No. 01-618
IN THE
Supreme Court of the United States
______________
ERIC ELDRED, ET AL.,
Petitioners,
v.
JOHN D. ASHCROFT, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL,
Respondent.
______________
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit
_____________
BRIEF OF JACK M. BALKIN, YOCHAI BENKLER,
BURT NEUBORNE, AND JED RUBENFELD AS
AMICI CURIAE IN SUPPORT OF THE PETITION
_____________
BURT NEUBORNE New York University School
Counsel of Record of Law
JACK M. BALKIN 40 Washington Square South
YOCHAI BENKLER New York, NY 10012-1066
JED RUBENFELD (212) 998-6172
i
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................ i
TABLE OF AUTHORITIES....................................................... ii
STATEMENT OF INTEREST......................................................1
SUMMARY OF ARGUMENT.....................................................1
ARGUMENT...........................................................................4
I. The Decision Below Misconstrues Harper & Row
To Create A New And Unusually Expansive
Immunity From Judicial Review For Copyright
Legislation................................................4
II. Legislation That Substantially Expands Copyright
Should Be Subject To Heightened First Amendment
Scrutiny..................................................11
III. The Categorical Exclusion Is Germane To The
Holding Below, And Conflicts With A Recent
Decision By The Court Of Appeals For The Second
Circuit...................................................14
CONCLUSION......................................................17
ii
TABLE OF AUTHORITIES
Cases:
Page
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004
(9th Cir. 2001)..........................................................5
Bartnicki v. Vopper, 532 U.S. 514 (2001) ... ....................12
Beauharnais v. Illinois, 343 U.S. 250 (1952) .....................6
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
(1994) ......................................................................8
Cardtoons, L.C. v. Major League Baseball Players
Ass'n., 95 F.3d 959 (10th Cir. 1996) .....................12
Central Hudson Gas & Elec. Corp. v. Public
Service Comm'n, 447 U.S. 557 (1980).....................6
Cohen v. California, 403 U.S. 15 (1971).......................9, 10
Denver Area Educ. Telecomms. Consort. v. FCC,
518 U.S. 727 (1996)...............................................16
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001)......... passim
Estate of Martin Luther King Jr., Inc. v. CBS, Inc.,
194 F.3d 1211 (1999)...............................................4
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ..............6
Harper & Row v. Nation Enterprises, 471 U.S. 539
(1985)............................................................. passim
Miller v. California, 415 U.S. 15 (1973) .............................6
New Era Publ'ns Int'l v. Henry Holt & Co., 873
F.2d 576 (2d Cir. 1989) ..........................................5
New York Times Co. v. Sullivan, 376 U.S. 254
(1964) ......................................................................6
Nihon Keizai Shimbun, Inc. v. Comline Bus. Data,
Inc., 166 F.3d 65 (2d Cir. 1999) ..............................5
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) .......5, 6
Roy Export Co. v. CBS, Inc., 672 F.2d 1095 (2d Cir.
1982) ........................................................................5
Sid & Marty Krofft Television Prods., Inc. v.
McDonald's Corp., 562 F.2d 1157 (9th Cir.
1977) ........................................................................5
iii
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
1257 (11th Cir. 2001).....................................3, 8, 10
Time Warner Entertainment Co. v. FCC, 240 F.3d
1126 (D.C. Cir. 2001) ......................................13, 15
Turner Broadcasting System, Inc. v. FCC, 512 U.S.
622 (1994)..........................................................3, 13
Turner Broadcasting System, Inc. v. FCC, 520 U.S.
180 (1997) .......................................................12, 13
Universal City Studios, Inc. v. Corely, 2001 U.S.
App. LEXIS 25330 (2d Cir. Nov. 28, 2001).2, 14, 16
Valentine v. Chrestensen, 316 U.S. 52 (1942) ....................6
Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, 425 U.S. 748 (1976) ................6
Whitney v. California, 274 U.S. 357....................................8
Yankee Publishing Inc. v. News America
Publishing, Inc., 809 F. Supp. 267
(SDNY 1992) ..........................................................8
Constitutional Provisions:
U.S. Const., Art. I, § 8, cl. 8...............................................14
U.S. Const. Amend. I................................................. passim
Statutes and Legislative Materials:
Copyright Act of 1976 (as amended), 17 U.S.C. §§
101 et seq.
