Eldred, Eric v. Reno, Janet

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2000 Decided February 16, 2001

No. 99-5430

Eric Eldred, et al.,

Appellants

v.

Janet Reno,

In her official capacity as Attorney General,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 99cv00065)

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 Sher-

wood Anderson Literary Estate Trust, et al.

Before: Ginsburg, Sentelle, and Henderson, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Separate opinion dissenting in part filed by Circuit Judge

Sentelle.

Ginsburg, Circuit Judge: The plaintiffs in this case, corpo-

rations, associations, and individuals who rely for their voca-

tions or avocations upon works in the public domain, chal-

lenge 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 copy-

rights, both those already extant and those yet to come. We

hold that neither does.

I. Background

The CTEA amends various provisions of the Copyright Act

of 1976, 17 U.S.C. s 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 s 102(b)(1), 112 Stat. 2827; 17 U.S.C. s 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 s 102(b)(3), 112 Stat. 2827; 17 U.S.C.

s 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 s 102(d), 112 Stat.

2827; 17 U.S.C. s 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 s 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 s 1, 4 Stat. 436, 436. So the term

remained until 1909, when the Congress extended the renew-

al term as well to 28 years, making for a combined term of 56

years. See Act of March 4, 1909 s 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, s 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 ss 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 asso-

ciation that distributes over the internet free electronic ver-

sions 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 hold-

ers -- 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 Consti-

tution and is in various ways inconsistent with the Copyright

Clause of Article I, s 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 and

Discoveries."

II. Analysis

The plaintiffs claim that the CTEA is beyond the power of

the Congress and therefore unconstitutional for three rea-

sons: first, the CTEA, in both its prospective and retrospec-

tive applications, fails the intermediate scrutiny appropriate

under the First Amendment; second, in its application to

preexisting works, the CTEA violates the originality require-

ment 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 require-

ment 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 copy-

rights for works yet to be created. The Government ques-

tions plaintiffs' standing to complain in the latter regard.

1. Standing

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 theo-

ry. 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 defi-

nitional 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. s 102(b). See e.g., New York Times Co. v. United

States, 403 U.S. 713, 726, n. (1971) (Brennan, J., concur-

ring) (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 Amend-

ment protections already embodied in the Copyright Act's

distinction between copyrightable expression and uncopy-

rightable 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 copy-

right 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 distinc-

tion 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 obvi-

ates 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 Amend-

ment 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 amend-

ment 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 proposi-

tion, 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 others.

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. Origi-

nality 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 plain-

tiffs 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." Trade-

mark Cases, 100 U.S. 82, 94 (1879). Applied mutatis mutan-

dis 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 public domain.

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 originali-

ty 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 require-

ment 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 Clause.

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 substan-

tive 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 plain-

tiffs claim that Feist supports using the preamble to interpret

the rest of the Clause, the Court in Feist never so much as

mentions the preamble, let alone suggests that the preamble

informs its interpretation of the substantive grant of power to

the Congress (which there turned upon the meaning of "Au-

thors" 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' argu-

ments -- as Judge Sentelle, dissenting, implicitly recog-

nizes -- 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 s 3975.1 & n.3 (3d ed. 1999); Resi-

dent 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 proceed-

ings" or "enlarge those issues presented"). This is particu-

larly 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 argu-

ment 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"); Ash-

wander 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 pream-

ble 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 extend-

ing 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 applica-

tion 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 of

Congress").

Judge Sentelle concludes otherwise only because he sees a

categorical distinction between extending the term of a sub-

sisting copyright and extending that of a prospective copy-

right. 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 Con-

gress -- 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 instanta-

neous electronic transmission, harmonization in this regard

has obvious practical benefits for the exploitation of copy-

rights. This is a powerful indication that the CTEA is a

"necessary and proper" measure to meet contemporary cir-

cumstances rather than a step on the way to making copy-

rights perpetual; the force of that evidence is hardly diminish-

ed 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 do-

main 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 Copy-

right Act of 1790 applicable to subsisting copyrights arising

under the copyright laws of the several states. See Act of

May 31, 1790, ss 1 and 3, 1 Stat. 124-25.* The construction

of the Constitution "by [those] contemporary with its forma-

tion, 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." Bur-

row-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884).

__________

* 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 s 1, 4 Stat. 436-

39; Act of March 4, 1909 s 23, 35 Stat. 1075-88; Pub. L. No.

94-553 s 301, 90 Stat. 2541-2602 (1976); Pub. L. No. 105-298, 112

Stat. 2827 (2000).

The plaintiffs, recognizing the import of this "almost conclu-

sive" 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 estab-

lished that the status of a particular invention and its protec-

tions

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 Consti-

tution, 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 Con-

gress. "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 copy-

right 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 (1990).

IV. Conclusion:

In sum, we hold that the CTEA is a proper exercise of the

Congress's power under the Copyright Clause. The plain-

tiffs' 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 thresh-

old 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 the point.

For the foregoing reasons, the decision of the district court

is

Affirmed.

Sentelle, Circuit Judge, dissenting in part: While I con-

cur 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, s 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, s 8). The Framers of the Constitution adopted the

system of limited central government "to ensure the protec-

tion of our fundamental liberties." Gregory v. Ashcroft, 501

U.S. 452, 458 (1991) (internal quotations and citations omit-

ted). The Lopez decision, considering the validity of the so-

called Gun-Free School Zones Act, reminded us that "con-

gressional 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 Com-

merce 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 ac-

knowledged "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 do?

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 discover-

ies....

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 exclu-

sive 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 be-

tween permanent protection and permanently available au-

thority 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 impossi-

ble that the Framers of the Constitution contemplated perma-

nent 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 copy-

rights is not promoting useful arts, nor is it securing exclusiv-

ity 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 legisla-

tion 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 constitution-

al.

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 Copy-

right 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 Schnap-

per (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. Howev-

er, it does not appear to me that this is the holding of

Schnapper. The Schnapper Court dealt with limited ques-

tions 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. Inso-

far 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 bind-

ing 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 af-

fects 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 congres-

sional power under the Copyright Clause, the Schnapper

holding that each individual application of copyright protec-

tion need not promote the progress of science and the useful

arts does not mean that Congress's power is otherwise unlim-

ited, anymore than the lack of a necessity for case-by-case

analysis of the effect on interstate commerce validates any-

thing 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 lan-

guage 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 s 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 Constitu-

tion 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 ad-

dress the merits of the argument.

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 stipula-

tions 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 Con-

gress in 1790 regularizing the state of copyright law with

respect to works protected by state acts preexisting 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 subsist-

ing 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 sanction-

ing 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.