APPELLANTS’ REPLY BRIEF

In our main brief, Appellants argued that (1) the retrospective aspect of the CTEA violates both the “originality” requirement of the Copyright Clause and the “limited times” term of that clause and (2) the retrospective and prospective aspects of the CTEA cannot satisfy intermediate scrutiny under ordinary First Amendment analysis. The government tacitly concedes the central point of Appellants’ first claim — that Congress may not extend copyright to works in the public domain. But if Congress cannot extend copyright to works in the public domain, then it cannot extend the term on subsisting copyrights. The government does not contest Appellants’ second claim but argues only that this Court has held that ordinary First Amendment analysis does not apply to statutes passed pursuant to Congress’ Copyright Clause power. For the reasons set forth below, this argument cannot salvage the CTEA.

I. A. The government wrongly argues that the “originality” requirement applies only “to determine whether a work is eligible for copyright protection in the first place.” The originality requirement arises from the Copyright and Patent Clause’s stipulation that the author’s monopoly must be conferred in exchange for “promot[ing] the progress of science.” It is irrelevant for the purposes of the originality requirement whether the monopoly in question is a newly-conferred one or the extension of an existing one. See pp. 6-10, infra.

B. The government is wrong in urging that the constitutionality of the CTEA should be tested under a “rational basis” review. Appellants do not claim the CTEA was an enactment that was beyond Congress’ power, but instead challenge the CTEA under Feist’s requirement of “originality.” Because originality is an independent constitutional standard, rational basis review is irrelevant. See pp. 10-11, infra.

C. The government’s suggestions that increases in the “commercial life” of copyrighted works and increases in life expectancies justify the CTEA are groundless. The former argument leads to the absurd result that different works should have different copyright terms, and some works should have only fleeting copyright terms. The government’s suggestion that increases in life expectancy justify the CTEA’s increase in copyright term makes no sense because increases in adult life expectancy do not begin to match the extraordinary increases in copyright terms. See pp. 13-15, infra.

D. The government is wrong in arguing that the retrospective extension of copyright is justified because it creates incentives for companies to restore and preserve old films. If creating an incentive by establishing a government monopoly on speech truly were a sufficient justification for a copyright restriction, then it should extend to works in the public domain as much as to works whose copyright is still subsisting. See pp. 15-16, infra.

E. The government’s argument that the history of past copyright term extensions justifies the CTEA is misplaced. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), stands only for the proposition that legislation enacted when the Constitution’s framers sat in Congress is entitled to great weight. But the first copyright term extension occurred in 1831, when none of the framers still sat in Congress. And the government is incorrect in suggesting that the CTEA was the fulfillment of some earlier “promise” made by Congress because none of the pre-CTEA copyright laws contained any such promise. See pp. 16-18, infra.

II. A. The CTEA should be tested under the standard of First Amendment intermediate scrutiny set forth in United States v. O’Brien, 391 U.S. 367 (1968) and Turner Broadcasting System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997). The Supreme Court clearly held in Turner II that restrictions on speech are always subject to heightened scrutiny. See pp. 20-21, infra.

B. There is no “copyright exception” to the First Amendment. Copyright statutes, like all others, are subject to First Amendment review. As a general matter, copyright statutes survive First Amendment review because of the “expression/idea” dichotomy: since copyrights restrict copying of expression only, but do not restrict dissemination of the underlying ideas in a work, they do not unduly restrict speech. However, this dichotomy is one that describes the First Amendment limitations upon a copyright’s scope. See pp. 21-24, infra.

C. It is a different matter whether a copyright’s duration impinges upon the First Amendment. Turner II requires the government to show that the CTEA’s restrictions on speech serve an “important government interest” -- which, in the case of copyright, can only be “the general benefits derived by the public from the labors of authors,” Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) -- without “unduly burdening” speech. The CTEA’s extension of copyright terms does not increase the benefits to the public from the labors of authors because it gives no real present incentive to authors. By removing from the public domain for another 20 years a massive body of works, the CTEA dramatically limits access to the public commons. See pp. 24-27, infra.

D. The government wrongly characterizes Appellants’ position as one that is in effect a claim to a “first amendment right to express themselves using the copyrighted materials of others.” In fact, Appellants argue that the CTEA cannot constitutionally confer these copyrights in the first place. United Video, Inc. v. FCC, 890 F.2d 1173, 1190 (D.C. Cir. 1989), and Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) do not, as the government urges, stand for the sweeping proposition that copyright statutes cannot be challenged under the First Amendment. Instead, both stand for the unremarkable principle that a copyright infringer cannot claim that his infringement is privileged under the First Amendment. See p. 22, infra.

