This transcript is of the oral arguments made by Lawrence Lessig, counsel for Eldred and Theodore Olson, counsel for the respondent. Lessig, notes that he has come to court in order to challenge Congress’s 1998 Sonny Bono Copyright Term Extension Act, which has extended the term by 20 years. He argues that is violates the 1st Amendment and that this case is about limits to an enumerated power and “it is not about the general power of Congress to exercise its copyright authority”.  Justice O’Connor at first has some doubt about the case because the issue of extension has been passed several times by Congress. Lessig agrees with O’Connor stating that he and the petitioners believe that all copyright extension acts have violated the Constitution. Justice Souter questions Lessig and states that Lessig’s argument is based on the possibility of a “kind of causal connection between the extension and the promotion or inducement for the creation of some subsequent work”, however Justice Souter questions why that must be the more plausible reading of the Promotion Clause. Lessig responds by saying that this is a case about limits. Throughout the transcript, the Justices question Lessig on the arguments he makes as to why he is bringing this case before the court and why or why not it should be accepted by the Justices. Olson, on the other hand, argues that Congress has passed several extension acts and that the CTEA is consistent with the previous unchallenged acts. In Lessig’s rebuttal, he states that his argument is simple: “that there is no effective limit on Congress’s power under the Copyright Clause” which is unconstitutional.
    This transcript envelops the very essence of my paper. This case is the most important case in deciding the constitutionality of extending copyright law and why arguments have been made against such an act as in the case of Eldred vs. Ashcroft. The 1998 Act protects everything that has been under copyright law for 20 more years, something that the petitioners argue is unconstitutional because it puts no limit on the time of a copyright law which is clearly noted in the Copyright Clause. This transcript is the crux of my paper.

Eldred v. Ashcroft

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

Eric Eldred is a retired computer programmer who started building a library of public domain books by scanning them and making them available online (very similarly to Google). His case launched a constitutional challenge to the Sonny Bono Copyright Term Extension Act (CTEA), in the following fields: (1) The Progress Clause: the ability to extend existing terms violates what the framers had in mind by “limited times.” (2) First Amendment: the extension of copyrights for existing works restricts speech without getting any speech in return.

In the 1998 CTEA, the congress increased the copyright term by 20 years for present and future work. It had been the eleventh time Congress had increased the copyright term in the past 40 years. The motivation behind it was political pressure by groups which owned valuable copyrights.

Eldred asked the question: how can you be promoting progress, if you extend the term for works already existing? How is it possible to follow the framers’ constitution, and their clear clause of copyright protection for a limited time, when copyright protection rights are perpetually extending into the future?

In the heart of the matter lie not the 2% of copyrighted work which retain their value until the end of their copyright term (e.g. Mickey Mouse), but the 98% of the works which become commercially unavailable, and later orphaned before the end of their term. Examples of such include old American films of the Laurel and Hardy era. Such works would actually benefit from a smaller copyright term because restoration work on the film can begin sooner.

Eldred was defeated in this case, and the CTEA secured. This case, however, offers a radically different approach to the orphan works problem to the ones proposed later in 2005, 2006 and 2008. The challenge with orphan works legislation is to organize the transition from copyright to the public domain for a large amount of material. Ideally, every work would enter the public domain after it would stop generating revenue for the copyright owner, and would be commercially unavailable. It is impossible, though, to monitor the entire spread of human creations and decide on a case by case method which works are ready to be transferred to the public domain and which ones are not. Whereas the more recent acts seek to solve the orphan works problem by curtailing the rights of disappeared authors and by creating databases that link works to rightsholders, this case proposed the faster entry of works into the public domain.

This solution is so simple that it almost makes every other bill seem ridiculous. Yet, the fact that the CTEA was upheld indicates the necessity for a filtering system which can distinguish between commercially successful works which need to be protected, and orphan works which should be placed in the public domain. This is an important source because it represents the roots of the orphan works movement, and provides a simple alternative to the Google Book Search, the 2005 Public Domain Enhancement Act, the Copyright Act of (2006) and the latter’s 2008 equivalents to the solution of the orphan works problem.

argument of the book

analysis

Eldred v. Ashcroft oral arguments.