under the principle of
   enumeration as this Court has articulated it, this Court should
   interpret that clause in a way that gives its terms effect in a simple
   way. Just as a limited addition print is not a limited -- is not
   limited if each time a customer comes in a new print is printed, so,
   too, a limited term is not limited if each time copyright holders come
   to Congress they can extend the term.

   JUSTICE SOUTER: Well, but the difference -- the reason that analogy
   doesn't cut it for me is that the limited edition print depends
   basically on an implied understanding between the person who makes the
   print and the person who buys it, and the understanding is, you won't
   go beyond 100, or whatever number you write.

   We're not engaged in a contractual analysis under the Copyright Clause
   between the writer and the -- and somebody representing the public
   domain.

   MR. LESSIG: That's right.

   JUSTICE SOUTER: The analogy doesn't seem to work.

   MR. LESSIG: That's right. All that I'm suggesting is, here is a plain
   meaning of the term that gives effect to the constitutional limit in a
   way that assures that, in fact, the limit is respected, contrary to
   the Government's argument, [*23] which, in effect, permits Congress
   the power perpetually to extend terms.

   If I may reserve the remainder of my time.

   CHIEF JUSTICE REHNQUIST(?): Very well, Mr. Lessig.

   General Olson, we'll hear from you.

ORAL ARGUMENT OF THEODORE B. OLSON
ON BEHALF OF THE RESPONDENT

   GENERAL OLSON: Mr. Chief Justice, and may it please the Court:

   The questions today, especially the initial questions, suggest one of
   the many insurmountable obstacles to petitioners' petition in,
   position in this case. That is that the first Congress explicitly gave
   copyright protection to the authors of any books already printed as
   well as explicitly the owners of existing copyrights. Thereafter, in
   1831, 1909, 1976, and 1998, and in numerous private copyright bills
   and temporary extensions of the copyright law and in repeated patent
   law revisions, Congress extended the terms of Federal copyright and
   patent protection of subsisting works.

   As this Court explained 100 and some years ago in its Burrows-Giles
   opinion, such constructions are accorded very great weight and, as
   that Court went on to say, when consistent and unchallenged for over a
   century are almost conclusive that consistent construction by Congress
   of its authority under [*24] the Copyright and Patent Clause now has
   lasted from the 105th -- from the first through the 105th Congress. It
   has been sustained by Justices of this Court and early decisions of
   this Court. It is consistent with what the law of England was from the
   Statute of Anne --

   JUSTICE STEVENS: Yes, but take one of the early extensions, just
   extending a -- an already granted patent to an inventor for an extra
   10 years. How can that be squared with the language of the provision?
   Maybe Congress did it, but maybe it acted improperly when it did it.

   GENERAL OLSON: Well, the Congress --

   JUSTICE STEVENS: And that's our question, really.

   GENERAL OLSON: Well, that -- it seems to me that there may be -- this
   is -- the clause itself is a very, very broad grant. It says the --

   JUSTICE STEVENS: Do you view it as entirely a grant, or do you think
   it also contains limitations?

   GENERAL OLSON: Well, I think that to the extent that there may be
   limitations, Justice Stevens, they are -- require considerable
   deference by this Court to the judgment of Congress --

   JUSTICE STEVENS: Well, I understand that, but do you -- I'd be
   interested in knowing, do you think it does contain limitations?

   GENERAL OLSON: It contains -- the clause itself [*25] contains
   limitations, limited times, authors, exclusive rights and things of
   that nature. I don't think -- and the petitioners expressly disclaim
   the assertion that there are any substantive limitations in the
   "Promote the-Progress" Clause.

   What the Framers were saying is, we want to give Congress the
   authority to promote the progress of useful arts and sciences, and --

   JUSTICE STEVENS: How did the example we just talked about, a patentee
   giving an extra 10 years on his -- how does that promote the progress
   of science?

   GENERAL OLSON: Well, it may provide additional incentives for the
   patentee to exploit and promote and disseminate that particular work.
   With respect to creative works like works of art, books and that sort
   of thing, it may provide many ways --

   JUSTICE STEVENS: I'm just concentrating on our patentee, and I'm
   wondering how that fits into the notion that there was a bargain in
   effect between the inventor and the Government that at a certain
   period of time it would become part of the public domain. It seems to
   me it's inconsistent with that.

