Amicus Curiae Brief — Eldred v. Ashcroft

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

Count, U.S

FILED

No.01-618 ~~ MAY 20 2002

OFFICE CLERK

IN THE =

Supreme Court of the United States

ERIC ELDRED, et al..

Petitioners,

Vv.

JOHN D. ASHCROFT,

in his official capacity as Attorney General,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF HAL ROACH STUDIOS &

MICHAEL AGEE AS AMICI CURIAE

SUPPORTING PETITIONERS

H. JEFFERSON POWELL *

DAVID LANGE

DUKE UNIVERSITY SCHOOL OF LAW

Science and Towerview

Durham, NC 27708

919 613 7098

* Counsel of Record Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

sy »

CONTENTS

ED phe 6 bere cdencescdnnwesdbocecsccendl

Pe CIEE cc cedunccccccacvcscscconescscde

ED ov uvcdvnecvéccsecesctvéccccce SB

SUMMARY OF ARGUMENT: “A POSTERITY THAT NEVER

SEY cnvenusninacdesvecctentansavesises ©

The Copyright Clause imposes limits on Congress's

power to create exclusive rights. Those rights must

be for limited times and must promote the progress

of science. The CTEA’s retrospective term

extension is outside of those limits and is therefore

SED sv cvcdiesvcvenccsecessccccncesss

A. The only congressional justification for

retrospective term extension that is potentially

relevant to “promot{ing] the Progress” is the

film preservation rationale...................4

B. The film preservation rationale is logically and

1. Giving incentives for film preservation

through retrospective term extension is not

within the ambit of Congress’s power to

promote the progress of science by

encouraging the creation of original works . 6

2. The argument that the CTEA is justified by

the need to encourage digitization and

“media migration” is an argument without a

il ili

aaniling p incite and Gus tiles in the facect A. The CTEA is subject to First Amendment

this Court's recent holdings............... 8 heightened scrutiny that its retrospective

ion is i Oe 2

3. Even if term extension did inspire film portion is incapable of meeting 4

pecssevation, Gils would not be sufficient 1. The important government interest used to

reason retrospectively to extend the justify the CTEA’s retrospective extension

extension of subsisting copyrights. The only

| “interest” which has any potential to meet

C. The CTEA actually impedes public access to

our film heritage and hurts film preservation,

restoration and digitization ................. 10 both of these criteria is the film preservation

i SERS rrer Ter eT TT TTT Ty 25

1. Copyright term extension does not promote sationale

—_ dorentwcereen or neens aren | 2. Retrospective tefm extension of all

preservationists' incentives and limits public copyrights is more restrictive than necessary

COUR EP Ts + vccccdevessuvocesesueuns 10 | to secure the asserted goal of film

| Lei seca cancdekeannnens 26

2. Copyright term extension undeniably deters ——

or impedes preservation of the numerical | EE ee 28

majority of deteriorating films, the “orphan”

WE wa ccccceuevecdecscaavevéesesesne 14

3. The CTEA’s term extension does not

effectively spur restoration or digitization for

the remaining minority of American films. 18

4. The CTEA effectively undermines the

deposit requirements of the Copyright Act. 21

5. The Congressional findings cannot sustain

GO I oo opi veccdaviecescccswecec 23

Il. The retrospective portion of the CTEA violates the

Pee RUNGE, o.oo vcccavedesevecsedeeseuaus 24

TABLE OF AUTHORITIES

Cases: Page

Eldred v. Reno, 239 F.3d 372 (D.C. Cir.2001) ......... 6, 29

Feist Publications, Inc. v. Rural Telephone Service Co., 449 U.S.

DEE db nedtnsnedaddeacbabenheuavececendads 7

Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) ........... 10

Graham v. John Deere Co. of Kan. City, 383 U.S. 1

re er Or ee 4,6,7

Harper & Row v. Nation Enter., 471 U.S. 539 (1985) ... 3, 27

Hodel v. Virgina. Surface Min. and Reclamation Ass‘n, Inc.,

Se ED 6 4kd 5 da denedncsucecaiecedess 23

Moore v. Ogilvie, 393 U.S. 814 (1969) .... 2... e eee 9

Transamerica Corporation v. United States, 902 F.2d 1540

CUED cnnecesedsdcudecsdsceccsasesces 12

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 662 (1994)

peeesesenesepeesesstocsseuecesasesecieacses 25, 26

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)

PeSAeHOOeDCEheeeheerénecsdenesenceeneceeues 10, 17

United States v. Lopez, 514 U.S. 549 (1995) ........... 9, 23

United States v. Morrison, 529 U.S. 598 (2000)... .. . 4, 9, 23

United States v. O’Brien, 391 U.S. 367 (1968) ........ 25, 26

Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir.

SEED Ke neneddindacddecsdensucacuassiénbenseuseens 25

Ward v. Rock Against Racism, 491 U.S. 781 (1989)... .... 26

Statutes and Congressional Materials:

UD. Comet. apt. £ OG, 60. B... oc cccccccccccccccces passim

144 Cong. Rec. H9952 (1998)... . 2... cee eee 8

te go ee i]

gE ERSTE RES eee oma 13, 22

a i a re 21

PD, cncnnctdcucndisnncseudendesss 27

Before the Senate Judiciary Comm., 104th Cong. (1995) 5

TABLE OF AUTHORITIES

(continued)

Legislation: Hearing on H.R. 989 Before the Subcomm. on

Courts and Intellectual Property, House Comm. on the

Judiciary, 104th Cong. (1995)... ..... 6. eee eee 5

IV Report of the Librarian of Congress, Film Preservation

1993: Submissions 62 (1993) .......... 6.66 ee ees 19

National Film Preservation Act of 1996, 2 U.S.C. §1791

SN jcuctidacuiaesheuscentuntenresnanebans 27

Pre-1978 Distribution of Recordings Containing Musical —

Compositions, Copyright Term Extension, and Copyright

Per Program Licenses: Hearings Before the Subcomm. on

Courts and Intellectual Property, House Comm. on the

Judiciary, 105th Cong. (1997)... .... eee ee eee 5

Report of the Librarian of Congress, Film Preservation

1993: A Study of the Current State of American Film

Preservation, 16 (June 1993) ..............5-. passim

S. Rep. No. 315, at 13, 104th Cong. 2d Sess. (1996)... 5, 23

Sonny Bono Copyright Term Extension Act, Pub. L. No.

