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FOR THE DISTRICT OF COLUMBIA CIRCUIT
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THIS CASE IS SCHEDULED FOR ORAL
ARGUMENT ON OCTOBER 5, 2000 No. 99-5430 ERIC ELDRED, et al., Plaintiffs-Appellants, v.
BRIEF OF AMICI CURIAE THE SHERWOOD ANDERSON LITERARY ESTATE TRUST, THE SHERWOOD ANDERSON FOUNDATION, AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS, AMSONG, INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., BROADCAST MUSIC, INC., MOTION PICTURE ASSOCIATION OF AMERICA, NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC., RECORDING INDUSTRY ASSOCIATION OF AMERICA INC., AND THE SONGWRITERS GUILD OF AMERICA IN SUPPORT OF APPELLEE JANET RENO AND IN SUPPORT OF AFFIRMANCE
TABLE OF AUTHORITIES ...........................................................................v GLOSSARY ..................................................................................................vi INTEREST OF AMICI ..................................................................................1 SUMMARY OF ARGUMENT ......................................................................7 ARGUMENT ...............................................................................................10 I. THE COPYRIGHT TERM A. Congress' Enactment of the CTEA B. The CTEA Has a Rational Relation C. The CTEA's Copyright Term Is a Limited Time D. Congress May Constitutionally Extend E. Striking Down the CTEA II. THE COPYRIGHT TERM EXTENSION ACT CONCLUSION ...........................................................................................28
CASES *Burrow?Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) ...............21-22 Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., *Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991) ......22 *Ferguson v. Skrupa, 372 U.S. 726 (1963) .............................................11, 19 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) ........25 Pennock & Sellers v. Dialogue, 27 U.S. (2 Pet.) 1 (1829) ..............................10 *Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981) ........................10, 23, 26 Sony Corp. of America, Inc. v. Universal City Studios, Inc., 464 U.S. 417 (1984) ...........................................................................................................10 Twin Peaks Prod., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366 Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) ....................27 Zacchini v. Scripps?Howard Broadcasting Co., 433 U.S. 562 (1977) .............26 STATUTES U.S. CONST., art. I, § 8, cl. 8 ...................................................................7, 23 Act of May 31, 1790, § 1, 1 Stat. 124 .....................................................20, 23 Act of Feb. 3, 1831, § 2, 4 Stat. 436 .............................................................20 * Denotes authorities upon which Amici primarily rely. H.R. REP. NO. 105?452 at 5 (1998) ...........................................11-12,
14-17 Copyright Term, Film Labeling, and Film Preservation Legislation:
The Copyright Term Extension Act of 1995: Hearing before Copyright Term Extension, Hearing Before the Subcommittee 144 CONG. REC. H9946?01, H9954 (daily ed. Oct. 7, 1998) .....................12 144 CONG. REC. S11672?02, S11673 (daily ed. Oct. 7, 1998) ..................12 MISCELLANEOUS Council Directive 93/98, 1993 O.J. (L. 290/0) ...............................................12 Orrin G. Hatch, Essay: Toward a Principled Approach 1995 House Hearing Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings Before the House Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary on H.R. 989, H.R. 1248 and H.R. 1734, 104th Cong. (1995) AAP: Association of American Publishers, Inc. App. ____ Appendix at ____ Amici: Amici Curiae The Sherwood Anderson Literary Estate Trust, The Sherwood Anderson Foundation, American Society of Composers, Authors, and Publishers, AmSong, Inc., Association of American Publishers, Inc., Broadcast Music, Inc., Motion Picture Association of America, National Music Publishers' Association, Inc., Recording Industry Association of America Inc., and The Songwriters Guild of America in support of Appellee Janet Reno ASCAP: American Society of Composers, Authors and Publishers BMI: Broadcast Music, Inc. CTEA: The Sonny Bono Copyright Term Extension Act, Pub.L. No. 105-298, 112 Stat. 2827, 17 U.S.C. § 304 (1998) MPAA: Motion Picture Association of America NMPA: National Music Publishers' Association RIAA: Recording Industry Association of America, Inc. Senate CTEA Hearing The Copyright Term Extension Act of 1995: Hearing before the Committee on the Judiciary of the United States Senate, 104th Cong. 1-2 (1995) SGA: The Songwriters Guild of America INTEREST OF AMICI Amici represent a broad and diverse group of creators and copyright
owners in the music, motion picture and publishing fields affected
by the Sonny Bono Copyright Term Extension Act ("CTEA"),
Pub. L. No. 105-298, 112 Stat. 2827, 17 U.S.C. § 304 (1998).
