automatically all original works fixed in a tangible form but instead was limited to works that were published and not all works that were published but only those public with noticed and not all works published with notice but only those published with notice that were percent of published work entered the public domain in mediately and ninety three percent of published work entered the public domain within twenty eight year which could benefit from an exclusive right the opt out system has no such tailoring it indiscriminately so bread's it's regulation of speech regardless of whether there's any continuing related digital technologies this change may well not have mattered at all but because of the internet and these digital technologies it now has constitutional significance for this indiscriminate regulation of this doctor out copyright system blocks an extraordinary range of creative and cultural speech unnecessarily libraries and archives who would use digital technologies to spread this quote out of print culture this because of the burdens imposed because of this extraordinarily inefficient system regulating speech now the question before this court is whether this radical change in the scope and reach of copyright protection gets any first amendment review at all the government says it is not relying upon elder versus ashcroft the government argues that while changes in the quote traditional  copyright protection do merit first amendment review the only quote traditional contours the government argues are what the court referred to as quote traditional first amendment safeguards there used in the idea expression dichotomy as the government argues eldrid quote precludes first amendment review of copyright laws unless congress changes the traditional first amendment safeguard and quote page forty of their brief now with all due respect to the government that just cannot be the law if congress passed a statute that deny copyright protection to cartoons critical of the prophet muhammad or of congress tonight copyright protections all works by former government employees there is no doubt that those laws  there is no first the memory view precludes first a memory view unless there's a change in the traditional first amendment safeguards and there's no change in the traditional first minute safeguards in the way that i described it right here so the point is it can't be that these are the only two possible reasons to consider the first member and indeed if you examine the language in the elder opinion opinion itself what the court describes at page two twenty one of the opinion court says to assertions someone has to make as the court said other people speeches raise first amendment concerns copyrights builtin free speech safeguards are generally adequate to address protection further first amendment scrutiny is unnecessary inviting the court and subsequent courts to examine the traditional contours of copyright protection as have they changed if they have changed then the first amendment appropriate if they haven't changed then the traditional first amendment safeguards are adequate if the test were the first and then the safeguards are always adequate there would be no reason for the supreme court is your basic challenge here to the length of the coffee right absolutely not your honor because in eldridge the question was the length of the copyright the consequence of the victory eldrid would have been that certain works had to pass in the public domain the consequence in this case is not that words have to pass to the public domain but that for these orphaned works works where there's not even someone on the other side who's claiming the ownership and the desire to control it there has to be some s filter those so that that burden on the opportunity for people to speak does not interfere with what otherwise would be a perfectly legitimate use of this work so this is a fundamentally different claim in elche red cloud question was did mickey mouse have to enter the extent eldrid does not exempt this change from first amendment review and we submit it doesn't because this is a change in the traditional contra copyright the question is whether congress can survive  and that half of the equation congress simply did not consider in the context of protect knowledge used to make it possible for an extraordinary range of people to now cultivate and preserve and make excess of all our culture and that's exactly what the plaintiffs in this case do for free they take culture that otherwise would be either lost because not preserved or invisible because the stacks and libraries not accessible and they want to make it accessible they don't want kids you're concerned about a narrow class of cases where it's not certain that there's anybody even there would it ever how would you write the statute well first of all i'd suggest it's not a so at least we know the authors are that might be enough that copyright office itself has proposals for how to deal with the orphan works problem but the point is these proposals need to be and any eventual laws need to be evaluated under ordinary first amendment a which would ask whether they balance the interest of advancing the government's purpose without burdening more speech than it's necessary and right now that balance has not been engaged in the constitution  the speech interests that one has the right what this court has called the right to receive information right so for example the right for people to have access to and use the culture that they've inherited that's the feature of this and in this court for example in the crofton versus roe case where you consider the rights of prisoners to receive publications it was fundamentally grounded on a right to receive information at every copyright statute the right s first amendment claim but it's tradition doesn't justify it because this is an innovation something radically new then you must pass that regulation of congress