IN THE UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLORADO


Civil Action No. 01-B-1854


LAWRENCE GOLAN, et. al.

                 Plaintiffs,

v.

JOHN ASHCROFT, in his official
capacity as Attorney General of the
United States

                 Defendant.


      MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS FOR
       FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

                                       Preliminary Statement

        This memorandum defends the constitutionality of two recent amendments to the

copyright law, the Sonny Bono Copyright Term Extension Act (CTEA), Pub. L. 105-298, Title I,

112 Stat. 2827 (1998), and 514 of the Uruguay Round Agreements Act (URAA), Pub. L. 103-

465, 108 Stat. 4976 (1994).  Both statutes enhance the copyright protection afforded to artistic

works-the CTEA lengthens the duration of the copyright term by 20 years, and the URAA

enlarges the scope of what the copyright law covers. 

        Plaintiffs are an assortment of people and corporations that, according to the Complaint,

depend on works within the public domain for their livelihood or avocation.  Some plaintiffs


                                                -1-



allege that they are musicians whose orchestras, for financial reasons, mainly perform works

from the public domain.  Other plaintiffs allege that they record and sell albums of public-

domain music.  Still others allege that they distribute footage of movies, films, and television

shows that are no longer protected by copyright.

       Plaintiffs complain that both the CTEA and the URAA exceed the Constitution's bounds.  

The central tenet of the Complaint is that the public is best served by a shorter term of copyright

protection, and one that protects less works rather than more.  But this is a policy concern, better

suited to a policy forum.  To convince the Court to focus on this question, rather than the law,

Plaintiffs import into their constitutional analysis policy questions, such as whether the statutes

were wise or fair.  Plaintiffs' policy positions were put before Congress and rejected. That debate

should not be reopened.  It is the courts' duty to apply and enforce settled law, not to revise that

law to accord with individual notions of sound policy. 

       Plaintiffs' suit should be dismissed because so long as the Constitution delegates to

Congress the power to pass a statute, and the statute does not trample on other parts of the

Constitution, that statute is acceptable.  The Constitution enabled Congress to pass both acts. 

Nothing elsewhere in the Constitution proscribes the acts.  The Complaint, therefore, does not

state a claim upon which relief can be granted.  Fed. R. Civ. P. 12(b)(6).  This brief first

addresses the CTEA and then moves to the URAA.

                                             Argument

I.     The CTEA Is Constitutional.

       The CTEA harmonizes the duration of the copyright term in the United States with that of

                                                 -2-



the European Union by adopting a basic copyright term equal to the life of the author plus 70

years. See CTEA 102(b), 112 Stat. 2827.  The United States previously granted copyrights for the

author's life plus 50 years.  The CTEA adopts a fixed term of 95 years after publication or 120

years after creation, whichever is shorter, if the life of the author cannot be ascertained (i.e.,

anonymous and pseudonymous works) and for "works made for hire" by corporate entities.  See

CTEA 102(b)(3), 112 Stat. 2827.  Like every previous act amending the duration of copyright

protection, the CTEA extends the term of subsisting, as well as newly acquired, copyrights.

        Plaintiffs' complaint should be dismissed because the CTEA in no way offends the

Constitution: it falls squarely within the tradition of every copyright amendment before it-a

tradition that the Supreme Court regards as authoritative; it is within the power delegated to

Congress by the Copyright Clause of the Constitution; and it does not run afoul of any other

constitutional provision.  The Court of Appeals for the District of Columbia Circuit recently

upheld the constitutionality of the CTEA over objections similar to Plaintiffs'.  Eldred v. Reno,

239 F.3d 372 (2001), rehearing en banc denied 255 F.3d 849 (2001).

        A.      Rejecting the CTEA Would Disavow a National Tradition That the Supreme
                Court Regards as Authoritative.

        The elements of the CTEA to which Plaintiffs object are identical to provisions of the

United States' first copyright legislation, enacted in 1790.  To reject the CTEA, therefore, would

require the Court to reject the 1790 Act as well.  Such a conclusion flies in the face of the

deference with which the Supreme Court treats the legislation passed by the first Congress.

        The Supreme Court treats legislative practice, established by the first Congress and


                                                  -3-



continued unchallenged over long periods of time, with great deference.  Many members of that

Congress participated in the convention that drafted the Constitution, giving them unique insight

into the text's meaning.  Statutes enacted at that time, therefore, bear a heavy presumption of

constitutionality, because the framers would have been unlikely to overstep the bounds that they

themselves created.  Specifically with regard to the original copyright law, passed in 1790, the

Court found the actions of the first Congress nearly conclusive:

       The construction placed upon the Constitution ... by the men who were contemporary
       with its formation, many of whom were members of the convention which framed it, is of
       itself entitled to very great weight, and when it is remembered that the rights thus
       established have not been disputed during a period of nearly a century, it is almost
       conclusive.

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884). 

       If a century of copyright tradition was "almost conclusive" in Burrow-Giles, more than

two centuries of tradition must be accorded conclusive deference here.  The CTEA's provisions

have extensive lineage in Congress's previous copyright enactments, dating back to the initial

copyright act passed by the first Congress.  Specifically, every time Congress has extended the

copyright term it has applied that extension to subsisting copyrights.  Congress has also

consistently looked to the term provided in Europe to inform its decisions on how long protection

in the United States should be.

       Never has an extension of the copyright term for new works not been accompanied by a

parallel extension of the term of subsisting copyrights.  Congress passed the first copyright act in

1790.  Act of May 31, 1790, 1 Stat. 124.  Since that time, "as the technology available to authors

for creating and preserving their writings has changed, the governing statute has changed with

                                                -4-



it."  Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 460 (1984) (Blackmun, J.,

dissenting).  There have been five major revisions to the copyright law, including the CTEA.  Act

of Feb. 3, 1831, ch. 16, 4 Stat. 436; Act of July 8, 1870, 85-111, 16 Stat. 198; Act of Mar. 4,

1909, 35 Stat. 1075; Copyright Revision Act of 1976, 90 Stat. 2541.  Four of these revisions

extended the term of copyright protection.  Each extension also applied to subsisting copyrights,

to keep protection for existing copyright holders as similar as possible to the protection for new

works.  The CTEA's term extension goes no further than this centuries-long tradition.

       Congress also has consistently looked to European copyright terms to inform its own

legislation.  It modeled the first federal copyright act after the Statute of Anne, enacted in

England in 1710.  The Statute of Anne allowed an initial term of 14 years, with the possibility for

a renewal term of 14 years if the author survived the first term.  See 8 Anne, ch. 19 (1710).  The

1790 Act provided an identical term.  See Act of May 31, 1790, 1, 1 Stat. 124.  In 1829, a

Committee of the House of Representatives sent notes "to the ministers of the principal European

nations, requesting information from each of them respecting the state of copy-rights in the

nations they represented."  Noah Webster, Collection of Papers on Political, Literary and Moral

Subjects 177-78 (1843).  The response to the queries showed that the United States lagged "far

behind the States of Europe in securing the fruits of intellectual labor, and in encouraging men of

letters."  House Report, 7 Register of Debates in Congress App. CXIX (1830).  So in 1831

Congress amended the copyright law to increase the initial term of protection from 14 to 28

years, making the total potential life of a copyright 42 years.  The House Committee's Report

explained that the decision to extend the term was intended "to place authors in this country more

                                                 -5-



nearly on an equality with authors in other countries."  Id.  The Committee Report for the 1909

Act followed suit, also investigating the state of European law.  The Report detailed laws passed

by Germany, England, and France, as well as the outcome of international conferences on

copyright from Berne and Berlin.  See S. Rep. 1108 at 5-6 (1909).  The CTEA continues

Congress's longstanding resolve to keep abreast of international copyright law and respond

accordingly.