E. Appellants have standing to challenge the prospective features of the CTEA under United Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152 (D.C. Cir. 1987), and other authorities. See pp. 27-28, infra.

ARGUMENT

I. The Retrospective Aspect Of The CTEA Violates the “Originality” Requirement And “Limited Times” Term of the Copyright Clause

Our opening brief demonstrated that the CTEA’s retroactive extension of copyright terms violated both the “originality” requirement and the “limited times” term of the Copyright Clause. (App. Br. at 23-28.) In response, the government attempts to minimize the importance and scope of the originality requirement (Gov’t Br. at 40-41), offers a wooden interpretation of the term “limited times” (id. at 42-46), and advances baseless arguments about a “national tradition” of copyright extensions. (Id. at 46-51.)

A. A Grant of a Copyright to a Subsisting Work Does Not Satisfy
the “Originality” Requirement

The Supreme Court has consistently limited copyright to those works that are “original.” Most recently in Feist, but originally in The Trade-Mark Cases, the Court denied copyright protection for works that did not add to the sum of useful knowledge even though a grant of copyright protection to such works might be said rationally to advance a copyright-related interest. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). In Feist, the issue was not whether granting copyrights to unoriginal listings of telephone directories would satisfy a “rational basis” requirement (which it clearly would). Instead, the question was whether granting copyrights to ordinary telephone listings — i.e., facts — was consistent with the express limitation of the copyright act, namely, that the copyright “promote the progress.” Feist, 499 U.S. at 347. This requirement of “originality,” the Court held, “is a constitutional requirement.” Id. at 346.

The government argues that the “originality” requirement applies only “to determine whether a work is eligible for copyright protection in the first place.” (Gov’t Br. at 41.) But this is too narrow a reading of the rule. The originality requirement arises from the Copyright and Patent Clause’s stipulation that the author’s monopoly must be conferred in exchange for “promot[ing] the Progress of Science.” It is irrelevant for the purposes of the originality requirement whether the monopoly in question is a newly-conferred one or, instead, an extension of an existing one. Either way, the monopoly cannot be given without meeting this requirement.

The government concedes much of this point by acknowledging that the extension of a copyright to a work in the public domain would not satisfy the originality requirement. (Gov’t Br. at 35, 41.) See Graham v. John Deere Co., 383 U.S. 1, 6 (1996); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989). Even though the works at stake would initially have been “original” for purposes of the Copyright Clause, the government admits that the works’ passage into the public domain would render them no longer capable of being protected through copyright.

While the government does not explain the grounds for this concession, the explanation is not hard to find: the essence of Congress’ power under the Copyright and Patent Clause is to create a monopoly to “promote the Progress of Science and useful Arts.”[1] Where a work already has been produced, however, there is no justification for monopoly, especially a monopoly that affects speech. As the Supreme Court said, where the monopoly will not “add to the sum of useful knowledge,” Graham, 383 U.S. at 6, or where the monopoly is simply “the adoption of something already in existence,” In re Trade-Mark Cases, 100 U.S. 82, 94 (1880), the justification for a copyright disappears. And there is no meaningful distinction, in logic or in the Copyright and Patent Clause, between extending a monopoly for a subsisting copyright or for a copyright of work in the public domain.[2]

Amici and the government respond that even though a copyright for a subsisting work would not induce the creation of anything new, it is still “progress” because it would create incentives to distribute or preserve existing works. (Gov’t Br. at 38-39.) Appellants agree that this is “progress” in some sense. But it is not the sort of “progress” that the Supreme Court has required in the context of the Copyright Clause. The government argues, for example (Id.), that the retrospective extension of copyright is justified because it creates incentives for companies to restore and preserve old films. But the same would be true whether those films enjoyed a subsisting copyright or were in the public domain already. If creating an incentive by establishing a government monopoly on speech were a sufficient justification for a copyright restriction, then it should extend to works in the public domain as much as to works whose copyright is still subsisting.