Amici's members and beneficiaries rely on the royalties and other
proceeds from exploitation of their copyrighted works to compensate
creative artists and their families for their contributions to America's
cultural heritage, to fund the creation of new artistic works, and
to finance the preservation, restoration and dissemination to new
generations of creative works from the Twentieth Century. The Sherwood Anderson Literary Estate Trust holds the copyrights
for the works of Sherwood Anderson, including the copyright for
Anderson's "Horses and Men," a work which, but for the
CTEA, would have passed into the public domain at the end of 1998,
and which plaintiff Eldred has alleged he would have published on
his Internet web site but for the extension of its copyright (App.
A37, 31). Income earned from the copyrights held by the Trust is
distributed to certain of Anderson's heirs, as well as to The Sherwood
Anderson Foundation. The Sherwood Anderson Foundation was established
in 1984 to provide grants to promising young writers. It is funded
by contributions and by income earned from the copyrights held by
The Sherwood Anderson Literary Estate Trust. American Society of Composers, Authors and Publishers ("ASCAP")
is an unincorporated voluntary association of over 100,000 composers,
lyricists, and music publishers. On behalf of its members and affiliated
foreign performing rights societies, ASCAP licenses rights for non-dramatic
public performances for the millions of copyrighted compositions
in its repertory. ASCAP collects license fees and, after deducting
operating expenses, distributes the remainder of the royalties to
writers and publishers and their heirs and successors. Works in
the ASCAP repertory that would have fallen into the public domain
at the end of 1998 but for the CTEA include "That Old Gang
of Mine" by Mort Dixon, Ray Henderson, and Billy Rose; "Who's
Sorry Now?" by Bert Kalmar, Harry Ruby, and Ted Snyder; and
"Yes! We Have No Bananas" by Irving Cohen and Frank Silver.
ASCAP's members rely on the royalties they earn from the use of
their copyrighted property to provide for their families and to
run their businesses. AmSong, Inc. is a California corporation dedicated to the protection
of musical copyrights. AmSong's members include composers, lyricists,
and the heirs of deceased songwriters who participate in the organization
on a voluntary basis. AmSong's members represent every genre of
American music, including jazz, rock, country, theater, and classical.
Among the compositions of AmSong's members that would have fallen
into the public domain if the CTEA had not been enacted are "Rhapsody
in Blue" by George Gershwin; "Manhattan" by Lorenz
Hart and Richard Rodgers; "Yes Sir! That's My Baby" by
Walter Donaldson and Gus Kahn; "Ain't She Sweet" by Milton
Ager and Walter Yellin; "Stardust" by Hoagy Carmichael;
and "Let's Do It (Let's Fall in Love)" by Cole Porter.
The widows, children or heirs of their creators would be harmed
if the CTEA were declared unconstitutional. Association of American Publishers, Inc. ("AAP") is a
national trade association of the U.S. book publishing industry.
AAP's approximately 250 members include most of the major commercial
book publishers in the United States, as well as smaller and non-profit
publishers, university presses, and scholarly societies. AAP members
publish hardcover and paperback books in every field and a range
of educational materials for the elementary, secondary, post-secondary
and professional markets. Members of AAP also produce computer software
and electronic products and services, such as online databases and
CD-ROMs. In seeking to expand national and global markets for its
members' products, AAP's primary concerns are the protection of
intellectual property rights in all media, the defense of free expression
and freedom to publish at home and abroad, the creative management
of new technologies, and the promotion of educational excellence
through adequate funding for instructional materials. Broadcast Music, Inc. ("BMI") is a New York corporation
that licenses public performing rights in musical compositions on
behalf of approximately 250,000 affiliated songwriters, composers,
and publishers and numerous foreign composers through BMI's reciprocal
licensing agreements with over 60 foreign performing rights societies.
