Eldred V. Ashcroft Transcripts are now online.
October 19, 2002 11:05 AM   Subscribe

Eldred V. Ashcroft Transcripts are now online.
Maybe someone can help me better understand if it looks like there was a "winner"?
posted by Blake (15 comments total)

Something else I just noticed, It doesn't appear to be the "real" transcript, but rather a reconstruction from memory:

"Thanks to some friends, I've been able to get a copy of the Eldred case transcript. I've cleaned it up, added the names of the justices where possible (searching my memory, the responses in the text, and press reports) and HTMLized it."

That is a quote from the site it's posted on Here
posted by Blake at 11:16 AM on October 19, 2002

No, the part that's reconstructed from memory is which judge said what. The official transcripts don't attribute the judges' names -- all judicial remarks are attributed to "the court."
posted by doctorow at 11:43 AM on October 19, 2002

“Maybe someone can help me better understand if it looks like there was a ‘winner’?”

Mr. Lessig said himself the other day that in 90% of cases oral arguments are little more than tradition. Cases are typically decided on the filings. He should know, he was Scalia’s clerk for a year.
posted by raaka at 11:58 AM on October 19, 2002

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.


ZZZZING! We'll be here all week folks, tip your waitress!

I agree that this transcript doesn't really tell us the "winner" of the case in the same way that a transcript of JAG would, but for my money Lessig seems to have made the stronger case. I guess--well, I know--that I'm biased, but win or lose I doubt anyone could say he didn't show up to play.
posted by Hildago at 12:10 PM on October 19, 2002

Here are some of my thoughts that I expressed to Donna Wentworth of Copyfight. We have been discussing the issues surrounding the transcripts and why they are not available to the general public yet.

Is there copyright in the transcript?
Fed. Docs have no copyright. Although the feds can "hold on to" copyright for someone. States are different and can hold copyright. Some states even claim copyright to there statutes! So, is the oral argument a product of the Fed. Gov.? It is surely part of a Fed. Proceeding. It is very strange that the transcription company has an exclusive contract with the court. That cached google page only talks about the contract, it does not even address whether or not they have copyright. I think they might realize that all they have is a contract and no actual copyright so they don’t even mention it. I don't believe the transcript meets the originality requirement of the Copyright Act and Feist. I think if copyright exists anywhere it is with the original parts of Larry's brief and that the transcription is actually a derivative of the brief. The oral argument in and of itself is not copyrightable because there is no fixation (unlike neighboring rights in europe). Of course you can argue that Larry gave an implied license for the transcripts to be released (you can only give a nonexclusive license if there is no "writing" transferring the copyright) The problem with this is that there is no way he would give an implied license for a proprietary use! This has come up (sort of) in some patent infringement cases...that's a bit more complicated.

The cached article says that Alderson has restricted posting by those who "buy" their transcripts. Sure, that is part of the "contract." And they may have a contract claim, it still does not address the copyright issue. And there is no privity in terms of the contract with any third (or fourth in Aaron's case) party so the contract can't apply to that third party. And I personally think the reason they don't address the copyright issue is because they know they don't have a good argument. And if they were to claim copyright, then they would in turn have to admit that part of their work is a derivative of Larry's (arguably) copyrighted brief. There is a suprising lack of case law on this issue.

Of course there is the whole issue of access to these documents in the first place.
posted by anathema at 12:18 PM on October 19, 2002

Oh, and trying to predict a winner is a game for fools. Albeit a fun one. Like most contemporary Supreme Court copyright cases I think it will be a 5-4 decision. I'm just not sure which way.
posted by anathema at 12:22 PM on October 19, 2002

I attended the Eldred v. Ashcroft argument. My input on this discussion:

1. The transcript looks authentic to me. It also looks like it was shamelessly copied from LEXIS, which most people have to pay for.

2. The sense of most observers (including me) is that the First Amendment argument was toast, but that the "limited Times" argument had some traction with Scalia and Stephens, and also possibly with Breyer. However, Ginsburg and Souter -- who have written the last couple of copyright cases coming out of the court -- were definitely hostile to the argument. Thomas, as usual, was silent, but shrewd observers note that he is very uncomfortable with invalidating large numbers of intellectual property rights. This was one reason contained in his plant patent case from last year. All things considered, things do not look good for Mr. Eldred.

3. This was Lessig's first argument before the Supreme Court, and second argument before any court at all (the first argument being before the D.C. Circuit in this very case, where he lost). He didn't really do well; he often answered only parts of the justices' questions, sometimes no parts at all, and on one occasion miffed a "softball" (that is, helpful) question from Justice Stephens, requiring an assist from Justice Breyer. Listening to him, I really felt like I was hearing a professor arguing at a faculty workshop more than I was hearing an appellate advocate. But, he did display a good command of the case, and that's always helpful.
posted by profwhat at 1:35 PM on October 19, 2002

[Lessig] didn't really do well; he often answered only parts of the justices' questions, sometimes no parts at all, and on one occasion miffed a "softball"

Well, just going by the transcript's account of Olson's replies (scroll halfway down), it sure doesn't look like *he* did that well, either. He actually tries to argue that future prospective extensions aren't at issue here:

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 --

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.


JUSTICE KENNEDY: I mean, we know that.

Go, Justice Kennedy. And I love this bit between Olson and Breyer:

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


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?


JUSTICE BREYER: I hate to say may --


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 --

Yada yadda. You mean, "Yes, Congress could do that," Mr. Olson. Seems a pretty damning point to me - one the Court wouldn't be likely to ignore. I'm just skimming through the transcript, sure, but from here it looks like kind of a draw. Again, like most cases.
posted by mediareport at 2:25 PM on October 19, 2002

profwhat:It also looks like it was shamelessly copied from LEXIS, which most people have to pay for.

Don't you think that's missing the point entirely?
posted by anathema at 3:23 PM on October 19, 2002


I'm pretty sure it's the official transcript. The Justices names were the only part reconstructed from memory.
posted by aaronsw at 5:25 PM on October 19, 2002

The government's toughest job in the case was answering the question of where to draw the line. Ted Olsen's answers were consistent with what he had in his brief (and the briefs are where the real argument in any case takes place). It's probably the least appealing part of his argument -- as you could see, he says that "limited Times" means only that a time cannot be infinite. But they made a strategic decision earlier on in taking that position, and all he did here was stick to it.
posted by profwhat at 7:41 AM on October 20, 2002

The transcripts are of little value except to other lawyers (as notes on how to argue before the Supreme Court) or academics (who want to study the arguements).

The only value will be the decision and the written arguements that support, concur, or oppose.
posted by rev- at 7:45 PM on October 20, 2002

Ted Olsen's answers were consistent with what he had in his brief

Which is my point, profwhat. Olson's brief has huge flaws - flaws I suspect it will be difficult for the Supremes to overlook. I'm not sure why you're focusing so much on the spectacle of the performance that day, especially after raaka's point about filings being the more important element. Your characterization strikes me as a bit misleading, despite (or because of?) your presence in the room on October 9.
posted by mediareport at 8:05 PM on October 20, 2002

mediareport, I'm just taking up Blake's invitation to "help me better understand if it looks like there was a 'winner'? " Oral argument is significant because it is essentially the sole preview we have of what the justices are thinking; therefore, it's not just "spectacle," but helpful data in predicting an outcome.
posted by profwhat at 11:35 AM on October 21, 2002

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