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Justices Doubt Free Speech Link. After hearing oral arguments in Eldred v. Ashcroft, U.S. Supreme Court justices question the plaintiffs' attempt to make copyright law a First Amendment issue. Michael Grebb reports from Washington, D.C. [Wired News]

Art: What's Original, Anyway?. An upcoming art exhibit teases the bounds of legality by incorporating copyright-protected images, sounds and words. Organizers timed it to coincide with a landmark Supreme Court copyright case. By Kendra Mayfield. [Wired News]

Illegal Art debuts in NYC, Chicago, and online. It comes to NYC Nov. 13 - Dec. 6, and Chicago Jan. 25 - Feb. 21. According to a description on www.illegal-art.org, the show "will celebrate what is rapidly becoming the 'degenerate art' of a corporate age: art and ideas on the legal fringes of intellectual property. Some of the pieces in the show have eluded lawyers; others have had to appear in court." Check the audio page for 21 full-length, shamelessly illegit MP3 downloads. While you can. [Boing Boing Blog]

Eldred—its all over but the scrivening—Sounds like the oral argument was about like you would expect: the court doesn't see a big first amendment issue (frankly, neither do I) and neither side emerged feeling that victory is certain. Of course, trying to predict the outcome of appellate arguments based on the questions that are posed during oral argument is dicey at best because judges ask questions for a variety of reasons, not just to express disapproval with the argument being advanced.

Anyway, I wasn't at the oral argument. And I'm not a copyright law expert. So it's safe to say that I'm dangerously under-informed, which makes it perfectly appropriate for me to opine on the likely outcome of Eldred. First, to the members of the Supreme Court this is not a watershed moment of jurisprudence. It's just an interesting copyright law case, with the most interesting thing being the constitutional dimensions. Second, the court has a policy of avoiding, where possible, declaring laws unconstitutional. So I think the court will write a 6-3 opinion (at least, maybe 7-2 or better) that the CETA is constitutional. But the majority opinion (and the dissent) will fulminate a bit about how there are "limits" and "don't think that we won't strike down the next term extension." They might even indicate that trying to harmonize our terms with other countries' terms, while laudable in the abstract, could run afoul of the Constitution (they probably won't say this, but they could say it the usual diffuse way that tantalizes law professors everywhere). Anyway, bottom line: Lessig did a great job, but the larger forces are against the argument that he advances. I wish the court would see the creeping extensions as a serious social problem of large players trying to control information. But they won't.

But, like I said yesterday, the world will keep on turning. Hollywood will rejoice when the opinion is announced and many of us will hang our heads. And then, in a couple of years, something entirely different will happen that none of us can forsee now (not even me, blessed as I am with these tremendous visionary insights). The Internet will survive and the information consumers will get what they want, not because they are legally entitiled to it, but because the suppliers will eventually learn a new form of control. What form? I can't say really. But it will be one that brings them more money. And, frankly, there's nothing wrong with that. As long as everyone gets what they want. And I think, eventually, that's going to happen.

[Ernie the Attorney]

Video from OSXCON digital rights management panel. O'Reilly has posted Nat's video and audio from the Digital Rights Management (DRM) panel we did at the O'Reilly OS X convention (look for the word "Multimedia" on the page).

The panel was called "Mac OS X, A Digital Rights Management Operating System," and it was moderated by Dan Gillmor, with me, Victor Nemachek (from El Gato, makers of the eyeTV TiVo-like Mac device), Tim O'Reilly and JD Lasica (a journalist working on a book on DRM). This was a good, meaty panel, but what it really lacked was someone from the other side, someone who wanted to endorse DRM as a viable technology.

We invited people from Hollywood, from Apple and from Microsoft, but no one would come. [Boing Boing Blog]

Forum Asks, Who Owns a Dance?. Questions about authenticity in dance now revolve around whether choreographers in fact own their own dances and if they even wanted those dances to be seen after their deaths. By Jennifer Dunning. [New York Times: Arts]

Supreme Court Hears Copyright Challenge

No member of the Supreme Court had a good word to say today for the 1998 law that added 20 years to all existing copyrights. But that did not make the job any easier for Professor Lawrence Lessig of Stanford Law School, who faced an uphill battle to persuade the justices that the extension, which Congress adopted at the behest of the Walt Disney Company and other powerful corporate copyright holders, was not only bad policy but unconstitutional.

Hadn't Congress granted copyright extensions numerous times since the country's earliest years, the Justices wanted to know. Didn't this challenge to the latest extension necessarily call into question the validity of the major rewriting of federal copyright law in 1976? Wouldn't the result of accepting Professor Lessig's theory mean "chaos" in the world of intellectual property, Justice Stephen G. Breyer asked.

That was possible, Professor Lessig conceded

[New York Times: Technology]

All Eldred, All The Time The most complete coverage of today's Eldred hearing is at Copyfight, including an in-person account.

With due respect to this viewpoint, it seems that at least two rationales, the first being the harmonization with Europe argument, and the second being the fact that there have been previous copyright term extensions which would implicitly be unconstitutional if this one is, will likely provide the basis for upholding this term extension.

However the arguments Lessig provides now will likely make this the last term extension ever (Lessig and Hilary Rosen will be in their 60's, Jack Valeniti will be in his 100's, when Congress considers the issue again). [The Trademark Blog]

The mainstream press coverage of the Supreme Court hearing on the Eldred copyright term extension case illustrated here with a cnn.com piece.

The man whose only tool is a hammer sees nothing but nails and I see nothing but the trademark ramifications of copyright expiration. [The Trademark Blog]

It's the place where great ideas go to rest until somebody figures out a new way to use them. But strict copyright laws are making it harder for works to enter the public domain. By Brad King. [Wired News via The All Electric Media Weblog]

BBC: "The number of users taking advantage of illegal file-sharing on the net is on the rise, according to new figures from analyst firm Jupiter Media." Illegal? [Scripting News]

Editors of the Lawmeme blog who attended the Supreme Court Eldred hearing this morning have already blogged their first impressions of the arguments.

Justice Breyer was particularly hard on the government's position. He brought in a number of economic arguments. Basically, he made the point that the expected value of the extended copyright was so small as to be virtually zero. He also asked whether the governmen could re-copyright Ben Johnson. The government did not say "no." Justice Stevens appeared skeptical of the government's arguments. The government made much of the inequities of not providing retroactive and prospective extension together. Scalia questioned whether the inequities argument could be turned around. J. Breyer, in essence, answered "yes" by claiming that existing copyright owners get all the benefit and, inequitably, prospective copyright owners get very little benefit. . . .

I'm told that people started lining up for tickets to the Eldred hearing yesterday at suppertime; only 60 non-ticketed members of the public were admitted. Maybe they should move the Supreme Court to a football stadium. [Donna Via Boing Boing Blog]

Fencing Off the Public Domain. It's the place where great ideas go to rest until somebody figures out a new way to use them. But strict copyright laws are making it harder for works to enter the public domain. By Brad King. [Wired News] [The All Electric Media Weblog]

Congressman James Sensenbrenner was interviewed for NPR's story on the Eldred case, which is being argued in the US Supreme Court today. He explained one reason for Congress' extensive support for the Sonny Bono Copyright Extension law was a desire to make the term of United States copyright the same as European terms.

Sorry, but I'm not buying that. . . . even if the Bono act was passed to make the US laws "similar to European laws" it misses the constitutional point. Our Constitution says Congress can pass laws related to copyrights and patents to "promote the useful arts and sciences" but only for "limited terms." European countries, I gather, are not similarly constrained. …

[Ernie the Attorney]