|||United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
|||February 16, 2001
|||ERIC ELDRED, ET AL., APPELLANTS
JANET RENO, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL, APPELLEE
|||Appeal from the United States District Court for the District of Columbia
|||Lawrence Lessig argued the cause for appellants. With him on the briefs
were Charles R. Nesson, Jonathan L. Zittrain, Geoffrey S. Stewart, Gregory
A. Castanias, and Portia A. Robert. Erik S. Jaffe was on the brief of amicus
curiae Eagle Forum Education & Legal Defense Fund. Laura N. Gasaway,
Lyman Ray Patterson, and Edward Walterscheid, appearing pro se, were on
the brief of amici curiae Laura N. Gasaway, et al. Alfred Mollin, Counsel,
U.S. Department of Justice, argued the cause for appellee. With him on the
brief were David W. Ogden, Acting Assistant Attorney General, William Kanter,
Counsel, and Wilma A. Lewis, U.S. Attorney. Peter L. Felcher, Carey R. Ramos,
Carl W. Hampe, Lynn B. Bayard, Gaela K. Gehring-Flores, Allan Adler, Fritz
E. Attaway, Joseph J. DiMona, I. Fred Koenigsberg, and James J. Schweitzer
were on the brief of amici curiae The Sherwood Anderson Literary Estate
Trust, et al.
|||Ginsburg, Sentelle, and Henderson, Circuit Judges.
|||The opinion of the court was delivered by: Ginsburg, Circuit Judge.
|||Argued October 5, 2000
|||Separate opinion dissenting in part filed by Circuit Judge Sentelle.
|||The plaintiffs in this case, corporations, associations, and individuals
who rely for their vocations or avocations upon works in the public domain,
challenge the constitutionality of the Copyright Term Extension Act of 1998
(CTEA), Pub. L. No. 105-298, 112 Stat. 2827. This marks the first occasion
for an appellate court to address whether the First Amendment or the Copyright
Clause of the Constitution of the United States constrains the Congress
from extending for a period of years the duration of copyrights, both those
already extant and those yet to come. We hold that neither does.
|||The CTEA amends various provisions of the Copyright Act of 1976, 17 U.S.C.
§ 101 et seq. The portions of the CTEA at issue here extend the terms of
all copyrights for 20 years as follows: (1) For a work created in 1978 or
later, to which an individual author holds the copyright, the Act extends
the term to the life of the author plus 70 years. See Pub L. No. 105-298
§ 102(b)(1), 112 Stat. 2827; 17 U.S.C. § 302(a). (2) For a work created
in 1978 or later that is anonymous, or pseudonymous, or is made for hire,
the term is extended from 75 to 95 years from the year of publication or
from 100 to 120 years from the year of creation, whichever occurs first.
See Pub. L. No. 105-298 § 102(b)(3), 112 Stat. 2827; 17 U.S.C. § 302(c).
(3) For a work created before 1978, for which the initial term of copyright
was 28 years, the renewal term is extended from 47 to 67 years, thereby
creating a combined term of 95 years. See Pub. L. No. 105-298 § 102(d),
112 Stat. 2827; 17 U.S.C. § 304. In all three situations, therefore, the
CTEA applies retrospectively in the sense that it extends the terms of subsisting
copyrights. As a result, the CTEA better aligns the terms of United States
copyrights with those of copyrights governed by the European Union. See
S. Rep. No. 104-315, at 7-8 (1996); Council Directive 93/98, art. 7, 1993
O.J. (L 290) 9.
|||The CTEA is but the latest in a series of congressional extensions of
the copyright term, each of which has been made applicable both prospectively
and retrospectively. In 1790 the First Congress provided, both for works
"already printed" and for those that would be "[t]hereafter
made and composed," initial and renewal terms of 14 years, for a combined
term of 28 years. Act of May 31, 1790 § 1, 1 Stat. 124, 124. In 1831 the
Congress extended the initial term to 28 years, thereby creating a combined
term of 42 years. See Act of Feb. 3, 1831 § 1, 4 Stat. 436, 436. So the
term remained until 1909, when the Congress extended the renewal term as
well to 28 years, making for a combined term of 56 years. See Act of March
4, 1909 § 23, 35 Stat. 1075, 1080.
|||Between 1962 and 1974 the Congress passed a series of laws that incrementally
extended subsisting copyrights. See Pub. L. No. 87-668, 76 Stat. 555 (1962);
Pub. L. No. 89-142, 79 Stat. 581 (1965); Pub. L. No. 90-141, 81 Stat. 464
(1967); Pub. L. No. 90-416, 82 Stat. 397 (1968); Pub. L. No. 91-147, 83
Stat. 360 (1969); Pub. L. No. 91-555, 84 Stat. 1441 (1970); Pub. L. No.