   GENERAL OLSON: It isn't inconsistent, I submit, Justice Stevens, for
   the Congress to exercise its juris -- its responsibility under this
   broad [*26] grant of power to determine that there could be many ways
   in which the holder of an existing right may benefit the public by
   continuing to have that right for an additional period of time, the
   same reason that Congress -- same reasons that Congress had when it
   created the right in the first place. It's not just the --

   QUESTION: No, the reason for the right in the first place was to
   encourage invention.

   GENERAL OLSON: Well, but I -- we submit that specifically with respect
   to the Copyright Clause, but I think it applies to the patent portion
   of the clause at all, it isn't just the invention, it isn't just the
   writing of the work -- and this relates to the questions that were
   asked of my colleague a moment ago. It includes the dissemination of
   the work, not necessarily --

   QUESTION: Dissemination alone?

   GENERAL OLSON: Not necessarily the dissemination alone --

   JUSTICE BREYER: Well, no, not -- don't say not necessarily. I'm -- for
   purposes of my thinking about it, I'd like to know, imagine we have
   just dissemination.

   GENERAL OLSON: That something is already in the public domain.

   JUSTICE BREYER: That's correct. The only justification for the
   extension, there is no other, is dissemination of [*27] a work that is
   already in existence.

   GENERAL OLSON: I would not want to rule that out, Justice Breyer, for
   the very reason --

   JUSTICE BREYER: Well, I want to say, do you think yes or no?

   GENERAL OLSON: Well, I think that it could very well be yes, for the
   reason that in the 1790 statute the Congress specifically was aware of
   -- that there were State copyright laws which didn't last as long as
   the Federal statute. Several of the States hadn't finished enacting
   those copyright laws, and a couple of States hadn't enacted them at
   all.

   JUSTICE BREYER: So in your opinion, in my example, if you recall it --

   GENERAL OLSON: It's --

   JUSTICE BREYER: -- your answer would be, if Congress tomorrow wants to
   give a copyright to a publisher solely for the purpose of reproducing
   and disseminating Ben Jonson, Shakespeare, it can do it?

   GENERAL OLSON: It may --

   JUSTICE BREYER: I hate to say may --

   GENERAL OLSON: Well --

   JUSTICE BREYER: -- because that really -- that's an important
   question.

   GENERAL OLSON: Well, because I don't think that a per -- I don't think
   there is a per se rule that should apply here because this is a grant
   of Congress, to Congress to exercise its judgment as to what may be
   beneficial. There may be [*28] other constitutional provisions that
   come into play, or there may be --

   JUSTICE BREYER: All right, let me explain to you why it's important to
   me. I have a list. This is an economic statute. The harms that seem to
   be caused by it, the extension, I've listed as follows, approximate
   numbers, made up, but magnitude correct.

   The existing copyright holders who survive, their copyright survives
   70 years, who have already been paid, on the numbers that were given,
   about $ 24 billion or more, will receive an extra $ 6 billion. That, I
   take it, is a harm. Their works have already been created.

   Harm number 2. The fact that people, for the 99 percent of the
   copyrights that have no commercial value after 70 years, have to find
   the copyright holder to put them in databases. The cost of that, on my
   numbers in here, made up, at least a billion dollars, or they can't
   find the people at all and get permission, an innumerable cost, un --
   valuable cost to people who want to use it. Those are costs.

   On the plus side I see uniformity, dissemination, and -- now, you tell
   me.

   GENERAL OLSON: Well, I also see compliance with international
   competitive markets and the laws that are being adopted, and the
   incentives [*29] --

   JUSTICE BREYER: Uniformity. That's uniformity.

