Eldred v. Reno: Response brief of US
term” with respect to countries outside of the EU./29
Under that rule, the EU would
provide protection for copyrighted works for the “shorter term” applicable in the
country of origin of a particular copyrighted work./30
On March 2, 1995, Senator Hatch introduced S. 483, the central terms of
which were ultimately incorporated into theCTEA. The CTEA adopted a basic
term of copyright protection for works created on or after January 1, 1978, equal to
the life of the author plus 70 years./31Like the 1976 Copyright Act that preceded it,
the CTEA substituted a fixed term of copyright protection (intended to approximate
the life plus 70 year term otherwise applicable) for certain types of works for which
the life of the author cannot be ascertained (anonymous and pseudonymous works)
and “works made for hire” created by authors that are corporate entities.
Specifically, it established a fixed copyright term of 95 years after publication or 120
years after creation of the work, whichever is shorter./32
Like all preceding Acts amending copyright duration, the CTEA also extends
the terms of subsisting copyrights. The CTEA applies the same 95 year term to
pre-1978 works with copyrights subsisting in their renewal term upon the date of
enactment of the CTEA./33
TheCTEA also created a right of termination similar to that adopted in 1976
under which the author, or certain surviving members of the author’s family,can
30/The Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827.
Id.,§ 102(b)(1) (amending 17 U.S.C. § 302(a)).
Id., § 102(b)(3) (amending 17 U.S.C. § 302(c)).
33/Section 102(d)(1)(B) of the CTEA, (amending 17 U.S.C. § 304(b)).
Eldred v. Reno: Response brief of US
terminate a prior transfer of a copyright effective at the end of the original 75 year
B. District Court Decision.
The district court granted the Government’s motion for judgment on the
pleadings and denied plaintiffs’ motion for judgment on the pleadings, or, in the
alternative, summary judgment. The district court rejected plaintiffs’ First
Amendment arguments on the ground that they had been already decided by this
Court in United Video v. FCC./35The district court rejected plaintiffs’ “limited
Times” challenge on the grounds that this judgment is committed to the discretion
of Congress and that Congress has authority to enact retrospective laws under the
This appeal was taken from that judgment.
I. The Extension of the Terms of Subsisting Copyrights by Twenty
Years Is Within Congress’ Article I Powers.
This Court has held that “judicial review of challenges to congressional power
based upon the supposed limits of the Copyright Clause is limited * * *,” [and] ‘the
courts will not find that Congress has exceeded its power so long as the means
adopted by Congress for achieving a constitutional end are “appropriate” and
34/The termination right provided by 17 U.S.C. § 304(d)supplements those granted in the 1976 Act at 17 U.S.C.
§§ 203(a)(3) and 304(c).
J.A. 75, United Video v. FCC,890 F2d 1173.
Eldred v. Reno: Response brief of US
“plainly adapted” to achieving that end.’“/37Thus, a rational connection between
means and end will suffice to uphold Congress’ legislation./38The legislative history
discloses a variety of such rational bases.
B. Ensuring A Fair Return To The Owners Of Subsisting Copyrights
Is A Rational Basis For Extending The Term Extension Of Subsisting
Copyrights.
In order to achieve public purposes, Congress enacts copyright terms to
assure authors that they will receive a fair return for their labor. To this end, the
1976 Act encouraged authors to create and publish new works with the expectation
that their copyright protection would last not only for their lives, but for the lives of
their children, by enacting a copyright term of 50 years plus the life of the author.
Twenty years experience convinced Congress that this goal had not been achieved,
due to increases in life expectancy. One goal of the CTEA was to correct this
failure by enacting a longer term that would, in fact, achieve the protection of the
author for his life and that of his children. Correcting failures of prior laws to
achieve the intended inducement is reasonably related to the goal of the Copyright
Clause and is itself a rational basis for term extension of subsisting copyrights.
Moreover, the extension of the terms of subsisting copyrights not only does justice,
but it also creates incentives for the creation of new works. People have more
incentive to create new works within a system in which the Government keeps its
Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981),cert. denied455 U.S. 948 (1982).
United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938).
Eldred v. Reno: Response brief of US
In addition, Congress believes that a fair return also be commensurate with
the marketable lives of creative works. Due to changed circumstances, Congress
concluded that copyright holders are obtaining less than a fair portion of the
marketable life of a product, and it corrected that error. Similarly, potential authors
will be more inclined toproduce new works knowing that Congress will assure
them a fair portion of the marketable life of a product, should circumstances change.
C. Establishing A Greater Degree Of International Harmony Is A
Rational Basis For Extending The Terms Of Subsisting Copyrights.