92-170, 85 Stat. 490 (1971); Pub. L. No. 92-566, 86 Stat. 1181 (1972); Pub.
L. No. 93-573, title I, § 104, 88 Stat. 1873 (1974). In 1976 the Congress
altered the way the term of a copyright is computed so as to conform with
the Berne Convention and with international practice. See H.R. Rep. No.
94-1476, at 135 (1976). Thenceforth the term would be the life of the author
plus 50 years or, where there was no identifiable author, the earlier of
75 years from the year of publication or 100 years from the year of creation.
See Pub. L. No. 94-553 §§ 302-05, 90 Stat. 2541, 2572-76 (1976). The CTEA
amends this scheme by adding 20 years to the term of every copyright.
|||The plaintiffs filed this suit against the Attorney General of the United
States to obtain a declaration that the CTEA is unconstitutional. Among
the plaintiffs are a non-profit association that distributes over the internet
free electronic versions of books in the public domain; a company that reprints
rare, out-of-print books that have entered the public domain; a vendor of
sheet music and a choir director, who respectively sell and purchase music
that is relatively inexpensive because it is in the public domain; and a
company that preserves and restores old films and insofar as such works
are not in the public domain, needs permission from their copyright holders
- who are often hard to find - in order to exploit them.
|||The district court entered judgment on the pleadings in favor of the Government
and dismissed the plaintiffs' case in its entirety. On appeal, the plaintiffs
renew their claims that the CTEA both violates the First Amendment to the
Constitution and is in various ways inconsistent with the Copyright Clause
of Article I, § 8 of the Constitution, which authorizes the Congress: "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
|||The plaintiffs claim that the CTEA is beyond the power of the Congress
and therefore unconstitutional for three reasons: first, the CTEA, in both
its prospective and retrospective applications, fails the intermediate scrutiny
appropriate under the First Amendment; second, in its application to pre-existing
works, the CTEA violates the originality requirement of the Copyright Clause;
and third, in extending the term of subsisting copyrights, the CTEA violates
the "limited Times" requirement of the Copyright Clause - a requirement
that they say is informed by the goal of "promot[ing] the Progress
of Science and useful Arts." Because each of these grounds presents
a pure question of law, we consider them de novo. See, e.g., United States
v. Popa, 187 F.3d 672, 674 (D.C. Cir. 1999).
|||A. First Amendment
|||The First Amendment aspect of the plaintiffs' complaint attacks the CTEA
not only in its application to subsisting copyrights but also insofar as
it extends the terms of copyrights for works yet to be created. The Government
questions plaintiffs' standing to complain in the latter regard.
|||Consider first the plaintiffs' standing with respect to works that, though
now subject to subsisting copyrights, will in due course enter the public
domain: The plaintiffs benefit from using works in the public domain and,
but for the CTEA, they would be able to exploit additional works the copyrights
to which would have expired in the near future. As such, they suffer an
injury in fact that is traceable to the CTEA and that we could redress by
holding the Act invalid. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). The Government concedes as much.
|||In view of the plaintiffs' standing to challenge the CTEA with respect
to works already copyrighted, the Government's objection to the plaintiffs'
standing with respect to works yet to be created seems very weak indeed.
The plaintiffs benefit from works in the public domain and are deprived
of that benefit so long as such works are under copyright. That is as true
for works not yet created as for extant works on which the copyrights are
about to expire; the Government does not draw any meaningful distinction
between the two categories of works. We conclude therefore that the plaintiffs
have standing to pursue their prospective claim under the First Amendment.
|||2. The merits
|||The decisions of the Supreme Court in Harper & Row Publishers Inc.
v. Nation Enters., 471 U.S. 539 (1985), and of this court in United Video,
Inc. v. FCC, 890 F.2d 1173 (1989), stand as insuperable bars to plaintiffs'
first amendment theory. In Harper & Row the Court held that a magazine's
advance publication of excerpts from the memoirs of former President Gerald
Ford infringed the copyright thereon. 471 U.S. at 569. In doing so the Court
explained how the regime of copyright itself respects and adequately safeguards
the freedom of speech protected by the First Amendment.
|||[C]opyright's idea/expression dichotomy "strike[s] a definitional
balance between the First Amendment and the Copyright Act by permitting
free communication of facts while still protecting an author's expression."
