Amicus Curiae Brief — Eldred v. Ashcroft

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INTHE

Supreme Court of the Gnited States

Ez:c ELDRED, er ai.,

Petitioners,

Vv.

JokN 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 AMICI CURIAE OF THE BUREAU OF

NATIONAL AFFAIRS, INC.; CCH INCORPORATED:

HOUGHTON MIFFLIN COMPANY, INC.; THE

MCGRAW-HILL COMPANIES; REED ELSEVIER

INC.; AND THE SOFTWARE & INFORMATION

INDUSTRY ASSOCIATION IN SUPPORT OF

RESPONDENT

_ PAUL BENDER* ._

.- MICHAEL R. KLIPPER

~ “(CHRISTOPHER A. MOHR > *

‘MEYER & Kipper, PLLC

‘923 15th Street, NW. 8 Sr

_ Washington, D.C. 20005 , .

(202) 637-0850 OF apes

Counsel for Amici Curiae’ | :

= ~ 2» isc. * Counsel of Record EE Oe oT age

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................+.

SUT ER S OF ARTIC ...ccccccceccecsesscseccsosenes

II.

THE PETITION DOES NOT

PRESENT A _ JUSTICIABLE

ee) ee

A. The Attorney General Is Not

A Proper Defendant In The

Absence Of A_ Credible

Threat of Federal Criminal

Pe Siistnittiedinciinaidtinitiiiainins

B. Petitioners Present A

Hypothetical And Abstract,

Rather Than A_ Ripe,

Concrete Controversy ............

THE CTEA IS A_ VALID

EXERCISE OF CONGRESS'S

AUTHORITY UNDER THE

A. Petitioners’ Argument is

Inconsistent With the History

of the Copyright Clause and

Asserts an Unduly Narrow

View of How Congress May

Promote Progress ..............-+++.

TABLE OF CONTENTS—Continued

Throughout Most Of The

History Of Federal

Law Provided Protection

Upon Publication And

Dissemination, Not Upon

acetic

The First Congress

Clearly Understood That

Its Power Under The

Extended Beyond

Providing Incentives For

The Creation Of New

Work; Later Congresses

Have Followed Suit ........

Throughout History,

Congress Has Frequently

Enacted Copyright Laws

That Cannot Be

Explained As Designed

Only To Provide

Incentives For The

Creation Of New

(a) Applying New

Rights To Existing

IE inistitcncprenmninee

Page

ill

TABLE OF CONTENTS—Continued

B. Freed Of Petitioners’ Crabbed

Interpretation Of Congress's

Power, The CTEA Easily

Passes Constitutional

Ill. APPLICATION OF THE CTEA'S

EXISTING COPYRIGHTS

DOES NOT VIOLATE THE

FIRST AMENDMENT ................

A. Mechanical Reproductive

Copying of Another's

Copyrighted Work Without

Permission Is Probably Not

Free Expression For Purposes

of the First Amendment .........

B. Application of the CTEA's

Copyrights Satisfies

Intermediate Scrutiny ............

CETTE ccccccccscccesccsccssccescscscccsccecessees

Page

TABLE OF AUTHORITIES

CASES

Author's League of America v. Oman,

790 F.2d 220 (2™ Cir. 1986) .............

Boyle v. Landry, 401 U.S. 77, 80-81

SUIT UD cciscchesinensansniiieniiiteashiiantaniibaainidectatalaaiaaiaahs

Burrow-Giles Lithographic Co. v.

Sarony, 111 U.S. 53 (1883) .....8........

Capital Cities Cable, Inc. v. Crisp, 467

eh Ge Ge enenacteemnem

Coleman v. Miller, 307 U.S. 433

ITENTED accnscntnsetiamentennaineniniaeneieaaiienete

Eldred v. Reno, 239 F.3d 372 (D.C. Cir.

TTT cessvitennstencetapuiesasuastiniauspentebinteniniannes

Feist Pubs. v. Rural Telephone, 499

a> Be Ge cxenee

Golden v. Zwicker, 394 US. 103

STEED criemeeninannenieitaaniniatanmemanbisiieiiaien

Harper & Row v. The Nation, 471 U.S.

Fe crnreetesnnniataptatinmmmnaitetinne

Ins. Corp. of Ireland Ltd. v. Companie

des Banxites de Guinee, 456 U.S. 694

puensenesssonmeseasssesanssananene

Kewanee Oil v. Bicron Corp., 416 U.S.

a cictennttianitntniiitceiaianen

Ladd v. Law & Technology Press, 762

F.2d 809 (9" Cir. 1985) ........ccccsesseee

Lynch v. Donnelly, 465 US. 668

STEED cxsrneninmsnnntitiemneaineinnniinnnens

Martin v. City of Indianapolis, 982 F.

Supp. 625 (S.D. Ind. 1997) ................

O'Shea v. Littleton, 414 US. 488

IE cxntnincasiniannnibieninnetuiiansendintsin

Sony v. Universal Studios, 464 U.S. 417

FIDE connsinatnmntintniatnniniienmeianniniandities

— — —

—- -

TABLE OF AUTHORITIES—Continued

United Christian Scientists v. Christian

Science Bd. of Directors, 829 F.2d

ff ol

United Public Workers of America v.