through ordinary first remember if you if you didn't do that then you would have a loophole in first amendment protections so the court saying we will trust two hundred years of history but if it's a change from history which is this clearly is then you must have the opportunity to weigh that change under ordinary first amendment alex now  change that we've pointed to is perhaps the most fundamental change in the history of american copyright law the architecture of this opt in system was the fundamental character for most of the history of american copyright law and that changed beginning in one nine hundred seventy our brief and to the colloquy between the court and opposing counsel which demonstrates that this case is squarely controlled by eldridge the elder decision was a landmark decision not even discuss this morning but which is fully addressed in the briefs that is the effectively perpetual argument that was that was raised by justice prior in dissent and rejected by the majority and held read layers of the onion back further to focus solely on what what characterizes or from copyrights or matters that are that are raised by current technologies but that is a policy matter that challenge to play hockey that's correct your honor effectively that is that is what this is we're really talking once again about extensions of copy of congressional judgment regarding the of the length of the copyright terms and extensions of clear that the supreme court was indeed referring to to both the idea expression dichotomy and the and the fair use doctrine as the traditional first amendment safeguards and unless congress the when congress when the supreme court used the phrase traditional contours of copyright protection it really was using that as shorthand for say traditional trying to copyright traditional times was a copyright protection of first amendment values and that is taken care of by the by the very last the idea expression dichotomy so again in changing the system in might be sound hockey rights where there's nobody there anymore really enjoys the copyright right i'm not aware of any discussion that specifically focus into play because eldrid itself was written and it states it quotes the play the petitioners in that case as acknowledged that was content neutral statute so the supreme court really was referring to it  referring to content or viewpoint neutral statutes when it said that that first amendment concerns generally do not come into play obviously if if congress were to enact a viewpoint discriminatory or content discriminatory firmed and if there are no further questions i think the court if any further question that could possibly be raised in challenging a copyright statute two times the government says well generally or largely those well if they're not the only two grounds then the question is what beyond those two grounds gives a plaintiff the right to challenge a copyright statute now we suggest the answer to that comes from the words of the opinion versus ashcroft where the court talks about traditional contours of copyright the government historical contours the traditional contour of how congress dealt with term extension was always to extend existing terms as well as proto specht of terms that practice that history is what earned congress the presumption that that practice satisfies the constitution so then the question is if that practice satisfied the constitution what grounds could you have for challenging a copyright statute if this court holds as the government four times in their brief asserts that the only grounds could be changes in the traditional first amendment safeguards this court will simply be repeating what the d c circuit said eldritch the d c circuit pointed to those two safeguards and then they said copyrights are categorically immune from first amendment scrutiny beyond those first two cents courts and that simply was explicitly rejected by the supreme court and ultra now the district court here also rejected the government's argument that the only two grounds that you can challenge are copyright statutes are changes in the court your vision of first minutes of cards but the district court said that what the court means by traditional contours of copyright protection is the traditional contours of the scope copyright and title of this change traditional functions other than like well this changes traditional countries of copyright because of the difference between a system which is an in system and an opt out system that those are the contours of copyright those are the most fundamental aspects of copyrights design because again if the difference between the system is one system produces ninety three percent of works in the public domain in twenty years and another system produces zero percent of works in the public domain in a hundred years what could be more fundamental than that difference so if we talk about contours in an ordinary meaning of that term and tradition as referring to  practice of two hundred year practice to justify it doesn't apply here because there is no two hundred year practice to justify this new system of an opt out copyright so eldrid says there's no special first amendment so long as there's a tradition supporting what congress did and in that case there was a tradition and so l just says no first amendment analysis beyond that tradition here there is no tradition and ellsworth explicitly says change change the prospectively and retrospectively change copyright so there's no change in the traditional contour there even though the particulars of the law had been changed of course but the point is the practice of extending prospect of lean retrospectively was consistent and they say that practice therefore justifies what the court what congress has done here because of tradition but where it's not tradition then you would create a first amendment loophole if congress just gets to call it copyright and regulate however they want and have no