No author may copyright his ideas or the facts he narrates. 17 U.S.C. §
102(b). See e.g., 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 as copyright protects only form of expression and not
the ideas expressed). Id. at 556 (citation omitted).
|||The first amendment objection of the magazine was misplaced "[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 latitude for scholarship and comment traditionally afforded
by fair use." Id. at 560.
|||In keeping with this approach, we held in United Video that copyrights
are categorically immune from challenges under the First Amendment. There,
certain cable companies petitioned for review of an FCC regulation providing
that the supplier of a syndicated television program could agree to the
program being broadcast exclusively by a single station in a local broadcast
area. 890 F.2d at 1176-78. We rejected the first amendment aspect of their
challenge as follows:
|||In the present case, the petitioners 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. 890 F.2d at 1191.
|||The plaintiffs argue that "these authorities are restricted solely
to the narrow case where a litigant demands a right to use otherwise legitimately
copyrighted material," which case is "plainly distinct from [this]
First Amendment challenge[ ] to the constitutionality of the statute granting
a [copy]right in the first instance." We think the plaintiffs' purported
distinction is wholly illusory. The relevant question under the First Amendment
- regardless whether it arises as a defense in a suit for copyright infringement
or in an anticipatory challenge to a statute or regulation - is whether
the party has a first amendment interest in a copyrighted work. 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.
|||The plaintiffs cite no case to the contrary. In two of the cases they
do cite, Reno v. ACLU, 521 U.S. 844, 871-79 (1997), and Simon & Schuster,
Inc. v. Members of NY State Crime Victims Bd., 502 U.S. 105, 115-23 (1991),
the Supreme Court held statutes unconstitutional under the First Amendment
because they were unjustifiably content based; the plaintiffs here do not
claim that the CTEA is anything but content neutral. In San Francisco Arts
& Athletics, Inc. v. United States Olympic Committee, also cited by
the plaintiffs, the Court did indeed apply heightened scrutiny under the
First Amendment to a statute granting the United States Olympic Committee
trademark-like protection for the word "Olympic." 483 U.S. 522,
535-41 (1987). Restricting the use of particular words "runs a substantial
risk of suppressing ideas in the process," the Court explained. Id.
at 532. As we have seen, however, copyright protection cannot embrace ideas;
it therefore does not raise the same concern under the First Amendment.
Finally, although the plaintiffs assert that the Second Circuit has reached
the merits of a first amendment challenge to an aspect of the Copyright
Act of 1976, in fact that court, after reviewing the case law, concluded
that the plaintiffs categorically lacked "any right to distribute and
receive material that bears protection of the Copyright Act." Authors
League of America v. Oman, 790 F.2d 220, 223 (1986).
|||As this is all the support plaintiffs muster for their proposition, we
need not linger further in disposing of it. Suffice it to say we reject
their first amendment objection to the CTEA because the plaintiffs lack
any cognizable first amendment right to exploit the copyrighted works of
|||B. Requirement of Originality
|||The plaintiffs' second challenge ostensibly rests upon Feist Publications,
Inc. v. Rural Telephone Service Co., in which the Supreme Court held that
telephone listings compiled in a white pages directory are uncopyrightable
facts: "The sine qua non of copyright is originality." 499 U.S.
340, 345 (1991). "Originality is a constitutional requirement"
for copyright because the terms "Authors" and "Writings,"
as they appear in the Copyright Clause, "presuppose a degree of originality."
Id. at 346.
|||The plaintiffs reason from this that the CTEA cannot extend an extant
copyright because the copyrighted work already exists and therefore lacks
originality. Not so. Originality is what made the work copyrightable in
the first place. A work with a subsisting copyright has already satisfied
the requirement of originality and need not do so anew for its copyright
to persist. If the Congress could not extend a subsisting copyright for
want of originality, it is hard to see how it could provide for a copyright
to be renewed at the expiration of its initial term - a practice dating
back to 1790 and not questioned even by the plaintiffs today.
|||The plaintiffs' underlying point seems to be that there is something special
about extending a copyright beyond the combined initial and renewal terms
for which it was initially slated. Nothing in Feist or in the requirement
of originality supports this, however: All they tell us is that facts, like
ideas, are outside the ambit of copyright. Undaunted in trying to advance
their novel notion of originality, the plaintiffs point to cases that do
not address the requirement of originality for copyright per se. They point
to no case or commentary, however, that calls into question the distinction
between a new grant of copyright - as to which originality is an issue -
and the extension of an existing grant. That distinction reflects, at bottom,
the difference between the constitutionally delimited subject matter of
copyright and the Congress's exercise of its copyright authority with respect
to that subject matter.
|||The plaintiffs do point out that the Supreme Court has said the "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." Graham v. John Deere Co., 383 U.S. 1, 6 (1966).
The Court similarly stated, over a century ago, that the issuance of a trademark
could not be justified under the Copyright Clause because the subject matter
of trademark is "the adoption of something already in existence."