B. Feist’s Requirement of “Originality,” and not “Rational Basis” Review, is the Appropriate Constitutional Standard

The government and amici wrongly urge that the standard by which the CTEA should be tested is one of “rational basis” review. (Gov’t Br. at 21-22; Amici Br. at 10-11.) We pointed out in our main brief, of course, that the CTEA independently must be tested under the First Amendment standards of United States v. O’Brien, 391 U.S. 367 (1968), and Turner Broadcasting System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997). See (App. Br. at 33); see infra pp. 20-21. But even beyond this, the government’s arguments are misplaced.

The government cites Stewart v. Abend, 495 U.S. 207, 230 (1990), and this Court’s decision in Schnapper Public Affairs Press v. Foley, 667 F.2d 102, 111 (D.C. Cir. 1981), for the proposition that courts should defer to Congress’ copyright enactments and, presumably, afford them deferential review. But Stewart contains no such holding: the language from Stewart the government quotes does not even rise to the level of dicta and, in all events, is quoted out of context. Similarly, Schnapper does not support the government’s arguments. As we read Schnapper, it holds that that the preamble to the Copyright and Patent Clause is not a substantive limitation upon the Clause’s scope and that a court has only a limited role in reviewing general challenges to Congress’ power under Article I. Id.

But the question here is different. The deficiency in the CTEA is that it fails the test of “originality” that the Supreme Court imposed in Feist, and this requirement of originality is an independent constitutional standard that the CTEA must satisfy. No amount of collateral review -- “rational” or otherwise -- can rescue the CTEA if it cannot pass Feist’s threshold requirement of originality. And, in view of Feist, Schnapper cannot have the broad reading the government now urges. At most, Schnapper stands for the proposition that the preamble to the Copyright and Patent Clause is not an independent limitation upon congressional power. Id. But in Feist the Supreme Court clearly found that the preamble informed the meaning of the balance of the Clause’s language and that, as so read, the Clause contains a requirement of “originality.” This requirement exists separate and apart from those questions of the scope and limits of congressional power that call for a “rational basis” review.

C. The CTEA’s Retrospective Extension of Subsisting Copyrights Is Not a “Limited Time” for Purposes of the Copyright And Patent Clause

Our opening brief argued that the CTEA’s extension of the life of subsisting copyrights also violated the “limited times” term of the Copyright and Patent Clause. Although no court before now has had to interpret the words “limited times,” the Supreme Court’s method for interpreting the other terms within the Copyright Clause has been consistent. As with “Writings,” (Trade-Mark Cases, 100 U.S. at 94) and “Authors” (Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)), the question is not what the term “limited times” means in the abstract. Instead, it is what the term means in light of the express purpose of the clause, namely “to promote Progress.”

So understood, a copyright term should be considered “limited” only if it is a term that “promote[s] progress” as described in Feist and The Trademark Cases. For the same reason that copyrighting “facts” does not “promote progress,” a copyright term that retrospectively extended a subsisting copyright would not be a “limited time[ ].” This is because that term would extend the life of an earlier copyright term in a way that would not promote progress, since there is no “promotion of progress” in giving a windfall to an author (or an author’s grandchildren) for a work that already has been created. In the sense that “term limits” set “limited” terms, such a change would not be a limited term that promoted progress.

Although the government rejects this specific interpretation, it acknowledges the general point that there is some substantive limitation on the scope of the term “limited times.” “It may well be that some [term] extensions are so long that a court could conclude that the Congress in effect created an unlimited term.” (Gov’t Br. at 42; see also id. at 17.) The problem with the government’s limitation, however, is that there are no limits on the restrictions that the government imagines the clause imposes. The test the government adverts to is a boundless, unguided guess by federal courts about how long is too long.

Nor is the government’s position rescued by its suggestions of the proper measures of copyright terms. At various points in its brief, the government suggests that the appropriate length of copyright terms should be either the commercial life of a work (Gov’t Br. at 28) or the life expectancy of the author. (Id. at 13, 23, 25, 50.)

Yet neither of these suggestions makes any sense. The “commercial life” notion, for example, fails because it ignores the constitutional requirement that the copyright term “promote progress.” There is no evidence (in the government’s brief or elsewhere) that authors generally know in advance what commercial success their work is likely to enjoy or over what period of time that success is likely to endure. Thus, adding a copyright term extension across the board to all works (including the vast majority of works that will not enjoy commercial success) does not “promote progress.” Moreover, the government’s theory wholly ignores that class of works that are not created with commercial success in mind to begin with.