        B.      The CTEA Is Fully Consistent with the Copyright Clause.

        The Copyright Clause of the Constitution grants Congress the power "[t]o promote the

Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries".  U.S. Const. art. I, 8, cl. 8.  

Plaintiffs argue that the CTEA exceeds that bound; that its term is not "limited"; that it does not

"promote the Progress of Science and useful Arts"; and that it violates the originality requirement

implicit in the Clause.  These contentions, while inventive, depart too far from precedent to have

any merit.

                1.      The CTEA Establishes a Copyright Term of Limited Duration.

        The term set by the CTEA, equal to the life of the author plus 70 years, meets the

requirement that the copyright term be limited.  Webster's Dictionary defines "limited" as

"confined within limits: restricted in extent, number, or duration".  Webster's Third New

International Dictionary 1312 (1993).  By that definition, or any other, the CTEA's term is a

limited period.  It ends.  It is "restricted in ... duration".  See also Eldred v. Reno, 239 F.3d 372,

377-78 (D.C. Cir. 2001).  That should be the end of Plaintiffs' challenge, for Pennock v.

                                                  -6-



Dialogue, 27 U.S. 1, 16-17 (1829), teaches that, so long as the period is limited, the length of

such a period shall be subject to the discretion of Congress.  Plaintiffs insist, however, that

linguistic definitions (and, it seems, Supreme Court precedent) are unavailing, for basic logic

indicates that at some point many limited steps amount to a big, unlimited one.1  But this case

does not concern whether every finite term is within Congress's power under the Copyright

Clause.  Courts respond only to cases or controversies.  And the only controversy before the

Court is whether the specific term established by the CTEA-the life of the author plus another 70

years-is limited or unlimited.  The theoretical question whether a finite term could ever exceed

a limited time is one for a different forum.

       History proves that the framers used "limited" in the dictionary sense, and not in the

novel way that Plaintiffs encourage.  Before the Constitution was adopted, a quarrel developed

over whether works of art should be protected in perpetuity or for a more limited duration.  One

side, led by Noah Webster, argued that authors should have just as much right to their product as

farmers and mechanics have to theirs-a perpetual right.  See Noah Webster, Collection of


       1Plaintiffs litter throughout the Complaint references to Congress's 11 extensions in the
past 40 years, or 9 extensions from 1962 to 1974. See, e.g., Compl.  2, 24, 95. This is irrelevant
to whether the term of the author's life plus 70 years is a "limited Time[]". It is also misleading.
Plaintiffs arrive at this exaggerated figure by counting the numerous interim extensions of the
copyright term during the 1960s and 1970s after Congress had already decided to extend the
copyright term to 75 years for already existing works.  As with all provisions of the 1976 Act,
which were worked out over a long period of time, the term extension was not enacted the
moment it was agreed upon.  Rather, Congress waited to enact it along with the rest of the
omnibus copyright revision.  Meanwhile, to avoid having works fall into the public domain
because their second 28-year term was about to expire, and in recognition of the fact that it was
already decided that the copyright term for those works would be extended by 19 years, Congress
passed a series of holding actions to bridge the time to the 1976 Act.

                                                 -7-



Papers on Political, Literary and Moral Subjects 175 (1843).  Webster traversed the states trying

to convince state legislatures to pass copyright protection.  See id. at 174.  The Continental

Congress sided with Webster and, lacking the power under the Articles of Confederation to

legislate on intellectual property, passed a resolution encouraging the states to enact copyright

protection.  XXIV Journals of the Continental Congress 1774-1789 326-27 (1922).  Though the

resolution recommended a term of at least 14 years, noticeably absent was any suggested ceiling

on the copyright term.  The Continental Congress apparently did not object to the issuance of

perpetual copyright terms.  See Edward C. Walterscheid, Defining The Patent and Copyright

Term: Term Limits and the Intellectual Property Clause, 7 J. Intell. Prop. L. 315, 348 (2000). 

       The Constitution ended the debate by restricting copyrights to a "limited" time; there

would be no ownership in fee simple of intellectual property.  But the debate itself illuminates

the context for the framers' use of the term "limited Times".  The definition of "limited" must be

read in the context of the discourse over finite versus perpetual copyrights.  "Limited" is the

opposite of unlimited and nothing more.  Plaintiffs' suggestion that it denotes a more stringent

measure has nothing to recommend it.  It finds no support in the dictionary, Supreme Court

precedent, or history. 

       The CTEA's term of life of the author plus 70 years does not even approach ownership in

perpetuity.  It is, therefore, within the Copyright Clause's durational boundary.

               2.          The CTEA Does Not Disturb the Copyright Clause's Prefatory
                           Phrase-"To promote the Progress of Science and useful Arts".

       Once the Court determines that the CTEA establishes a "limited" copyright term, its job is


                                                 -8-



done.  The prefatory phrase of the Copyright Clause-"To promote the Progress of Science and

useful Arts"-does not limit Congress's power.  Rather, Congress alone must determine what

best promotes artistic progress.  And even if the Court were to ensure the promotion of artistic

progress, it would look to the copyright law as a whole, not individual statutes.  Finally, and

regardless of all else, the CTEA does "promote the Progress of Science and useful Arts".  

                        a.     The Copyright Clause's Prefatory Phrase Does Not Limit
                               Congress's Power.

         As an initial matter, the phrase "To promote the Progress of Science and useful Arts"

places no restriction on the power of Congress.  See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir.

2001); Hutchinson Telephone Co. v. Fronteer Directory Co., 770 F.2d 128, 130 (8th Cir. 1985);

Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981).  Rather, it introduces and explains the

power granted to Congress.  That is the most natural way to understand the introductory phrase

alongside the remainder of the Copyright Clause.  Plaintiffs read the phrase with an addition:

"Only to promote the Progress of Science and useful Arts".  They conclude that the prefatory

phrase is a substantive limit on Congress's power.  But the Constitution uses no such limiting

word.

                        b.     The Constitution Commits the Determination of What Best
                               Promotes the "Progress of Science and useful Arts" to
                               Congress Alone.

         In any event, the decision on how best to effectuate copyright protection is committed by

the Constitution to Congress alone.  The Supreme Court has been clear: "[I]t is Congress that has

been assigned the task of defining the scope of the limited monopoly that should be granted to


                                                -9-



authors or to inventors in order to give the public appropriate access to their work product." 