105-298, 112 Stat. 2827 (1998) .............5.- passim

Miscellaneous:

Michael Friend, Film/Digital/Film, 24 J. Film daseevenn *)

GITTED on cccccccccccccccccsccsccvcccceccossess

Doug Herrick, Toward a National Film Collection: Motion

Pictures and the Library of Congress, 13 Film Library

Quarterly 5 (1980)... ......-- 66. ee eee eee 11, 13, 20

Internet Movie Database’s Advanced Search Page at

http:/ /us.imdb.com/list.......... 6... .600+++55 18

Footage 89: North American Film and Video Sources, New

York: Prelinger Associates, 1989, excerpted at

http:/ /Icweb.loc.gov/rr/mopic/mpcoll.html .... 18

Glen Myrent & G.P. Langlois, Henri Langlois:

First Citizen of Cinema (1995) .........- 6600 eee ees 13

TABLE OF AUTHORITIES

(continued)

Glen Myrent, Ma vie d’architecte paysagiste: entretien avec la

conservateur de la George Eastman House, 19

Cinémathéque 3 (Spring 2001) .................. 13

Charles Grimm, A History of Early Nitrate Testing and

Storage, 1910-1945, The Moving Image 21 (2001) .. 11

L. Ray Patterson, Eldred v. Reno: an Example of the Law of

Unintended Consequences, 8 J. Intell. Prop. L. 223 (2001)

David Pierce, The Legion of the Condemned: Why American

Silent Films Perished, 9 Film History5, 9 (1997)... . . 13

Redefining Film Preservation: A National Plan;

Recommendations of the Librarian of Congress in

consultation with the National Film Preservation Board

(Annette Melville & Scott Simmon, eds., 1994). 11, 15

Steven Schiffman, Movies in the Public Domain: A Threatened

Species, 20 Colum.-VLA J.L. & Arts 663 (1996) .... 16

Anthony Slide, Nitrate Won't Wait: A History of Film

Preservation in the United States (1993)... . . . 11, 12,15

Charles H. Tarbox, Lost Films: 1895-1917 (1983) ....... 11

10 Stephen Prince, History of American Cinema, 1980-1989

SEED GSS nepesnendcacusadcdcccsaccenecsecenees 19

Frank Thompson, Lost Films: Important Movies

That Disappeared (1996) ..... 2.2.2.0... 0000000 0e. 11

STATEMENT OF INTEREST

This brief amici curiae in support of Petitioners is submit-

ted under Rule 37 of the Rules of this Court by Hal Roach

Studios and by Michael Agee, its Chairman.’ Mr. Agee is

recognized as one of the leading film restorationists in the

country, and has devoted his professional life to the restora-

tion of fragile and classic film and television productions.

Hal Roach Studios is one of the leading restorers and

proprietors of pre-1930 films. Under Mr. Agee’s direction, it

has restored and holds rights to collections such as the pre-

1931 Laurel and Hardy archive, as well as over sixty of the

pre-1931 Hal Roach comedies. Mr. Agee himself restored the

entire Laurel and Hardy “talking" body of work, comprising

forty "shorts" and twelve feature films. Amici submit this

brief in order to increase the Court's understanding of the

ways in which the Copyright Term Extension Act frustrates

the process of film preservation and restoration, impedes

commercial and non-commercial attempts to give access to

the nation’s film heritage and restricts expression and

preservation in a manner inconsistent with the Copyright

Clause and the First Amendment.

SUMMARY OF ARGUMENT

“A POSTERITY THAT NEVER QUITE ARRIVES”

The Sonny Bono Copyright Term Extension Act

(“CTEA”), Pub. L. No. 105-298, 112 Stat. 2827, extends the

term of existing copyrights by twenty years. This portion of

' Letters from the parties consenting to the filing of this brief are

on file with the Clerk of this Court. No counsel for a party authored this

brief in whole or in part, and no person other than amici curiae, or their

counsel, made a monetary contribution to the preparation or submission

of this brief. Assistance in the preparation of this brief was provided by the

Program in Intellectual Property and the Public Domain at Duke Univer-

sity School of Law, and in particular by Senior Fellow Daphne Keller.

the statute exceeds the limits of the Copyright Clause’s grant

of power. It is also subject to heightened First Amendment

scrutiny, a scrutiny that it cannot meet.

Though several justifications for retrospective term

extension are offered in the legislative record, only one has

even an arguable connection to Congress’s power under the

necessary to provide copyright holders with incentives to

maintain, restore and digitize fragile works, particularly

motion pictures. It is thus not surprising that much stress has

been laid on the preservation rationale; this is the only

possible justification of the retrospective portion of the

CTEA. But possible does not mean actual. Both legally and

factually, the preservation rationale, too, turns out to be

fatally flawed.

In this brief, amici show that the preservation rationale

is outside of the Copyright Clause’s grant of power, and that

restoration of a few works in one medium cannot be a

constitutional basis for extending the copyrights of all works

in all media. However even if the preservation rationale

were within the boundaries of the Copyright Clause, the

effects of the CTEA run in exactly the opposite direction.

Review of the actual world of film restoration and preserva-

tion reveals that tie undeniable effect of the CTEA is to

sequester an entire generation of American culture while

actively harming film preservation efforts. The CTEA

directly impedes restoration of the numerical majority of

American films, the so-called “orphan works”, the very

portion of our film heritage which the Library of Congress

identifies as being in the most urgent need of restoration.

Report of the Librarian of Congress, Film Preservation 1993: A

Study of the Current State of American Film Preservation, 5

(1993) [hereinafter “ Librarian of Congress Report” |. Those who

would preserve, restore and digitize this body of works are

prevented from doing so by the tangle of rights surrounding

the films. The clean blade of term expiration was supposed

to cut through this thicket; the CTEA fertilizes it and extends

—

it instead. The majority of commercial feature films owned

by major studios fare little better. In each case, the CTEA’s

effects are particularly tragic because many of the films at

risk will not survive for another twenty years. This error is

not reversible.

At the same time, the CTEA impedes access to, and

productive use of, the enormous holdings of film in the

nation’s archives. Films restored at the public's expense are

now kept inaccessible to the public for another twenty years.

In 1993 the Librarian of Congress's report on film preserva-

tion observed ruefully that because of the legal restrictions

on making films available, “[flor many of those seeking

copies of films, archivists can look as if they are perversely

saving films for a posterity that never quite arrives.” Librarian

of Congress Report, supra, at47. Thanks to the CTEA, posterity

will be postponed for another twenty years.

“Copyright”, this Court has said, “is the engine of free

expression.” Harper & Row v. Nation Enter., 471 U.S. 539, 558

(1985). As such it is sometimes mistakenly thought to be

immune from First Amendment scrutiny. The Court below

took this view. But in this case, the engine has run and has

produced its products. The retrospective portion of the

CTEA is a naked state restriction of expressive conduct, a

restriction which does not pretend to produce incentives for

original expression. Therefore it is subject to heightened First

Amendment scrutiny, scrutiny which it cannot meet. Even

if film restoration were an important government interest

within the range of Congress's copyright power, and even if

the CTEA furthered that goal rather than dramatically setting

it back, the retrospective portion of the CTEA could hardly

be said to achieve its goal in a manner no more restrictive

than necessary. It locks up an entire generation of American

culture, all original works in all media, in order to try - and

fail - to save a tiny minority of works in one medium.

ARGUMENT

I. The Copyright Clause imposes limits on Congress's

power to create exclusive rights. Those rights must be

for limited times and must promote the progress of

science. The CTEA’s retrospective term extension is

outside of those iimits and is therefore unconstitu-

tional.

The Constitution gives Congress the power to “pror»ote

the Progress of Science” by granting “exclusive Right([s]” “to

Authors” for “limited Times.” U.S. Const., art. I, § 8, cl. 8.

This clause is both “a grant of power and a limitation.”