Trademark Cases, 100 U.S. 82, 94 (1879). Applied mutatis mutandis to the
subject of copyright, these teachings would indeed preclude the Congress
from authorizing under that Clause a copyright to a work already in the
|||The plaintiffs read the Court's guidance more broadly, in the light of
Feist, to mean that a work in the public domain lacks the originality required
to qualify for a copyright. That is certainly not inconsistent with the
Court's opinion: A work in the public domain is, by definition, without
a copyright; where the grant of a copyright is at issue, so too is the work's
eligibility for copyright, and thus the requirement of originality comes
into play. We need not adopt a particular view on that point, however, as
it has nothing to do with this case. Here we ask not whether any work is
copyrightable -indeed, the relevant works are already copyrighted - but
only whether a copyright may by statute be continued in force beyond the
renewal term specified by law when the copyright was first granted. For
the plaintiffs to prevail, therefore, they will need something other than
the requirement of originality upon which to make their stand.
|||C. The Limitation of "limited Times"
|||We come now to the plaintiffs' contention that the CTEA violates the constitutional
requirement that copyrights endure only for "limited Times." This
claim at last speaks to the duration rather than to the subject matter of
a copyright: If the Congress were to make copyright protection permanent,
then it surely would exceed the power conferred upon it by the Copyright
|||The present plaintiffs want a limit well short of the rule against perpetuities,
of course. And they claim to have found it - or at least a bar to extending
the life of a subsisting copyright - in the preamble of the Copyright Clause:
"The Congress shall have power ... To promote the Progress of Science
and useful Arts...." Their idea is that the phrase "limited Times"
should be interpreted not literally but rather as reaching only as far as
is justified by the preambular statement of purpose: If 50 years are enough
to "promote ... Progress," then a grant of 70 years is unconstitutional.
Here the plaintiffs run squarely up against our holding in Schnapper v.
Foley, 667 F.2d 102, 112 (1981), in which we rejected the argument "that
the introductory language of the Copyright Clause constitutes a limit on
congressional power." The plaintiffs, however, disclaim any purpose
to question the holding of Schnapper; indeed, they expressly acknowledge
"that the preamble of the Copyright Clause is not a substantive limit
on Congress' legislative power." Their argument is simply that "the
Supreme Court has interpreted the terms 'Authors' and 'Writings' in light
of that preamble, and that this Court should do the same with 'limited Times.'
|||The problems with this argument are manifest. First, one cannot concede
that the preamble "is not a substantive limit" and yet maintain
that it limits the permissible duration of a copyright more strictly than
does the textual requirement that it be for a "limited Time."
Second, although the plaintiffs claim that Feist supports using the preamble
to interpret the rest of the Clause, the Court in Feist never suggests that
the preamble informs its interpretation of the substantive grant of power
to the Congress (which there turned upon the meaning of "Authors"
and of "Writings," each standing alone). 499 U.S. at 345-47. Similarly,
the Trade-Mark Cases cited in Feist rest upon the originality implied by
"invention [and] discovery" and by the "writings of authors,"
and make no reference at all to the preamble. 100 U.S. at 93-94.
|||III. The Dissent
|||The foregoing suffices to dispose of plaintiffs' arguments - as Judge
Sentelle, dissenting, implicitly recognizes - and hence to resolve this
case. Our dissenting colleague nonetheless adopts the narrow view of Schnapper
urged by an amicus, although that argument is rejected by the actual parties
to this case and therefore is not properly before us. See, e.g, 16A Charles
Alan Wright et al., Federal Practice and Procedure § 3975.1 & n.3 (3d
ed. 1999); Resident Council of Allen Parkway Vill. v. HUD, 980 F.2d 1043,
1049 (5th Cir. 1993) (amicus constrained "by the rule that [it] generally
cannot expand the scope of an appeal to implicate issues that have not been
presented by the parties to the appeal"); cf. Lamprecht v. FCC, 958
F.2d 382, 389 (D.C. Cir. 1992) (intervenor as nonparty "cannot expand
the proceedings" or "enlarge those issues presented"). This
is particularly inappropriate because a court should avoid, not seek out,
a constitutional issue the resolution of which is not essential to the disposition
of the case before it. Moreover, because the plaintiffs conspicuously failed
to adopt the argument of the amicus, the Government was not alerted to any
need to argue this point and did not do so. See Harmon v. Thornburgh, 878
F.2d 484, 494 (D.C. Cir. 1989) (court must "avoid unnecessary or premature
constitutional rulings" and this concern "is heightened by the
absence of meaningful argument by the parties on [constitutional] question");
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis,
J., concurring) ("Court will not 'anticipate a question of constitutional
law in advance of the necessity of deciding it' ").