The government’s “commercial life” theory also leads to absurd results because it must necessarily mean that there cannot be any single copyright term, since different works enjoy different measures of success. Under the government’s theory, the notorious Hollywood dud Ishtar should have no copyright term at all, while the descendants of Homer should still be receiving royalties on the Iliad. And, since most determinations of commercial success can only be made with hindsight, the entire notion of inducing authors to create works with advance guarantees of a copyright monopoly of some length would become impossible.

Similarly, the government’s approach would mean that some categories of work, such as computer software, could not have a constitutional copyright term longer than a few years. For example, under current law, computer software produced as work for hire receives a copyright that extends for 95 years. That means that the first version of Windows 95 will fall into the public domain in 2090. Unlike ordinary literary works, such as books, or plays, there can be no possible value to software code 95 years after it is released. Under the government’s test, it is open for the court to conclude (quite reasonably, in our view) that this “limited” term is “in effect” unlimited and therefore should be struck under the government’s substantive copyright term test.

The government fares no better with its theory that a proper measure of copyright term should be the life expectancy of the author. (Gov’t Br. at 23, 25, 31-33.) Despite the government’s reliance on the notion of greater life expectancies, the fact of the matter is there has been relatively little increase in the life expectancy in the past century. Between 1976 (when Congress determined that life expectancies justified a extension of subsisting copyright terms to 75 years) and today (when the CTEA has extended those terms to 95 years), the life expectancy for people at birth has increased by only 3 years. The life expectancy for people who have reached the age of twenty (and thus are those most likely to create copyrighted works) increased by just 2.3 years. Center for Disease Control & Prevention, Vital Statistics of the United States, 1995, Table 6-3 (1998); Center for Disease Control & Prevention, Vital Statistics of the United States, 1976, Table 5-3 (1978).

D. The Special Case of Films Does Not Justify A General Retrospective Extension of all Copyright Terms

The government and amici both argue that a core justification for the retrospective extension of the copyright term is the special characteristics of film. “Generally speaking,” the government argues, “the principal class of works for hire that are likely to have significant economic value at the end of the former 75 year term of protection are motion pictures.” (Gov’t Br. at 31; see Amici Br. at 15.)

This argument founders upon the same requirement of “originality” as the rest of the government’s claims. And, of equal weight, even if the technological change of digitization could justify a special grant of protection to “restore” works that justification would not apply to the vast array of books, poetry, music, plays and images covered by the CTEA. Nor would it balance the extraordinary cost to the creative process that this general restriction imposes. Although the government never acknowledges these costs, it is evident that the real effect of the CTEA in this regard is to increase vastly the number of “orphan” works that are badly in need of restoration, yet cannot be restored because of the impossibility of locating the copyright holders. (Gov’t Br. at 14, 46 n.20.) Indeed two of the major restorers of older films (American Film Heritage Association and Moviecraft, Inc.) are plaintiffs in this action.

Finally, the government’s arguments about the unique economic value of film demonstrate the unreasonable overbreadth of the CTEA. If, indeed, the economic value of films are a special case, then the appropriate solution would be a special copyright term for film, not the general deferral of the public domain for the millions of non-film works that the CTEA effects in the name of preserving film.

E. There is No “Tradition” That “Ratifies” Congress’ Retrospective Extension of Copyright

Both the government and the amici make the puzzling argument that Congress’ extensions of the copyright term over the past two hundred years “ratifies” the CTEA or creates a “national tradition” that somehow justifies the statute. There are two fallacies in the argument.

First, both the government and the amici rely upon Burrow-Giles Lithographic Co. v. Sarony as authority for this claim that, since there have been several extensions of subsisting copyright terms, the constitutionality of the practice is therefore “almost conclusive.” 111 U.S. at 58. This is simply a misreading of authority. What the Supreme Court said in Burrow-Giles was that when there was an interpretation “by the men who were contemporary with its formation, many of whom were members of the convention which framed it” then that interpretation is “entitled to very great weight.” Id. (emphasis added).

Burrow-Giles was speaking of statutes passed in 1790 and 1802, when a significant portion of the Congress would have been framers. But in this case, we have no instance of an interpretation by the framers of the constitution that would suffice to validate the CTEA. The First Congress’ ratification of existing copyrights in 1790 is fully understandable under a Supremacy Clause analysis: the objective was to unify copyright law nationally, and in the transition to a federal state, there was a need to clarify which law (state or federal) would govern these copyrights. After that initial case, the next arguable “authority” for Congress’ CTEA was 1831. But by 1831, only one of the framers -- James Madison -- was still alive and he had long since retired from Congress.[3] The view of the Congress in 1831 (much less the view of the Congress that passed the CTEA) cannot be said to be the view of the framers.