Graham v. John Deere Co., 383 U.S. 1, 7 (1966). The CTEA

extends the term of existing copyrights by twenty years.

Retrospectively extending the term of existing copyrights

does not “promote the Progress” and falls outside the

limitations imposed by the Constitution. The copyrighted

works already exist; clearly the legal monopoly was suffi-

cient io encourage their creation. In extending this monop-

oly over existing works for another twenty years, Congress

is not offering incentives for the creation of original work. It

is simply granting windfall profits with one hand while

restricting expressive activity with the other. Neither the

such action.

A. The only congressional justification for retrospec-

tive term extension that is potentially relevant to

“promot[ing] the Progress” is the film preservation

rationale.

Precisely because the retrospective extension of existing

rights has no connection to the constitutional goals of the

sional findings about the goals of the statute assume greater

importance. United States v. Morrison, 529 U.S. 598, 614

~~ _—

(2000). Congress declared a number of purposes behind the

CTEA, ranging from the constitutionally risible (providing

for two generations of the author's heirs) to the questionably

international (harmonization with the European Union).

Even as to the prospective portion of the CTEA, amici would

argue that these purposes are not sufficient to meet the

standards set up by the Copyright Clause or the First

Amendment; as to the retrospective portion they offer no

justification whatsoever. Retrospective “harmonization”

does not induce greater creativity in the past. Even if one

believed that i: «reased generosity to an author's heirs would

yield greater incentives for the future, extension of the

effect at all.

Congress provides only one finding that could logically

relate retrospective term extension to promoting progress,

namely that term extension is supposed to create “incentives

to preserve existing works”, particularly film.’ In fact, the

?S. Rep. No. 315, at 13, 104” Cong. 2d Sess. (1996). Thirteen of the

thirty-seven pieces of testimony given during the Senate and House

hearings on copyright term extension referred to preservation problems.

Of those thirteen, all but three exclusively addressed film preservation.

The remainder .alked generically about preserving “works.” See Copyright

Term, Film Labeling, and Film Preservation Legislation: Hearing on H.R. 989

Before the Subcomm. on Courts and Intellectual Property, House Comm. on the

Judiciary, 104th Cong. (1995); Copyright Term Extension Act of 1995: Hearing

on S. 483 Before the Senate Judiciary Comm., 104th Cong. (1995); and Pre-1978

Distribution of Recordings Containing Musical Compositions, Copynght Term

Extension, and Copyright Per Program Licenses: Hearings Before the Subcomm.

on Courts and Intellectual Property, House Comm. on the Judiciary, 105th Cong.

(1997). In fact, film is the only medium which presents the combined

problem to which term extension is supposed to be the solution; the

problem of a particularly volatile medium prone to rapid degeneration

coupled with a comparatively high cost of restoration and digitization. To

a much lesser extent, analog audio tapes present some similar problems,

but both the scope of the danger and the cost of remedying it are lower.

The preservation and digitization issues really revolve around film and it

is there that the remainder of the brief’s analysis will concentrate.

Court of Appeals emphasized this finding in reaching its

decision below:

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 ... 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] prog-

ress." Eldred v. Reno, 239 F.3d 372 at 378-79 (D.C.

Cir. 2001) (alteration in original, citations omitted).

The film preservation rationale thus assumes particular

importance in this case. It is there, and only there, that we

find an argument that extending copyrights on existing

works is necessary in order to achieve a constitutionally

appropriate goal. As the discussion below will demonstrate,

however, this argument is deeply flawed, both legally and

factually.

B. The film preservation rationale is logically and

legally unsound.

1. Giving incentives for film preservation

through retrospective term extension is not

within the ambit of Congress’s power to pro-

mote the progress of science by encouraging

the creation of original works.

Congress has numerous available methods to encourage

film preservation, ranging from tax subsidies to the creation

of state archives. However, it may not use a retrospective

extension of exclusive rights under the Copyright Clause to

accomplish this goal. In the patent context, this Court has

held that it is unconstitutional to remove material from the

public domain. Graham, 383 U.S. at 4. Why? In part it is

because the works already exist. The extension of an intellec-

ee ee

tual property right to an existing work does not encourage

the creation of original expression or novel invention.

Instead it acts merely as a reward for socially useful labor. If

“encouraging restoration” is a valid goal under the Copy-

right Clause, it is hard to see what remains of the rationale

behind Graham’s limitation. Again, the works already exist

and Congress is trying to provide incentives in order to

encourage some socially desirable investment of sweat and

capital.

The same point is made in this Court's copyright

jurisprudence. This Court has held that unoriginal compila-

tions of material may not be copyrighted; “sweat of the

brow” protection lies outside the ambit of the Copyright

Clause. Feist Publications, Inc. v. Rural Telephone Co., 499 U.S.

340 (1991). Yet retrospective extension of copyright over

existing works does something that is indistinguishable in

principle from these forbidden uses of the patent and

the CTEA are those which are unoriginal; if they were

original, a new copyright term would be available and term

extension therefore would be unnecessary in order to

encourage them. Retrospective extension gives no incentive

to create original works; the only incentive is for the straight-

forward labor and investment involved in restoration.

Therefore, as has been noted in the scholarly literature,’

Congress is conferring a de facto “sweat of the brow”

protection on existing works. As amici will describe below,

it is also doing so in a way that undeniably harms rather than

helps the task of film preservation for the majority of Amer-

ican films.

> L. Ray Patterson, Eldred v. Reno: an Example of the Law of

Unintended Consequences, 8 J. Intell. Prop. L. 223, 235-6 (2001).

2. The argument that the CTEA is justified by the

need to encourage digitization and “media

migration” is an argument without a limiting

principle and thus flies in the face of this

Court's recent holdings.

According to the Congressional findings, the continuing

exclusive rights guaranteed by extension of copyright will

give copyright holders an incentive to invest in restoring

films and transferring them to new digital media. But as a

basis for Congressional power, this is a rationale with no

limiting principle. There will always be new media onto

which we need to move our older cultural works. Indeed,

the Librarian of Congress’s Report makes clear that no

known medium represents a “stopping point” for preserva-

tion or distribution of film. The Report expressed great

concern about the rapid obsolescence of digital media and

noted that proposed HDTV standards capture less than half

of the visual information from a 35 mm film frame.‘ Librarian

of Congress Report, supra, at 15-16. If inevitable changes in

media are grounds for term extension, Congress may rely on

the same rationalization every twenty years tojustify moving

asymptotically towards perpetual copyright (a goal that the

sponsor of the legislation reportedly favored).°

The “media migration” justification for retrospective

* The Report noted that in video alone, “at least six major

incompatible formats have evolved into obsolescence the last 20 years.”

Libranan of Congress Report, supra, at 16.

° “Sonny wanted the term of copyright protection to last forever.

I am informed by staff that such a change would violate the Constitution.