   GENERAL OLSON: Well, that's not just uniformity. It's providing
   incentive to people to publish here, as opposed to publish in Europe,
   where longer terms might be available. There is an incentive to
   distribute existing works that may be necessary. It's the consistency
   that Congress is promoting by saying to individuals, as they might
   have said when they enacted the Copyright Clause in the first place,
   we will not only give you 14 years, but if we change our mind
   tomorrow, and think that a better, a longer period is necessary, we're
   -- this is consistency, but it's also a matter of fairness, and it's
   --

   JUSTICE BREYER: Why -- on the last point, it's -- I've counted that as
   zero. The reason I've counted it as zero is it seems to me that the
   added value, incentive value to produce between life plus 50, or life
   plus 70, is zero. It's carried out, as the economists do, to three
   decimal points, divide by 100 for the probability of your ever having
   such a work, and you get virtually zero, no difference between this
   and a perpetual copyright.

   GENERAL OLSON: Well, I think that that's a very good illustration of
   why the authority is granted to Congress, [*30] because if you are an
   80-year-old writer, that may make a considerable difference in terms
   of what you decide to do.

   JUSTICE BREYER: How could it?

   GENERAL OLSON: It may -- because you may -- if you have no incentive,
   if you

   know that this is going to go into the public domain sooner rather
   than later, it may affect your judgment with respect to --

   JUSTICE BREYER: In -- I --

   GENERAL OLSON: It might also affect whether the publisher -- what the
   publisher pays for your prospective work, Justice Breyer. We -- the
   Copyright Clause incentive provides incentives not just for -- not
   just to the creators, but to the disseminators, the publishers, the
   broadcasters, the film companies.

   JUSTICE BREYER: So you think, say, Verdi, Othello, Verdi, Othello, 80
   years old, the prospect of an extra 20 years way down the pike would
   have made a difference?

   GENERAL OLSON: Well, I think again that illustrates why the authority
   is vested in Congress to make these judgments rather than in courts to
   make these judgments, because we're not talking about the effect on an
   individual author, or an individual creator. What the Framers of the
   Constitution were concerned about is a gross judgment with respect to
   what might generally [*31] provide incentives to the population --

   JUSTICE O'CONNOR: But it is hard to understand how, if the overall
   purpose of the Copyright Clause is to encourage creative work, how
   some retroactive extension could possibly do that. I -- one wonders
   what was in the minds of the Congress, even if somehow they didn't
   violate the clause. But if we affirm here, is there any limiting
   principle out there that would ever kick in?

   GENERAL OLSON: Well, that's a -- that is a difficult question to say
   whether there is any limiting principle when such a broad grant of
   power, authority is given to Congress and has been exercised so
   repeatedly that --

   JUSTICE O'CONNOR: Well, if it's a limited term, as the Constitution
   says, is there indeed any limit out there?

   GENERAL OLSON: What I submit -- well, first of all, even the
   petitioners acknowledge that, as far as prospective limits are
   concerned, that isn't a judgment that this Court is being made to ask
   and, in fact, the petitioners acknowledge that it isn't a judgment
   that this Court should make, so the only point that the petitioners --

   CHIEF JUSTICE REHNQUIST: Well, if Congress says we're going to grant
   this copyright indefinitely, forever --

   GENERAL OLSON: That would seem -- [*32]

   CHIEF JUSTICE REHNQUIST: -- that violates the limited term, does it
   not?

   GENERAL OLSON: I acknowledge that. And anything that --

   JUSTICE KENNEDY: In Victorian England you could buy a box seat for 900
   years. There was serene complacency about their culture, and God bless
   them, but --

   (Laughter.)

   JUSTICE KENNEDY: -- I really think this is an important question and,
   as Justice O'Connor points out, if we have to ask what's the most
   plausible explanation for this rule, to reward existing vested
   interest or to stimulate new works, it seems to me that it's probably
   the former.

   GENERAL OLSON: Well --

   JUSTICE KENNEDY: I mean, we know that.

