[DMCA-Activists] Eldred Transcript Online

[Seth Johnson]

(From No DMCA in Canada list.  Transcript text pasted
below.  -- Seth)

-------- Original Message --------
Date: Thu, 17 Oct 2002 18:47:42 -0400 (EDT)
From: address@hidden
To: address@hidden

The transcript from the Eldred oral argument of a couple
weeks ago is now online.  My own impression of it is that
our side did better than it sounded from the earlier reports
I'd read, including Lessig's own; the Court seemed to be a
lot harder on the Government's argument, and the
Government's representative seemed less able to put forward
a compelling presentation, than on our side.  However, it's
still much too early to declare victory, and as has been
noted elsewhere, the oral argument isn't exactly the most
important determining factor in a Supreme Court case
anyway.  They'll be deciding it based on the written stuff. 
Anyway, here's the link; see what you think.

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

-- 
Matthew Skala
address@hidden                    Embrace and
defend.
http://ansuz.sooke.bc.ca/

----

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.)