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 AMICI CURIAE OF COPYRIGHT LAW
PROFESSORS IN SUPPORT OF THE PETITION
_____________
Jonathan Weinberg
Counsel of Record
Wayne State University
471 West Palmer Street
Detroit, Michigan 48202
(313)
577-3942
i
QUESTIONS PRESENTED
1. Does the language of Art. 1, § 8, cl. 8 of the Constitution,
giving Congress "power...To promote the Progress of
Science and useful Arts" impose substantive constraints on
Congress's enactments under that clause?
2. Are copyright laws "categorically immune" from First
Amendment scrutiny?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED.............................................................. i
TABLE OF CONTENTS.................................................................ii
TABLE OF AUTHORITIES...........................................................iii
INTERESTS OF AMICI CURIAE.....................................................1
INTRODUCTION...........................................................................1
SUMMARY OF ARGUMENT.........................................................1
ARGUMENT..................................................................................2
I. Congress's Power To Enact Copyright Legislation
Is Constrained By The Language Of The Clause
That Grants That Power ...................................2
II. Copyright Laws Are Not Categorically Immune
From First Amendment Scrutiny .......................8
CONCLUSION..........................................................11
iii
TABLE OF AUTHORITIES
Cases: Page
Boerne v. Flores, 521 U.S. 507 (1997).........................................5
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) .................passim
Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340 (1991)........................................................7
Felten v. Recording Industry Association of America
Inc., No. CV-01-2669 (D. N.J., filed June 6,
2001) .............................................................................12
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).............................7
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).........................4
Golan v. Ashcroft, No. 01-B-1854 (D. Colo., filed
Sept. 19, 2001)................................................................8
Graham v. John Deere, 383 U.S. 1 (1966) ...........................5, 6, 7
Harper & Row v. Nation Enterprises, 471 U.S. 539
(1985) ..............................................................7, 9, 10, 12
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..................4
Railway Labor Executives' Ass'n v. Gibbons, 455 U.S.
457 (1982) .......................................................................5
Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981)................4, 7
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984)........................................................7
South Dakota v. Dole, 483 U.S. 203 (1987).................................4
Trade-Mark Cases, 100 U.S. 82 (1879) .......................................6
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151
(1976) ..............................................................................7
United Video, Inc. v. FCC, 890 F.2d 1173 (D.C. Cir.
1989) ...............................................................................9
United States v. Butler, 297 U.S. 1 (1936)..................................4
United States v. Lopez, 514 U.S. 549 (1995)...............................4
Universal City Studios, Inc. v. Reimerdes, 82 F. Supp.
2d 211 (S.D.N.Y. 2000)...........................................8, 12
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) ..........................6
iv
Constitutional Provisions:
U.S. Const., Art. I, § 8, cl. 1.......................................................4
U.S. Const., Art. I, § 8, cl. 3 ...................................................3, 4
U.S. Const., Art. I, § 8, cl. 7 .......................................................3
U.S. Const., Art. I, § 8, cl. 8 ..............................................passim
U.S. Const. Amend. I........................................................passim
Statutes and Legislative Materials:
Anti-counterfeiting Consumer Protection Act, Pub. L.
No. 104-153, 110 Stat. 1386, 1388 (1996)...................11
Audio Home Recording Act, Pub. L. No. 102-563, 106
Stat. 4237 (1992)...........................................................11
Computer Software Rental Amendments, Pub. L. No.
101-650, 104 Stat. 5089, 5134 (1990) ..........................11
Copyright Act of 1976 (as amended), 17 U.S.C. §§ 101
et seq.
17 U.S.C. § 102(b)........................................................10
17 U.S.C. § 104A............................................................8
17 U.S.C. § 105.............................................................10
17 U.S.C. § 107.............................................................10
17 U.S.C. § 302...............................................................8
17 U.S.C. § 303...............................................................8
17 U.S.C. § 304...............................................................8
17 U.S.C. § 1201.................................................8, 11, 12
Copyright Remedy Clarification Act, Pub. L. No. 101-
553, 104 Stat. 287 (1990)..............................................11
Copyright Renewal Act, Pub. L. No. 102-307, 106 Stat.