Second, it is absurd to argue (Gov’t Br. at 16-17), that there is a “national tradition” of extending copyright terms that somehow “promotes progress,” or that the CTEA represents Congress’ fulfillment of some earlier “promise.” (Id. at 25.) The government’s argument seems to be that, since subsisting copyrights have been given term extensions from time to time over the years, authors have been motivated all along not just by the present incentive of the copyright term given in the existing copyright statute, but also by the prospect of unspecified, yet-to-come retroactive copyright term extensions. As we pointed out in our opening brief, the present value of any such extensions is too negligible to be a meaningful incentive. (App. Br. at 39-40). Moreover, the sheer randomness of any congressional copyright term extension is such it cannot constitute a meaningful present incentive.[4]

II. THE PROSPECTIVE AND RETROSPECTIVE ASPECTS OF THE CTEA VIOLATE THE FREE SPEECH AND PRESS CLAUSE OF THE FIRST AMENDMENT

In our opening brief, Appellants demonstrated that the CTEA was a regulation of speech that was subject to heightened First Amendment scrutiny under the O’Brien test. (App. Br. at 17.) We showed as well that none of the claimed justifications for the CTEA could survive this heightened scrutiny, and that both the CTEA’s retrospective aspects and the CTEA’s prospective application therefore violated the First Amendment. (Id. at 11, 32-33.)

The government has made no attempt to show that the CTEA can survive heightened scrutiny. (App. Br. 37-40.) Instead, it contends that First Amendment analysis is irrelevant because, as the government puts it, “Plaintiffs have no First Amendment right to reproduce the copyrighted works of others.” (Gov’t Br. at 53-59.) In other words, so long as copyright protects expression rather than ideas, the government argues that no First Amendment challenge to a copyright statute can be allowed.[5]

A. The CTEA is Subject to Heightened Review under the
O’Brien Test

The Supreme Court has stated that “laws that single out the press, or certain elements thereof … are always subject to at least some degree of heightened First Amendment scrutiny.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 640-41 (1994) (emphasis added). It is essentially undisputed that the CTEA is a regulation of speech: as a copyright statute, it regulates who can say what. By extending for 20 years the term of all subsisting and future copyrights, it increases the burdens the government imposes upon speech. As such, the CTEA must be tested under the ordinary analysis of the First Amendment. See, e.g., San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536 (1987) (intermediate scrutiny for assignment of term “Olympic”); Regan v. Time, Inc., 468 U.S. 641, 655-56 (1984) (intermediate scrutiny for regulation about copying currency). A content-neutral regulation of speech such as the CTEA can survive a First Amendment challenge only “if it advances important governmental interests unrelated to the suppression of free speech” and “does not burden substantially more speech than necessary to further those interests.” Turner II, 520 U.S. at 189.

The government and amici cannot argue with this principle. Instead, both contend that there is, in effect, a general First Amendment exception for copyright legislation. To reach this conclusion, the government explodes a narrow line of authority into a new, putative First Amendment rule. This is plain misapplication of the authority from this Court and the Supreme Court, and it does not address the First Amendment claim that Appellants raise.

B. There is No Copyright Exception to the First Amendment

The government maintains that, so long as copyright protects expression only, there can be no First Amendment challenge to any copyright legislation. (Gov’t Br. at 54-59.) Any such challenge, the government argues, is in effect a claim to a “First Amendment right to use material that is protected by copyright laws.” (Id. at 56.) Such claims, the government continues, have been rejected by this Court and the Supreme Court. (Id.) The amici similarly pronounce that “this Court has squarely rejected [the] argument that the copyright laws violate the First Amendment.” (Amici Br. at 26.)

At the outset, it is worth remembering that we have never contended that that “copyright laws violate the First Amendment.” Nor have Appellants questioned the principle that no one has “a First Amendment right to reproduce the copyrighted work of others.” The government’s and amici’s insistence upon saying otherwise suggests a studied misreading of our position and, evidently, the hope of obfuscating the issues before the Court.