BMI's primary function is to provide licenses for public performing
rights for approximately 4.5 million musical works to broadcast
radio and television stations, cable program services and systems,
restaurants, retail establishments, concert promoters, trade shows,
and background music providers, among others. BMI operates on a
non-profit basis, and except for operating expenses and reasonable
reserves, distributes all of the license fees it collects to its
affiliated songwriters and publishers. Motion Picture Association of America ("MPAA") serves
as the voice and advocate of the American motion picture, home video,
and television industries in both domestic and international matters
affecting its membership. Among its major functions, the MPAA seeks
to preserve and protect the rights of copyright owners, including
receiving just compensation for the use of their works; acts as
the spokesperson and advocate for producers and distributors of
motion pictures, television programs, and home videos; and directs
an anti-piracy program to protect U.S. films, television programming,
and home video. The MPAA also collects and distributes royalties
from compulsory licenses granted to domestic cable and satellite
television and from European broadcasts of American television shows. National Music Publishers' Association ("NMPA") is the
principal trade association representing the interests of music
publishers in the United States. The more than 600 music publisher
members of NMPA, along with their subsidiaries and affiliates, own
or administer the majority of U.S. copyrighted musical works. For
over eight decades, NMPA has served as the leading voice of the
American music publishing industry in Congress and in courts. NMPA's
wholly owned subsidiary, The Harry Fox Agency, Inc. was founded
in 1927, and acts as the licensing agent for over 22,000 music publishers,
who in turn represent the interests of hundreds of thousands of
songwriters. Recording Industry Association of America, Inc. ("RIAA")
is a not-for-profit corporation, whose membership consists of more
than 500 sound recording producers and phonorecord manufacturers.
RIAA's members create, manufacture, or distribute more than 90%
of the authorized sound recordings in the United States, including
compact discs, cassette tapes, and long-playing records. RIAA's
purposes include overseeing copyright infringement litigation for
member companies, combating all forms of record piracy throughout
the world, and ensuring that copyright legislation maintains an
appropriate balance for fostering creativity in music through increased
investment, production and distribution. The Songwriters Guild of America ("SGA") is the nation's
oldest and largest organization run exclusively by and for songwriters.
SGA is an unincorporated voluntary association of approximately
5,000 songwriters throughout the United States and the estates of
deceased SGA members. SGA is governed by a board composed entirely
of songwriters. Among other services, SGA provides royalty collection
and audit functions for its writer members, as well as licensing
rights in musical works to music users on behalf of its writer-publishers.
Among the works of SGA members that would have fallen into the public
domain at the end of 1998 had the CTEA not been enacted are "Who's
Sorry Now?" by Ted Snyder, Harry Ruby, and Bert Kalmar, "Swinging
Down the Lane" by Isham Jones and Gus Kahn, and "Minnie
the Mermaid" by B.G. DeSylva. SUMMARY OF ARGUMENT Copyright promotes creativity. Appellants seek to stifle it. For that reason, amici join appellee in urging affirmance of the
district court's decision that the CTEA was constitutionally enacted. The Copyright Clause -- Article I, Section 8, Clause 8 -- of the
United States Constitution expressly empowers Congress to enact
copyright laws granting authors exclusive rights in their works
"for limited times." Over the last 200 years, Congress
has exercised that power periodically to enlarge the term of copyright.
The CTEA is its most recent exercise of that authority. Adopted
unanimously by both houses of Congress, and signed into law by the
President, it extends the term of copyright protection by twenty
years, thereby bringing the term of U.S. copyright protection into
harmony with international standards. Appellants contend that Congress' enactment of the CTEA exceeded
the express authority granted to it under the Constitution or did
not have a rational basis. As to the second argument, Congress had abundant reasons for enacting
the CTEA after holding extensive hearings which showed that:
In enacting the CTEA, Congress heard from, among others, individual
authors, composers and other creators, industry leaders and the
U.S. Copyright Office. All testified that the CTEA was critical
for the above reasons. All testified that failure to extend the
term of copyright protection in the United States would have severe
negative effects:
If that were not enough, the CTEA follows a long line of copyright
legislation. This is not the first time that Congress has extended
copyright protection in both new and existing works. For over two
centuries, Congress has done precisely what appellants now contest.