   GENERAL OLSON: It is -- well, it -- let me say with respond -- in
   response to both of those questions, an unlimited time would violate
   the Copyright Clause. Something that was the functional equivalent of
   an unlimited time would violate the Copyright Clause, but the Framers
   specifically did not put in numbers. They had the opportunity to do
   that. Thomas Jefferson suggested that a number should be put in. We
   submit that it would be -- even -- since the petitioners don't suggest
   that it's an appropriate function of this Court, certainly in this
   case, to pick a number, 133 years or something [*33] of that nature,
   but it is quite clear that Congress from the Statute of Anne, 1710, we
   have 300 years of history, of Congress thinking that it continues to
   benefit the process, not just of the productivity, of the creation of
   the work itself, but the dissemination of it to provide --

   JUSTICE SCALIA: General Olson, you say that the functional equivalent
   of an unlimited time would be a violation, but that's precisely the
   argument that's being made by petitioners here, that a limited time
   which is extendable is the functionable, functional equivalent of an
   unlimited time, a limited time that 10 years from now can be extended,
   and then extended again, and extended again. Why -- their argument is
   precisely that, a limited time doesn't mean anything unless it means,
   once you have established the limit for works that have been created
   under that limit, that's the end.

   GENERAL OLSON: Well, the Framers had an opportunity to say immutable,
   unalterable, unamendable. They didn't use that. They used the phrase,
   limited term, which means then, meant then and means now, a certain
   specified --

   QUESTION: Okay, assuming --

   GENERAL OLSON: -- number of years under the statute.

   JUSTICE SOUTER: With the exception [*34] of a limitation which
   illustrates the distinction between forever on the one hand and a
   definite number on the other, is there any limitation in the clause?
   Does the promotion, does the preambular recitation of promotion as
   such place a limit on it?

   GENERAL OLSON: I submit, Justice Souter, that there's no per se
   limitation, that if there is, as Justice Scalia suggested, for -- if
   it is true that Congress, having specified 14 years or 28 years,
   decides that doesn't work very well because of the economies of other
   countries, the parade of constraints on artists in other countries,
   the reasons that we want things to be preserved or distributed, it
   should be 2 more years, or 5 more years later --

   JUSTICE STEVENS: Yes, but that argument would apply to new copyrights,
   but to extension of already existing copyrights your argument doesn't
   apply.

   GENERAL OLSON: It does apply, Justice Stevens, because --

   QUESTION: The work has already been created.

   GENERAL OLSON: The work has already been created, but the artists that
   are creating works day in and day out take into consideration the fact
   that Congress has decided, there's an ease of administration --

   QUESTION: But for them, they get the benefit [*35] of the longer term
   if you don't apply it to an existing copyright. I mean, if you say you
   need 70 years because of changes in the economy to encourage works,
   you grant 70 for the future, but why does that, making that apply to
   somebody who created his work 20 years ago and has already provided
   what he, the quid pro quo, why do you need it for him?

   GENERAL OLSON: We're not just -- because we're not just talking about
   the author. If we -- we're talking about --

   QUESTION: The Constitution refers to the authors and the inventors,
   doesn't it? They're certainly the prime actors in this scene, aren't
   they?

   GENERAL OLSON: Yes, but all of the history of the development of these
   clauses suggests that -- and this Court has indicated in its decisions
   with respect to copyright, that the Framers were concerned and the
   Congress is legitimately concerned not just in providing the spark of
   creativity, but to make sure that that's distributed widely and
   available, and there may be many reasons why -- we're -- we --

   QUESTION: And that it gets into the public domain at the expiration of
   the term. That was an important part of the bargain.

   GENERAL OLSON: Yes, and what -- but the definition of the [*36] term
   was a responsibility vested in Congress, because it has the power --
   the legislative history of the 1998 act itself suggests what was going
   on here and suggests why the Framers gave this authority to Congress.
   There were numerous hearings, there were testimony by the folks that
   represent the same position as petitioners here as to why this
   shouldn't be done, why it should be done.

   Congress weighed -- as this Court, the phrase that this Court used, I
   think it was in the Feist case, the delicate balance that was so
   difficult for Congress to --

   QUESTION: How --

   QUESTION: Okay, but you --

   JUSTICE BREYER: -- what weighs in that balance, because to go back for
   one second, in practical, economic terms I gather the difference
   between a copyright that lasts for 100 years, lasts for 1,000 years,
   lasts forever, is probably something less than 1,000 -- on $ 1,000 a
   penny. I mean, it's a penny on 1,000, or probably a lot less than
   that, frankly. So I can not only not imagine a person whose decision
   to write would be governed by such a thing, I cannot imagine a
   European who would come to America to copyright his work for such a
   reason. Indeed, I wonder why that European wouldn't come anyway, [*37]
   even if the term were 10 years, because if he doesn't come, he's not
   going to get protection.

