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O P E N L A W: Eldred v. Ashcroft

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Eldred v. Ashcroft: Questions Raised in Oral Argument

Oral argument before the U.S. Supreme Court in Eldred v. Ashcroft took place on October 9, 2002. Larry Lessig argued for the petitioners and Solicitor General Ted Olson argued for the government. (transcript) The Court was active in questioning both sides, and the Justices' questions draw out some of the most challenging aspects of the case.

After years of briefing and preparation of the case, oral argument in the Supreme Court lasted only an hour -- 30 minutes apiece. (Lessig's reflections) In the months that we will be waiting for the Court's decision, can we propose answers to the questions that troubled the Court?

Following up on Berkman Center Co-Director Charles Nesson's request at lunch following the arguments, we at the Berkman Center invite you to help explain the answers to these hard questions. Follow the [discuss] links to add your responses.

QUESTION: Congress has extended the term so often through the years. This practice began with the very first act, and there have been a number of extensions since. Doesn't it mean something that they were never challenged? Don't we run the risk of upsetting previous extensions of time?

[discuss]

 

QUESTION: If we agree with you, does that mean that we would have to hold the 1976 extension unconstitutional? 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 if the former is unconstitutional, there will be horrendous chaos.

[discuss]

 

QUESTION: What is the relationship between your Copyright Clause argument and your First Amendment argument?

[discuss]

The questioning is described in greater detail here.