Under appellants' theories, each of these copyright term extensions
-- well-accepted and long deemed constitutional -- would somehow
now violate the Constitution. Settled authority proves otherwise.
As for appellants' claim that extending the term of copyright protection
violates the First Amendment, the courts have long rejected the
argument that copyright law restrains free speech. The district
court correctly rejected this claim. This action, we respectfully submit, does not concern just the
CTEA. It is part of an anti-copyright crusade by those who seek
the right to use copyrighted material for free -- at severe cost
to creators and the public that they serve. Appellants' proper forum
to advance their agenda is before Congress, not this Court. And they have. Appellants voiced the very same arguments to the
Congress that enacted the CTEA that they now replay here. Congress
listened and rejected them, finding that the CTEA was warranted
for many reasons. In making that determination, Congress acted rationally
pursuant to the power expressly granted to it under the Constitution.
Indeed, it acted unanimously. The Framers entrusted to the legislative process the determination
of the appropriate term of copyright. Appellants' attempt to usurp
that process -- because they do not like the conclusion that Congress
reached -- should be rejected. ARGUMENT I. THE COPYRIGHT TERM EXTENSION ACT IS CONSTITUTIONAL Appellants' argument -- that the CTEA is unconstitutional -- flies
in the face of longstanding Supreme Court authority that the Constitution
entrusts determination of the appropriate term of copyright protection
to the discretion of Congress and of the extensive legislative record
supporting Congress' exercise of that discretion in enacting the
CTEA. A. Congress' Enactment of the CTEA Is Entitled to Extreme Deference The Constitution grants Congress, not the courts, the authority
to determine what length of copyright term is "limited"
within the meaning of the Copyright Clause. See Appellee's Brief
at 21-22; see also Pennock & Sellers v. Dialogue, 27 U.S. (2
Pet.) 1, 16-17 (1829) ( The copyright "shall exist but for
a limited period, and . . . the period shall be subject to the discretion
of Congress.") (emphasis added). Congress' judgment in making
that determination is entitled to extreme deference. See Appellee's
Brief at 21-22; see also Sony Corp. of America, Inc. v. Universal
City Studios, Inc., 464 U.S. 417, 431 (1984). Accordingly, this Court has applied a deferential "rational
basis" standard of judicial review to congressional legislation
under the Copyright Clause. See Schnapper v. Foley, 667 F.2d 102,
112 (D.C. Cir. 1981) ("the proper scope for judicial review
of challenges to congressional power based on the supposed limits
of the Copyright Clause," is a deferential rational relationship
standard of review). In fact, the Supreme Court has made explicit
its refusal to reassume the role of a "superlegislature."
Ferguson v. Skrupa, 372 U.S. 726, 731-32 (1963). B. The CTEA Has a Rational Relation to Valid Legislative Purposes Congress carefully considered the positions of those in support of and against the enactment of the CTEA. Among the CTEA's detractors presenting testimony in opposition to its enactment were one of appellants (American Film Heritage Association) as well as amici curiae for the appellants. All submitted lengthy statements to support their views. Congress also heard testimony from other individuals in opposition to the CTEA, including the select group of academic authorities upon whom appellants rely in their brief. These opponents advanced substantially the same policy arguments that appellants now retread in their lawsuit. Congress also heard from a variety of individuals in support of the CTEA, including numerous authors, composers and creators of intellectual property and their families and descendants. Upon weighing this extensive record, Congress concluded that the CTEA provides "an incentive for U.S. authors to continue using their creativity to produce works" H.R. Rep. No. 105-452, at 4 (1998), and voted unanimously in both houses in favor of its passage.