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (emphasis added).  See also

Pennock v. Dialogue, 27 U.S. 1, 17 (1829) ("[T]he period shall be subject to the discretion of

congress.").  And the courts are especially deferential to Congress "when major technological

innovations alter the market for copyrighted materials."  Sony Corp. at 431.  (Technological

change was a major impetus behind the CTEA.  See infra, pp. 13-16.)  Plaintiffs ask this Court to

do precisely what the Supreme Court has forbidden-to resolve a policy debate on the economics

of optimal copyright duration.  This is the wrong forum and the wrong time.  "[I]t is not [the

Court's] role to alter the delicate balance Congress has labored to achieve."  Stewart v. Abend,

495 U.S. 207, 230 (1990).  See also Satellite Broadcasting and Communications Assn. v. FCC,

No. 01-1151, slip op. 59-61 (11th Cir. Dec. 7, 2001); Gates Rubber Co. v. Bando Chemical

Industries, Ltd., 9 F.3d 823, 839 (10th Cir. 1993).  Congress already held a policy debate, and the

CTEA was its outcome.  All of the arguments that Plaintiffs advance here were voiced strenuously

in Congress.  See, e.g., Senate CTEA Report, S. Rep. 104-315 at 29-36 (1996) (Views of Sen.

Brown).  They were the minority view.  Pennock, Sony Corp., and Stewart prohibit the Court

from reopening the debate.

       Committing to Congress's sole discretion the power to set the copyright term makes

sense.  Copyright law must balance the rights of authors with the rights of the public.  On one

hand, strong copyright protection is necessary to provide incentives for authors to create new

works.  See Harper & Row, Inc. v. Nation Enterprises, 471 U.S. 539, 546 (1985); Sony Corp. v.

Universal City Studios, Inc., 464 U.S. 417, 429 (1984).  Without that protection, infringers could

                                                -10-



freely sell copies of any work, and at a cheaper price than the author, who must recoup not only

the price of reproducing the work for distribution, but also the amount invested in creating the

work in the first instance.  See William M. Landes & Richard A. Posner, An Economic Analysis

of Copyright Law, 18 J. Legal. Stud. 325, 326-29 (1989).  Infringers would typically corner the

market, making it impossible for authors to recover their costs.  As a result, authors would be

unlikely to choose to create new works in the first place.  On the other hand, the purpose of

enticing authors to create is ultimately to benefit the public.  If works do not eventually fall into

the public domain, the public receives less benefit, and the purpose of copyright protection is

defeated.  It is a precarious balance: too little protection and authors will not create; too much

protection and the public cannot make use of it.  See Bonito Boats, Inc. v. Thunder Craft Boats,

Inc., 489 U.S. 141, 146 (1989). 

       Identifying the optimal length of protection, so that authors have enough incentive to

create and yet works still fall into the public domain, appears impossible-especially since the

optimal point likely changes as technology develops.  The framers could not identify the proper

duration, and instead delegated to Congress the power to set the term.  Economists today still

bicker over the best solution.  See, e.g., Neil Weinstock Netanel, Copyright and a Democratic

Civil Society, 106 Yale L. J. 283, 308-11 (1996) (detailing different economic approaches to

copyright law).  That Plaintiffs too disagree with Congress's assessment, then, is no

wonder-especially given where their financial stake lies.  But the Supreme Court has settled this

debate about authority.  It forbade the courts from giving a delicate policy decision constitutional

significance.

                                                 -11-



                       c.      If Anything, Copyright Law as a Whole, Not Individual
                               Amendments, Must "promote the Progress of Science and
                               useful Arts".

       Even if Plaintiffs' promote-the-progress argument were legally cognizable, it would fail.

Plaintiffs take the Copyright Clause's supposed restriction-that the limited term provided by

Congress must "promote the Progress of Science and useful Arts"-and somehow conclude that

every statute affecting the copyright term must itself promote artistic progress.  That assumption

tramples roughshod over the Constitution's text. 

       Plaintiffs isolate out one part of the Copyright Clause: "To promote the Progress of

Science and useful Arts".  They ignore what follows it: "by securing for limited Times to

Authors ... the exclusive Right to their respective Writings and Discoveries".  Yet the second

phrase is crucial, for it explains what must promote artistic progress-the "exclusive Right"

provided to authors, not every statute making changes to that right. 

       Analyzing the CTEA in a vacuum, as if it alone provides the "exclusive Right", is wrong;

copyright law in its entirety secures such protection, which the CTEA merely amended.  Were the

Court to review Congress's legislation to ensure that it promotes artistic progress, then, it must

review the copyright law as a whole (including, of course, the CTEA) to make that determination. 

Plaintiffs' complaint makes no allegation that the copyright law in its present form does not

promote artistic progress and, indeed, Plaintiffs cannot in good faith make any such claim.  The

period of exclusive use is essential to allowing authors an opportunity to recover their expenses. 

Without it few new works would be produced and little artistic progress could be achieved.



                                                -12-



                           d.    Regardless, the CTEA Promotes the "Progress of Science and
                                 useful Arts". 

       At all events, the CTEA does promote artistic development, in at least three ways.  First,

the CTEA harmonizes the length of the United States' copyright term with the European Union's,

which fosters international cooperation in the protection of intellectual property; second, the term

extension ensures greater income to American copyright holders, which stimulates new works;

and third, the CTEA assures prospective authors that Congress will safeguard their investments. 

These reasons, at a minimum, make clear that any disagreement with Congress is of a policy, not

constitutional, nature.

       One of Congress's principal objectives in enacting the CTEA was to harmonize the

copyright term in the United States with the term in the European Union, which mandates that

member countries protect artistic works for the author's life plus 70 years.  See Council Directive

93/98, art. 1, 1993 O.J. (L 290) 9.  Harmonization is particularly important now because, with the

advent of the internet, national borders have increasingly less meaning in copyright law.  At the

push of a button, works can be shared with others over great distances instantly.  In many cases,

infringers can "post" files on websites, allowing anyone with a computer anywhere in the world

to download the files.  Lack of protection in one country, therefore, has ramifications worldwide,

and the protection of intellectual property necessarily must be a cooperative global effort.  As the

Report of the Senate Judiciary Committee reflects:

       The Committee recognizes the increasingly global nature of the market for U.S.
       copyrighted works.  Uniformity of copyright laws is enormously important to facilitate
       the free flow of copyrighted works between markets and to ensure the greatest possible
       exploitation of the commercial value of these works in world markets for the benefit of

                                                   -13-



       U.S. copyright owners and their dependents.  Indeed, in an age where the information
       superhighway offers widespread distribution of copyrighted works to almost anywhere in
       the world at limited costs, harmonization of copyright laws is imperative to the
       international protection of those works and to the assurance of their continued
       availability.

Senate CTEA Report, S. Rep. No. 104-315 at 8 (1996).  The Register of Copyrights echoed the

Committee's sentiments, noting in particular how important it is that the United States, as a

leading exporter of intellectual property, be at the forefront of the effort to protect copyrights

globally.  See id. at 8 (quoting the testimony of Marybeth Peters). 

       By matching the term in the United States with that of its European neighbors, the CTEA

unifies the terms of the international community's major copyright protectors.  This uniformity of

copyright terms makes cooperation among them simpler.  Better cooperation is necessary for

effective protection, especially given the ease with which new technology enables infringement.