I invite all of you to work with me to strengthen our copyright laws in all

of the ways available to us. As you know, there is also [Motion Picture

Association of America President] Jack Valenti's proposal for a term to last

forever less one day. Perhaps the Committee may look at that next

Congress.” 144 Cong. Rec. H9952 (1998) (statement of Congresswoman

Mary Bono).

term extension eviscerates the “limited times” restriction of

the Copyright Clause and flies in the face of this Court's

recent jurisprudence. This Court has recently stressed that

basic canons of constitutional construction militate against

accepting types of justification for Congressional action which

logically eliminate “judicially enforceaile outer limits” on

Article | powers. Morrison, 529 U.S. at 610. In this case, the

“media migration” justification would support limitless term

extension. Like the claims of Congressional authority

rejected in Morrison, the CTEA relies on “a method of

reasoning that [would fail] to maintain the Constitution's

enumeration of powers.” Id. at 615. In addition, Congress

may not rely on “attenuated” links between legislation and

Congress's constitutional authority. Morrison, 529 U.S. at 612

(citing United States v. Lopez, 514 U.S. 549, 563-567 (1995)).

The CTEA’s digitization and media migration rationale has

only the most attenuated relation to the Copyright Clause

power, and allows for a new retrospective extension with

each change in format, thus making a mockery of the limited

times requirement. To borrow a phrase from the law of

standing, the practice would be “capable of repetition, yet

evading review.” Moore v. Ogilvie, 394 U.S. 814, 816 (1969).

3. Even if term extension did inspire film preser-

vation, this would not be sufficient reason

retrospectively to extend the copyright term in

every medium.

Although Congress alluded toa range of existing works,

the legislative record makes clear that only a single body of

material affected by retrospective term extension is under

urgent threat of physical decomposition or in need of

expensive digitization: motion pictures. Yet copyright covers

“works of authorship” across a wide range of fields: literary

works, music, drama, sculpture, computer programs, sound

recordings, pantomime and dance. 17 U.S.C. § 102 (2000).

Even if the Congress were correct in its claims about the

effect of term extension on movie preservation and digitizat-

ion, one can hardly justify extending the term of every

subsisting copyright over every type of work in order to

preserve works of single industry, in a single medium. Such

an extension - even if it were truly effective as to film - is

plainly not adapted or appropriate to promoting overall

progress. This point is perhaps the most important of all. As

was argued earlier, the only legislative purpose given in the

record which both justifies retrospective term extension and

has an arguable connection to Congress’s power under the

Congress may not use a claim that the CTEA will help

preserve films, a fraction of American cultural production, as

a basis for placing an entire generation of culture off-limits

for an additional twenty years.

Cc. The CTEA actually impedes public access to our

film heritage and hurts film preservation, restora-

tion and digitization.

1. Copyright term extension does not promote

film preservation but instead reduces

preservationists’ incentives and limits public

access to films.

This Court has repeatedly held that the purpose of

from the labors of authors.” Fox Film Corp. v. Doyal, 286 U.S.

123, 127 (1932); Twentieth Century Music Corp. v. Aiken, 422

U.S. 151, 156 (1975). This benefit, it has explained, depends

on public access to works of authorship - copyright “must

ultimately serve the cause of promoting broad public

availability of literature, music, and the other arts.” Aiken,

422 US. at 156. Without access, the public does not receive

the benefit of the copyright bargain - individuals can neither

experience the works as consumers nor become add-on

innovators after term expiration.

For early twentieth century American film, copyright

law plays a major role in preventing “broad public availabil-

ity” and in deterring preservation efforts that might make

films available in the future. The rare remaining copies of

these rapidly deteriorating works are often held by individu-

als or archives which, because of copyright law, are forbid-

den from copying and distributing the films to the public; as

a result, these neglected films simply rot on the shelf. Of the

tens or hundreds of thousands’ of movies made before 1950,

fully 50% are irretrievably lost. Librarian of Congress Report,

supra, at 3.’ For films made before 1929, the loss rate is far

worse: 80% of films of the 1920's, and 90% of films from the

1910's are gone. Redefining Film Preservation: A National Plan;

Recommendations of the Librarian of Congress in Consultation

with the National Film Preservation Board 23 (Annette Melville

& Scott Simmon eds., 1994) [hereinafter Librarian of Congress

Recommendations].° The physical properties of film stock are

partly responsible for this tragic attrition. Nitrate film reels

were famously combustible.’ Early distributors’ practice of

destroying their older films, sometimes to salvage silver

content from the nitrate stock, further contributed to the rate

* By 1917, over 30,000 films had been made. Charles H. Tarbox,

Lost Films: 1895-1917 3 (1983).

’ The Library of Congress points out that this statistic needs to be

qualified by the fact that it applies to feature films; other forms of film

fared worse. Silent films did more poorly than the 50% figure would

suggest while sound pictures did better. Librarian of Congress Report, supra,

at 3.

* See also Frank Thompson, Lost Films: Important Movies That

Disappeared ix (1996).

* Anthony Slide, Nitrate Won't Wait: A History of Film Preservation

in the United States 3 (1992); Doug Herrick, Toward a National Film Collection:

Motion Pictures and the Library of Congress, 13 Film Library Quarterly 5, 9

(1980).

of loss.””

The cost of copying unique reels of pre-1951 nitrate film

alone is estimated at $243 million. Librarian of Congress

Report, supra, at 56. But nitrate film is far from alone in

needing restoration; so-called “safety” film is also subject to

acetate-base decay, id. at 8-9, and “virtually all of the images

captured on film [are] susceptible to similar loss within the

next century or two.” ™

In the U.S., about 100 million feet of unique nitrate film,

and untold amounts of “safety” film, remain unrestored.”

A small amount is held by studios - as of 1993, Universal

held 2300 feature films, MGM 1800, Fox 4000. Librarian of

Congress Report, supra, at 18 fig.4. Much more is in large

public archives - the 1993 figures show the Library of

Congress holding over 150,000 titles, UCLA Film & Televi-

sion Archive 46,000, the Museum of Modern Art 13,000.

(These figures include non-feature films as well.) Id. at 26-27

fig.5. And untold numbers of films are scattered in private

hands or small public collections - one expert estimates that

some 1750 separate small collections hold unique or difficult-

to-find footage. Id. at 29-30. For innumerable 20" century

films, only a single tattered copy remains.

Preservation of deteriorating film is costly. In 1992,

preservation of a ninety minute black-and-white silent

feature cost an average $10,222. Id. at 41 fig.9. Storage, too,

is very expensive, in part because films must be kept under

conditions of controlled temperature and humidity. In some

cases, studios negotiated donations to archives, effectively

shifting storage and preservation costs while retaining

" Herrick, supra note 9, at 11; Charles Grimm, A History of Early

Nitrate Testing and Storage, 1910-1945, The Moving Image 21, 22 (2001).

"' Michael Friend, Film/Digital/Film, 24). Film Preservation 36, 36

(1995).

" Slide, supra note 9, at 5.

—

902 F.2d 1540 (Fed. Cir. 1990). In other cases, studios which

hold copyrights did not themselves retain physical copies of

the films and do not necessarily have legal access to those

copies which are extant. Universal, for example, destroyed

“all but a handful of their silent negatives” in 1948; most of

the few remaining copies of the studio's pre-1929 works owe

their survival to collectors or flukes of history.

This separation of physical control from copyright

ownership is highly damaging both to preservation efforts

and to the public’s ability ever to see the preserved films.

