APPELLANTS’ REPLY BRIEF
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.
SUMMARY OF ARGUMENT
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.
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.
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
pp. 13-15, infra.
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.
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.
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.
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.
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.
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.
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.
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.)
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
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.” 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.
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.
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
(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.
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.
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).
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.
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).
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. 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.
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.
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.
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
Video, Inc. v. FCC, 890 F.2d 1173, 1190 (D.C. Cir. 1989)
(Wald, C.J.). 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.
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.) 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
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. Causation is prospective. Thus retrospective increases in duration increase
restrictions on speech without any compensating speech productive
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.
Appellants have properly pleaded
their standing to challenge the CTEA’s prospective elements.
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).
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
Geoffrey S. Stewart
Gregory A. Castanias
Portia A. Robert
Jones, Day, Reavis & Pogue
51 Louisiana Avenue, N.W.
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
Charles R. Nesson
Jonathan L. Zittrain
The Berkman Center for Internet & Society
1563 Massachusetts Avenue
Cambridge, MA 02138
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