And better protection directly stimulates new works, which is the core purpose of copyright

protection.  See Goldstein v. California, 412 U.S. 546, 555 (1973); Twentieth Century Music v.

Aiken, 422 U.S. 151, 156 (1975).  Thus, the CTEA is plainly adapted to further the objectives of

the Copyright Clause.  See McCulloch v. Maryland, 17 U.S. 316 (1819).

       Another objective of the CTEA is to promote the development of new art by securing for

American authors the increased resources that result from longer copyright terms.  The Rule of

the Shorter Term, adopted by the European Union, "permits countries with longer terms to limit

protection of foreign works to the shorter term of protection granted in the country of origin." 

Senate CTEA Report at 9.  Prior to the CTEA then, the European Union did not provide American

authors with its standard term of the life of the author plus 70 years.  Rather, the Rule of the

                                                 -14-



Shorter Term allowed it to protect American works for the shorter duration provided by the

United States.  Failing to provide a term equal to the European Union's thus deprived American

authors of the benefits of 20 years of international copyright protection that they might otherwise

have.  Id. at 7. 

        The CTEA, by extending the United States' copyright term, allows American authors to

take advantage of the full term provided by the European Union and the monetary benefits that

accompany that term.  Intellectual property is the United States' second largest export,

accounting for roughly $40 billion in foreign sales in 1994 alone, with a "huge percentage of

[those exports going] to nations of the European Union."  Id. at 9.  The 20 years' extra protection

as a result of the CTEA will earn significant returns for American authors, which they will likely

reinvest in new art.  See 140 Cong. Rec. E2263 (Oct. 6, 1994) (statement of Rep. Hughes); 140

Cong. Rec. S15473 (Dec. 20, 1994) (statement of Sen. Packwood).  This spur toward new

creative activity is the core purpose of copyright protection.

        A final objective of the CTEA was to respond to recent technological advances that

undermined previous copyright protections.  Since the last time Congress revisited the length of

the copyright term, the prevalence of video-recording devices, compact-disc burners, high-quality

photocopying, and the internet-all of which gained commercial prevalence after 1976-have

made an infringer's task easier.  See Richard A. Posner, Economic Analysis of Law 48 (5th ed.

1998).  As infringement becomes easier, the potential for authors to lose out on the benefits of

their creations becomes more serious, and the value of copyright protection goes down.  See

William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal

                                                -15-



Stud. 325, 363 (1989).  One way of correcting for the declining value of a copyright is to

lengthen its term.  The longer a copyright exists, the longer an author may exploit his work, and

the better chance he has to recoup his expenses.  

       By lengthening the copyright term, the CTEA rectifies the damage done to copyright

protection by new infringing technologies.  But it does more than that.  The Act assuages the

fears of any prospective authors who may worry that future technological advances will

undermine their investment in new works.  By responding to the current wave of technology, the

CTEA demonstrates to authors that if the next wave of technology endangers copyright protection,

Congress will respond to stabilize its worth.  In that way, extending the term of subsisting

copyrights directly encourages the creation of new works and is central to Congress's copyright

mission.

       Congress passed the CTEA with forethought and the intent to promote artistic progress.

Plaintiffs may (and obviously do) disagree with Congress's analysis, but that misses the point. 

Enactment and amendment of the copyright law is the job of the political branches alone;

Plaintiffs' policy disagreements, therefore, have no legal significance.

               3.      The Originality Requirement Is Irrelevant to Extensions of Subsisting
                       Copyrights.

       Plaintiffs next argue that the CTEA violates the constitutional requirement that works be

original in order to qualify for protection, as first articulated in the Trade-Mark Cases, 100 U.S.

82 (1880), and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).  "The retroactive

extension of the term of copyright to existing works", Plaintiffs reason, "violates this originality


                                                -16-



requirement because, at the time the CTEA extended the term of copyright, the existing works

added not even a modicum of creative thought or selection."  Compl.  98. 

       But Plaintiffs misread Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.

340, 345 (1991), which held that to "qualify for copyright protection, a work must be original to

the author."  Here the question before the Court is not whether the works "qualify" for copyright

protection, for they are already copyrighted, but only whether an act of Congress may extend the

term of subsisting protection.  Originality is wholly beside the point.  See Eldred v. Reno, 239

F.3d 372, 376-77 (D.C. Cir. 2001).  As articulated in Feist, originality "means only that the work

was independently created by the author ... and that it possesses at least some minimal degree of

creativity."  499 U.S. at 345 (emphasis added).  Every work affected by the CTEA meets this test,

and Plaintiffs do not allege otherwise.

       C.      The CTEA Does Not Run Afoul of Any Other Constitutional Provisions.

       Once the Court finds that the Constitution grants to Congress the power to enact the

CTEA, all the Defendant must show is that the statute does not trample on other parts of the

Constitution.  With that showing the statute must be upheld.  Plaintiffs contend that the CTEA

violates the first and fifth amendments.  But both arguments misunderstand critical precedent,

which leads them astray and into irrelevance.

               1.      Nothing in the CTEA Abridges the Freedom of Speech.

       The second count of Plaintiffs' complaint alleges that the CTEA unconstitutionally

restricts speech because "plaintiffs can only publish [covered] works with the permission of the

copyright holder."  Compl.  104.  The argument falls short, and not only because its analysis

                                                 -17-



would force the conclusion that the entire system of copyright protection violates the first

amendment. 

       The Supreme Court has already considered and rejected the notion that copyright

protection unconstitutionally abridges free speech.  The United States copyright law, of which the

CTEA is a part, relies on the idea-expression dichotomy, meaning that the law "assures authors the

right to their original expression, but encourages others to build freely upon the ideas and

information conveyed by a work."  Feist Publications, Inc. v. Rural Telephone Service Co., 499

U.S. 340, 349-50 (1991) (emphasis added).  See also 17 U.S.C. 102(b).  In considering whether

a copyright infringer could use the first amendment as a defense to his infringement (the very

same argument Plaintiffs make, although they bring the challenge before they infringe rather than

after), the Court held that the idea-expression distinction strikes "a definitional balance between

the First Amendment and the Copyright Act by permitting free communication of facts while still

protecting the author's expression."  Harper & Row, Inc. v. Nation Enterprises, 471 U.S. 539,

556 (1985) (emphasis added).  In other words, by definition copyright and free speech are

separate; the Copyright Act falls on the expression side of the line, while the first amendment

protects the idea side.  This solution makes sense given that the first amendment's core concern

is the dissemination of ideas.  See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).  It is

further reinforced by the fair use doctrine, codified at 17 U.S.C. 107, which allows the use of

copyrighted material for, among other things, "criticism, comment, news reporting, teaching ...

scholarship, or research".  See SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263

(11th Cir. 2001) (holding that the fair use doctrine allays first amendment concerns about

                                                 -18-



copyright protection); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir. 2001)

(same); Eldred, 239 F.3d at 376 (same); Nihon Keizai Shimbun, Inc. v. Comline Business Data,

Inc., 166 F.3d 65, 74-75 (2d Cir. 1999) (same). 

