Reactions to the Eldred v. Ashcroft [ ] US Supreme Court Oral Arguments

John Palfrey [ ] for Internet & Society, Harvard Extension School

October, 2002

"What's twenty years?" That's the question asked, rather blithely, by Marybeth Peters, United States Register of Copyright, at a public forum a few hours after the Supreme Court heard oral arguments in Eldred v. Ashcroft. The twenty-year extension of the copyright monopoly, which is what's at stake in Eldred, means an awful lot of money and power for those who own content, like books, movies and music, and a lot less free access for the world at large to materials that would otherwise have entered the public domain. But what's really at stake in Eldred, and few skirmishes like it, is nothing less than the future of the Internet.

In classic cyberspeak, there are two possible futures of the Internet. The leading contender is an Internet owned and operated by the same forces that have always run the show in the real world, only now they may be able to control things, like copyrighted materially, even more effectively than ever before. The alternate future -- thought to be likely to emerge, circa 1996, but now so remote a possibility that even Pollyanna has given up hope -- is an Internet that is free and open, a wonderland of experimentation and diversity.

What the Eldred story is demonstrating, almost regardless of how the Justices decide on the merits of the case, is that there may be a third plausible future. There just might be a fair fight between those who want to lock up the content and the architecture of the Internet and those who seek to give voice to the interests of the global Internet community and the need for a full and vibrant public domain. And it's the Net itself that's making the prospect of a fair fight possible.

Eldred (as a legal argument) could have a dramatic - though not ultimately dispositive - impact on how this story ends. Eldred is a dispute over whether Congress had the ability under the Constitution to extend the term of the copyright by twenty years, pitted the powerful against the many. Argued by the US Solicitor General but fueled and funded by the owners and distributors of proprietary content like music and movies, the Ashcroft side claims that Congress had every right to make this decision and the Court need not worry about it. The Eldred side, argued by Stanford law professor Larry Lessig [ ], the "rock star" of the cyberlaw world, and supported literally by a cast of thousands, told the Court that extending copyright by twenty years ran afoul of the Constitution's copyright clause and violated the First Amendment to boot. Indeed, this case was the first time that the Court inquired into whether Congress could continue to extend the term of copyright, retroactively as well as prospectively, as it did in 1998.

The Justices yesterday seemed to be still working through the case. Justice O'Connor opened with what seems on the minds of many people: if we overturn Eldred, do we have to overturn all the other extensions of copyright, and most especially the 1976 Act? Chief Justice Rehnquist gave Lessig a tough question about whether what the Eldred side really wants is to be able to copy works verbatim. Justice Ginsburg and others pressed on the interplay between the copyright argument and the speech argument, seemingly trying to work out a way to use the speech route but struggling to do so. Justice Breyer might as well have been listed as co-counsel to Lessig, suggesting a way to answer a softball question from Justice Stevens. Justice Scalia, amazingly enough, didn't open his mouth during Lessig's argument and barely spoke during the government's argument, either. Some of the hardest questions, to be sure, were leveled at the Solicitor General. "Where will Congress stop?," asked a couple of Justices, after the SG agreed that there was a limit to the term of copyright. The Justices seemed to get that the policy was lousy, but were unclear as to whether Congress had the right to do it.

The Court won't rule until the Spring, and much hangs in the balance, to be sure - whether Mickey Mouse (Steamboat Willy, actually), Robert Frost's poem "New Hampshire," the film "Casablanca" and other treasures dreamed up in the early years of the 20th Century enter the public domain or remain locked up and for sale. And it matters a lot for innovation in cyberspace, since dissemination of content is so much more effective with today's information technologies.

But most commentators missed the real story, which is about what the case's development and aftermath - regardless, actually, of what the Court does between now and this Spring - mean for the future of the Internet. What's really happening with Eldred is that the Internet itself is being put through its paces. The question at issue is less the specific questions of law, as interesting and important as they are, and more about how the story of proprietary v. open will turn out. The Internet may not be attracting venture capital money the way it used to, but it sure can enable people to organize, even in an era of terrible political apathy. The campaign to bring Eldred to the Supreme Court - and to some corners of the global consciousness - demonstrated that those so inclined can get broadcast and then amplify and re-amplify a message.

The blogs and blogs of blogs [ ], for instance, that tell the Eldred story have exploded over the past few days. Photo-journalism [ ] by Declan McCullagh and others is keeping the image of the day alive. The mainstream media have picked up the scent of the fight, and have done a pretty good job of presenting a complicated case (Lessig in fact praised the press coverage at Public Knowledge's after-party in Washington, DC, following the oral argument). The Berkman Center for Internet and Society [ ] at Harvard Law School's OpenLaw site, which enabled hundreds of people to suggest ideas for how to argue the case, brought new ideas and the involvement of disparate voices into the case development process. Jace Cooke, a college student from Baltimore, camped out on the steps of the Supreme Court starting at 7:00 p.m. the night before the argument just to ensure he got to watch the justices grill Lessig and SG Olsen. Isaac Lidsky and Michael Fertik, Harvard Law School [ ] students, flew to DC and got to the Supreme Court steps at 5:30 a.m., only to see 3 minutes of the arguments (but seven justices spoke during those three minutes, they said, which made it all OK).

Never before Eldred has such a clear, effective voice emerged to state the case of the the need for a vibrant public domain. The plight of the public domain is a classic collective action problem, or the story, as some put it, of the tragedy of the commons. But Eldred suggests that the collective action problem could be overcome, at least partially. To be sure, in one sense, it has been Lessig who speaks for the public domain in Eldred, in his incredibly articulate, poised and dignified manner. In another sense, a growing subset of the Net community at large is making the Eldred case plain - and plainer by the day, even after the Oral Argument. The promise of the Internet makes that voice more urgent, and makes the voice easier to amplify.

The success of the Eldred side in organizing via the Internet and getting this question to the highest court in the land is further reason why Eldred and company should win. It is exactly this civic energy - potentially global in scope - that the early Net promised to unleash. Yes, we're in something of a dark period, less hopeful and less enthusiastic than it was when John Perry Barlow made his Declaration of Independence of Cyberspace [ ]. That original vision of the Net is simply not going to emerge. But the campaign that brought you Eldred could yet have more life in it and it could well be the Internet that makes that possible. At the end of one of the parties in Washington, DC, yesterday, the question on everyone's lips was, "What's next?" Jonathan Zittrain [ ] says it's Golan v. Ashcroft [ ]. Who knows. The only thing that's certain is that much remains to be done to shape the future of the Net, and this story's still unfolding.

Copyright 2002