Our argument is a simple one. It is that the authority the government relies upon does not stand for the sweeping proposition the government claims. Instead, these authorities are restricted solely to the narrow case where a litigant demands a right to use otherwise legitimately copyrighted material. In every case that the government relies upon, the question was whether there is a “[F]irst [A]mendment defense . . . to a copyright claim.” United Video, Inc. v. FCC, 890 F.2d 1173, 1190 (D.C. Cir. 1989) (Wald, C.J.).[6] The claim in these cases is not that a certain work cannot be copyrighted, but instead that although a work is properly copyrighted, these particular claimants have a First Amendment right to use that work. See United Video, 890 F.2d at 1191, and Harper, 471 U.S. at 567. Such claims are analogous to cases where a party raise a First Amendment defense to a trespass action. See, e.g., Hudgens v. NLRB, 424 U.S. 507 (1976). In such cases, even though there is a legitimate property right at stake, the petitioner claimed that the First Amendment should give it the right to trespass.

Courts rightfully reject such claims of a First Amendment right to trespass, on either real or intellectual property. The system for granting the property rights at issue may be constrained to assure the rights are granted consistent with the First Amendment; but once granted consistent with the First Amendment, there is no subsequent First Amendment challenge to the use of that property.

But cases alleging First Amendment review of the use of a property interest are plainly distinct from First Amendment challenges to the constitutionality of the statute granting a property right in the first instance. Whether or not the use of a copyright is free of First Amendment review, the statute that grants the copyright obviously remains subject to ordinary First Amendment analysis. As we pointed out before, a statute that granted copyrights to “decent” works only, cf. Reno v. ACLU, 521 U.S. 844 (1997), or denied copyright to works by convicted felons, cf. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board, 502 U.S. 105 (1991), or that purported to copyright the American Flag would each raise a First Amendment issue that was not exhausted by the claim that the copyright protected expression only.

This is precisely the claim made here. Appellants do not argue that the First Amendment gives anyone the right to use otherwise legitimately copyrighted material from 1923. Appellants instead argue that material from 1923 cannot legitimately be given a further copyright term. No case relied upon by the government speaks beyond the narrow class of cases that we have identified. And both the government and the amici have completely ignored the Second Circuit’s decision in Authors League of America v. Oman, 790 F.2d 220 (2d Cir. 1986), which considered on the merits a First Amendment challenge to the Manufacturing Clause of the Copyright Act, despite the alleged copyright exception to the First Amendment that the government relies upon. (See App. Br. at 54.) The government has not, in short, given any reason why this Court should not apply ordinary First Amendment review to the CTEA.

C. The First Amendment Interests Raised By Copyright’s Duration are Distinct From the Interests Raised By Its Scope

The government disputes that a First Amendment challenge to a copyright’s duration should be treated any differently from a First Amendment challenge to a copyright’s scope. (Gov’t Br. at 56-57.)[7] In fact, the Supreme Court has distinguished duration from scope (e.g., “[t]he limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution . . .” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)), but the question this Court must resolve is whether the duration of a copyright affects First Amendment interests in the same way that the scope of a copyright affects First Amendment interests.

They plainly do, and this is shown by the reasoning that the Supreme Court has used to explain why copyright law (a regulation of speech and the press by Congress) is compatible with the First Amendment (a right limiting the regulation of speech and the press by Congress). In Harper, 471 U.S. at 558, the Supreme Court explained this compatibility in direct terms: Copyright law is consistent with the First Amendment because ordinarily copyright law functions as “an engine of free expression.” Without giving authors the limited monopoly of copyright, less “original” work would be produced than with the limited monopoly of copyright. Copyright therefore does not “abridge” speech; copyright instead enhances speech, by “promoting Progress of Science.” See Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, Boston College Law Review (forthcoming September, 2000).

But this First Amendment justification for copyright reaches only so far as this premise remains true — only so long, in other words, as copyright functions as an engine of free expression. Where there is a change in the Copyright Act that restricts speech without any plausible compensating speech incentives, then this First Amendment justification for copyright disappears. Excessive copyright protection, in other words, can restrict speech more than it arguably promotes speech and, in so doing, loses the justification of Harper.