       So long as the CTEA does not change the copyright law's reliance on this crucial

distinction-and it does not-then the Act cannot abridge the freedom of speech.  The D.C.

Circuit put it succinctly: "The works to which the CTEA applies ... are by definition under

copyright; that puts the works on the latter half of the `idea/expression dichotomy' and makes

them subject to fair use.  This obviates the need for further inquiry."  Eldred v. Reno, 239 F.3d

372, 376 (2001). 

               2.      The CTEA's Application "Retroactively" Does Not Violate Substantive
                       Due Process.

       Nor does the CTEA violate the Due Process Clause of the fifth amendment.  The Supreme

Court held long ago that amendments to intellectual property legislation may affect existing

works without violating the Constitution:

       Whether these exceptions are well taken or not, must depend on the law as it stood at the
       emanation of the patent, together with such changes as have been since made; for though
       they may be retrospective in their operation, that is not a sound objection to their validity;
       the powers of Congress to legislate upon the subject of patents is plenary by the terms of
       the Constitution, and as there are no restraints on its exercise, there can be no limitation
       of their right to modify them at their pleasure....

McClurg v. Kingsland, 42 U.S. 202, 206 (1843).  Here Congress wanted to fix suboptimal

copyright protection and took rational action to do so.  Due process requires nothing more. 

       Courts adjudicate due process claims under the lenient rational-basis standard.  Unless

Plaintiffs can "establish that the legislature has acted in an arbitrary and irrational way", then the

                                                 -19-



law must be upheld.  Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976).  See also

Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955) (holding that the law must have a

"rational relation" to a legitimate aim).  Retroactive laws are subject to the same rational-basis

review as any other statute, with the caveat that the Court must ensure not only that a rational

basis exists for the statute, but also that a rational basis exists for the retroactive application of

that statute.  See United States v. Sperry Corp., 493 U.S. 52, 64 (1989); Pension Benefit

Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984); Usery, 428 U.S. at 17.

        Congress's reasons for passing the CTEA were neither arbitrary nor irrational.  The Act

enhances copyright protection in order to promote artistic progress-a rational legislative goal. 

Nor does the CTEA offend the Due Process Clause by acting retroactively.  The statute takes the

date in the future on which a copyright is to expire and extends it 20 years forward.  Further, the

CTEA affixes no liability to any private party for any past action.  It does not, in other words, look

at actions already taken by Plaintiffs and make them pay as a result of those actions.  That was

the main concern in Sperry Corp., Usery, and Pension Benefit Guaranty (though those statutes

were upheld).  Nor does the CTEA target any unpopular groups for retribution-often a reason for

holding retroactive legislation outside the bounds of due process.  See, e.g., Eastern Enterprises

v. Apfel, 524 U.S. 498, 549 (1998) (Kennedy, J., concurring in the judgment and dissenting in

part).  Quite the opposite, Plaintiffs' main gripe is that the CTEA disadvantages the entire public

domain, which is the common property of all citizens.

        Still, Plaintiffs proffer an alternate standard, quoting language that disparages

retroactivity from the splintered majority in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). 

                                                  -20-



But the opinion from Eastern Enterprises that binds lower courts as precedent is Justice

O'Connor's plurality opinion, because it took the narrowest path to the judgment.  See Marks v.

United States, 430 U.S. 188, 193 (1977).  That opinion explicitly refused to consider the due

process claim, holding that the takings claim was dispositive.  Eastern Enterprises, 524 U.S. at

538.  Thus, Eastern Enterprises is completely irrelevant to this case.  It does not affect precedent

like Sperry Corp., and Usery, the due process decisions that bind this Court.  To the extent that

Justice O'Connor's opinion discussed due process at all, it confirmed those precedents.  See

Eastern Enterprises, 524 U.S. at 537 ("To succeed [on a due process claim], Eastern would be

required to establish that its liability under the Act is `arbitrary and irrational.'").

        Plaintiffs' allegation that the CTEA unsettled their expectations by depriving them of

works that would have fallen into the public domain is beside the point-Usery rejected the

position that unsettled expectations have legal consequence, and it did so in the context of a more

onerous statute.  The Court held that "legislation readjusting rights and burdens is not unlawful

solely because it upsets otherwise settled expectations."  428 U.S. at 16.  Plaintiffs throw out

terms like "unsettled expectations" in the hope of finding a legal hook that will convince the

Court to reopen the legislative debate and look at their policy argument why the CTEA should not

have been passed.  But the Supreme Court has provided clear guidance to the lower courts: "It is

enough to say that the Act approached the problem ... rationally; whether a [different] scheme

would have been wiser or more practical under the circumstances is not a question of

constitutional dimension."  Id. at 19. 



                                                   -21-



II.    The URAA Fully Comports With the Constitution.

       Section 514 of the URAA amended existing copyright law to bring the United States into

compliance with Article 18 of the Berne Convention for the Protection of Literary and Artistic

Works (1989), available at .  The Act restores copyright

protection to original works of foreign origin whose authors at some point in the past failed to

comply with the formalities required by the United States-formalities that Congress has since

jettisoned.  See URAA 514(h)(6)(C)(i), codified at 17 U.S.C. 104A(h)(6)(C)(i).  The Act also

restores protection to foreign works that were not eligible for protection at the time they were

created because the United States did not have reciprocal arrangements with the source country. 

See URAA 514(h)(6)(C)(iii).  A copyright restored by the URAA subsists for the remainder of the

period that would have been granted had the work been protected from its inception.  See URAA

514(a)(1)(B), codified at 17 U.S.C. 104A(a)(1)(B).

       Plaintiffs' claim against the URAA should be dismissed because the Act in no way offends

the Constitution: The Copyright Clause delegates to Congress the power to pass the Act.  The

Act is also proper as an implementation of the Berne Convention, signed pursuant to the treaty

power and implemented pursuant to the Necessary and Proper Clause.  Finally, the URAA does

not violate other constitutional proscriptions.

       A.      The URAA is Within the Congress's Power Under the Copyright Clause.

       Though nothing in the text of the Copyright Clause supports their view, Plaintiffs' main

attack against the URAA contends that, by restoring copyright protection to works in the public

domain, the Act runs afoul of the Copyright Clause.  Plaintiffs also contend that the restoration of

                                                   -22-



protection neither "promote[s] the Progress of Science and useful Arts" nor satisfies the

Copyright Clause's originality requirement.  Not only do these arguments fail, but they are made

irrelevant by the power granted to the federal government to sign and implement treaties.

               1.      The 1790 Copyright Act Proves that the URAA's Removal of Works
                       from the Public Domain Is Constitutional.
 
       Plaintiffs incorrectly brand the URAA's restoration of works from the public domain as "a

sweeping change from prior copyright law".  Compl.  138.  In truth, the URAA has antecedents in

the legislation passed by the first Congress.  The first copyright act, passed in 1790, granted

protection to both new works and works "already printed within these United States" at the time

of enactment.  Act of May 31, 1790, 1, 1 Stat. 124.  (Works already in existence had not been

protected in the United States previously because the Articles of Confederation did not grant the

Continental Congress power to protect intellectual property.)  It is not a remarkable departure

from previous copyright law, therefore, to issue copyrights for existing works that had been in the

public domain.  Precisely the opposite, it was done by the first Congress, which did not view the

Copyright Clause as a barrier to such copyright restoration.  And the views of the first Congress

hold unique influence in the Supreme Court's jurisprudence.  The Court has said so specifically

with respect to the Copyright Act of 1790:

       The construction placed upon the Constitution ... by the men who were contemporary
       with its formation, many of whom were members of the convention which framed it, is of
       itself entitled to very great weight, and when it is remembered that the rights thus
       established have not been disputed during a period of nearly a century, it is almost
       conclusive.