264 (1992) .....................................................................11
Digital Millennium Copyright Act, Pub. L. No. 105-
304, 112 Stat. 2860 (1998).............................. 7-8, 11, 12
Digital Performance Right in Sound Recordings Act,
Pub. L. No. 104-39, 109 Stat. 336 (1995) ...................11
Digital Theft Deterrence and Copyright Damages
Improvement Act, Pub. L. No. 106-160, 113
Stat. 1774 (1999)...........................................................11
v
Intellectual Property and Communications Omnibus
Reform Act of 1999, Pub. L. No. 106-113, 113
Stat. 1501, 1501A-521 (1999) ......................................11
No Electronic Theft (NET) Act, Pub. L. No. 105-147,
111 Stat. 2678 (1997)....................................................11
North American Free Trade Agreement Implementation
Act, Pub. L. No. 103-182, 107 Stat. 2057, 2115
(1993). ...........................................................................8
Sonny Bono Copyright Term Extension Act, Pub. L.
No. 105-298, 112 Stat. 2827 (1998)...................2, 3, 7, 8
Uruguay Round Agreements Act, Pub. L. No. 103-465,
108 Stat. 4809, 4976 (1994)............................................8
Work Made For Hire and Copyright Corrections Act of
2000, Pub L. No. 106-379, 114 Stat. 1444
(1999) ..........................................................................11
H.R. 354, 106th Cong., 1st Sess. (1999) ...............................8, 12
H.R. 2281, 105th Cong, 2d Sess. (1998), §§ 501-502 ................8
H.R. 2652, 105th Cong., 1st Sess. (1997) ...................................8
Security Systems Standards and Certification Act, 107th
Cong., 1st Sess. (Staff Working Draft, Aug. 6,
2001) ............................................................................9
Cyber Security: Hearing Before the House Science
Committee, 107th Cong., 1st Sess. (October 10,
2001) ............................................................................9
Other Authorities:
Dan Gillmor, Entertainment Control Freaks have an
Ally in Microsoft, SAN JOSE MERCURY NEWS
(Oct. 24, 2001)................................................................9
Neil Netanel, Locating Copyright Within the First
Amendment Skein, 54 STAN. L. REV. 1, 12-29
(2001) ..........................................................................11
Edward C. Waltersheid, Defining the Patent and
Copyright Term: Term Limits and the
Intellectual Property Clause, 7 J. INTELL. PROP.
L. 315, 381-83 (2000) .....................................................6
vi
Proposed Hollings Bill on Copyright Alarms Internet
Libertarians, Washington Internet Daily
(Sept. 11, 2001) ..............................................................9
1
INTERESTS OF AMICI CURIAE1
This brief amici curiae in support of the petition is
submitted pursuant to Rule 37 of the Rules of this Court.
Counsel for petitioner and respondent have consented to
the filing of this brief. Their consent letters have been filed
with the Clerk of the Court.
Amici are copyright law professors at American
universities. Jessica Litman is Professor of Law at Wayne
State University. Dennis Karjala is Professor of Law at
Arizona State University. Laura N. Gasaway is the
Director of the Law Library and Professor of Law at
University of North Carolina. Keith Aoki is Professor at
the University of Oregon School of Law. Stephen R.
Barnett is Professor of Law at the University of California
at Berkeley. Ann Bartow is Assistant Professor of Law at
the University of South Carolina School of Law. James
Boyle is Professor of Law at Duke University. Dan L. Burk
is the Julius E. Davis Professor of Law at the University of
Minnesota. Julie E. Cohen is Professor of Law at
Georgetown University Law Center. Shubha Ghosh is
Associate Professor of Law at University at Buffalo Law
School, State University of New York. Paul Heald is the
Allen Post Professor of Law at the University of Georgia.
Lydia Pallas Loren is Associate Professor of Law at
Northwestern School of Law, Lewis and Clark College.
Michael J. Madison is Assistant Professor of Law at the
University of Pittsburgh. Michael J. Meurer is Associate
Professor of Law at Boston University School of Law. Tyler
T. Ochoa is Associate Professor and Co-Director of the
Center for Intellectual Property Law at Whittier Law
School. L. Ray Patterson is the Pope Brock Professor of
1 No counsel for a party authored this brief in whole or part, and
no person or entity other than amici curiae made a monetary
contribution to the preparation or submission of this brief.
