The Eldred transcript is somewhat unofficial, and represents an object lesson in copyright. This blogger got a copy and posted it, with some names filled in and formatting cleaned up. The official court reporter is selling it for $200 a copy. The official copy does not identify the justices asking questions, because the court prefers it that way. The justices don't like public scrutiny, and don't allow TV cameras either. Should the court reporter maintain its monopoly and get $200 for every download? I say no, not under copyright law. The court reporter has not contributed anything original, and there is no copyright in a court argument. I am sure the court reporter is unhappy that everyone is downloading it for free, but it really should never have gotten the monopoly in the first place.

Lessig did end up saying, "They cannot give a copyright purely for purposes of distribution to publishers." Jack Valenti argues:

"[Lessig] made it appear as if a picture goes into the public domain ... [as if it were] going into paradise with 72 vestal virgins escorting this film around ... If nobody owns the film, who's going to restore it? That costs $25,000 to $100,000. I don't think Mr. Eldred himself is going to spend that kind of money to restore a film that he doesn't own."

This argument doesn't make much sense to me. Movie copyrights now last for 95 years. Movies produce maybe 95% of their revenue in the first year after release. Is some studio going to stop distribution for 94 years, and then complain that a $25k restoration is not worth it because someone could copy it? Why did they wait 90 years if they really wanted to restore it?

Even assuming Valenti's facts, there are 100s of TV channels, and I would think that one might easily spend $25k just to show a movie once.