|||Even were we to proceed as urged by the amicus and the dissent, however,
we would only review the CTEA as we would any other exercise of a power
enumerated in Article I. That is we would ask, following McCulloch v. Maryland,
17 U.S. 316, 421 (1819), whether the CTEA is a "necessary and proper"
exercise of the power conferred upon the Congress by the Copyright Clause;
assuming Judge Sentelle is correct and Schnapper is wrong about the relationship
of the preamble to the rest of that Clause, this would require that the
CTEA be an "appropriate" means, and "plainly adapted"
to the end prescribed in the preamble, "promot[ing] Progress of Science
and useful Arts." The Congress found that extending the duration of
copyrights on existing works would, among other things, give copyright holders
an incentive to preserve older works, particularly motion pictures in need
of restoration. See S. Rep. No. 104-315, at 12 (1996). If called upon to
do so, therefore, we might well hold that the application of the CTEA to
subsisting copyrights is "plainly adapted" and "appropriate"
to "promot[ing] progress." See Ladd v. Law & Technology Press,
762 F.2d 809, 812 (9th Cir. 1985) (upholding the deposit requirement of
the Copyright Act of 1976 as "necessary and proper" because the
purpose was "to enforce contributions of desirable books to the Library
|||Judge Sentelle concludes otherwise only because he sees a categorical
distinction between extending the term of a subsisting copyright and extending
that of a prospective copyright. This distinction is not to be found in
the Constitution itself, however. The dissent identifies nothing in text
or in history that suggests that a term of years for a copyright is not
a "limited Time" if it may later be extended for another "limited
Time." Instead, the dissent suggests that the Congress - or rather,
many successive Congresses - might in effect confer a perpetual copyright
by stringing together an unlimited number of "limited Times,"
although that clearly is not the situation before us. The temporal thrust
of the CTEA is a good deal more modest: The Act matches United States copyrights
to the terms of copyrights granted by the European Union, see Council Directive
93/98, art. 7, 1993 O.J. (L 290) 9; in an era of multinational publishers
and instantaneous electronic transmission, harmonization in this regard
has obvious practical benefits for the exploitation of copyrights. This
is a powerful indication that the CTEA is a "necessary and proper"
measure to meet contemporary circumstances rather than a step on the way
to making copyrights perpetual; the force of that evidence is hardly diminished
because, as the dissent correctly points out, the EU is not bound by the
Copyright Clause of our Constitution. As for the dissent's objection that
extending a subsisting copyright does nothing to "promote Progress,"
we think that implies a rather crabbed view of progress: Preserving access
to works that would otherwise disappear - not enter the public domain but
disappear - "promotes Progress" as surely as does stimulating
the creation of new works.
|||The position of our dissenting colleague is made all the more difficult
because the First Congress made the Copyright Act of 1790 applicable to
subsisting copyrights arising under the copyright laws of the several states.
See Act of May 31, 1790, §§ 1 and 3, 1 Stat. 124-25.*fn1
The construction of the Constitution "by [those] contemporary with
its formation, many of whom were members of the convention which framed
it, is of itself entitled to very great weight, and when it is remembered
that the rights thus established have not been disputed [for this long],
it is almost conclusive." Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53, 57 (1884). The plaintiffs, recognizing the import of this "almost
conclusive" point for their own theory, try to avoid it with the suggestion
that application of the Act of 1790 to subsisting copyrights "is fully
understandable under a Supremacy Clause analysis" in that it "clarif[ied]
which law (state or federal) would govern th[o]se copyrights." But
that will not do: A federal law is not valid, let alone supreme, if it is
not first an exercise of an enumerated power. And the First Congress was
clearly secure in its power under the Copyright Clause to extend the terms
of subsisting copyrights beyond those granted by the States.
|||Such guidance as the Supreme Court has given further confirms us in this
view of the matter. The Court has made plain that the same Clause permits
the Congress to amplify the terms of an existing patent. As early as 1843
it established that the status of a particular invention and its protections
|||must depend on the law as it stood at the emanation of the patent, together
with such changes as have been since made; for though they may be retrospective
in their operation, that is not a sound objection to their validity; the
powers of Congress to legislate upon the subject of patents is plenary by
the terms of the Constitution, and as there are no restraints on its exercise,
there can be no limitation of their right to modify them at their pleasure,
so that they do not take away the rights of property in existing patents.