2
Law at the University of Georgia. Malla Pollack is
Visiting Associate Professor and Visiting Scholar at
Northern Illinois University College of Law. R. Anthony
Reese is Assistant Professor of Law at the University of
Texas at Austin. Pamela Samuelson is the Chancellor's
Professor of Law at the University of California at
Berkeley. Alfred C. Yen is the Associate Dean for
Academic Affairs and Professor of Law at Boston College
Law School. Diane L. Zimmerman is Professor of Law at
New York University School of Law.
Amici are deeply concerned with the integrity of
copyright law and with the constitutional goals of
promoting authorship and innovation and of encouraging
the broad dissemination of works of authorship. They are
concerned that Congress should grant rights to copyright
owners in a manner that is consistent, rather than in
conflict, with those goals. In their capacity as educators,
amici make extensive use both of works protected by
copyright and works in the public domain.
INTRODUCTION
Amici support petitioners' argument that the court
of appeals erred in rejecting petitioners' challenges to the
Copyright Term Extension Act based on the Copyright
Clause and the First Amendment. Amici submit this brief
to make the Court aware of the importance of the decision
below and its potential to do significant damage in a wide
range of copyright cases.
SUMMARY OF ARGUMENT
The Court of Appeals for the D.C. Circuit erred in
holding that the initial language of the Copyright Clause
imposes no substantive limit on congressional power. In
3
reaching this result, the court of appeals ignored the
decisions of this Court on the scope of the constitutional
power to enact patent and copyright laws. The lower
court compounded its error by concluding that copyright
laws are immune from challenge under the First
Amendment. If the D.C. Circuit's opinion is allowed to
stand, then any law purporting to be enacted pursuant to
the Copyright Clause will be insulated from constitutional
limitations. Nothing in the text of the Constitution or in
this Court's decisions supports such a result.
ARGUMENT
I. CONGRESS'S POWER TO ENACT COPYRIGHT
LEGISLATION IS CONSTRAINED BY THE
LANGUAGE OF THE CLAUSE THAT GRANTS
THAT POWER.
The Copyright Term Extension Act was enacted
pursuant to Congress's power under the Patent and
Copyright Clause, which provides:
The Congress shall have Power . . . To
promote the Progress of Science and useful
Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.
The Constitutional text does two things. First, it
empowers Congress to enact statutes that "promote the
Progress of Science and useful Arts," much as other clauses
of Art. 1, § 8 empower Congress to enact statutes that
"regulate Commerce . . . among the several States," or that
"establish Post Offices and Post Roads." Second, it sharply
limits the means Congress may adopt to achieve that end:
Congress, in exercising this power, is limited to "securing
4
for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries."
In this case, the court of appeals held that the
Constitutional language granting Congress the power to
"promote the Progress of Science and useful Arts" is mere
surplusage. According to the court of appeals, this
language imposes no limit on Congress's power to enact
statutes under the clause. The court of appeals gave no
authority in the text of the Constitution or the opinions of
this Court to support its extraordinary view. It concluded
that this rule was required by its holding in Schnapper v.
Foley, 667 F.2d 102 (D.C.Cir. 1981). See Eldred v. Reno, 239
F.3d 372, 378 (D.C. Cir. 2001). But this view is plainly
mistaken.
It is well-settled that the Constitutional language
conferring a power on Congress constrains the scope of
that power. That is the very purpose of the Constitutional
text: The "powers of the legislature are defined and
limited; and that those limits may not be mistaken, or
forgotten, the constitution is written." Marbury v. Madison,
5 U.S. (1 Cranch) 137, 176 (1803). In the Commerce Clause
context, the Court has been clear: "limitations on the
commerce power are inherent in the very language of the
Commerce Clause." United States v. Lopez, 514 U.S. 549,
553 (1995)(discussing Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1, 194-95 (1824)). Elsewhere, the Court has been similarly
emphatic that Congress's power is "set in the clause which
confers it." United States v. Butler, 297 U.S. 1, 66 (1936). The
"language of the Constitution itself," for example,
mandates that Congress exceeds its Spending Clause
power "to lay and collect taxes . . . to pay the debts and
provide for the common defense and general welfare," U.S.
Const., Art. I, § 8, cl. 1, if its action is not in fact intended to
serve the "general welfare." South Dakota v. Dole, 483 U.S.
