The Supreme Court

October 4, 2002 9:28 AM

The Supreme Court begins its term this coming Monday. There are lots of exciting cases on the calendar (99k PDF). For example, Ewing v. California, which will test California's 3 strikes rule. Scheidler v. NOW, which has to do with anti-abortion activists blocking access to clinics. And of course, Eldred v. Ashcroft, where the issue is whether or not the 1998 Sonny Bono Copyright Term Extension Act (PDF) is Constitutional. The last has been mentioned in a couple threads and has gotten loads of web attention, including this new piece from WIRED. A lot to look forward to, whether you're interested in one of the specific issues or you're just an avid armchair justice.
posted by jewishbuddha (22 comments total)

USAToday and Reuters offer pre-term analysis as well.

Any DC MeFi folks planning to attend a hearing?
posted by jewishbuddha at 9:32 AM on October 4, 2002

Law.com's pre-term analysis (from July of this year) is here. There are definitely some to watch. You didn't mention Virginia vs. Barry Black, et al. which is one dealing with prosecuting hate crimes without violating free speech rights. That's probably the one I'll keep a close eye on. Good post, JB.
posted by Ufez Jones at 10:50 AM on October 4, 2002

and they might be adding a little New Jersey ballot case as well.

The Supremes have their work cut out for them this year...and who's going to retire first?
posted by amberglow at 11:26 AM on October 4, 2002

Hey, good post. I haven't had a chance to read all these links, but I wanted to add to the comment count so jewishbuddha would have positive reinforcement for posting something other than a CNN story.
posted by soyjoy at 11:54 AM on October 4, 2002

Go Eldred.
posted by Isamu Noguchi at 12:12 PM on October 4, 2002

the SCOTUSBlog is a pretty interesting reference for Supreme Court news followers. I found out about it from Ignatz which also has some predictions on how the court will rule on upcoming cases. Unfortunately, most of the informed opinions I've read are that Eldred's not going to win.
posted by muta at 12:13 PM on October 4, 2002

I always get a little excited about the opening day of each SCOTUS term. It feels a little like getting ready to go out on a date, especially when you know that it'll end with someone getting screwed.

/cheer jewishbuddha's post.


btw, can anyone tell me why the Sony Bono Copyright Term Extension Act is named for Sony Bono?
posted by tolkhan at 12:47 PM on October 4, 2002

Thanks for the nod above to my blog Ignatz, where I'm making a game of predicting all S.Ct. decisions this Term. (You can play along at home). One thing that I am, for whatever reason, feeling in the mood to say over and over again these days: Eldred's not really that big a deal. It will only resolve one tiny sliver of the whole intellectual-property picture -- and a sliver, by the way, that (from a legal perspective) has almost nothing to do with anything particular about internet/digital/new media. If you think of it as "THOSE OF US WHO AGREE WITH LESSIG ON ALL SORTS OF THINGS v. THE BAD GUYS WHO ARE DICKING WITH US IN ALL SORTS OF WAYS", then it will seem like a much bigger loss than it really is. (Assuming, of course, that my prediction of a "loss" turns out to be correct).
posted by sheldman at 12:50 PM on October 4, 2002

I think Sonny, as a former recording artist, was er, instrumental in getting the bill passed (wasn't it his bill?).
posted by yerfatma at 12:52 PM on October 4, 2002

Eldred v. Ashcroft is a decision with immense significance. The case places at stake whether it is legal to own ideas forever.
posted by rudyfink at 1:01 PM on October 4, 2002

Well, not to be pedantic, but Eldred doesn't "place at stake whether it is legal to own ideas forever". First of all, copyright law -- before Sonny Bono and after him -- doesn't give ownership rights in ideas. It does give ownership rights in particular verbal (and pictorial, and musical, etc.) ways of expressing ideas. And, second, a loss in Eldred won't even mean that anyone owns an expression of an idea forever. It will mean only that setting the length of the ownership term is up to Congress. Now, I don't like the copyright term extension aspect of the Sonny Bono law either -- but the real way to deal with this is through political mobilization and Congressional activity, rather than asking the Rehnquist Court to stand up for the little guy. That's not this Court's specialty, you know.
posted by sheldman at 1:07 PM on October 4, 2002

(by the way, by "little guy" I don't mean Sonny himself, RIP.)
posted by sheldman at 1:08 PM on October 4, 2002

Thanks for all the kind words. I feel so loved.