As it has done (repeatedly) with copyright legislation in the
past, Congress enacted the CTEA to harmonize the copyright law of
the United States with that of other nations, exercising its power
to "Promote the Progress of Science and useful Arts" of
the United States domestically and abroad. See Senate CTEA Hearing
4 (statement of Sen. Feinstein) ("Perhaps the most compelling
reason for this legislation is the need for greater international
harmonization of copyright terms."). With the European Union's
recent adoption of a new copyright term of the life of the author
plus 70 years, see Council Directive 93/98, 1993 O.J. (L. 290/0),
the life-plus-70 year term had become the "prevailing worldwide
standard." See Orrin G. Hatch, Essay: Toward a Principled Approach
to Copyright Legislation at the Turn of the Millennium, 59 U. PITT.
L. REV. 719, 728 (1998). Congress had good reason to seek harmonization of U.S. copyright
protection. It feared U.S. economic harm, especially in this global
information age in which the Internet and other technological advances
have effectively eradicated national and international boundaries.
See Appellee's Brief at 32-33. This inequity was of particular concern to Congress because copyright
industries are among the most important for the U.S. economy ??
accounting for almost six percent of U.S. gross domestic product.
S. Rep. No. 104-315, at 9. As songwriter Quincy Jones testified:
The vitality of the U.S. copyright industries results in large
part from strong intellectual property protection. If U.S. protection
does not match that of its counterparts in foreign countries, it
will "lose a significant part of its international trading
advantage" as its works fall into the public domain twenty
years earlier than those of its trading partners. Hatch at 731. As Congress noted, upon enactment of the CTEA extension, "U.S.
works will generally be protected for the same amount of time as
works created by European Union Authors. Therefore, the United States
will ensure that profits generated from the sale of U.S. intellectual
property abroad will come back to the United States." H.R.
Rep. No. 105-452, at 4 (1998). This extension is as crucial for
the promotion of existing copyrighted works as it is for future
copyrighted works. 2. The CTEA Encourages Investment in Existing Copyrighted Works The CTEA is also essential to encourage investments in existing
copyrighted works. One such investment is the preservation, restoration
and dissemination of older works, by, for example, converting them
into digital format, and thereby creating widescale accessibility
for the public to works that would otherwise go unseen and unheard.
Copyrighted works, traditionally fixed in "perishable media,
such as film or analog tape recordings, could be more permanently
preserved - and more widely disseminated - in digital formats, using
emerging technology." Senate CTEA Hearing at 3 (statement of
Sen. Hatch). But, as Congress knew, the transfer of such works into
digital format requires "substantial investment[;] we must
choose to either have the taxpayer fund investment in public domain
works or to give private parties the incentives to invest by allowing
them to recoup their investment." Id. Many of the works crying out for preservation are motion pictures
and sound recordings from the 1920s and 1930s that greatly contribute
to the cultural heritage of the United States. Hatch at 737. Absent
the CTEA, there is little incentive to invest the money to digitize
these works as there will be no opportunity should these works pass
into the public domain for creators to recoup that investment. The CTEA, by contrast, assures copyright owners that they will
have at least 20 years to recoup their investment. In turn, copyright
owners will have the incentive to better preserve, restore and disseminate
their works that are about to fall into the public domain. "This
will ensure that many celebrated works are preserved [for] future
generations. . . . Without a copyright term extension, copyright
owners will have little incentive to restore and digitize their
works. If many of these works are not restored, they might deteriorate
over time and our children would be unable to enjoy these works
as we have." 1995 House Hearing at 219 (statement of Bruce
A. Lehman). 3. The CTEA Provides Fairly for Authors' Descendants Copyright law has always sought to ensure adequate protection
for authors, their children and their grandchildren. The CTEA is
no different. See, e.g., H.R. Rep. No. 105-452, at 4 (1998) ("Authors
will be able to pass along to their children and grandchildren the
financial benefits of their works"). Congress has concluded that the terms of 75 years or life-plus-50
years under the previous copyright statute proved insufficient to
accomplish that long-standing goal, especially in light of increased
life expectancy and later-in-life child bearing in the United States.