5
203, 207 (1987). Similarly, the Court held in Railway Labor
Executives' Ass'n v. Gibbons, 455 U.S. 457, 471 (1982), that
"[t]he language of the Bankruptcy Clause," granting
Congress power to "establish Uniform Laws on the subject
of Bankruptcies," compelled a holding that Congress had
no power to enact nonuniform bankruptcy laws.
Although the Constitutional text may not be the end of the
Court's analysis in assessing the scope of
congressional power, it is always the beginning. See Boerne
v. Flores, 521 U.S. 507, 519 (1997).
The Constitutional text could not be more plain
that the power conferred on Congress by Art. I, § 8, cl. 8 is
a "power . . . To promote the Progress of Science and useful
Arts." If an enactment cannot plausibly be said to be
directed toward those goals, therefore, it is outside the
scope of the power. This Court expressly so held in
Graham v. John Deere, 383 U.S. 1 (1966), in which it
articulated the constitutional constraints on Congress's
patent power:
At the outset it must be remembered
that the federal patent power stems from a
specific constitutional provision which
authorizes the Congress "To promote the
Progress of ... useful Arts, by securing for
limited Times to ... Inventors the exclusive
Right to their ... Discoveries." Art. I, § 8, cl.
8. The clause is both a grant of power and a
limitation. This qualified authority, unlike
the power often exercised in the sixteenth
and seventeenth centuries by the English
Crown, is limited to the promotion of
advances in the "useful arts." It was written
against the backdrop of the practices --
eventually curtailed by the Statute of
Monopolies -- of the Crown in granting
6
monopolies to court favorites in goods or
businesses which had long before been
enjoyed by the public. The Congress in the
exercise of the patent power may not
overreach the restraints imposed by the
stated constitutional purpose. Nor may it
enlarge the patent monopoly without
regard to the innovation, advancement or
social benefit gained thereby. Moreover,
Congress may not authorize the issuance of
patents whose effects are to remove existent
knowledge from the public domain, or to
restrict free access to materials already
available. Innovation, advancement, and
things which add to the sum of useful
knowledge are inherent requisites in a
patent system which by constitutional
command must "promote the Progress of ...
useful Arts." This is the standard expressed
in the Constitution and it may not be
ignored.
Graham v. John Deere, 383 U.S. 1, 5-6 (1966) (emphasis in
original; footnote and citation omitted). See also Trade-Mark
Cases, 100 U.S. 82, 93 (1879); Wheaton v. Peters, 33 U.S. (8
Pet.) 591, 661 (1834)(interpreting the word "secure" in the
Copyright Clause by reference to "the words and sentences
with which it stands connected" and noting that the
clause's application to both authors and inventors
precluded finding that either had a perpetual right at
common law); Edward C. Waltersheid, Defining the Patent
and Copyright Term: Term Limits and the Intellectual Property
Clause, 7 J. INTELL. PROP. L. 315, 381-83 (2000). The Court
of Appeals for the D.C. Circuit failed to advance any
reason that the clause granting Congress the power to
enact patent and copyright laws should be read to limit
Congress's power to enact patent legislation, but to impose
7
no limit whatsoever on Congress's power to enact
copyright legislation. Rather, the D.C. Circuit concluded
that its reading of the Constitution was compelled by its
earlier decision in Schnapper v. Foley, a decision that does
not even mention this Court's opinion in John Deere.
Nor would it have made sense for the court of
appeals to hold that the same Constitutional language is
limiting in patent cases, but meaningless in copyright
cases. This Court has frequently invoked that very
language in explaining the scope of the copyright laws. As
this Court has repeatedly reminded lower courts, "[t]he
primary objective of copyright is not to reward the labor of
authors, but '[t]o promote the Progress of Science and
useful Arts.'" Feist Publications, Inc. v. Rural Telephone
Service Co., 499 U.S. 340, 349 (1991). See Fogerty v. Fantasy,
Inc., 510 U.S. 517, 526-27 (1994); Sony Corp. of America v.
Universal City Studios, Inc., 464 U.S. 417, 428-29, 431-32
(1984); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
156 (1975). Accord Harper & Row v. Nation Enterprises, 471
U.S. 539, 546 (1985).
This misunderstanding has implications that reach far
beyond the question whether the Copyright Term
Extension Act contravenes Article I, § 8, cl. 8 of the
Constitution. In recent years Congress has enacted a
number of innovative copyright laws that seek to extend
copyright owners' control of their works. Several of these
laws depart from the traditional copyright model, and
arguably exceed the scope of Congress's copyright power.