McClurg v. Kingsland, 42 U.S. 202, 206.
|||Within the realm of copyright, the Court has to the present era been similarly
deferential to the judgment of the Congress. "As the text of the Constitution
makes plain, it is Congress that has been assigned the task of defining
the scope of the limited monopoly that should be granted to authors or to
inventors in order to give the appropriate public access to their work product;"
that "task involves a difficult balance between [competing interests]"
as reflected in the frequent modifications of the relevant statutes. Sony
Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). And still
more recently: "Th[e] evolution of the duration of copyright protection
tellingly illustrates the difficulties Congress faces [in exercising its
copyright power].... [I]t is not our role to alter the delicate balance
Congress has labored to achieve." Stewart v. Abend, 495 U.S. 207, 230
|||In sum, we hold that the CTEA is a proper exercise of the Congress's power
under the Copyright Clause. The plaintiffs' first amendment objection fails
because they have no cognizable first amendment interest in the copyrighted
works of others. Their objection that extending the term of a subsisting
copyright violates the requirement of originality misses the mark because
originality is by its nature a threshold inquiry relevant to copyrightability,
not a continuing concern relevant to the authority of the Congress to extend
the term of a copyright.
|||Whatever wisdom or folly the plaintiffs may see in the particular "limited
Times" for which the Congress has set the duration of copyrights, that
decision is subject to judicial review only for rationality. This is no
less true when the Congress modifies the term of an existing copyright than
when it sets the term initially, and the plaintiffs - as opposed to one
of the amici - do not dispute that the CTEA satisfies this standard of review.
The question whether the preamble of the Copyright Clause bars the extension
of subsisting copyrights - a question to which the analysis in Schnapper
seems to require a negative answer - may be revisited only by the court
sitting en banc in a future case in which a party to the litigation argues
|||For the foregoing reasons, the decision of the district court is
|||Sentelle, Circuit Judge, dissenting in part: While I concur with much
of the majority's opinion, insofar as it holds constitutional the twenty-year
or more extension of copyright protection for existing works, I dissent.
This issue calls upon us to consider the scope of one of the clauses granting
enumerated powers to Congress, specifically, Art. I, § 8, cl. 8:
|||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....
|||In ascertaining the breadth of an enumerated power, I would follow the
lead of the United States Supreme Court in United States v. Lopez, 514 U.S.
549, 552 (1995), and "start with first principles." The governing
first principle in Lopez and in the matter before us is that "[t]he
Constitution creates a Federal Government of enumerated powers." 514
U.S. at 552 (citing Art. I, § 8). The Framers of the Constitution adopted
the system of limited central government "to ensure the protection
of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458
(1991) (internal quotations and citations omitted). The Lopez decision,
considering the validity of the socalled Gun-Free School Zones Act, reminded
us that "congressional power under the Commerce Clause ... is subject
to outer limits." 514 U.S. at 556-57; see also United States v. Morrison,
120 S. Ct. 1740, 1748-49 (2000).
|||It would seem to me apparent that this concept of "outer limits"
to enumerated powers applies not only to the Commerce Clause but to all
the enumerated powers, including the Copyright Clause, which we consider
today. In determining whether the legislation before it in such cases as
Lopez exceeded the outer limit of the authority granted under the Commerce
Clause, the Lopez Court laid out a precise outline concededly not applicable
by its terms to the construction of other clauses, but I think most useful
in conducting the same sort of examination of the outer limits of any enumerated
power. As a part of that analysis, the Court examined the extension of congressional
authority to areas beyond the core of the enumerated power with a goal of
determining whether the rationale offered in support of such an extension
has any stopping point or whether it would lead to the regulation of all
human activity. See 514 U.S. at 564 ("Thus, if we were to accept the
Government's arguments, we are hard pressed to posit any activity by an
individual that Congress is without power to regulate."). I fear that
the rationale offered by the government for the copyright extension, as
accepted by the district court and the majority, leads to such an unlimited
view of the copyright power as the Supreme Court rejected with reference
to the Commerce Clause in Lopez.
|||What then do I see as the appropriate standard for limiting that power?
Again, the Lopez decision gives us guidance as to the application of first
principles to the determination of the limits of an enumerated power. Citing
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-190 (1824), the Lopez Court
acknowledged "that limitations on the commerce power are inherent in
the very language of the Commerce Clause." 514 U.S. at 553. Just so
with the Copyright Clause. What does the clause empower the Congress to
|||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
|||That clause empowers the Congress to do one thing, and one thing only.
That one thing is "to promote the progress of science and useful arts."
How may Congress do that? "By securing for limited times to authors
and inventors the exclusive right to their respective writings and discoveries."
The clause is not an open grant of power to secure exclusive rights. It
is a grant of a power to promote progress. The means by which that power
is to be exercised is certainly the granting of exclusive rights-not an
elastic and open-ended use of that means, but only a securing for limited
times. See Stewart v. Abend, 495 U.S. 207, 228 (1990) ("The copyright
term is limited so that the public will not be permanently deprived of the
fruits of an artist's labors."). The majority acknowledges that "[i]f
the Congress were to make copyright protection permanent, then it surely
would exceed the power conferred upon it by the Copyright Clause."