   GENERAL OLSON: Well, the --

   JUSTICE BREYER: I mean, who are these people that are going to be
   moved by that incentive?

   GENERAL OLSON: The -- as we described in our brief, in pages 34
   through 36, I believe it is in our brief, that the concerns about the
   limitation on exploitation and the limitation of a copyright period in
   Europe is based upon the country of origin of the work and the
   shortest time available. So that there may be differences, and we
   describe that, but that illustrates, Justice Breyer, the difference
   between 1 cents and 10 cents and $ 100 with respect to this particular
   author who's this particular age, or a particular author like
   Melville, whose works weren't -- weren't -- didn't -- or Schubert,
   whose works weren't properly appreciated or exploitable until many
   years after their death.

   All of these variations are quintessentially legislative judgments. It
   would be very difficult for the Framers to have eschewed deciding 14
   years was a constitutional limitation, and for this Court to say 99
   years is, and again, even the petitioners aren't asking the Court to
   make that judgment. [*38] The petitioners are only saying that there
   shall be a per se rule that the word "limited Times" means
   unchangeable times.

   JUSTICE GINSBURG: But there has to be a limit, as you acknowledge.
   Perpetual copyright is not permitted. Who is the judge of -- within
   that line? Who is the judge of when it becomes unlimited? Is there, in
   other words, judicial review and, if there is, what standard will this
   Court apply to determine whether something short of perpetual is still
   unlimited?

   GENERAL OLSON: Well, the issue before this Court, I hasten to say, as
   I said before, is only whether, once the Congress makes that judgment,
   it can ever change it retrospectively. The issue before this Court is
   not whether, in the future, a certain length of time would be
   appropriate. That -- but the answer to that, Justice Ginsburg, I
   submit, is found in the Necessary and Proper Clause, and this Court's
   interpretation of the Necessary and Proper Clause as to the extent
   that this Court would find or not find that the judgment made by
   Congress with respect to the implementation of this very broad power
   is convenient or useful in terms of the achievement of the goals.

   JUSTICE SOUTER: Okay, and is your argument that we should [*39] so
   find and hold against their retrospective argument, because there is
   some, at least plausible basis to say that there can be a causal
   connection between the retrospective extension and some benefit that
   can be traced to those particular works through the retrospective
   extension, like dissemination? Is that your argument?

   GENERAL OLSON: That is among our arguments, Justice Souter.

   QUESTION: Is it also your argument that even if you cannot trace that
   kind, or at least plausibly argue that there could be that kind of a
   causal benefit, that it would still be constitutional, because you
   should judge the extension simply as contributing to a general system,
   one feature of which is that from time to time there may be
   retrospective extensions, and so long as that general system induces
   the creation of works, or the dissemination of works, or the
   preservation of works, so long as the general system works, there is
   no review, no limitation on the tinkering that can be done, even
   retrospectively? Is that also your argument?

   GENERAL OLSON: I think that's a fair statement of an argument that we
   have made and articulated in the brief --

   QUESTION: Okay.

   GENERAL OLSON: -- that unless there [*40] is a -- the Court is --
   because the circumstances change, that we are living in an era now
   where piracy is a significant problem, there's question of
   administrative ease, of administering a system where copyrights may be
   different for one set of authors, or different for another set of
   authors, there's changes that are taking place internationally, so
   that what we're saying is that not only could this Court conceive of
   reasons why Congress thought it was accomplishing the objectives of
   this clause, but that there are numerous objectives that are entirely
   legitimate in --

   QUESTION: Do you also argue that the Necessary and Proper Clause alone
   will justify the retroactive extension simply as a matter of equity?

   GENERAL OLSON: Yes.

   JUSTICE SCALIA: That is, that the Copyright Clause justifies the
   extension for works not yet created, but it would be enormously
   inequitable to have other authors who put in the same amount of work
   get a lesser protection, so the Necessary and Proper Clause now allows
   you to do the retrospective?