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884).  What the Court found


                                                -23-



"almost conclusive" after a century must be conclusive after more than 200 years.  The 1790 Act,

which restored copyrights to public domain works, was enacted by the first Congress and not

disputed since then.  It is, therefore, constitutional. 

        The URAA is factually indistinguishable from the 1790 copyright legislation.  Both

statutes take works out of the public domain and restore protection to them.  (And while some

works restored by the 1790 Act had previously been protected by individual states, all works

restored by the URAA were protected in their source country.)  If the 1790 Act was constitutional,

then so must the URAA be.

        Presumably Plaintiffs' challenge relies on language in recent Supreme Court opinions

indicating that "Congress may not authorize the issuance of patents whose effects are to remove

existent knowledge from the public domain".  Graham v. John Deere Co., 383 U.S. 1, 6 (1966).

See also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989); Anderson's-

Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 61 (1969).  This concept comes

originally from Pennock v. Dialogue, 27 U.S. 1 (1829).  See Bonito Boats, 489 U.S. at 129

(making clear the connection between the principle and the Pennock decision).  While the dicta

in these decisions has not always fully expounded the rule, the proper scope of Pennock is

narrower than the isolated quotation suggests. 

        Once an author creates a work he has a choice: either seek protection for the creation or

donate it to the public domain.  If an author chooses protection, he gets a limited term during

which he can prevent others from infringing on his property right.  At any time during the period

the author may give up his rights and allow the public to make free use of the work.  If an author

                                                   -24-



chooses donation, however, that decision is final.  "[O]nce gone, [the protected work] cannot

afterwards be resumed at [an author's] pleasure; for, where gifts are once made to the public in

this way, they become absolute."  Pennock, 27 U.S. at 16. 

       Pennock's analysis assumes only these two options: protection or donation.  But there is a

third possibility.  Authors in some foreign countries are not free to make a choice either way; the

United States and their home country have no reciprocal agreement for the protection of

intellectual property, or the formalities formerly required by the United States effectively

deprived authors of the choice because they were unaware of the steps necessary to protect their

work.  Pennock was concerned that authors might donate a work and then renege on that

decision.  But these foreign authors never made the "voluntary act or acquiescence in the public

sale" that constitutes "an abandonment of [their] right."  Bonito Boats, 489 U.S. at 149 (quoting

Pennock at 21-22).  They are beyond the scope of the Pennock question, which dealt only with

one particular problem.  While isolated dicta in other cases may seem to go beyond that result,

Pennock and Bonito Boats-the only two cases to offer any analysis-clarify the rule. 

       The 1790 Act was consistent with the Pennock Rule.  Prior to 1790, the Articles of

Confederation did not grant the United States power to protect intellectual property, and so

authors did not have the choice to protect or donate their works.  The Act's restoration of

copyright protection for those works was constitutionally proper, therefore, because it only

restored a choice that had been denied the authors when they created their works.  Nothing in the

1790 Act allowed an author to renege on a donation made to the public domain. 

       The URAA also rectifies authors' lack of choice.  Section 514(h)(6)(C) of the URAA

                                                -25-



expressly limits the Act's application to works which lacked national eligibility or failed to

comply with the formalities of United States copyright law.  In either case, the authors were

prevented from choosing protection or donation.  The URAA, therefore, goes no further than the

original copyright act of 1790.  Pennock and Bonito Boats do not undermine the permissibility of

these two statutes.     

               2.      Whether the URAA Promotes "the Progress of Science and Useful
                       Arts" Has No Legal Consequence.

       Plaintiffs further argue that restoring copyright protection to works already existing in the

public domain does nothing to "promote the Progress of Science and useful Arts".  They

conclude that the URAA must be unconstitutional. 

       But Plaintiffs ask the wrong question, and their answer is, therefore, meaningless.  As

discussed with respect to the CTEA, and equally applicable here, Plaintiffs make three critical

errors.  First, the prefatory phrase of the Copyright Clause is not a substantive limit on

Congress's power.  See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001); Hutchinson

Telephone Co. v. Fronteer Directory Co., 770 F.2d 128, 130 (8th Cir. 1985); Schnapper v. Foley,

667 F.2d 102, 112 (D.C. Cir. 1981).  It merely explains why the power was granted to Congress. 

Next, Courts do not review the wisdom of intellectual property legislation.  The Constitution

commits to Congress alone the ability to adjust the scope of copyright protection.  See Sony

Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).  "[I]t is not [the Court's] role to

alter the delicate balance Congress has labored to achieve."  Stewart v. Abend, 495 U.S. 207, 230

(1990).  See supra, pp. 9-11.  Finally, the Copyright Clause directs that copyright protection as a


                                                -26-



whole, not individual amendments to the law, promote such progress.  See supra, p. 12.  So

whether the URAA itself promotes artistic progress is irrelevant.

       Regardless, the URAA does promote artistic progress in at least two ways.  First, the URAA

implements Article 18 of the Berne Convention for the Protection of Literary and Artistic Works

(1989), available at .  By complying with the

requirements of the Convention, the United States will earn reciprocal protection for American

authors and the moral authority with which to pressure foreign countries into providing that

protection.  Better protection abroad will increase the income received by American authors,

which will stimulate new works of art.  Second, by refusing to penalize foreign authors for failing

to comply with formalities that the United States has long since abandoned, the URAA provides

greater security for authors, which makes new works more likely. 

       A core reason that Congress enacted the URAA was to implement fully the Berne

Convention, Article 18(1) of which requires the protection of "all works which ... have not yet

fallen into the public domain in the country of origin through the expiry of the term of

protection."  See Senate URAA Report, S. Rep. 103-412 at 225 (1994).  By fulfilling its Berne

obligations, the United States positions itself to make sure that American authors receive

reciprocal treatment from other Berne signatories: 

       The reason for our adopting this policy is simple: If the United States passes a law that
       protects previously produced foreign works, then we will have every right to expect
       certain foreign countries to pass laws protecting previously produced U.S. works.

140 Cong. Rec. H11459 (Nov. 29, 1994) (statement of Rep. Berman).  Prior to the URAA it would

have been difficult, if not impossible, for the United States to persuade other countries to

                                                -27-



implement Berne's protections, which the United States itself refused to provide.  Such a request

would not have been taken seriously.  See David Nimmer, Nation, Duration, Violation,

Harmonization: An International Copyright Proposal for the United States, 55-2 Law &

Contemp. Probs. 211, 216 (1992).  As a result of the URAA, the United States now may credibly

urge other countries to protect the rights of American authors.  As noted above, American

authors earn a great deal from intellectual property exports.  Reciprocal restorations will,

therefore, produce a significant new income stream from already existing works.  This directly

stimulates artistic creativity because authors tend to reinvest their earnings in new works of art. 