17 U.S.C. § 304 .......................................................4
17 U.S.C. § 1201(a)(2).......................................3, 16
Pub. L. No. 105-298 § 102(b), 112 Stat. 2827 1998).........14
Pub. L. No. 105-298 § 102(d), 112 Stat. 2827 1998).........14
Sonny Bono Copyright Term Extension Act, Pub.
L. No. 105-298, 112 Stat. 2827 (1998) .......... passim
iv
Other Authorities:
Stephen Breyer, The Uneasy Case for Copyright: A
Study of Copyright in Books, Photocopies,
and Computer Programs, 84 HARV. L. REV.
281 (1970)..............................................................15
William M. Landes & Richard A. Posner, An
Economic Analysis of Copyright Law, 17 J.
L. STUD.
325 (1988)..............................................................15
Melville B. Nimmer, Does Copyright Abridge the
First Amendment Guarantees of Free
Speech and Press?, 17 UCLA L. REV. 1180
(1970) ....................................................................15
1
STATEMENT OF INTEREST
With the written consent of the parties, reflected in
letters on file with the Clerk, the undersigned law
professors submit this brief as amici curiae, pursuant to
Rule 37 of the Rules of this Court.
Amici are teachers and students of constitutional
law and the First Amendment, who have studied its
application to copyright. They are Jack M. Balkin, Knight
Professor of Constitutional Law and the First Amendment,
Yale Law School; Yochai Benkler, Professor of Law, New
York University School of Law; Burt Neuborne, John
Norton Pomeroy Professor of Law, New York University
School of Law; and Jed Rubenfeld, Robert R. Slaughter
Professor of Law, Yale Law School. They submit this brief
pro se, representing no institution, group, or association.
Their sole purpose is to offer what assistance they can to
this Court as it considers whether to grant the petition for
certiorari in this important case about the relationship
between the First Amendment and copyright. In particular,
this brief is filed to present to the Court an argument about
the appropriate general framework for First Amendment
review of substantial legislative changes in copyright law.
SUMMARY OF ARGUMENT
The Court of Appeals for the District of Columbia
has taken the extraordinary step of categorically
immunizing copyright legislation from first amendment
review. "Copyrights," the court held, "are categorically
immune from challenges under the First Amendment."
Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001). "[W]e
reject [plaintiffs'] first amendment objection to the CTEA
because the plaintiffs lack any cognizable first amendment
2
right to exploit the copyrighted works of others." Id. at 376.
(emphasis added)
If the appellate court's holding means what it
says-that individuals have no "cognizable First
Amendment interest in exploiting the works of others,"
Id.-then the fair use doctrine exists at congressional
sufferance, a flat contradiction of this Court's ruling in
Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S.
539 (1985). In Harper & Row, the Court expressly referred
to fair use as one of the "First Amendment protections . . .
embodied in the Copyright Act[.]" Id. at 560. Fair use
could not be a "First Amendment protection" if individuals
had no "cognizable First Amendment interest in exploiting
the works of others."
The disposition below is consistent with such a
categorical immunity. The Court of Appeals upheld the
term extension law without any consideration of its
tailoring to its purpose, or, indeed, its bare rationality. It
did not consider even the retroactive application of the
challenged statute-a provision unlikely to survive even a
minimal requirement that it be rationally related, much less
narrowly tailored, to the constitutional mandate of
copyright legislation, to "supply the economic incentive to
create and disseminate ideas." Harper & Row, 471 U.S. at
558.
But even if the Court of Appeals' decision can be
interpreted more narrowly, to mean only that under Harper
& Row the idea/expression dichotomy and fair use exhaust
the limitations on copyright required by the First
Amendment, that position is insupportable and conflicts
with a recent decision by the Court of Appeals for the
Second Circuit. In Universal City Studios, Inc. v. Corely,
2001 U.S. App. LEXIS 25330 (2d Cir. Nov. 28, 2001) the
3
court upheld Section 1201(a)(2) of the Copyright Act only
after clearly and explicitly subjecting that provision to
heightened first amendment scrutiny, id. at *62-63,
following the standard set by this Court in Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662
(1994) ("Turner I").
The correct interpretation of Harper & Row-
recently expressed by the Court of Appeals for the Eleventh
Circuit in Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
1257 (11th Cir. 2001)-is that doctrines internal to
copyright law usually prevent copyright from conflicting
with the First Amendment. Any law-copyright
included-that is implemented by telling anyone that there
are some words or images that they may not print, publish,
or display publicly raises a first amendment question.