This is the insight behind the Court’s dicta (embraced by the government) (Gov’t Br. at 18-19) suggesting that a copyright law that protected ideas as well as expression would be inconsistent with the First Amendment. See, e.g., Lee v. Runge, 404 U.S. 887, 892 (1971) (Douglas, J., dissenting from denial of certiorari). Cf. New York Times Co. v. United States, 403 U.S. 713, 726, n.# (1971) (Brennan, J., concurring) (copyright laws are not restrictions on freedom of speech because copyright “protect[s] only form of expression and not the ideas expressed”). While protecting ideas may well create greater incentives to produce ideas, the constraint on free expression that such a regime would create would outweigh any increase in incentives. A regime where ideas could be copyrighted would function, in the language of Harper, not as an engine of free expression, but as a brake. Copyright therefore cannot, consistent with the First Amendment, protect ideas. Harper, 471 U.S. at 556.

But this is not the only way in which increasing protections might render copyright a restraint on free expression. Changes in the duration of copyright are, in fact, the clearest example. When Congress extends copyright retrospectively, it increases the constraints on speech (to the extent that more speech is within the control of the law), without producing any greater incentive to create.[8] Causation is prospective. Thus retrospective increases in duration increase restrictions on speech without any compensating speech productive benefit.

And this is true, moreover, whether or not Congress protects expression only. This is the critical point that distinguishes duration from scope. A retrospective extension of duration is a brake on free expression even if it satisfies the “idea/expression” analysis by protecting expression only. Thus while the ultimate First Amendment inquiry for copyright duration and scope is the same — namely, whether the speech restrictions can arguably be said to induce more speech than they restrict — the analysis of whether duration restricts more speech than it produces is orthogonal to whether scope restricts more speech than it produces. The two inquiries are independent. The First Amendment test applicable to the one should not apply to the other.

D. Appellants Have Standing to Challenge the Prospective Application of the CTEA

Appellants have properly pleaded their standing to challenge the CTEA’s prospective elements. (See Second Am. Compl. at 4, 12, 15-16, 18; JA 30, 38, 41-42, 44.) They are injured not only by the fact that works from 1923 which would have entered the public domain in 1999 were kept out but also by the fact that, for every subsequent year, works that would have entered the public domain will be kept out for an additional 20 years. Regardless of whether the works were copyrighted in 1997 (and thus fall under the CTEA’s retrospective section) or were copyrighted in 1999 (and so are covered by the CTEA’s prospective section), Appellants face the same injury: they are forced to wait an additional 20 years before they may legally copy, distribute or perform works that otherwise would have been in the public domain. See United Christian Scientists v. Christian Science Bd. of Dirs., 829 F.2d 1152, 1157 (D.C. Cir. 1987); see also Redden v. Interstate Commerce Comm’n, 956 F.2d 302, 306 (D.C. Cir. 1992). Nor is standing disturbed by the fact that copyrights on new works will outlive the individual Appellants, since most Appellants are business entities who intend to continue their businesses infinitely. (See Second Am. Compl. at 4; JA 30.) See, e.g., Campbell v. Louisiana, 523 U.S. 392, 397 (1998). Otherwise, Congress’ extension of copyright terms beyond the human life span would take the statute outside the review of the courts. See, e.g., Ramer v. Saxbe, 522 F.2d 695, 704 (D.C. Cir. 1975).

CONCLUSION

For the foregoing reasons, the district court’s decision should be reversed, the Copyright Term Extension Act declared unconstitutional, the enforcement of the Non Electronic Theft Act against persons whose infringement of a copyright would not have happened but for the CTEA’s amendment of 17 U.S.C. § 304(b) enjoined, and the Appellants awarded costs of this action, including reasonable attorneys’ fees.

Dated: August 7, 2000

Respectfully submitted,

_______________________________

Geoffrey S. Stewart

Gregory A. Castanias

Portia A. Robert

Jones, Day, Reavis & Pogue

51 Louisiana Avenue, N.W.

Washington, D.C. 20001-2113

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Lawrence Lessig

Stanford Law School

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Stanford, CA 94305-8610

(650) 736-0999

Charles R. Nesson

Jonathan L. Zittrain

The Berkman Center for Internet & Society

1563 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-7547

Co-Counsel for Appellants Eric Eldred, Eldritch Press, Higginson Book Company, Jill A. Crandall, Tri-Horn International, Luck’s Music Library, Inc., Edwin F. Kalmus & Co., Inc., American Film Heritage Association, Moviecraft, Inc., Dover Publications, Inc., and Copyright’s Commons

[1] No doubt, as the government and amici argue, there are other purposes to the copyright clause in addition to promoting progress. But the objective of the textual limitation on the clause is a necessary condition on Congress’ exercise of power. Although there are plenty of cases where the Supreme Court has acknowledged the legitimate end of providing benefits to authors and their families, there is no case where a copyright restriction that only benefited authors and families without also inducing progress has been upheld. Cf. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved.”). Likewise with the justification based upon “harmonization.” The government argues that the CTEA is justified by the need to harmonize copyright law but it has not demonstrated why harmonization must be retroactive, what benefit harmonization would produce or how harmonization with some countries while increasing disharmony with others can be a rational way to pursue “harmonization.”