See discussion, supra, pp. 14-15.

       Another core motivation for the URAA was that Congress did not think it fair to penalize

foreign authors for not complying in the past with copyright formalities that the authors were

unlikely to have been aware of, and which the United States has since cast off.  There are two

ready examples.  First, 304 of the 1976 Copyright Act allowed authors to renew their copyrights

only by application to the Copyright Office within one year prior to the expiration of the original

term.  See Pub. L. 94-553, 90 Stat. 2573.  The Copyright Amendments Act of 1992, Pub. L. 102-

307, 106 Stat. 264, 102(a)(2)(A)(ii), alleviated the necessity of a formal renewal request, vesting

the renewal automatically with the copyright holder.  A second formality, 401 of the 1976 Act,

required that a copyright notice appear on all publicly distributed copies of a protected work. 

Failure to do so would, in many cases, forfeit protection.  This rule was repealed by the Berne

Convention Implementation Act of 1988, Pub. L. 100-568, 102 Stat. 2853, 7.  Neither the

Copyright Amendments Act nor the Berne Implementation Act took any step to help authors who

                                                -28-



had already lost their copyrights for failure to comply with the formalities that the acts

eliminated.  This despite the fact that the formalities were much more onerous for foreign

authors, who were less likely to be aware of the copyright requirements than were American

authors.  The URAA finally implements such an overdue measure:

       As difficult as it has been for American authors to comply with the strict formalities that
       were the hallmark of United States copyright law for so many years, it has been even
       more difficult for foreign authors.  Many lost their U.S. copyrights to the requirements of
       our law.  Now that we have essentially eliminated formalities from our copyright system,
       it is appropriate to restore these copyrights and redress the draconian effects of prior law.

Joint House and Senate Committee Hearings on the URAA, 103rd Cong. 191 (1994) (statement of

Shira Perlmutter). 

       The URAA's restoration of protection to authors injured by legal formalities promotes

artistic progress.  It signals to prospective authors that the United States will not use procedural

barriers to cheat them out of their right to a limited period of exclusive use of their creation-that

the United States respects the rights of authors and will use its power to ensure that their

investments are safeguarded.  Better security directly promotes the creation of new works.

               3.      The URAA Protects Only Original Works, as the Copyright Clause
                       Requires.

       Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), holds that

"to qualify for copyright protection, a work must be original to the author."  499 U.S. at 345. 

Plaintiffs argue that the URAA runs afoul of that requirement and must be held unconstitutional. 

Nothing in the URAA, however, indicates anything other than that works must be original to

qualify for protection-514(h)(6) of the Act expressly limits the URAA's applicability to


                                                -29-



"original work[s] of authorship".  Plaintiffs insist that Feist requires more. Although not exactly

clear, they seem to argue that creativity wears off; that works which once were original become

less so with the passage of time.  Plaintiffs have misread Feist again, which rejects their position. 

"Original, as the term is used in copyright, means only that the work was independently created

by the author (as opposed to copied from other works), and that it possess some minimal degree

of creativity."  Feist, 499 U.S. at 345 (emphasis added).  Works eligible under the URAA, by the

Act's own terms, meet Feist's requirements. 

        B.      The URAA is Also Proper Under Congress's Power to Implement Treaties.

        The URAA is also an acceptable exercise of the power of the United States to make and

implement treaties.  The Constitution grants to the President the power, "by and with the Advice

and Consent of the Senate to make treaties, provided two thirds of the Senators present concur".

U.S. Const. art. II, 2, cl. 2. "If the treaty is valid there can be no dispute about the validity of the

[implementing] statute under Article I, 8, as a necessary and proper means to execute the

powers of the Government."  Missouri v. Holland, 252 U.S. 416, 432 (1920).  

        Section 514 of the URAA implements Article 18 of the Berne Convention for the

Protection of Literary and Artistic Works.  The United States had the power to sign the Berne

Convention, and Congress, therefore, had the power to implement it.

        Missouri v. Holland demonstrates conclusively this point.  At issue in that case was the

Migratory Bird Treaty Act, which increased protection for wild birds domestically in order to

comply with the Migratory Bird Treaty.  The Court held that the powers granted to Congress by

Article I do not provide the outer boundaries for the Article II power to make international

                                                  -30-



agreements.  So, while admitting that Congress could not enact the legislation using the powers

granted to it by Article I of the Constitution, the Court held that the treaty was valid under the

treaty power, and its implementing legislation sound under the Necessary and Proper Clause.2 

What is true for the Migratory Bird Treaty Act is true for the URAA.  Article 18 of the Berne

Convention is a topic fit for international agreement and does not "contravene any prohibitory

words to be found in the Constitution."  252 U.S. at 433.  See also Reid v. Covert, 354 U.S. 1,

16-17 (1957).  The President, therefore, may sign the Convention and Congress may pass the

URAA to implement it. 

       C.      The URAA Does Not Violate Any Other Provisions of the Constitution.

       Once the Court finds that either the Copyright Clause or the treaty power (with its

Necessary and Proper corollary) delegates to Congress the power to pass the URAA, the

Defendant must then demonstrate that the Act does not abridge any other constitutional rights. 

With that demonstration, the Court must dismiss the action.  Because the URAA infringes on

neither the first nor fifth amendments, the Act should be upheld.

               1.      The URAA Does Not Unconstitutionally Restrict Free Speech.

       Plaintiffs take the same first amendment stance against the URAA that they did against the

CTEA.  The defendant incorporates here the discussion supra, pp. 17-19.  The plaintiffs

misunderstand the idea/expression dichotomy, which dooms their argument.



       2The URAA is an even stronger case than Missouri because Congress can pass this
legislation under the Copyright Clause, or even the Foreign Commerce Clause, whereas in
Missouri Congress could not have passed the Act independent of a treaty.

                                                -31-



               2.      The URAA Does Not Violate the Due Process Clause.

       Nor does the URAA offend the Due Process Clause.  All laws, whether retroactive or not,

must bear only a rational relation to a legitimate legislative purpose.  See United States v. Sperry

Corp., 493 U.S. 52, 64 (1989); Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S.

717 (1984).  The URAA undeniably does so and Plaintiffs do not (and cannot in good faith) allege

otherwise.  See supra, pp. 19-20.

       Plaintiffs propose an alternate standard, but erroneously cite a takings case to support

their proposition that the URAA is subject to a higher standard than Sperry Corp. and Pension

Benefit Guaranty suggest.  See Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).  Eastern

Enterprises cannot (and does not purport to) change the Supreme Court's consistently applied

standard-all laws must bear only a rational relation to a legitimate legislative purpose.

       But Plaintiffs' claim would fail even under their own standard.  The Supreme Court has

decided that retroactivity is not a reason to reject intellectual property legislation.  McClurg v.

Kingsland, 42 U.S. 202, 206 (1843).  Further, the URAA is not retroactive in any significant way. 