Librarian of Congress Report, supra, at 24-25, 32. It ensures that

the entity with restoration expertise, interest and actual

ion of the film lacks any economic incentive to restore

because copyright law will prevent sharing of the work with

others. (Libraries and archives have limited rights to copy

deteriorating works, but cannot distribute them. 17 U.S.C.

§108 (2000)). Even if the copyright holder both knows and

cares about the film, it cannot undertake restoration because

it possesses no physical copy. In the words of one highly

respected archivist, "[a]rchives will be allowed to restore

[films] (as restoration itself does not require the permission

of the copyright owner), but then they will have to pay in

order to exhibit them to the public, even if the legitimate

owner did nothing to protect the physical integrity of their

assets.""* The Museum of Modern Art began its collection in

the 1930s, obtaining films under a contract which left

"’ David Pierce, The Legion of the Condemned: Why American Silent

Films Perished, 9 Film History 5, 9 (1997); see alsoG. Myrent & G.P. Langlois,

Henri Langlois: First Citizen of Cinema 29 (1995).

“ Glenn Myrent, Ma vie d'architecte paysagiste: entretien avec le

conservateur de la George Eastman House (interview with Paolo cherchi Usai,

Senior Curator of the George Eastman House), 19 Cinémathéque 3, 24

(Spring 2001).

it held by 1993, less than half were available for viewing even

by researchers. Librarian of Congress Report, supra, at 26-27

fig.5. Similar figures obtain elsewhere: visitors and research-

ers can see only 40% of the Northeast Historic Film Archive's

holdings, for example. Id. Under these circumstances, many

copyrighted works have been lost to decay, while others

have been restored at public expense yet remain unavailable

to the public.

It is important to stress here the profoundly negative

effect that the CTEA has had and will have on public film

restoration efforts. Over fifty percent of the public AFI-NEA

grant money spent by 1993 went to restore pre-1929 works.

Librarian of Congress Report, supra, at 35. Films from 1923-1927

were to have passed out of copyright by this year; instead,

the CTEA keeps them off limits until 2018 at the earliest. As

the Library of Congress Report noted, because of the legal

restrictions on making films available, “[f]or many of those

seeking copies of films, archivists can look as if they are

perversely saving films for a posterity that never quite

arrives.” Id. at 47. This result furthers neither the Copyright

Clause’s goal of granting access, nor the more specific goal of

encouraging effective film preservation.

In sum, for the vast majority of these deteriorating films,

continued copyright protection actually deters preservation.

It locks up publicly restored films for an additional twenty

years and denies those few individuals and archives with the

incentive and capacity to restore a neglected film the legal

right to distribute their work. The CTEA therefore effectively

ensures that many works will fall to dust before the public

ever gains the access that is copyright’s goal.

2. Copyright term extension undeniably deters or

impedes preservation of the numerical major-

The Congress did not err in believing that there is a

preservation crisis in American film. The CTEA, however, is

Se ee

aimed at precisely the wrong target and manages in the

process to make it harder to solve the problems that actually

exist. According to the Library of Congress's 1993 Report on

the Current State of American Film Preservation, the ongoing

preservation crisis does not primarily affect famous and

marketable Hollywood features. Id. at 2. These works

constitute a relatively small proportion of the surviving film

population and are already the objects of substantial preser-

vation efforts.”° Indeed, the Librarian of Congress noted that

“ preservation efforts directed largely toward the Hollywood

feature seem shortsighted” in light of the ongoing loss of less

glamorous, but historically important works. Id. Rather, the

works in most urgent need of preservation are “orphan”

films - “films of long-term cultural and historical value that

are not being protected by commercial interests.” Librarian

of Congress Recommendations, supra, at 25. Orphan films are

“numerically the majority” of the movies remaining in our

film legacy, and constitute a vital section of our cultural

history. Librarian of Congress Report, supra, at5. They include

documentaries, newsreels, independent productions, rare

historic footage documenting Jaily life for ethnic minorities,

“certain Hollywood sound films from now defunct studios,”

id., and other commercial works “ whose owners are unwill-

ing or unable to provide long-term preservation.” Librarian

of Congress Recommendations, supra, at 26. The Library of

Congress declared that it is in the task of restoring these

“orphan films” that “the urgency may be greatest.” Librarian

of Congress Report, supra, at 5.

It is hard to overstate the importance of this point.

Obviously, term extension provides no incentive to restore

orphan and abandoned films. In many cases, the orphan

films have no identifiable owners. The owners who have

abandoned the ir films over a period of seventy-five years are

not about to reclaim and refurbish them when that period is

* Slide, supra note 9, at 6, 152.

extended to ninety-five. Worse still, those who might

otherwise restore orphan films will actually be deterred by

term extension from doing so. The copyright status of films

from the relevant period is often profoundly uncertain. The

films are often covered by multiple overlapping copyrights,

all of which have to be cleared. There are rights over the

film, over the soundtrack and so on.” It can be practically

impossible to identify successors in interest, or to trace every

possible transfer and assignment of copyrights over a period

of more than seventy-five years. Thus, even though a film

may in fact be in the public domain, or have been "aban-

doned" by an owner who is either willing to relinquish all

rights, or who simply long ago lost track of and interest in

the film, both commercial and non-commercial entities may

be unwilling to restore or preserve it. Copyright is a strict

liability system and the cost of defending or insuring against

liability, or paying large legal fees to research and clear a

complicated tangle of rights, is simply too great. The clean

blade of term expiration is supposed to clear away this legal

thicket; the CTEA leaves it in place. Far from encouraging

the preservation, restoration and digitization of motion

pictures, the CTEA will leave the golden years of the Amer-

ican movie industry rotting in the can, or surrounded by a

tangle of poorly documented copyright claims which,

through the uncertainty brought by time and legal complex-

ity, impede both commercial and non-commercial use.

This inhibiting effect of lengthened copyright terms on

both public access and restoration efforts is no mere specula-

tion. Some archives simply do not release films until enough

time has passed for the copyright term to expire. Librarian of

"” It’s a Wonderful Life may provide the best-known example of

this legal complexity. The film itself entered the public domain in 1974, but

Republic Pictures used rights over the underlying short story and the

soundtrack to prevent unauthorized television broadcast and videocasette

distribution of the film. See Steven Schiffman, Movies in the Public Domain:

A Threatened Species, 20 Colum.-VLA J.L. & Arts 663, 671-72 (1996).

Congress Report, supra, at 48-49. Until now, this has meant

that access and distribution had to wait seventy-five years.

Now they must wait ninety-five, frequently well beyond the

effective life of the media on which the films are stored.

Given the liability that archives could incur, and the expense

and complexity of researching the copyright, this blanket

denial of access is economically rational for underfunded

archives. But it hardly serves copyright's constitutional goal

of "promoting broad public availability of literature, music,

and the other arts." Twentieth Century Music Corp. v. Aiken,

422 US. 151, 156 (1975). And it certainly undermines

Congress's asserted goal, with the CTEA, of encouraging film

preservation. Discussing some of the similar difficulties

introduced for stock footage libraries by automatic term

renewal, the Library of Congress's Report on Film Preservation

noted, that because of the difficulty and expense of ascertain-

ing the copyright status of the films in question, the effect of

such legal changes is to make it commercially infeasible to

restore, use or digitize films that in all likelihood are "aban-

doned." Jd. at 22. The CTEA simply continues and expands

these impediments. These effects might be acceptable in an

otherwise constitutionally unremarkable copyright statute.