See Appellee's Brief at 24-25; see also Senate CTEA Hearing 3 (statement
of Sen. Hatch); Id. at 140 (statement of American Bar Association
Section on Intellectual Property). Individual authors and their families testified poignantly to this
concern:
4. The CTEA Encourages Authors to Create New Works At its core, and for all of the reasons above, the CTEA provides
authors increased incentives to create. See H.R. Rep. No. 105-452,
at 4 (1998) (the CTEA provides "an incentive for U.S. authors
to continue using their creativity to produce works."). The connection is clear. An extended period of copyright protection
for existing works provides an increased royalty stream and, thus,
"added income with which to subsidize the creation of new works."
S. Rep. 104-315, at 12. This proves critical "in the case of
copyright owners, such as motion picture studios and publishers,
who rely heavily on income from enduring works to finance the production
of marginal works and those involving greater risks (i.e., works
by young or emerging authors)." Hatch at 736. Absent extended
revenue from these existing works, new works that might otherwise
be created would never see the light of day. This is all the more true today in light of the increased commercial
longevity of copyrighted works due to technological advancements
in digital media and the explosive growth of the Internet. See id.
at 734. These advances have thus created new and increased demands
for copyrighted content. Seeking to reward authors with "the
benefits of these newly enhanced opportunities for commercial exploitation
of their works," the CTEA extended the copyright term, expanding
the "incentive to create new works that will ultimately enrich
the public domain and our nation's cultural wealth." Id. Further, the increased value of a legacy for an author's heirs
is directly tied to that author's incentive to create:
Encouraging the creation of new works is only one of the numerous
reasons behind the passage of the CTEA. As discussed above, harmonizing
U.S. law with EU law, encouraging investment in existing copyrighted
works and fairly providing for authors' descendants are additional
reasons for Congress' rejection of the position of the CTEA's detractors.
Simply put, appellants had and took advantage of their opportunity
to enter the legislative process and fight against the passage of
the CTEA -- and they lost. Appellants now refuse to accept their
defeat. Instead they seek, through this action, to recycle the same
arguments that they already presented -- unsuccessfully -- to Congress.
In essence, appellants attempt to override the legislative process
and ask the courts to play the role of super-legislator in determining
the appropriate term of copyright -- a role the Supreme Court has
already rejected. See Ferguson, 372 U.S. at 731-32. The Framers granted to Congress the authority to determine the
appropriate period of length of copyright protection. And it is
Congress that, after hearing from both proponents and opponents,
determined that the CTEA was important to the advancement of the
creative arts in the United States. The constitutional process has
worked as the Framers intended. Appellants' attempt to usurp that
process is itself constitutionally infirm. Notwithstanding the settled authority that plainly sustains the
CTEA, appellants argue that the CTEA's copyright term violates the
"limited time" language of the Copyright Clause. The Copyright
Clause and two centuries of copyright law show otherwise. The CTEA's copyright protection term is not perpetual. On the contrary,
the CTEA's copyright term is limited and consistent with the purpose
and meaning of the Copyright Clause and prior copyright legislation. Indeed, it is now well-established -- thanks to more than two centuries
of congressional legislation -- that "[t]he basic theory of
copyright duration is that protection should exist for the life
of the author and two succeeding generations." Senate CTEA
Hearing at 140 (resolution and report of the American Bar Association).
Beginning with the Copyright Act of 1790, Congress has enacted copyright
legislation to protect not only authors, but also their descendants.
See Act of May 31, 1790, § 1, 1 Stat. 124 (if the author survived
the initial copyright term, either the author or his "executors,
administrators or assigns" could renew the copyright); Act
of Feb. 3, 1831, § 2, 4 Stat. 436 (providing that if the author
was dead at the end of the initial copyright term, the right of
renewal passed to his widow or children). Appellants' theory is thus directly at odds with more than two
centuries of copyright legislation, beginning with the Copyright
Act of 1790, and also at odds with Supreme Court precedent, which
affords substantial deference to the construction placed on the
Copyright Clause by Congress in the early copyright acts. Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (concluding that
Congress' early construction of the Copyright Clause is nearly unquestionable);
see Appellee's Brief at 49. D. Congress May Constitutionally Extend The Term of Existing Copyrights Appellants are similarly misguided in their assertion that the
"originality" requirement of the Copyright Clause somehow
precludes the extension of copyright protection in existing works.