In 1998, for example, Congress enacted a law forbidding
individuals from circumventing technological protection
in order to gain unauthorized access to a protected work,
regardless of whether the reason for seeking unauthorized
access was to copy protected expression or to view
unprotected facts, ideas, processes, systems. See Digital
8
Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.
2860, 2863 (1998), (codified as amended at 17 U.S.C. §
1201). The law, further, prohibits anyone from supplying a
device or service designed to assist in circumventing
technological protection. Id. The district court for the
Southern District of New York has held that this law is not
subject to the fair use privilege. Universal City Studios, Inc.
v. Reimerdes, 82 F. Supp. 2d 211, 219 (S.D.N.Y. 2000)("If
Congress had meant the fair use defense to apply to such
actions, it would have said so.").
In 1993, 1994, and again in 1998, Congress enacted laws
that restored copyright protection to works that had
entered the public domain. See North American Free Trade
Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat.
2057, 2115 (1993); Uruguay Round Agreements Act, Pub. L.
No. 103-465, 108 Stat. 4809, 4976 (1994), (codifed as
amended at 17 U.S.C. § 104A); Sonny Bono Copyright Term
Extension Act, Pub. L. No. 105-298, 112 Stat. 2827
(1998)(codified in 17 U.S.C. §§ 104A, 302, 303, 304). See also
Golan v. Ashcroft, No. 01-B-1854 (D. Colo., filed Sept. 19,
2001)(challenging constitutionality of copyright
restoration). Congress has considered and the House of
Representatives has on three occasions passed legislation
that would extend intellectual property protection under
Title 17 to the factual content of collections of information.
See H.R. 354, 106th Cong., 1st Sess. (1999); H.R. 2281, §§ 501-
502 , 105th Cong, 2d Sess. (Engrossed House Bill 1998); H.R.
2652, 105th Cong., 1st Sess. (1997).
According to news reports, Congress is currently
considering legislation that would prohibit the
manufacture, sale, or distribution of any computer or other
9
digital device2 unless it incorporates government-certified
copyright-protection technology. See Security Systems
Standards and Certification Act (Staff Working Draft, Aug. 6,
2001). See, e.g., Dan Gillmor, Entertainment Control Freaks
have an Ally in Microsoft, San Jose Mercury News (Oct. 24,
2001); Proposed Hollings Bill on Copyright Alarms Internet
Libertarians, Washington Internet Daily (September 11,
2001); Cyber Security: Hearing Before the House Science
Committee, 107th Cong., 1st Sess. (October 10,
2001)(testimony of Eugene H. Spafford, Professor of
Computer Science, Purdue University).
Some or all of these laws may be comfortably within
the limitations of Congress's copyright power, but, under
the analysis adopted by the court of appeals, that
determination would never be made. Nothing in the
Constitutional text or in this Court's decisions supports
such
a
result.
II. COPYRIGHT LAWS ARE NOT
CATEGORICALLY IMMUNE FROM FIRST
AMENDMENT SCRUTINY
The lower court's conclusion that copyright laws
are never subject to First Amendment challenge
compounds the gravity of its error. The court read its own
earlier opinion in United Video, Inc. v. F.C.C., 890 F.2d 1173
(D.C. Cir. 1989), as having held "that copyrights are
categorically immune from challenges under the First
2 SSSCA § 109 defines the devices subject to the prohibition to
include: "any machine, device, product, software, or technology,
whether or not included with or as part of some other machine,
device, product, software, or technology, that is designed,
marketed or used for the primary purpose of, and that is capable
of, storing, retrieving, processing, performing, transmitting,
receiving, or copying information in digital form."
10
Amendment." Eldred, 239 F.3d at 375. It concluded that
that opinion, and this Court's decision in Harper & Row v.
Nation Enterprises, 471 U.S. 539 (1985), represented
"insuperable bars" to plaintiffs' First Amendment
challenge, 239 F.3d at 375, or, indeed, any First
Amendment challenge to any copyright law.