In a copyright statute which relies heavily for its constitution-

ality on its beneficial effect on film preservation, they are not.

It is undeniable that, but for the CTEA, any film from

before 1927 would be freely and clearly available for any

institution, company or individual to copy, restore, digitize

or transform. No lawyer would have to be consulted, no

tangle of rights negotiated, nocopyright insurance procured.

But for the CTEA, by 2018, all films made before 1943 would

be available in this way. It is also undeniable that after the

CTEA, the expense and trouble involved in clearing copy-

right is considerably higher for every year to which the Act

applies, even for those films that have in fact been "aban-

doned" by their owners. Thus, in a tragic irony, the CTEA's

undeniable effect on the majority of American films for the

relevant period, the films for which the urgency of the task

of restoration is the greatest, is to make preservation and

restoration harder, more expensive and often completely

impracticable.

3. The CTEA’s term extension does not effec-

tively spur restoration or digitization for the

remaining minority of American films.

It was pointed out earlier that the predominant effect of

term extension is to restrict public and archival access to

films of the period. In addition, as was just shown, the CTEA

demonstrably harms the project of preservation, restoration

and digitization of orphan works. But the law’s effect on the

remaining portion of our film heritage, those films with some

potential for protection by commercial interests, is hardly -

better. U.S. movie studios retain substantial holdings over

feature films from 1923-1929, the blockbusters of their day.

It is believed that some 1400 silent feature films were re-

leased in those years, of which about 1200 remain under

63 of these films are commercially available on DVD." These

documents of the silent era’s end were to have entered the

public domain by 2004; thanks to the CTEA, they will be

sealed to all but a few archivists for another twenty years.

Beyond its obvious potential for undermining the

restraints that the Framers so carefully wrote into the Copy-

right Clause, the CTEA’s restoration rationale is implausible

even when applied to the tiny minority of films for which it

could possibly work, namely those with both identified

owners and commercial potential.

* Unpublished data courtesy of the archive of Dr. Jon C. Mirsalis.

Correspondence on file with amici.

" These figures come from the Internet Movie Database’s

Advanced Search Page, at http://us.imdb.com/list, which allows users to

search by year and by current release format (last visited May 7, 2002).

Studios hold rights to a giant backlog of feature films.

Library of Congress Report supra at 18 fig.4. Even if films from

seventy-five years ago had the kind of high return favored

by the major film studios, which they do not, term extension

cannot possibly hope to provide incentives to restore and

digitize more than a tiny fraction of these holdings. The

concentration of the film industry in recent years has left

many of the copyrights to the feature films of the past in the

hands of a few companies. As of 1989, nine major studios

held a 95% share of the U.S. domestic market for theatrical

film exhibition. * A wave of mergers has since reduced the

number of major studios still further. Even with the expan-

sion of potential programming provided by digital cable TV

and the multiplication of channels, there is a limit to the

amount of material that acompany might reasonably digitize

and release, or license to others, without cannibalizing its

own business. The flow of restored works from major

decades, eight major studios kept up a release rate of roughly

one new feature per week. IV Report of the Librarian of

Congress, Film Preservation 1993: A Study of the Current State of

American Film Preservation: Submissions, 62 (1993) (Submission

of The Committee for Film Preservation and Public Access). If,

every year, one quarter of all releases onto DVD were to be

devoted to films from seventy-five years ago - a ludicrous

proposition - it would hardly put a dent in the accumulated

libraries of the major studios. Even if a larger output could

be maintained and the studios were able to switch their

business model from making new films to refurbishing old

ones, this would hardly serve the constitutional goal of

promoting original expression!

The market-driven, monopoly right-of-exclusion,

business model is unlikely to provide the incentives for

” 10 Stephen Prince, History of the American Cinema, 1980-1989, at

41 (2000).

anything even like that rate of release, particularly when the

studios face the danger of diverting audiences from their

own contemporary products. There is a simple reason for

this; today’s TV and video marketplace is more segmented

than it was, but still responds much better to volume of

preference than to intensity of preference for a particular

entertainment product. In most cases it is the number of

viewers, rather than the avidity with which they devour the

images on the screen, that drives the market. There are those

who are passionate about old film, those who might well be

willing to invest the time and money necessary to restore,

digitize or make derivative works from a wide range of our

older films if they did not have to pay the post-CTEA

fragments of Buster Keaton’s work, the small company that

re-releases public domain movies with commentary and

scholarly apparatus, the Foundation that wishes to restore

the works of the great African-American producer Oscar

Micheaux, the archive which attempts to bring public

domain classics to the Internet. But though those groups,

prominently including both plaintiffs and amici in this case,

have shown demonstrable interest in restoration and digit-

ization, their passion does not translate into a workable

market to which the movie studios can sell copyrighted

entertainment.

The contemporary Internet is a shining example of the

power of distributed, non-profit, and volunteer labor to

provide global information and culture. There are small

companies specializing in public domain films, and conspic-

uous public restoration programs. The Library of Congress

has the largest film collection in the world,” many of the

films painstakingly restored at public expense. The fruits of

this public restoration could be available to all. Internet

archiving, volunteer digitization, public domain film compa-

” Herrick, supra note 9, at 6.

nies, federally funded restoration: each has its place in saving

America’s films. But these are also exactly the tvpes of

activity that term extension either forecloses, or leaves

fruitless. Term extension gives the parties who are unlikely

to restore and distribute films the exclusive right to do so,

while denying rights to parties with demonstrated interest

and capability. And it does so even within the commercial

sphere, the area that is supposed to provide the strongest

case for the power of term extension to spur restoration.

4. The CTEA effectively undermines the deposit

requirements of the Copyright Act.

The retrospective portion of the CTEA has a final

pernicious consequence for film preservation; increasingly,

it will impede the eventual physical access to movies suppos-

edly guaranteed by the deposit requirements of Section 407

of the Copyright Act.” The deposit requirements are part of

2 17 USC. § 407 (2000). The Library of Congress has an

enormous collection of films assembled both from the fruits of the deposit

requirement and by independent collection and bequest. Starting in 1894

the Library of Congress began collecting motion pictures, as collections of

still photographs - frequently in so called “paper print" form. Initially, the

Library of Congress did not retain nitrate films at all, because of the

dangers posed in their storage. This practice stopped in 1942. However,

subsequent acquisitions have attempted to fill in some of the gaps in the

early collection and thus restore it to the condition it might have been in,

had the early deposits been retained. For example, major collections

include "preprint material for approximately 3,000 motion pictures from

the pre- 1949 film library of Warner Bros. pictures. The collection contains

50 silent features (1913-30); 750 sound features (1927- 48); 1800 sound short

subjects(1926-48); and 400 cartoons, among them "Looney Tunes" and

"Merrie Melodies." The collection also contains "nearly 200 sound features

released by Monogram Pictures Corporation and a number of "Popeye"

cartoons released by Fleischer Studios [and]... an enormous collection of

nitrate negatives and masters... as well as "70 well known Warner Bros.

features (among the most popular of all American films), including "The

Jazz Singer" (1927); “Little Caesar" (1930); and “Knute Rockne, All

the copyright bargain. They operate to guarantee, among

other things, that there is a copy of the work available to the

public, so that at the end of the copyright term the copyright

holder is not in sole possession of the res, able to have both a

lengthy legal monopoly and then also to exploit the position

of market advantage conveyed by exclusive physical control.