I'm interested in the Eldred case personally (as if that wasn't clear from the post) but the calendar this term really is packed. There are also some important cases about registering sex offenders and some post-9/11 anti-terror things. As this thread shows, different stuff catches the interest of different folks.

and who's going to retire first?

You can assume nothing will happen until after mid-term elections. Despite being old and crotchety (Rehnquist has been on the bench since Nixon was in office), the Justices are fairly healthy. The only reason for any of them to retire now would be if it was an older, conservative judge and they thought Bush wouldn't be in office to appoint the replacement if they retired a few years down the line.

I say watch for retirements at the end of Bush's third year, depending on his approval ratings at the time. That will be fascinating when it actually comes around.

sheldman -- I agree that the importance of Eldred is often overstated, but I think it is wrong to dismiss it out of hand too. While a ruling in favor of Eldred would not revolutionize intellectual property in America, it could prevent it from going further down a restrictive path. I think the Salon article from last year, linked above, gives a decent perspective on the case (what's at stake, that this isn't about Napster, etc,). Unfortunately, I also have small hope for it. I think the court, with a strong textualist/strict constructionist mindset, will not agree that retroactive copyright extension moots the term "limited" in the original clause. I'm persuaded by the argument, but I don't think they will be.

can anyone tell me why the Sony Bono Copyright Term Extension Act is named for Sony Bono?
Before he died, Bono had been a huge proponent of copyright extension. His widow, who took his seat in Congress, was a supporter of the bill. More on the Act itself here.

I have to go check out SCOTUSBlog sometime soon.
posted by jewishbuddha at 1:54 PM on October 4, 2002

I disagree. My words were quite carefully chosen. At the heart of IP law is the concept of what constitutes an ownable idea.

I recognize that a good portion of the text of the law relates to the notion of an idea being fixed in a tangible medium. However, I'd argue that if you look at progression of copyright law you will find that law is moving more towards the idea(s) at the heart of the creation as the actual thing being protected. Undeniably, some form of tangible creation must occur. One cannot say "oh, I had that idea yesterday, so you cannot create that." Once created, though, the idea is generally protected across about every range of medium.

Copyright law has also, imo, been moving towards a state where all creation is instantly protected at the time of inception. Registration, submission, etc do not have to occur for full protection to be granted.

I'm at work atm, so I apologize for not going into this further. I just put this up and argue my case, since I felt you were dismissing what I was saying prematurely. Ideas really are the thing being owned I think. If you look back to the debate surrounding the creation of the constitutional clause, you will find arguments directly to this effect.

As a aside, I agree that this case should not be looked at as a sole salvation. It is significant imo because it brings copyright law more attention. It also very nicely brings into attention the wide discrepancy between the "limited term of ownership" and the current length of copyright law.
posted by rudyfink at 3:47 PM on October 4, 2002

Don't worry about copyright. There's still lots of new ideas to envisage.
posted by Pretty_Generic at 4:55 PM on October 4, 2002

rudyfink:Ideas really are the thing being owned I think.

We've talked about copyright issues a lot here and I don't have time to get into the details at the moment, but I must stress once again that as far as copyright goes ideas are not protected. It is the original expression of the idea. Eldred is going to be very interesting, I have a good friend who will be at the oral argument and I'll try to report back in this thread on Wednesday.
posted by anathema at 9:40 AM on October 5, 2002

anathema, that would be worthy of a front page post of its own, I think. I'm sure that there will be a number of links available to use for one, including the Eldred page, the SCOTUSBlog mentioned above, Sam Heldman's blog Ignatz, Donna Wentworth's copyfight, or Howard Bashman's How Appealing. Something to look forward on Wednesday. Thanks!
posted by bragadocchio at 5:56 PM on October 5, 2002

Rumor in DC is that there are only going to be 12 available seats in the morning. My friend who is on his way to the Court right now was at the RIAA v. anti-DMCA debate tonight and heard this from a few people. We'll see what happens. Everyone who filed an amicus brief has at least one reserved seat. It's going to be close. He is going to keep me posted throughout the morning.
posted by anathema at 7:42 PM on October 8, 2002

Just ended. I only have a short report until my friend gets back to the ACLU offices. he says the justices were very tough on both sides and that it was difficult to say if they were leaning one way or the other. Later.
posted by anathema at 9:22 AM on October 9, 2002

Lawmeme.
posted by anathema at 9:39 AM on October 9, 2002

Someone who could take notes. I'll post a link to my friends comments. He is posting to Lawmeme.
posted by anathema at 1:04 PM on October 9, 2002

My buddy Brian on the oral arguments.
posted by anathema at 5:05 PM on October 9, 2002