Maj. Op. at 10. However, there is no apparent substantive distinction between
permanent protection and permanently available authority to extend originally
limited protection. The Congress that can extend the protection of an existing
work from 100 years to 120 years; can extend that protection from 120 years
to 140; and from 140 to 200; and from 200 to 300; and in effect can accomplish
precisely what the majority admits it cannot do directly. This, in my view,
exceeds the proper understanding of enumerated powers reflected in the Lopez
principle of requiring some definable stopping point.
|||Returning to the language of the clause itself, it is impossible that
the Framers of the Constitution contemplated permanent protection, either
directly obtained or attained through the guise of progressive extension
of existing copyrights. The power granted by the clause again is the power
"to promote the progress of science and useful arts." As stated
above, Congress is empowered to accomplish this by securing for limited
times exclusive rights. Extending existing copyrights is not promoting useful
arts, nor is it securing exclusivity for a limited time.
|||The government has offered no tenable theory as to how retrospective extension
can promote the useful arts. As the Supreme Court noted in Lopez and again
in United States v. Morrison, that Congress concluded a given piece of legislation
serves a constitutional purpose "does not necessarily make it so."
Lopez, 514 U.S. at 557 n.2 (internal quotes omitted); Morrison, 120 S. Ct.
at 1752. Pressed at oral argument, counsel for the government referred to
keeping the promise made in the original grant of exclusivity for a limited
time. The easy answer to this assertion is that Congress is not empowered
to "make or keep promises" but only to do those things enumerated
in Article I. The second problem with the government's assertion is that
Congress made no promise to commit such an extension but only to secure
the exclusive rights for the original limited period. Thirdly, the means
employed by Congress here are not the securing of the exclusive rights for
a limited period, but rather are a different animal altogether: the extension
of exclusivity previously secured. This is not within the means authorized
by the Copyright Clause, and it is not constitutional.
|||The majority responds to this problem of the statute's exceeding the constitutional
grant by reliance on Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981),
"in which we rejected the argument 'that the introductory language
of the Copyright Clause constitutes a limit on congressional power.' "
Maj. Op. at 10 (quoting 667 F.2d at 112). I will concede that it does not
matter if I disagree with the language of Schnapper (which in fact I do)
as it is our Circuit precedent and we are bound by its holding unless and
until that holding is changed by this court en banc or by the higher authority
of the Supreme Court. See, e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395
(D.C. Cir. 1996) (en banc) ("One three-judge panel ... does not have
the authority to overrule another three-judge panel of the court. That power
may be exercised only by the full court."(citations omitted)); United
States v. Kolter, 71 F.3d 425, 431 (D.C. Cir. 1995) ("This panel would
be bound by [a prior] decision even if we did not agree with it.").
|||Therefore, it is immaterial that the prior opinion is, in my view, erroneous
in styling the granting clause of the sentence as merely introductory when
in fact it is the definition of the power bestowed by that clause. Thus,
unless and until this precedent is wiped away, if Schnapper has held that
we may not look to the language of this phrase to determine the limitations
of the clause then I must concede that we are bound by that holding and
join the majority's result. However, it does not appear to me that this
is the holding of Schnapper. The Schnapper Court dealt with limited questions
related to the application of the copyright laws to works commissioned by
the U.S. government. In answering those questions, the Schnapper Court held
that "Congress need not 'require that each copyrighted work be shown
to promote the useful arts.' " 667 F.2d at 112 (quoting Mitchell Bros.
Film Group v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979)).
It was in that context that the Schnapper Court employed the wording relied
upon by the majority concerning the "introductory language" of
the Copyright Clause. Insofar as that wording is taken to be anything more
than the determination concerning that limited analysis, it is not a holding
but simply dicta (perhaps obiter dicta) and not binding on future panels.
|||Rather, the Schnapper analysis again takes us back to the Lopez approach
to judicial interpretation of the enumerated powers clauses. In Lopez, one
of the means employed to determine the constitutionality of extended application
of the Commerce Clause is an elemental inquiry into whether in each case
the purportedly regulated action "in question affects interstate commerce."
514 U.S. at 561. However, the jurisdictional element is not necessary under
Lopez analysis of Commerce Clause regulation where Congress is directly
regulating "the use of the channels of interstate commerce" or
"persons or things in interstate commerce." Id. at 558. Similarly,
I suggest that in analyzing the extent of congressional power under the
Copyright Clause, the Schnapper holding that each individual application
of copyright protection need not promote the progress of science and the
useful arts does not mean that Congress's power is otherwise unlimited,
anymore than the lack of a necessity for case-by-case analysis of the effect
on interstate commerce validates anything Congress may wish to do under
the rubric of the Commerce Clause. Though, under Schnapper, we may not require
that each use of a copyright protection promote science and the arts, we
can require that the exercise of power under which those applications occur
meet the langauge of the clause which grants the Congress the power to enact
the statute in the first place. This the extension does not do. It is not
within the enumerated power.