   GENERAL OLSON: Yes, Justice Scalia, and the examples that are --

   QUESTION: Can I ask you, why is it enormously inequitable if they get
   exactly what they were entitled [*41] to at the time they made the
   work?

   GENERAL OLSON: The implicit promise that --

   JUSTICE STEVENS: I mean, they have some right to expect that they will
   be -- you know, an additional grant, later on?

   GENERAL OLSON: I think that's not an unreasonable expectation at all,
   Justice Stevens, because that was the premise of the --

   QUESTION: That is the way it's always been done. There hasn't been any
   copyright extension that hasn't applied to subsisting work.

   GENERAL OLSON: That's --

   QUESTION: But there was one -- Justice Breyer brought up Ben Jonson,
   so -- this case doesn't involve works that are already in the public
   domain.

   GENERAL OLSON: That is correct.

   QUESTION: This is subsisting copyrights.

   GENERAL OLSON: That is correct.

   QUESTION: So --

   QUESTION: But why wouldn't it?

   QUESTION: Why? Why not?

   JUSTICE SOUTER: Why wouldn't it? If the equity argument under the
   Necessary and Proper Clause justifies extension of the copyright for
   those whose copyright will expire tomorrow if it's not extended, in
   order to put them on parity with those getting copyrights for new
   works, why doesn't it apply to the copyright, the holder of the
   copyright that expired yesterday?

   GENERAL OLSON: You could arguably [*42] -- you could conceivably make
   that argument, Justice Souter, but there is a bright line there.
   Something that has already gone into the public domain, which other
   individuals or companies or entities may then have acquired an
   interest in, or rights to, or be involved in disseminating --

   QUESTION: And if you don't --

   GENERAL OLSON: This is a rational --

   QUESTION: If you don't throw out a line there, then Ben Jonson
   certainly gets recopyrighted.

   QUESTION: Well, the difficulty --

   QUESTION: If we're just looking for a bright line, the line that they
   suggest between unexpired patents and copyrights and brand new ones is
   also just as bright.

   GENERAL OLSON: Oh, I concede that it's a bright line, but it's a
   bright line

   that would have --

   QUESTION: Except Congress chose this one and didn't choose the other
   one. That's --

   GENERAL OLSON: Congress --

   QUESTION: Basically you're saying the presumption ought to be in the
   congressional judgment about how to draw the line as well as in how
   long a line to draw.

   GENERAL OLSON: I agree, and this Court has -- we're not just talking
   about the judgment of the Congress of the -- the 105th Congress in
   1998. This is the way the Statute of Anne was [*43] written. This is
   the way the State copyright laws were written when this country became
   a Nation. This is the way the 1790 copyright statute, the number of --

   QUESTION: Well, of course, the original statute was replacing a bunch
   of State statutes or State rules, partly common law, partly statutory,
   that -- they had kind of a mixed up legal situation, and there was an
   interest in having one uniform rule for the first time around.

   GENERAL OLSON: Well, there was an interest in having a uniform rule,
   and that's precisely why the Framers created the Copyright Clause in
   the Constitution, but there was copyright protection in some States,
   there wasn't copyright protection in other States, and what we know
   from the decision of this Court in the Wheaton decision is that there
   was not a common law copyright in existence. This Court explicitly
   held that.

   Now, the petitioners make this quid pro quo argument that somehow
   implicitly the initial 1790 copyright statute was saying to people,
   you get a copyright if you exchange whatever existing rights you have.
   That simply does not make any sense. There is no language, and it's a
   relatively late-discovered argument, because it sees its full -- [*44]

   QUESTION: I want you to finish that, but I want you to go back to the
   -- I have one question on the equity principle. Are you -- I want you
   to finish.

   GENERAL OLSON: I wasn't finished, but I'm happy to come back.

   QUESTION: Go ahead. No, no, you finish first.

   GENERAL OLSON: Well, I was going to say there's no language whatsoever
   of preemption, abandonment, abrogation, or exchange in the 1790
   copyright, but compare -- Copyright Act. But compare that to the 1793
   Patent Act under the same clause, where there is that exchange there.