The volatile cellulose nitrate base used on most pre-1950

films is prone to shrinkage, to outgassing that destroys the

film’s emulsion and even to spontaneous combustion. - We

are already at or beyond the normal life of many of the films

that have been deposited with the Library of Congress. It has

been estimated that over 50% of the movies made before

1950 have already been lost. Librarian of Congress Report,

supra, at 3. The CTEA’s extension of copyright for another

twenty years is likely to mean that many of the deposit

copies simply turn to powder.” In some cases, these deposit

copies will be the only remaining copies of the film.* In

other cases, they will be the only publicly available copy; by

encouraging Congress to extend the term until the deposit

copies literally decompose, the copyright owners have

effectively managed to ensure that they can either avoid the

American" (1940)." As the Library notes in its description of the Warner

Brothers collection, "[clopyrights are still in effect for most of the films . .

. inthis collection." Motion Pictures in the Library of Congress "excerpted

from Footage ®9: North American Film and Video Sources, New York:

Prelinge; Associates, 1989" at http: / /lcweb.loc.gov/rr/mopic/mpcoll.htm!

(last visited May 15, 2002).

* Unless the Library of Congress exercises its rights under Section

108 of the Copyright Act, and engages in the expensive process of

restoring - while being unable to distribute -- its entire collection from

those years. See 17 U.S.C. § 108 (2000).

* The Library of Congress Report noted the case of independent

film maker Victor Nunez. Nunez was left without a copy of one film after

his distributor went out of business, and believes that the copy deposited

for copyright protection may be the only remaining one. Librarian of

Congress Report, supra, at 20.

consequences of the deposit requirement, or dramatically

increase the cost to the public of maintaining a deposit copy.

5. The Congressional findings cannot sustain the

legislation.

Amici have shown that the CTEA actively hurts the

cause of film preservation and restoration for the majority of

American films. In a record devoid of details, Congress

“found” otherwise. S. Rep. No. 104-315, at 13 (1996). But,

even where Congress develops a more substantial record,

“the existence of congressional findings is not sufficient, by

itself, to sustain the constitutionality of . . . legislation” when

the rationale underlying the findings does not support

Congressional power. United States v. Morrison, 529 U.S. 598,

614 (2000). As this Court pointed out in Lopez, “[S]imply

because Congress may conclude that a particular activity

substantially affects interstate commerce does not necessarily

make it so.” Lopez, 514 U.S. at 557 (quoting Hodel v. Va.

Surface Min. and Reclamation, 452 U.S. 264, 311 (1981)

(Rehnquist, J., concurring injudgment)). Rather, the scope of

Congress's constitutional power “is ultimately a judicial

rather than a legislative question, and can be settled finally

only by this Court.” Morrison, 529 U.S. at 614 (citations

omitted). What is true for asserted effects on interstate

commerce, is also true for asserted effects on the progress of

science through film preservation.

The retrospective portion of the CTEA is already far

outside the normal boundaries of the power conferred by the

to create new and original works. It would be perverse for

the CTEA’s extension of the copyright term on all works in

any medium to be justified by its role in encouraging

preservation of a few works in one medium. When, even

within that medium, it can be demonstrated that the CTEA’s

effect on the majority of works from the relevant period is

actively and undeniably to impede restoration and preserva-

tion, no “finding” of Congress to the contrary could possibly

be sufficient to make such an enactment constitutional.

II. The retrospective portion of the CTEA violates the

First Amendment.”

Congress passed a statute that has in it a provision with

the following effect: an entire generation of American culture

that, starting in 1998, would have become available year by

year, is instead to be controlled under the terms of a statutory

scheme for an additional twenty years. These works would

have been free for all to use, reproduce, modify, transform,

publish, display and perform. Now those who wish to adapt

these plays, make these films available over the Internet, sing

these songs publicly, or who wish to make new works based

on those of prior generation, must ask permission of a

private party. If they proceed without authorization they are

subject to serious criminal and civil penalties. This portion

of the statute has no possibility of encouraging new works.

In fact, it applies only to works that have already been

created. Is such a provision subject to First Amendment

scrutiny? How could it not be?

A. The CTEA is subject to First Amendment height-

ened scrutiny that its retrospective portion is

incapable of meeting.

The CTEA is a content neutral statute that restricts

expressive activity. Such a statute may only be upheld "if it

furthers an important or substantial governmental interest;

if the governmental interest is unrelated to the suppression

of free expression; and if the incidental restriction on alleged

> Amici believe that the prospective portion of the CTEA likewise

cannot pass First Amendment scrutiny but, as in the prior Section,

concentrate on the retrospective action of the statute.

—_—_ _— -—- w= - — -——

First Amendment freedoms is no greater than is essential to

the furtherance of that interest." United States v. O' Brien, 391

U.S. 367, 377 (1968). Dealing recently with another statutory

scheme which has as its ostensible goal the improvement of

the information environment, the Court ruled that Congress

must show that the statute serves an important government

interest in a manner no more restrictive than necessary. See

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 662, 662

(1994). The Second Circuit has applied the Turner standard

to Section 1201 of the Copyright Act. Universal City Studios,

Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001). Thus, Turner-level

scrutiny would seem to be the appropriate standard of

review here. It is a standard that amici believe this statute

cannot meet.

1. The important government interest used to

justify the CTEA’s retrospective extension

must both be within the scope of the Copyright

Clause and be furthered by the extension of

subsisting copyrights. The only “interest”

which has any potential to meet both of these

criteria is the film preservation rationale.

Obviously, the constitutionally cognizable “important

government interests” that are served by the provisions at

issue are limited by the constitutional clause from which the

Congress drew its power. Congress may not engage in a

constitutional two-step, claiming one set of legislative goals

in order to show that the legislation falls within the bounds

of the power-conferring clause and then offering a second

and different set of “important government interests” in

order to allow the statute to pass First Amendment scrutiny.

Therefore, in applying First Amendment scrutiny to the

CTEA, it is only those goals that are within Congress's power

under the Copyright Clause that may be considered as

potential “important government interests.” As was pointed

out earlier, neither “harmonization” nor the need to encour-

age authors by giving greater monopoly rents to their

impecunious grandchildren can qualify. When looked at

through the filter of the Copyright Clause these are dubious

bases even for the prospective extension of copyright.

Clearly neither can provide a cognizable reason under the

copyrights.

The only “important government interests” that may be

considered in assessing whether the retrospective extension

of copyright passes First Amendment scrutiny are those

which are a) arguably within the bounds of the Copyright

Clause’s “promote the Progress” language and b) arguably

furthered by extension of subsisting copyrights. In reality,

this is a set with a single member. the film preservation

rationale.