In Harper & Row, this Court rejected the claim that
the First Amendment required it to recognize a special
privilege to quote the protected expression of former
public officials. It examined the copyright law and found
that existing law amply accommodated the First
Amendment interests asserted by respondent. 471 U.S. at
559-60. In view of the fact that the Framers intended
copyright to be the "engine of free expression," id. at 558,
this Court held that the idea/expression dichotomy and
the privilege of fair use already embodied in the copyright
statute supplied sufficient protection for First Amendment
interests to obviate the need for a special public official
privilege. Far from holding copyright laws immune from
First Amendment scrutiny, this Court subjected the law to
First Amendment scrutiny and found it fully consistent
with the First Amendment's requirements. Id. at 555-60.
The court of appeals read Harper & Row to preclude
First Amendment examination of copyright laws. The
illogic of that view is clear. Most obviously, this Court's
holding in Harper & Row was predicated on the existence
of the idea/expression dichotomy and the fair use doctrine
to accommodate the First Amendment concerns raised in
that case. Were Congress to enact a law repealing or
limiting sections 102(b) or 107 of the copyright statute, the
teaching of Harper & Row is that that law would be in
serious jeopardy under the First Amendment. But that is
hardly the only First Amendment issue that could arise. A
repeal of section 105, which withholds copyright from
11
government works, plainly would require First
Amendment analysis. (This is not fanciful; the United
States, in fact, asserts ownership of copyright in United
States government works abroad.) A law withholding
copyright protection from any text expressing terrorist
sentiments would similarly be vulnerable to First
Amendment challenge. Interpreting Harper & Row as
creating a categorical First Amendment immunity, thus, is
insupportable.
The current copyright statute has been amended
repeatedly since 1985. See Work Made For Hire and
Copyright Corrections Act of 2000, Public L. 106-379, 114 Stat.
1444 (1999); Intellectual Property and Communications
Omnibus Reform Act of 1999, Public L. 106-113, 113 Stat.
1501, 1501A-521 (1999); Digital Theft Deterrence and
Copyright Damages Improvement Act, Public L. 106-160, 113
Stat. 1774 (1999); Digital Millennium Copyright Act, Public L.
105-204, (1998); No Electronic Theft (NET) Act, Public L.
105-147, 111 Stat. 2678 (1997); Anti-counterfeiting Consumer
Protection Act , Public L. 104-153, 110 Stat. 1386, 1388
(1996); Digital Performance Right in Sound Recordings Act,
Public L. 104-39, 109 Stat. 336 (1995); Audio Home Recording
Act, Public L. 102-563, 106 Stat. 4237 (1992); Copyright
Renewal Act, Public L. 102-307, 106 Stat. 264 (1992);
Computer Software Rental Amendments, Public L. 101-650,
104 Stat. 5089, 5134 (1990); Copyright Remedy Clarification
Act, Public L. 101-553, 104 Stat. 287 (1990). It is not the
same law as the law before the Court in 1985. To hold that
a particular copyright statute is fully consistent with the
First Amendment is a far cry from establishing that any
copyright law ever enacted will always be consistent with
the First Amendment. See Neil Netanel, Locating Copyright
Within the First Amendment Skein, 54 Stanford L. Rev. 1, 12-
29 (2001).
12
Congress has recently enacted, or is now
considering, a variety of statutes posing First Amendment
issues that cannot be avoided by a talismanic invocation of
Harper & Row. Section 1201 of the copyright statute,
enacted in 1998, protects works from unauthorized access
without regard to the idea/expression dichotomy, and has
been interpreted by the district court for the Southern
District of New York to be immune from any defense
based on fair use. See Universal City Studios, Inc. v.
Reimerdes, 111 F. Supp. 2d 294, 321-24 (S.D.N.Y. 2000); see
also Felten v. Recording Industry Association of America, No.
CV-01-2669 (D.N.J. filed June 6, 2001)(seeking declaratory
judgment that § 1201 does not prohibit publication of
computer scientist's scholarly research paper). The House
of Representatives has passed legislation extending
intellectual property protection under Title 17 to
collections of factual information. See, e.g., H.R. 354, 106th
Cong., 1st Sess. (1999). Under the reasoning of the court of
appeals, no First Amendment challenge could be brought
against any of these enactments. That position has no
support in logic nor in this Court's precedents.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Jonathan Weinberg
Counsel of Record
Wayne State University
471 West Palmer Street
Detroit, Michigan 48202
(313)
577-3942