The Act restores copyright protection to works prospectively only.  Had Congress granted

copyright protection backwards in time-so that authors were entitled to royalties for use of their

work that had already occurred-it would be a different story.  But the URAA protects authors

only from infringement after the statute's enactment.  And Congress built extra precautions into

the Act specifically so as not to upset settled expectations.  First, Congress gave people

substantial time to prepare.  The United States signed the Berne Convention in March 1989.  The

URAA was not passed until December 1994.  The effective date of the Act was not until January


                                                 -32-



1996. See 60 Fed. Reg. 7793 (Feb. 3, 1995).  That is almost seven years notice of this change in

law.  The advance warning belies any claim of undue surprise. 

       Congress went further.  The URAA protects "reliance parties" from any undue burden that

the Act might otherwise cause.  A reliance party is typically one who was using a work prior to

the enactment of the URAA.  See URAA 514(h)(4), codified at 17 U.S.C. 104A(h)(4). (It appears

from the Complaint that most of the plaintiffs qualify under this provision.)  Reliance parties may

continue to use protected material unless and until the owner of the restored copyright files a

"Notice of Intent to Enforce," either with the Copyright Office or with the party himself.  Once a

Notice has been filed, a reliance party still has one full year with which to continue to use the

protected work.  This use can include the sale of previously manufactured audio recordings,

performance of music, or display of work publicly. See URAA 514(d).  The URAA, then, goes out

of the way to treat reliance parties fairly and to make sure no citizen is unfairly surprised. 

       "Derivative works" that were created before the URAA's enactment receive even greater

protection than reliance parties.  17 U.S.C. 101 defines a "derivative work" as "a work based

upon one or more preexisting works .... A work consisting of editorial revisions, annotations,

elaborations, or other modifications which, as a whole, represent an original work of authorship,

is a `derivative work'."  Section 514(d)(3)(A), codified at 17 U.S.C. 104A(d)(3)(A), grants to

the author of a derivative work a mandatory license from the author of the original work.  So

long as the derivative author pays "reasonable compensation" to the original author, he may

continue to exploit the derivative work for the entire period of original work's copyright.  This is

just one more example of the deliberate steps Congress took to ensure that no party was unfairly

                                                 -33-



surprised by the URAA. 

       The protections built into the URAA, then, prevent unsettled expectations, contrary to

Plaintiffs' claims.  Anyone who used a work prior to the URAA is protected as a reliance party,

and if they created a derivative work they receive even greater protection.  Anyone who does not

qualify as a reliance party could not have been using the work prior to the URAA and cannot,

therefore, claim an unsettled expectation at the prospective copyright protection provided by the

Act.  When the full scope of the URAA is evaluated under the correct standard, as articulated by

the Supreme Court, it is clear that nothing about the URAA is abusive, and that the Act relates

rationally to a legitimate congressional goal.

                                            Conclusion

       For the foregoing reasons, Defendant's motion to dismiss should be granted.  At their

essence, Plaintiffs' arguments amount to one thing-policy reasons that the CTEA and the URAA

are undesirable.  But the legislative debate is over; Congress considered and passed both

measures and the President signed them into law.  Especially in the area of intellectual property,

where all protection for authors comes at the public's expense, the Constitution commits to the

political branches alone the responsibility for shaping the balance of competing interests.


                                                          Respectfully submitted,

                                                          ROBERT D. McCALLUM, JR. 
                                                          Assistant Attorney General

                                                          JOHN W. SUTHERS
                                                          United States Attorney


                                                  -34-



        VINCENT M. GARVEY
        Deputy Branch Director


        _________________________
        JOSHUA Z. RABINOVITZ
        Attorneys for Defendant
        United States Department of Justice
        Civil Division, Rm 953
        901 E Street, NW
        Washington, D.C. 20004
        Telephone: (202) 353-7633
        Fax: (202) 616-8202



























-35-



                                CERTIFICATE OF SERVICE

       I certify that, on December 13, 2001, I caused a copy of the foregoing Motion to Dismiss

and accompanying Memorandum to be served by first-class mail, postage prepaid, upon counsel

at the following addresses:

       Carolyn Fairless
       Wheeler, Trigg & Kennedy, P.C.
       1801 California Street, Ste. 3600
       Denver, CO 80202-2636

       Lawrence Lessig
       Edward Lee
       Stanford Law School
       Center for Internet and Society
       Crown Quadrangle
       559 Nathan Abbott Way
       Stanford, CA 94305-8610

       Jonathan L. Zittrain
       Charles R. Nesson
       1525 Massachusetts Ave
       Cambridge, MA 02138




                                                     _______________________
                                                     JOSHUA Z. RABINOVITZ










                                             -36-



                                                    TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  iii

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.         The  CTEA Is Constitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

           A.         Rejecting the CTEA Would Disavow a National Tradition That 
                      the Supreme Court Regards as Authoritative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

           B.         The  CTEA Is Fully Consistent with the Copyright Clause. . . . . . . . . . . . . . . . . . . . 6

                      1.         The  CTEA Establishes a Copyright Term of Limited Duration. . . . . . . . . . 6

                      2.         The  CTEA Does Not Disturb the Copyright Clause's Prefatory
                                 Phrase-"To promote the Progress of Science and useful Arts". . . . . . . . 8

                                 a.         The Copyright Clause's Prefatory Phrase Does Not Limit
                                            Congress's Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                 b.         The Constitution Commits the Determination of What Best
                                            Promotes the "Progress of Science and useful Arts" to 
                                            Congress Alone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                 c.         If Anything, Copyright Law as a Whole, Not Individual
                                            Amendments, Must "promote the Progress of Science 
                                            and useful Arts". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                                 d.         Regardless, the CTEA Promotes the "Progress of Science 
                                            and useful Arts". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                      3.         The Originality Requirement Is Irrelevant to Extensions 
                                 of Subsisting Copyrights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

           C.         The  CTEA Does Not Run Afoul of Any Other Constitutional Provisions. . . . . . . 17

                      1.         Nothing in the CTEA Abridges the Freedom of Speech. . . . . . . . . . . . . . . 17


                                                                       -i-



                      2.         The CTEA's Application "Retroactively" Does Not Violate 
                                 Substantive Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II.        The  URAA Fully Comports With the Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

           A.         The  URAA is Within the Congress's Power Under the Copyright Clause. . . . . . . 22

                      1.         The 1790 Copyright Act Proves that the URAA's Removal of 
                                 Works from the Public Domain Is Constitutional. . . . . . . . . . . . . . . . . . . 23

                      2.         Whether the URAA Promotes "the Progress of Science and 
                                 Useful Arts" Has No Legal Consequence. . . . . . . . . . . . . . . . . . . . . . . . . 26

                      3.         The  URAA Protects Only Original Works, as the Copyright Clause
                                 Requires. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

           B.         The  URAA is Also Proper Under Congress's Power to Implement Treaties. . . . . 30

           C.         The  URAA Does Not Violate Any Other Provisions of the Constitution. . . . . . . 31

                      1.         The  URAA Does Not Unconstitutionally Restrict Free Speech. . . . . . . . . 31

                      2.         The  URAA Does Not Violate the Due Process Clause. . . . . . . . . . . . . . . . 32

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
















                                                                      -ii-