|||The majority suggests that my reading of Schnapper is somehow foreclosed
by the fact that it accepts the argument of an amicus. See Maj. Op. at 11
(citing 16A Charles Alan Wright et al., Federal Practice and Procedure §
3975.1 & n.3 (3d ed. 1999); Resident Council of Allen Parkway Vill.
v. HUD, 980 F.2d 1043, 1049 (5th Cir. 1993)). The disposition I suggest
would offend nothing in either Professor Wright's treatise or the cases
aligned with it. Neither I nor the amicus raise any issue not raised by
the parties to the case, nor disposed of by a majority of the court. Appellants
raise the issue "whether ... the Copyright Clause of the Constitution
of the United States constrains the Congress from extending for a period
of years the duration of copyrights, both those already extant and those
yet to come." Maj. Op. at 2 (emphasis added). The majority addresses
that issue and holds against the appellant. Maj. Op. at 15 ("we hold
that the CTEA is a proper exercise of the Congress's power under the Copyright
Clause"). That the amicus argues more convincingly in appellants' favor
on the issue raised by the appellants than they do themselves is no reason
to reject the argument of the amicus. Indeed, our Circuit Rules provide
that an amicus brief "must avoid repetition of facts or legal arguments
made in the principal (appellant/petitioner or appellee/respondent) brief
and focus on points not made or adequately elaborated upon in the principal
brief, although relevant to the issues before this court." Circuit
Rule 29. Obviously that is precisely what the amicus has done in this case.
|||Resident Council of Allen Parkway Village, relied on by the majority,
highlights this difference between introducing issues not raised by the
parties on the one hand and making new arguments for issues otherwise properly
raised on the other. As the Fifth Circuit noted in that case, "[w]e
are constrained only by the rule that an amicus curiae generally cannot
expand the scope of an appeal to implicate issues that have not been presented
by the parties to the appeal." 980 F.2d at 1049 (emphasis added).
|||Our Circuit Rule and the Fifth Circuit are in good company in allowing
amici to make additional arguments that address issues which the parties
have raised but not argued in the same fashion. The Supreme Court has approved
precisely that approach. In Teague v. Lane, 489 U.S. 288 (1989), that Court
considered a question of retroactivity as to a fair cross-section jury venire
in a case also raising a claim under Batson v. Kentucky, 476 U.S. 79 (1986).
The Court noted that "[t]he question of retroactivity with regard to
petitioner's fair cross section claim has been raised only in an amicus
brief." 489 U.S. at 300. Noting that the "question is not foreign
to the parties, who have addressed retroactivity with respect to petitioner's
Batson claim," id., the Court proceeded to address the merits of the
|||Nor are we constrained by the parties' apparent agreement as to the state
of the law under Schnapper. The Supreme Court has made it clear that we
cannot be bound by stipulations of law between the parties, where there
is "a real case and controversy extending to that issue." United
States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,
446 (1993). As the High Court put it, " '[w]hen an issue or claim is
properly before the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent power
to identify and apply the proper construction of governing law.' "
Id. (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).
|||I find two other arguments the majority invokes against my dissent unpersuasive.
The enactment by the first Congress in 1790 regularizing the state of copyright
law with respect to works protected by state acts pre-existing the Constitution
appears to me to be sui generis. Necessarily, something had to be done to
begin the operation of federal law under the new federal Constitution. The
Act of May 31, 1790, 1 Stat. 124, created the first (and for many decades
only) federal copyright protection; it did not extend subsisting federal
copyrights enacted pursuant to the Constitution. Cf. Wheaton v. Peters,
33 U.S. (8 Pet.) 591, 661 (1834) ("Congress, then, by this [copyright]
act, instead of sanctioning an existing right, as contended for, created
it."). The fact that the CTEA "matches United States copyrights
to the terms of copyrights granted by the European Union," Maj. Op.
at 13 (citing Council Directive 93/98, art. 7, 1993 O.J. (L 290) 9), is
immaterial to the question. Neither the European Union nor its constituent
nation states are bound by the Constitution of the United States. That Union
may have all sorts of laws about copyrights or any other subject which are
beyond the power of our constitutionally defined central government.
|||Therefore, I respectfully dissent.
|||*fn1 Indeed, each of the four later
Congresses that extended the terms of copyrights followed suit in doing
so for subsisting as well as prospective copyrights. See Act of Feb. 3,
1831 § 1, 4 Stat. 436-39; Act of March 4, 1909 § 23, 35 Stat. 1075-88; Pub.
L. No. 94-553 § 301, 90 Stat. 2541-2602 (1976); Pub. L. No. 105-298, 112
Stat. 2827 (2000).
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