From the Eldred oral argument transcript
I've now gone through the Eldred oral argument transcript. If I were to put my finger on the key point, I think it's here:
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, 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?
When Breyer asks "... is there any review there", he's putting the Constitutional question in a nutshell - basically, is the Court going to say that Congress has gone too far? Several justices seem to think Congress has, but are they going to make that law? I'm uneasy with predicting that the conservatives are going to do something which is bad for Disney.
I'm heartened, though, to see these comments about "limited times",
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.
Great minds think alike? :-)
By Seth Finkelstein |
posted in copyblight
|
on October 18, 2002 08:48 AM
(Infothought permalink)
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