See Appellants' Br. at 23-28. The inherent flaw in appellants' argument
is the failure to distinguish between (1) the requirement of "originality"
for purposes of determining whether a work is copyrightable in the
first instance and (2) the power of Congress to determine the term
of copyright for works that already have been deemed original, and
thus copyrightable. In cases like Feist Publications v. Rural Telephone Service Co.,
499 U.S. 340 (1991), the Supreme Court was presented with the first
of these issues -- whether the listings contained in a telephone
book met the "originality" requirement in order to be
copyrightable. In holding that telephone book listings, because
they "require no creativity whatsoever," id. at 362, are
not original works and therefore not copyrightable, the Supreme
Court emphasized that "[o]riginality is a constitutional requirement."
Id. at 346; see Appellants' Brief at 24. From this statement, appellants conclude that existing works that
already have been conferred copyright protection are somehow no
longer original. That is absurd: the very fact that a work enjoys
copyright protection necessitates that the work be original. Once
copyright protection has been conferred, the "originality"
of a work does not vanish. The creative originality of a Georgia
O'Keefe painting, an Ansel Adams photograph, or a Cole Porter song
is irrevocable -- they are all "original" works notwithstanding
the fact that they are "existing works." Indeed, if appellants were correct that extended copyrights cannot
be conferred on existing works, then Congress would have acted unconstitutionally
on virtually every occasion when it legislated with respect to copyrights
since the first Copyright Act of 1790. As the Supreme Court made
clear in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. at 57,
this history is powerful evidence that the constitutional rule is
precisely contrary to the one advanced by appellants. Nor was the first Copyright Act a special case. The interpretation
of the Copyright Clause reflected in the 1790 Act has been repeatedly
reaffirmed in over two centuries of consistent practice. See Appellee's
Brief at 3-9 (discussing extension of copyright protections to existing
as well as future works by the Copyright Acts of 1831, 1909 and
1976). None of these enactments can be reconciled with appellants'
reading of the Copyright Clause. But that is not all. This Court has already rejected the fundamental
premise of appellants' argument ?? that copyrights are permissible
only insofar as they serve to encourage the creation of new works.
See Schnapper, 667 F.2d at 112; see also Appellee's Brief at 27-28. In sum, Congress has extended the terms of existing and future
copyrights alike each time it has extended the copyright term. These
repeated extensions reflect a consistent congressional judgment
that yesterday's work should not enjoy less copyright protection
than tomorrow's simply because new copyright legislation has been
passed. Appellants ask this Court to override the considered judgment
of Congress, and to impose a new constitutional rule that would
preclude any grant of additional rights in existing works. To do
so would overturn more than two centuries of constitutional precedent. E. Striking Down the CTEA Is Not in the Public Interest In the end, appellants' argument amounts to the claim that striking
down the CTEA will produce cheaper and more widespread dissemination
of works in the public domain. But the legislative history of the
CTEA does not support this claim.
Authors, too, share the view that lesser copyright protection
does not add value to the public domain but in fact diminishes it.
Quincy Jones testified:
In fact, as the Register of Copyrights testified, the CTEA ultimately
enriches the public domain:
In sum, the CTEA -- as Congress recognized -- encourages the creation, preservation and dissemination of creative works. The district court's decision that the CTEA was a constitutional exercise of Congress' powers pursuant to the Copyright Clause should be affirmed. II. THE COPYRIGHT TERM EXTENSION ACT Unable to defeat the CTEA under the Copyright Clause, appellants
resort to the First Amendment. But, as the district court correctly
ruled under the settled law in this Circuit, there is no First Amendment
right to use the copyrighted works of others. Appellants' arguments
to the contrary are baseless. The Copyright Clause and the First Amendment share a common goal
-- the exchange and dissemination of ideas. As the Supreme Court
has counseled, "the Framers intended copyright itself to be
the engine of free expression." Harper & Row, Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 545 (1985). Thus, "[c]opyright
is intended to increase and not impede the harvest of knowledge."