   The other thing, as this Court has said, there is no implied
   abrogation of common law rights which would be a doctrine which would
   be inconsistent with what the petitioner is arguing. Now --

   JUSTICE BREYER: Why -- I mean, I think you have a point on this equity
   principle. I wonder, is there any review there? That is, suppose you
   have a statute, as this one arguably is, where 99.9 percent, many
   billions of dollars of benefits, are going to the existing holders of
   copyright on grounds of equity, and the effect of the statute in
   eliciting new works is near zero. I mean, that would seem -- where
   this equity idea is the camel and the production idea is the gnat,
   [*45] and is there any -- can we say something like that, or does
   Congress have total leeway in respect to --

   GENERAL OLSON: Well, it --

   JUSTICE BREYER: -- who they want to give the money to, basically?

   GENERAL OLSON: Justice Breyer, it's conceivable that the Court might
   do that if that situation was present, but it's not remotely the
   situation here. We have the adoption of copyright terms which are
   consistent, generally speaking, with copyright terms which exist in
   the European Union, our principal competitor, and in connection with
   international treaties.

   We have a copyright term that's consistent with the concept of the
   creator plus the creator's first generation heirs. We have a copyright
   term, remember, which supersedes the earlier copyright provisions that
   were added to the period between creation and publication, so that the
   limited number of years in the first, the 1790 and the 1831 statute
   were the number of years plus the relatively unlimited period of time
   between creation and publication, so we don't have anything remotely
   like that in this situation.

   We have a process which, as you suggested, or one of the questions
   suggested, is -- may not have been the policy that you as a [*46]
   Member of Congress would have supported. You might have made the
   balance, that delicate balance that this Court has referred to, in
   another way, but that is something that Congress, through its ability
   to gather facts and make balances, is quintessentially capable of
   doing, and that is where the Framers vested the responsibility, and
   what this statute does is to favor, if at all, the creator with
   respect to the utilization of these rights, as opposed to the person
   who wishes to copy the creator. That's an entirely rational
   distinction for Congress to make.

   Thank you.

   QUESTION: Thank you, General Olson.

   Mr. Lessig, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF LAWRENCE LESSIG
ON BEHALF OF THE PETITIONERS

   MR. LESSIG: General Olson has been perfectly clear in setting out the
   structure of the Government's argument. It is that there is no
   effective limit on Congress's power under the Copyright Clause. Now,
   were this the first time this Court had considered Congress's
   copyright authority, that might be a plausible argument, but the very
   first time this Court ever struck down a law of Congress as exceeding
   Article I, section 8 power was in the context of the Copyright Clause.
   [*47]

   We have 125 years of history of this Court making sure that the
   limits, both express and implied, in the Copyright Clause, have some
   meaning. The Feist opinion very clearly sets out the implied limits, a
   per se limit for originality, for the reasons Justice Breyer was
   trying to get me to say. The Harper as well as Graham set out very
   clear limits on the context of the ability to extend works in the
   public domain. Those limits make no sense under the reasoning the
   Government has offered. The Government's reasoning would make all of
   those opinions irrelevant and wrong.

   Now, we offer a simple way to make this clear, express limit make
   sense, and that is precisely the understanding we suggest that existed
   in 1790. The only precedents that existed in 1790 were precedents of
   setting a term, and then when parliament was asked in 1735, '37, and
   '39 to extend it, they rejected it, and as amicus historians said,
   they rejected it because, as a pamphleteer described it, that would be
   effectively a perpetual term.

   Now, this delicate balance that the Government invokes, Justice
   Breyer, let me give you the numbers. The delicate balance is that,
   under the most reasonable assumptions of copyright [*48] royalty
   income and under our interest rate of 7 percent, as the amicus
   economists note at page 6, note 6 of their brief, the current term
   gives authors 99.8 percent of the value of a perpetual term.

   Now, that might be a delicate balance, that they give the author 99.8
   percent and the public .2 percent, but in my mind, that's delicate in
   a very different sense of that term.

   Thank you very much.

   CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lessig.

   The case is submitted.

   (Whereupon, at 11:01 a.m., the case in the above-entitled matter was
   submitted.)

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