The certainty and simplicity that uniform international copyright terms bring
to international business dealings is a benefit to copyright holders. It makes the
exercise of their rights safer and more effective. A copyright act that brings such
benefits to American authors is thus a means ofsecuringthe rights of authors,
which is one of the goals of the Copyright Clause. It is widely believed that such
harmonization is now especially urgent in order to counteract the threats of the
digital age. This benefit, sought by both the 1976 copyright legislation and CTEA,
is sufficient in itself to justify Congress’ enactment of term extensions to subsisting
copyrights. Moreover, viewing the copyright system as a whole, authors will have
more incentive to produce new works within a system that will attempt to secure
authors’ rights in the future in changing circumstances.
D. Providing Increased Resources To Stimulate Creation Of New
Works and To Preserve Existing Works Is A Rational Basis For
Extending The Terms Of Subsisting Copyrights In Works For Hire.
A work made for hire is owned by the employer of the people who create the
work. The CTEA extends these terms by 20 years. The principal class of works for
hire that have significant economic value at the end of the former 75 year term of
Eldred v. Reno: Response brief of US
protection are motion pictures. Congress concluded that a term extension would
provide an additional income stream that would stimulate these companies to
produce new works of art. On this basis, Congress has constitutional authority to
extend the terms of subsisting copyrights in works for hire. In addition, the 20 year
extension promotes the preservation of art. Recent technological developments have
created a unique opportunity to restore and preserve many artistic works from the
1920s and 1930s that might otherwise degrade. However, there is a disincentive to
invest the sums of money necessary to transfer these works to a digital format,
absent some assurance of an adequate return on that investment. By extending the
current copyright term for works that have not yet fallen into the public domain, the
CTEA creates the possibility thatpresent copyholders might recoup their
E. The CTEA Does Not Violate The Originality Or “Limited Times”
Requirement Of The Copyright Clause Of The Constitution.
1. The requirement of originality is not violated. Plaintiffs argue that at
the time the copyright extension takes effect, the “novelty has worn off,”/39so that
a work is no longer an original work as required by the Copyright Clause. But the
purpose of the originality requirement is to determine whether a work is eligible for
copyright protection or is already in the public domain. Works with subsisting
copyrights are, by definition, not a part of the public domain – they are within the
exclusive domain of the copyright owner. Originality, therefore, is a condition
relating to eligibility for a new copyright. It has nothing to do with extending the
term of existing copyrights, which have already satisfied the condition of eligibility.
Eldred v. Reno: Response brief of US
The argument that when a copyrighted work reaches the end of its original
term, “the novelty has worn off,” confuses the public’s perception of a work with a
condition of eligibility for copyright.
2. The “limited Times” requirement of the Constitution is not violated
by extending the term of a subsisting copyright. Plaintiffs note that the
extension of terms of subsisting copyrights reduces the supply of previously
protected works that would enter into the public domain. They argue that because
there are no balancing incentives, the Constitution is violated. But the extension
does provide incentives. And, in any event,the importance of the public domain as
an element in promoting speech is a balance that must be struck by Congress.
3. Plaintiffs’ “limit” and “originality” arguments contradict centuries
a. The CTEA is consistent with the national tradition. The CTEA
follows the pattern of every major revision to the law governing copyright, enacted
by different Congresses, including the First Congress. And it follows the trend of all
of these prior changes, in which the term of protection has steadily increased by
relatively modest and equal amounts. The terms of extension have been from 28
years, to 42 years, to 56 years, to approximately 75 years,to, currently,
approximately 95 years. A continuous, undisputed tradition that reaches into four
different centuries is nearly conclusive. Plaintiffs, to prevail, must do far more than
provide an alternate reading to a clause of the Constitution.
39/App. Br. 26
Eldred v. Reno: Response brief of US
b. Upholding the CTEA’s extension of the terms of subsisting
copyrights does not mean Congress need not comply with the “limited
Times” provision of the Constitution.In essence, plaintiffs’ argue that upholding
the CTEA drains the term “limited” of any meaning, and any term would be as
valid as a term of 20 years. It may well be that some extensions are so long that a
court could conclude that the Congress has in effect created an unlimited term. But
this case concerns a term extended on the basis of alterations in the traditional
indicia by which the fairness of a term is measured:the life of the author and his
offspring, and the commercial life of his products, have lengthened; harmony with
criteria of other nations is desirable; and a unique opportunity to promote and
secure art is at hand. An extension of subsisting copyright terms on such bases
provides no occasion for the Court to speculate upon whether or when a term
extension, lacking such rational and traditional predicates, wouldbecome
constructively unlimited.
II. Congress Did Not Violate the First Amendment by Extending The
Term of Copyright Protection.
A. Plaintiffs Lack Standing To Challenge The Prospective Application
Of The CTEA.