When that law is copyright law, the prohibition is normally
permitted, and conflict with the First Amendment is
generally avoided by safety valves internal to copyright
law-like the idea/expression dichotomy, the fair use
doctrine, or copyright law's placement of some materials in
the public domain. In Harper & Row this Court held that
these safety valves obviated the need for a special first
amendment-based public figure exception to copyright.
But if Congress passes a statute that undermines those
safety valves-say, by eliminating fair use altogether or by
passing a hypothetical law excluding fair use of works
authored by Republican Senators-of course that statute
would be subject to First Amendment review, and would
almost certainly fail.
Copyright law is not a law aimed at conduct that
incidentally affects speech. It is a law aimed at improving
the marketplace in expression, which is implemented by
suppressing some expression-perhaps derivative, perhaps
imitative-so as to support other expression-original and
4
creative. But it is nonetheless a law that directly prohibits
protected speech. Broadcasting portions of Dr. Martin
Luther King's "I Have A Dream" speech in a documentary,
see Estate of Martin Luther King Jr., Inc. v. CBS, Inc., 194
F.3d 1211 (1999), is no less valuable to the marketplace of
ideas, or to the expressive freedom of the film maker, than
is a mediocre-though original and non-infringing-song
about puppy love. Yet copyright is often implemented
precisely by prohibiting such public expression. As a law
directly aimed at speech and operating by imposing
selective prohibitions on communication, copyright law
must be subject to heightened scrutiny.
The Court need not, however, consider whether the
Sonny Bono Copyright Term Extension Act ("CTEA"),
Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified at 17
U.S.C. § 304), is indeed invalid under the First
Amendment. All the Court need do is remand with
instruction for the court below to review the CTEA under
the standard appropriate for laws specifically aimed at
regulating expression in pursuit of legitimate state interests,
which requires some degree of heightened scrutiny.
ARGUMENT
I. The Decision Below Misconstrues Harper & Row
To Create A New And Unusually Expansive
Immunity From Judicial Review For Copyright
Legislation
The opinion of the court below is the most explicit
of a number of circuit court decisions that have taken the
unusual step of substantially immunizing an entire area of
5
congressional legislation from first amendment review.1
"Copyrights," the court held, "are categorically immune
from challenges under the First Amendment." Eldred, 239
F.3d at 375. The categorical nature of this exclusion is
clearest in that court's conclusion of its analysis of the
petitioners' first amendment challenge: "we reject their first
amendment objection to the CTEA because the plaintiffs
lack any cognizable first amendment right to exploit the
copyrighted works of others." Id. at 376. (emphasis added)
This formulation places expression that uses
copyrighted cultural materials in a shrinking group of
categorically disfavored speech-like obscenity and
fighting words. See R.A.V. v. City of St. Paul, 505 U.S.
377, 382 (1992). Defamation was once such a category,
1 Other circuits have advocated a more limited version of this position,
namely, that elements of the Copyright Actfair use and/or the
idea/expression dichotomyexhaust First Amendment considerations in
the field of copyright. The Ninth Circuit is one example. See, e.g.,
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir.
2001) ("We note that First Amendment concerns in copyright are
allayed by the presence of the fair use doctrine.); Sid & Marty Krofft
Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1170 (9th
Cir. 1977) (stating that "the idea-expression dichotomy . . .serves to
accommodate the competing interests of copyright and the First
Amendment"). Earlier decisions of the Second Circuit could be read to
adopt a similar stance. See, e.g., Nihon Keizai Shimbun, Inc. v. Comline
Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999) (stating that the Second
Circuit has "repeatedly rejected First Amendment challenges to
injunctions from copyright infringement on the ground that First
Amendment concerns are protected by and coextensive with the fair
use doctrine"); New Era Publ'ns Int'l v. Henry Holt & Co., 873 F.2d
576, 584 (2d Cir. 1989) ("Our observation that the fair use doctrine
encompasses claims of First Amendment in the copyright field, never
has been repudiated.") (citations omitted); Roy Export Co. v. CBS, Inc.,
672 F.2d 1095, 1099 (2d Cir. 1982) ("No circuit that has considered the
question...has ever held that the First Amendment provides a privilege
in the copyright field distinct from the accommodation embodied in the
"fair use" doctrine.").