2. Retrospective term extension of all copyrights

is more restrictive than necessary to secure the

asserted goal of film preservation.

Assuming arguendo that the film preservation rationale

is within the bounds of the Copyright Clause, may the

CTEA’s restriction over all original works in all media be

justified by an empirically dubious claim that it will give a

tiny number of private parties the incentives necessary to

restore a tiny number of works in one particular medium?

Under the Turner or O’Brien tests only one answer is possi-

ble. On its face, the retrospective portion of the CTEA clearly

does not serve an important government interest in a manner

no more restrictive than necessary. In Ward v. Rock Against

Racism, 491 U.S. 781 (1989), this Court ruled that narrow

tailoring of content neutral statutes restricting speech

requires that the means chosen not "burden substantially

more speech than is necessary to further the government's

legitimate interests." Ward, 491 U.S. at 799. By contrast, the

CTEA’s provisions sweep with incomparable breadth,

extending the copyrights of all original works in all media for

twenty years, when the only potential constitutionally

cognizable interest is at best limited to a single subset of a

single medium. it is hard to think of a better example of

burdening more speech than necessary.” This Court could

find now that it is unconstitutional for that reason, or could

remand to the lower court for review under heightened

scrutiny.

expression.” Harper & Row v. Nation Enter., 471 U.S. 539, 558

(1985). This has led some to the mistaken conclusion that it

is somehow partially immune from First Amendment

scrutiny. Yet all would concede that even where the

“engine of free expression” is operating, copyright still has

a number of limitations imposed by the First Amendment -

the idea-expression distinction, the limitations on exclusive

rights that come from fair use and so on. What then of the

case when the engine has already run, has already produced

the original expression it is designed to produce? What of

the case when we know that the extent of the legal monopoly

was sufficient to encourage creation of the expressive work,

know it for a certainty because the work has already been

created? What of the situation where after the work has been

created, after the creators have had the full extent of their

lengthy legal monopoly, the Congress then seeks for an

additional period of twenty years to deny citizens the ability

to copy onto new media, to transform, to restore, to create

derivative works or place them on the Internet? In that case

we have naked government action which actually

criminalizes expressive behavior and does so entirely

* Congress has a large number of alternative methods of

accomplishing this goal, ranging from extensions of existing film preserva-

tion statutes such as the National Film Preservation Act of 1996, 2 U.S.C.

§ 1791 (1996) (continuing the National Film Registry, where the Library of

Congress designates 25 movies a year as valuable for U S. cultural heritage)

and the National Film Preservation Foundation, (see 36 U.S.C. §§ 151701 et

seq. (1998)) to direct government subsidy for preservation or digitization.

without the protective coloration of the legitimate goal of

some constitutional doctrine granting partial First Amend-

ment immunity for copyright law, which amici do not

concede, it could exist only so long as the reason for the rule

was present. Cessante ratione, cessat ipsa lex. With the end of

any possible incentive for new creation, any “immunity”

from the First Amendment would logically vanish.

The CTEA is not a statute which imposes some inciden-

tal restrictions on expression as part of a larger regime of

conduct regulation. For example, the documentary film-

maker who wishes to produce DVD’s of classic movies with

an historical introduction and a critical interpretation at the

end, or the studio that specializes in mining “orphan films”

for stock footage used in contemporary works, must each

apply for permission to the owner of the copyright, assuming

that the owner of the copyright (or copyrights) can ever be

identified. In the absence of such permission, to distribute,

reproduce, or publicly perform copyrighted films, or to

create derivative works, is potentially to commit a criminal

act. The criminal prohibition applies to each of these activi-

ties, despite the fact that they lie at the heart of First Amend-

ment protection, that the works being placed off limits

require no additional incentive for their creation, and that the

lengthened term will, in all probability, mean the irrevocable

physical decomposition of a large fraction of the golden

years of American cinema.

CONCLUSION

The CTEA’s retrospective extension of existing copy-

rights exceeds the Copyright Clause’s grant of power. While

the Congress offered a number of legislative goals for the

CTEA, the only one that both has an arguable connection to

the Copyright power and that purportedly justifies retro-

spective term extension is the film preservation rationale. It

may be for that reason that the Court of Appeals mentioned

~_—

preservation and digitization specifically. Eldred v. Reno, 239

F.3d 372 at 378-79 (D.C. Cir. 2001). Yet the CTEA cannot be

justified in this way. Encouraging restoration turns out to be

a thinly disguised “sweat of the brow” protection outside

Congress's power. The scope of the extension is also fatal to

the rationale. The extension of all copyrights in all media

cannot be justified by the need to motivate restoration of a

few works in one medium. Above all, the CTEA plainly does

not accomplish the goal of encouraging preservation and

digitization of American film; in fact, it substantially impedes

it.

As to the majority of American films, the “orphan

works” for which the “the urgency may be greatest.”

Librarian of Congress Report, supra, at 5, the CTEA’s undeni-

able effect is to frustrate preservation attempts. It leaves the

majority of films caught in a tangle of rights which term

expiration would have cleared. By the time the lengthened

term expires it may well be too late. The CTEA also keeps

the public from making effective use of the vast holdings of

films in the nation’s archives, some of them already restored

with public funds. It restricts both the restorer and the

entrepreneur, the digitizer and the fan. It prevents them

from copying, displaying, making derivative works and

popularizing anew. Copyright seeks to promote public

access; the CTEA forecloses it. Again, by the time the new

term expires it may be too late. Even as to the minority of

films for which it might be thought to work, namely com-

mercial works under active copyright management, the

CTEA turns out to complicate rather than to encourage the

process of restoration. For all these reasons, the retrospective

portion of the CTEA is outside Congress's Copyright Clause

wer.

The retrospective portion of the CTEA also violates the

First Amendment. It is true that in many cases the courts

need never reach the First Amendment in deciding a copy-

right issue. Yet the First Amendment status of legislation is

not inherited by placement; it does not automatically apply

to any provision placed in Title 17 of the U.S. Code. It lives

or dies with the reasons that gave it birth. Congress might be

able to set up a regime of censorship during wartime. It

could not, without First Amendment review, extend that

regime for twenty years after the war, no matter how

_ unquestionably constitutional the original scheme had been.

Similarly Congress may not substantially extend copyrights

over existing works without First Amendment review. Such

a review has a double filter. It looks within the statutory

purposes for an “important government interest” that is both

cognizable under the Copyright Clause and that requires the

extension of subsisting copyrights. Only the preservation

rationale has any potential for satisfying both of these

requirements (though as amici have shown, retrospective

term extension will actually hurt the cause of preservation

for the majority of American films.) Next the review must

look to see if these important government interests are

accomplished in a way that is no more restrictive of expres-

sion than necessary. But the CTEA restricts expressive

activity across the entire corpus of American culture for

twenty years in the name of a dubious claim to save a

minority of the works within a particular medium. This is

neither within Congress's powers under the Copyright

Clause, nor capable of surviving First Amendment review.

H. Jefferson Powell

(Counsel of Record)

David Lange

Duke University School of Law

Science and Towerview

Durham, NC 27708

919 613 7098

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.