Plaintiffs are either individuals or entities whose sole allegations of injury
concern the effect the CTEA has on their ability to go about their business. No
plaintiff alleges or intimates that it will be injured by the CTEA’s extending the
copyright terms of new works. Lacking injury, they lack standing.
B. Plaintiffs Have No First Amendment Right To Reproduce The
Copyrighted Works Of Others.
Eldred v. Reno: Response brief of US
Plaintiffs argue that the CTEA is a content-neutral regulation of speech which
can be justified if it (1) advances important Government interests unrelated to the
suppression of free speech, and (2) does not burden substantially more speech than
necessary to further [those] interests.
1. This Court has held that because only expression and not ideas can
be copyrighted, plaintiffs lack a First Amendment right to use the works of
subsisting copyright owners.
The district court correctly concluded that this case
is controlled by this Court’s decision in United Video, Inc. v. FCC, where the
[P]etitioners desire to make commercial use of the copyrighted works
of others. There is no first amendment right to do so. Although there
is some tension between the Constitution’s copyright clause and the
first amendment, the familiar idea/expression dichotomy of copyright
law, under which ideas are free but their particular expression can be
copyrighted, has always been held to give adequate protection to free
expression./40
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2. Plaintiffs have failed to distinguish this case from Harper and
United Video.Plaintiffs argue that this case differs from United Video because they
are challenging the validity of the statute, and not merely demanding a right to use
the property of others that is protected by copyright, as were the plaintiffs in United
Video. But this is a distinction in phrasing, not in substance. The assertion by
plaintiffs in United Video, that they had a First Amendment right to use material
that is protected by copyright laws, could have succeeded only if the copyright law
is unconstitutional insofar as it forbids the use plaintiffs wish to make of it.
United Video, Inc. v. FCC, 890 F.2d at 1191.
Eldred v. Reno: Response brief of US
3. Plaintiffs’ arguments lead to unreasonable results.
arguments, if accepted, would prove too much. It is undisputed that promoting
progress in the arts is an important Government interest. But one cannot
demonstrate that any given term, whatever its length, does not keep substantially
more art out of the public domain than is necessary to achieve the fullest possible
progress in the arts. Under plaintiffs’ approach,no valid copyright act could be
framed. But the Supreme Court noted that “the evolution of the duration of
copyright protection tellingly illustrates the difficulties Congress faces in attempting
to “secur[e] for Limited Times to Authors * * * the exclusive Right to their
respective Writings.’“/41All that can be expectedof any group of lawmakers in
this nearly rudderless context is that they behave rationally.
THE EXTENSION OF THE TERMS OF SUBSISTING
COPYRIGHTS BY 20 YEARS IS WITHIN
CONGRESS’ ARTICLE I POWERS.
The Copyright Clause of the Constitution empowers Congress “[t]o 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.”/42
Plaintiffs construe this clause to authorize only the enactment of incentives that
motivate the creation of new writings. Plaintiffs note that once a work has been
Stewart v. Abend, 495 U.S. at 230.
42/United States Constitution, Art. I, § 8, cl. 8.
Eldred v. Reno: Response brief of US
created by an author, it is no longer possible to provide the author with an incentive
to create that work:What exists needs no incentive to be brought into existence.
Plaintiffs conclude, therefore, that the enactment of additional benefits for subsisting
copyrights – such as an extension of the term of subsisting copyrights – exceeds
Congress’ powers under the Copyright Clause.
In Stewart v. Abend, the Supreme Court recognized that a court’s review of
Congress’ choice of the duration of copyright protection is exceedingly deferential:
[The] evolution of theduration of copyright protectiontellingly
illustrates the difficulties Congress faces in attempting to “secur[e] for
limited Times to Authors * * * the exclusive Right to their respective
Writings.” * * * [I]t is not our role to alter the delicate balance
Congress has labored to achieve./43
In Schnapper v. Foley,/44this Court reasoned in the same vein as Stewart v. Abend.
Plaintiffs in Schnapper, like plaintiffs in this case, had argued that Congress’s
legislative power under the Copyright clause “only [referred] to the need to provide
economic incentives * * *.”/45The Court noted that “judicial review of challenges
to congressional power based upon the supposed limits of the Copyright Clause ‘is
limited.’“/46The Court held that under the settled construction of the Necessary
and Proper Clause,”’[t]he courts will not find that Congress has exceeded its power
so long as the means adopted by Congress for achieving a constitutional end are
Stewart v. Abend, 495 U.S. 207, 230 (1990) (emphasis added) (citations omitted).
Schnapper v. Foley, 667 F.2d 102.
Schnapper v. Foley, 667 F.2d at 112.
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