6
see Beauharnais v. Illinois, 343 U.S. 250 (1952), but that
categorical exclusion has been substantially limited since
the 1960s. See New York Times Co. v. Sullivan, 376 U.S.
254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974), R.A.V 505 U.S. at 382. Commercial speech was
once such a category, see Valentine v. Chrestensen, 316
U.S. 52 (1942), but that categorical exclusion has largely
been abandoned since the 1970s. See Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
748 (1976); Central Hudson Gas & Elec. Corp. v. Public
Service Comm'n, 447 U.S. 557 (1980).
Even within this shrinking group of categorical
exclusions from the ambit of first amendment protection,
statutes are not exempt from review simply through the act
of categorizing them. Obscenity, though constitutionally
unprotected, does not accord legislation purporting to
regulate it such categorical immunity, for even with
obscenity laws courts must assure that the law actually
covers only obscene materials. See Miller v. California,
415 U.S. 15, 23-24 (1973) ("We acknowledge . . . the
inherent dangers of undertaking to regulate any form of
expression. State statutes designed to regulate obscene
materials must be carefully limited. As a result, we . . .
confine the permissible scope of such regulation to works
which depict or describe sexual conduct."). Fighting words
do not accord such status to laws purporting to regulate
them, for the court must still see if the regulation of
fighting words in fact regulates that which is "fighting"
about them or that which is "words." R.A.V., 505 U.S. at
385-6.
On its face, then, the decision below created a
unique categorical First Amendment rule: it is sufficient to
characterize a restraint as applying to works covered by
copyright law to immunize that legislative restraint from
7
review. "The works to which the CTEA applies, and in
which plaintiffs claim a first amendment interest, 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 further inquiry under the
First Amendment." Eldred, 239 F.3d at 376.
The Court of Appeals based this unusual exception
to First Amendment law on a misreading of this Court's
precedent in Harper & Row. In particular, it based its
exception on an unnecessarily broad and incorrect
interpretation of this Court's statement that "Copyright's
idea/expression dichotomy strikes a definitional balance
between the First Amendment and the Copyright Act by
permitting free communication of facts while still
protecting an author's expression." Harper & Row, 471
U.S. at 556.
In Harper & Row, the Nation Magazine asked the
Court to create a special first amendment exception to
copyright law for news reporting that used copyrighted
materials. This the Court refused, concluding, "we see no
warrant for expanding the doctrine of fair use to create
what amounts to a public figure exception to copyright."
Harper & Row, 471 U.S. at 560.2 There was no need, the
Court held, to create such a special first amendment
exception to the scope of copyright law "[i]n view of the
First Amendment protections already embodied in the
Copyright Act's distinction between copyrightable
expression and uncopyrightable facts and ideas, and the
2 Elsewhere the Court characterized the argument it rejected in these
terms: "The fact that the words the author has chosen to clothe his
narrative may of themselves be `newsworthy' is not an independent
justification for unauthorized copying of the author's expression prior
to publication." 471 U.S. at 557.
8
latitude for scholarship and comment traditionally afforded
by fair use. . . ." Id.
The Court's holding was, therefore, exactly the
inverse of the interpretation adopted below. Far from users
having no "cognizable First Amendment right to exploit the
copyrighted works of others," the Court treated specific
doctrines of copyright law as "First Amendment
protections."3 No law could be a "First Amendment
protection" unless someone who could claim its benefit has
a cognizable first amendment interest in doing what the law
permits. How could one say that Alice Randall, author of a
book entitled The Wind Done Gone, has no first
amendment interest in using elements of Gone With the
Wind to tell her critical tale from a slave's perspective. See
Suntrust Bank. Gone With the Wind defined the popular
cultural perspective of the Old South in which Randall
grew up as an African American woman. One can speak
coherently about Randall's first amendment interest being
outweighed, insofar as she used another's story elements,
by the legislative purposes of copyright law. But it is
incoherent to say that she has "no cognizable first
amendment interest" in writing and publishing a book in
which she uses that story line in a way that she believes
will be politically significant and personally liberating.
The very essence of the First Amendment is the "freedom
to think as you will and to speak as you think," Whitney v.