Id. at 558. To that end, the CTEA -- like the Copyright Act and other laws
enacted pursuant to the Copyright Clause -- grants rights that "are
designed to assure contributors to the store of knowledge a fair
return for their labors." See Harper, 471 U.S. at 545-46, 558.
Thus, the CTEA "fosters the original works that provide the
seed and substance of this harvest" by supplying "the
economic incentive to create and disseminate ideas." Id. Because
of the copyright protection afforded by the CTEA, copyright owners
such as amici have created, and will continue to create, works --
such as books, motion pictures and songs -- that serve as vehicles
for the dissemination of viewpoints and ideas. Indeed, this Court has squarely rejected appellants' argument that
the copyright laws violate the First Amendment. In Schnapper v.
Foley, this Court held that it was "unaware . . . of any effort
on the part of the United States government to throttle free expression
through use of the copyright laws" and, thus, it was "not
inclined to hypothesize such an effort nor to hand down a decision
invalidating an act of Congress on that hypothetical basis."
667 F.2d at 115 & n.5 (concluding that "the goals of the
copyright law and the First Amendment do not conflict"). As
described above, the legislative history behind Congress' enactment
of the CTEA makes plain that the intent of the CTEA is to serve
the important values of promoting creativity and disseminating speech.
And if any tension did exist between First Amendment values and
copyright law, the Copyright Act directly protects those First Amendment
values. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
562, 577 n.13 (1977) ("federal district courts have rejected
First Amendment challenges to the federal copyright law on the ground
that `no restraint [has been] placed on the use of an idea or concept'."). So, too, does the doctrine of fair use, which "tempers the
protection of copyright by allowing an author to use a limited amount
of copyrighted material under some circumstances." Twin Peaks
Prod., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1373, 1378
(2d Cir. 1993) ("[E]xcept perhaps in an extraordinary case,
`the fair use doctrine encompasses all claims of first amendment
in the copyright field'"). The First Amendment protection afforded
by these doctrines is no less forceful because the term of protection
has been extended by twenty years under the CTEA. In sum, the First Amendment does not grant appellants
"a license to trammel on legally recognized rights in intellectual
property." Dallas Cowboys Cheerleaders, Inc. v. Scoreboard
Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979); see also Walt
Disney Prods. v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978).
The district court correctly so held. CONCLUSION For the reasons set forth above, the district court's decision
should be affirmed. Respectfully submitted, PAUL, WEISS, RIFKIND, WHARTON & GARRISON By: 1615 L Street, N.W.
ALLAN ADLER LISA ALTER FRITZ E. ATTAWAY MARVIN L. BERENSON STEVEN B. FABRIZIO I. FRED KOENIGSBERG SUSAN MANN CHARLES J. SANDERS JAMES J. SCHWEITZER
As required by Fed. R. App. P. 32(a), I certify that this brief
complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i).
Dated: July 21, 2000 I certify that, on July 21, 2000, I caused a copy of the foregoing Brief of Amici Curiae The Sherwood Anderson Literary Estate Trust, The Sherwood Anderson Foundation, American Society of Composers, Authors, and Publishers, AmSong, Inc., Association of American Publishers, Inc., Broadcast Music, Inc., Motion Picture Association of America, National Music Publishers' Association, Inc., Recording Industry Association of America Inc., and The Songwriters Guild of America in Support of Appellee Janet Reno and in Support of Affirmance to be served by first-class mail, postage prepaid, upon Appellants', Appellee's and amici's counsel and amici proceeding pro se, at the following addresses: Alfred R. Mollin Geoffrey S. Stewart Charles R. Nesson Erik S. Jaffe Professor L. Ray Patterson Professor Marcia Hamilton Professor Laura N. Gasaway Edward Walterscheid ______________________________ |
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Last modified September
10, 2000
Berkman Center for Internet &
Society