[2] The government argues that works in the public domain are different because their copyright has already lapsed, while works with a subsisting copyright have not fallen into the public domain. Every issuance of a copyright by definition gives rise to two distinct property interests: (1) it gives authors a present right to exclude others from using the copyrighted work during the duration of the copyright, U.S. Const. art. I, § 8, cl. 8 (granting authors “the exclusive Right to their . . . Writings”); and (2) it vests in the public a future remainder interest in the right to use the copyrighted work once the copyright expires, see id. (copyrights may only be “secur[ed] for limited Times,”); see also Pre-1978 Distribution of Recordings Containing Musical Compositions; Copyright Term Extension; & Copyright Per Program Licenses: Hearings Before the Subcomm. On Courts & Intellectual Property of the House Comm. On the Judiciary, 105th Cong. 90 (1997) (describing the “Constitutional requirement” that the public be made “the remainderman under all copyright laws”). Thus, regardless of whether the change to these entitlements occurs during the present exclusive right, or after it has passed, the change restricts the future remainder interest of the public, without any compensating promotion of “progress.”

[3] See The U.S. Constitution OnLine (last modified April 1, 2000) <html://www.usconstitution.net/constframedata.html>; National Archives and Records Administration; The Founding Fathers (last modified May 7, 1997) <http://www.nara.gov/nara/exhall/charters/constitution/virginia.html>.

[4] Amici point out the interesting example of an author who was motivated to create by a gross misunderstanding of his incentive in the first place. Their brief cites the congressional testimony of musician Bob Dylan to the effect that, when he began writing songs in 1961 (a time when the 1909 statute gave him a maximum copyright term of 56 years), he somehow was led to believe that his work would be copyrighted at least for the duration of his grandchildren’s lives. (Amici Br. at 17.) Dylan testified that Congress should enact the CTEA so that his misunderstanding could become the law.

[5] The government argues that O’Brien only applies when the government is restricting speech, not when there are simply competing speech interests. Its argument misses the mark; this case does not involve competing speech interests because the constitutional presumption is that works should be in the public domain. See Bonito Boats, 489 U.S. at 151 (“implicit in the Patent Clause itself is that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception.”) The issue in this case is how far Congress can go in extending a monopoly at the expense of the public domain.

[6] In United Video, “the petitioners desire[d] to make commercial use of the copyrighted works of others.” 890 F.2d at 1191. They did not challenge the copyright generally. In Harper, the Nation wanted a First Amendment right to use excerpts from President Ford’s biography, not a declaration that the biography could not be copyrighted. Harper & Row Pubs., Inc. v. Nation Enter., 471 U.S. 539 (1985). Schnapper, 667 F.2d 102, could have been a claim of the form we raise, as the petitioner there did argue (mistakenly, in our view) that it violates the First Amendment for works by the government to be copyrighted. But as this Court made clear in that case, id. at 113, the claim it reviewed was petitioner’s demand “to reprint the screenplays for commercial gain” — in other words to use otherwise permissibly copyrighted material. It is therefore not an exception to the rule that we describe.

[7] Appellants dispute the government's suggestion that we bear the burden of demonstrating why we are entitled to ordinary First Amendment review. If the government seeks to apply a lesser First Amendment standard to this regulation of speech, then it bears the burden of demonstrating why a challenge to a duration raises the same First Amendment interests as a challenge to a copyright’s scope. The government has not tried to make such a showing.

[8] The government for the first time argues that in fact a retrospective increase in copyright would increase present incentives, since “[p]eople have more incentive to create new works within a system in which the Government keeps its promises.” (Gov’t Br. at 28.) At the threshold, we question what “promises” the government has in mind, since there is no evidence that the Congress in the 1976 Copyright Act (or in any earlier copyright statute) made a “promise” that it would repeatedly extend terms of subsisting copyrights. See p. 18, supra.