California, 274 U.S. 357, 375 (1927) (Brandeis, J.,
concurring). Certainly her interest in using the words she
3 Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582-83 (1994)
(evaluating eligibility of a potentially infringing work to be treated as a
parody and a fair use by quoting with approval the statement that "First
Amendment protections do not apply only to those who speak clearly,
whose jokes are funny, and whose parodies succeed," quoting Yankee
Publishing Inc. v. News America Publishing, Inc., 809 F. Supp. 267,
280 (SDNY 1992) (Leval, J.)).
9
believes will best convey her views is no weaker than Paul
Cohen's choice of locution to criticize the draft. Cohen v.
California, 403 U.S. 15 (1971).
The implication of Harper & Row is that, far from
copyright being immune to First Amendment review,
legislation that would seek to change at least some
elements of copyright law-those deemed to be first
amendment protections-must be reviewed to see if the
change excessively undermines those protections. At least
those doctrines expressly identified by the Court-fair use
and the idea/expression dichotomy-could not be repealed
or substantially weakened without being subject to first
amendment review.
Perhaps, however, the words used by the court
below were mere hyperbole, and an interpretation of its
opinion in terms less directly in conflict with this Court's
precedents is available. Perhaps the court below merely
held that since the CTEA left the fair use doctrine and the
idea/expression dichotomy untouched, no First Amendment
issue can be raised. Even on this sympathetic reading, at a
minimum the Court below held that fair use and the
idea/expression dichotomy exhaust the first amendment
protections embodied in the copyright law. On this
reading, the First Amendment has nothing to say regarding
any other line along which the boundary between the public
domain and the proprietary is drawn. But this is an
implausible reading of the First Amendment. The public
domain defines the set of expressions individuals can make
use of free of the legal proscriptions Congress enacts in aid
of the incentives of authors. Any legislation that
substantially increases the set of circumstances under
which law prohibits expressions previously permitted is
legislation that must be carefully scrutinized.
10
There is no reason to think, then, that this Court's
listing in Harper & Row of the two first amendment
protections relevant to that case-fair use and the
idea/expression dichotomy-was intended to exhaust all
copyright doctrines that play such a role. As the Court of
Appeals for the Eleventh Circuit in Suntrust Bank recently
put it, "the balance between the First Amendment and
copyright is preserved, in part, by the idea/expression
dichotomy and the doctrine of fair use." 268 F3d at 1263
(emphasis added). Because of these protections, "courts
often need not entertain related First Amendment
arguments in a copyright case." Id. at 1265 (emphasis
added).
First, the First Amendment clearly protects specific
modes of expression, not only ideas. As this Court stated
in Cohen v. California, "we cannot indulge the facile
assumption that one can forbid particular words without
also running a substantial risk of suppressing ideas in the
process." 403 U.S. at 26. The idea/expression dichotomy
cannot by itself play the unilaterally definitive role that the
court below attributed to it.
Second, fair use provides important mitigation of
the first amendment burdens imposed by the Copyright
Act, but it too limits quite substantially the expressive uses
that one can make of copyrighted works. It is a doctrine
tailored to continue to preserve some freedom of expression
for users, but is still bounded by the government's interest
in providing owners incentives.
Fair use, then, is very much constrained by the need
to secure incentives to authors. But after the role of
copyright in providing incentives for creation has largely
dissipated with the passage of time, it is not only sound
policy that requires removal of all those burdens on speech
11
that we tolerate to secure these incentives. The First
Amendment demands that individuals no longer be
prohibited from expressing themselves as they will,
including by using materials previously copyrighted, when
doing so would no longer serve the government's stated
interest. A new annotated edition of Gone with the Wind
could play an important role in political discourse even if it
took too much to enjoy the protection of fair use.
Prohibiting its publication when doing so can no longer be
said to contribute to the likelihood of the novel's creation
cannot be squared with the First Amendment. The same
can be said of a new staging of Shakespeare's Richard III
set as a 20th century critique of fascism, or publishing
Victor Hugo's discourse on insurrection from Les
Miserables. Term limitation is the most extensive and
substantive source of public domain materials available for
use unburdened by solicitude to congressional copyright
policy.
II. Legislation That Substantially Expands
Copyright Should Be Subject To Heightened
First Amendment Scrutiny
The Copyright Act is a statute that regulates speech.
It tells some people that they cannot print or publicly
present certain words or images. It is not a law aimed at
general conduct that has incidental effects on expression -
like a trespass statute or an anti-littering ordinance. It is a
law aimed solely at expression. It is not a time, place, and
manner regulation intended to effectuate non-speech-
related purposes.4 Its entire purpose and effect is to
4 "[I]n the context of intellectual property, [the] `no adequate
alternative avenue' test does not sufficiently accommodate the public's
interest in free expression. Intellectual property, unlike real estate,
includes the words, images and sounds that we use to communicate. . . .
Restrictions on the words or images that may be used by a speaker,
12
regulate the production of information, culture, and
knowledge-all aspects of society central to the ambit of
the First Amendment. Its operation is by selective
prohibition of printing, publishing, or public expressive
performance or display. To paraphrase this Court in
Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753 (2001),
if the regulation of printing, publishing, or public
performance of materials one deems interesting, evocative,
or insightful is not regulation of pure speech, it is hard to
imagine what would be. See id., 121 S.Ct. at 1761. Such
regulation requires at least intermediate scrutiny. Id.
Copyright has traditionally been justified in relation
to the First Amendment as providing "the engine of free
expression," Harper & Row, 471 U.S. at 558, just as the
cable must-carry rules were justified as facilitating the
availability of information "from diverse and antagonistic
sources." Turner Broadcasting System, Inc. v. FCC, 520
U.S. 180, 192 (1997) ("Turner II"). But just as in the
Turner litigation the Court found it necessary to review
Congress's law to see that it indeed facilitated diverse
discourse, so too must courts review copyright legislation
to assure that it is the engine of free expression and not the
vehicle of censorship. This does not mean that every
copyright suit would now include a First Amendment
component. But it does mean that Congress cannot
substantially shift the boundaries of copyright without
being subject to heightened scrutiny. At the very least, a
law prohibiting a substantial number of speech acts
previously permitted under copyright law must pass the
kind of scrutiny this Court applied to other laws that
directly regulated speech in the name of improving the flow
of information in society-like the must-carry rules.
therefore, are quite different than restrictions on the time, place, or
manner of speech." Cardtoons, L.C. v. Major League Baseball Players
Ass'n., 95 F.3d 959, 971 (10th Cir. 1996) (citations omitted).
13
Congress must, at the very least, show that the statute
serves an important government interest in a manner no
more restrictive than necessary. Turner I, 512 U.S. at 662.
Indeed, in the context of copyright, heightened
scrutiny is even more important than where it has been
applied most vigorously-in the area of media regulation.5
Vigorous application of the First Amendment is
particularly important where there is a substantial fear that
Government will protect its own interests or those of some
special, over-represented interest. Where media regulation
is concerned, usually both the parties burdened and the
parties benefited are well represented in the political
process. The cable carriers who suffered the burden of the
must-carry rules at issue in the Turner litigation, for
example, participated in the political process that preceded
enactment of the challenged statute and rules no less than
did the broadcasters who benefited from them. In the
context of copyright, however, the benefits and burdens of
regulation are distributed in very different patterns. The
benefits are always clearly articulated by present owners of
copyrights. The burdens are usually carried by diffuse
members of the public, including those not yet born or too
young to articulate their interest in a copyright law-such
as one of shorter duration-more solicitous of their
freedom of expression. The CTEA is a quintessential
instance of a rent-seeking statute likely to result from such
an imbalance of representation, a fact that could not be
more clearly evidenced than by its retroactive application,
which provides a tremendous windfall precisely to those
parties that lobbied Congress for its passage. Without
heightened scrutiny, Congress will of necessity overreach
in copyright legislation and understate the burdens it
5 See, e.g., Turner II; Time Warner Entertainment Co. v. FCC, 240 F.3d
1126 (D.C. Cir. 2001).
14
imposes on expressive freedoms. It is the role of the
judiciary, removed from the humdrum of political lobbying
and presented with concrete instances of the burdens the
new law imposes on expression, to provide that backstop
against congressional overreaching.
III. The Categorical Exclusion Is Germane To The
Holding Below, And Conflicts With A Recent
Decision By The Court Of Appeals For The
Second Circuit
The refusal to submit the CTEA to any form of First
Amendment review is germane to the decision of the Court
of Appeals for the D.C. Circuit, and is in conflict with a
recent decision of the Court of Appeals for the Second
Circuit in Universal City Studios v. Corely, 2001 U.S. App.
LEXIS 25330 (2d Cir. Nov. 28, 2001). The Act itself
extends the term of copyright from life of the author plus
fifty years, to life of the author plus seventy years, or where
the copyright is initially vested in a corporation, from
seventy five to ninety five years. See Pub. L. No. 105-298,
§ 102(b), 112 Stat. 2827 (1998). It does so not only
prospectively, but retrospectively as well. See Id. § 102 (b)
& (d). Had the Court of Appeals subjected this statute, in
particular its retrospective application, to First Amendment
review, it is highly unlikely that the Act would have been
upheld in its entirety, and certainly it would not have been
upheld upon such cursory review.
The justification for the Act is substantially weaker
by comparison to other statutes that have been held
unconstitutional, or that, though upheld, presented hard
cases.6 The Act is passed pursuant to Article I, section 8,
6 This Court, for example, subjected the must-carry rules to
substantially more searching scrutiny than the court below applied to
15
clause 8 of the Constitution. Its constitutionally mandated
goal is therefore to "supply the economic incentive to
create and disseminate ideas." Harper & Row, 471 U.S.
558. It is not at all clear that the prospective extension of
the Act is justifiable as a means to support that end,
because the discounted present value of any revenue stream
to be captured eight decades or more hence is virtually
insignificant. See Stephen Breyer, The Uneasy Case for
Copyright: A Study of Copyright in Books, Photocopies,
and Computer Programs, 84 HARV. L. REV. 281, 323-29
(1970); William M. Landes & Richard A. Posner, An
Economic Analysis of Copyright Law, 17 J. L. STUD. 325,
361-2 (1988). All one need do to understand this is to
evoke the image of a movie producer raising funds for a
film by promising investors a return seventy-five or ninety-
five years hence.
The retrospective application of this dubious
extension is practically laughable as a means to supply
economic incentives to authors and other creators. It is
impossible to create incentives by retroactive extension of
the term of protection for works already created. By
definition-the works already exist-the incentive
subsisting prior to the extension was sufficient to bring
them into being. See Landes & Posner, at 362; Melville B.
Nimmer, Does Copyright Abridge the First Amendment
the CTEA, even though the prima facie (and, as it turns out, ultimate)
economic justification for the must carry rules was substantially more
sound than the economic rationale of the retroactive extension of
copyright. Another panel of the Court of Appeals for the D.C. Circuit,
for example, recently struck down the vertical and horizontal
ownership rules imposed by the Federal Communications Commission
on cable operators. Those rules-though held insufficiently justified-
were based on a substantially more plausible economic rationale than
any justification that could be offered in support of the CTEA. See
Time Warner Entertainment Co. v. FCC, 240 F.3d 1126 (D.C. Cir.
2001).
16
Guarantees of Free Speech and Press?, 17 UCLA L. REV.
1180, 1194-95 (1970).
Perhaps there are other good reasons to support this
retroactive extension, such as "harmonization" with other
countries, or preservation of old works, or some non-
laughable argument that the retroactive extension does in
some fashion support creativity. It is unnecessary for this
Court to prejudge the weight and sufficiency of such
hypothetical reasons, because the court below never
properly considered them. It is not, in any event, this
Court's practice "to create hypothetical nonobvious
explanations in order to justify laws that impose significant
restrictions upon speech." Denver Area Educ. Telecomms.
Consort. v. FCC, 518 U.S. 727, 760 (1996). Instead, all the
Court need do is remand the case for consideration in light
of the appropriate First Amendment standard.
Stating the correct standard is particularly important
in order to resolve a conflict among the circuits. In Corely,
the Court of Appeals for the Second Circuit recently
reviewed Section 1201(a)(2) of the Copyright Act, 17
U.S.C. § 1201(a)(2) against a first amendment challenge.
While the Second Circuit upheld that section of the
Copyright Act, it did so only after clearly and explicitly
subjecting that provision to heightened first amendment
scrutiny following the Turner standard. 2001 U.S. App.
LEXIS 25330, at *62-63.
17
CONCLUSION
For the foregoing reasons, amici urge the Court to
reverse the judgment below and remand for reconsideration
in light of the appropriate First Amendment standard of
review.
Respectfully submitted,
Burt Neuborne
Counsel of Record*
Jack M. Balkin
Yochai Benkler
Jed Rubenfeld
* New York University School of Law
40 Washington Square South
New York, NY 10012-1066
(212) 998-6172