Mitchell, 330 U.S. 75 (1947) .............

United Video, Inc. v. FCC, 890 F.2d

Valley Forge v. Americans United for

Separation of Church and State, 454

Ss EE ncenenserenesincnnnnenasancenen

STATUTES

Act of Feb. 3, 1831, 4 Stat. 436 ..............

Act of July 8, 1870, 16 Stat. 212 ............

Act of March 4, 1909, 35 Stat. 1075 ......

Act of May 31, 1790, 1 Stat. 124 ...........

Pub. L. No. 98-450, 98 Stat. 1727

IE sineinnanisrntuisindditinanminsininiaianiensin

Pub. L. No. 100-568, 102 Stat. 2853 ......

Pub. L. No. 101-650, 104 Stat. 5089

STE denscinenseninustinnsnntnsesiniemieniinanees

Pub. L. No. 102-307, 106 Stat. 274

STITT cninnsiiunitishitenepndenencmseuiiiiiinmninepbnantens

Pub. L. No. 104-39, 109 Stat. 336

III icierecnindentnieniasisiotaniansinninniiieianintatiinns

Pub. L. No. 105-298, 112 Stat. 2827

TET cctiduusiaiiiiniiandimuantisannsinmninidunntenie

Pub. L. No. 106-160, 113 Stat. 1774

TT icshistdeninniestatnninnerpeeieniisneneniees

Br a TIE diiticnainatanscnnnntiinnninnanieniions

gk |

17 U.S.C. § 106A(G)(2) ..........cccceeeeeeeeees

Be ee Oe ED cinnictsintiieientnerereneeteenevens

eS lll TT

11, 16

11, 12, 15, 16

4,11,17

19, 21

TABLE OF AUTHORITIES—Continued

17 U.S.C. § 202 cecccccccssssssssssssuessessseeeeeeee

17 U.S.C. § 3O1(Q) coeccccscssesssssuessssssseeeeeee

17 U.S.C. § 301(C) coeccscssssesssssvesessssseeessen

17 U.S.C. § TOD ceseecsccccssccssccssveseccssseseseee

BO UGC. © BODO ccecenceceecaneveccsenccssesen

18 U.S.C. § 1832(a)(2) seececcccveessesssececseee

28 U.S.C. § 2403(a) .ocsccccccsescssessseessveeeee

LEGISLATIVE MATERIALS

H.R. Rep. No. 94-1476 (1976) ..........0+

S. Rep. No. 98-162 (1984) ...........cccccccee

7 Reg. Deb. 21, Cong. 2d Sess. App.

CHIX (Deas. 17, 1GSD) ..cccceccocccececcceeee

7 Reg. Deb. 424 (statement of Mr.

Huntington) (Jan. 7, 1831) ............+.

MISCELLANEOUS

Department of Justice, Computer Crime

and Intellectual Property Division,

http://www.cybercrime.gov/ipcases.h

tml (visited June 21, 2002) ................

Edward Samuels, The Public Domain in

Soc'y U.S.A. 137, 172-73 (1993) ......

Gorman and Ginsburg, Copyright 347

M. Nimmer & D. Nimmer, Nimmer on

COTE, 6 BBG cccemscermssensesentersemeee

Supplemental Report of the Register of

U.S. Copyright Law, 87-88 (1965) ....

Wright and Miller, Federal Practice and

Page

INTEREST OF AMICI'

Amici are five corporations—The Bureau of National

Affairs, Inc., CCH Incorporated ("CCH"), Houghton Mifflin

Company, Inc., The McGraw-Hill Companies, Reed Elsevier

Inc.—and one trade association, the Software & Information

Industry Association ("SIIA").

The Bureau of National Affairs, Inc. is a prominent

publisher of print and electronic news, analysis, and

reference products, providing intensive coverage of legal and

regulatory developments.

CCH Incorporated, founded in 1913, and previously

known as Commerce Clearing House, Inc., has served four

generations of business professionals and their clients. The

company produces approximately 700 print and electronic

products for securities, tax, legal, banking, human resources,

health care and small business markets. CCH is a wholly

owned subsidiary of Wolters Kluwer U.S. Corporation.

Houghton Mifflin Company, a unit of Vivendi Universal

Publishing, is one of the leading educational publishers in

the United States. Houghton Mifflin publishes textbooks,

instructional technology, assessments and other educational

materials for elementary and secondary schools and colleges.

The Company also publishes an extensive line of reference

works and fiction and non-fiction for adults and young

readers. Additionally, Houghton Mifflin offers computer-

administered testing programs and services for the

professional and certification markets.

' No entity or counsel apart from those whose names appear on this

brief have contributed monetarily or substantively to its production, and

consent to its filing has been lodged with the Clerk of the Court.

The McGraw-Hill Companies is a global information

provider focusing on financial services, education and

business information. It includes Standard & Poor's, a

worldwide provider of information regarding credit ratings,

investments, and corporate valuations, McGraw-Hill

Education, the largest kindergarten through 12th grade

publisher in the U.S. and a leading global provider of

education materials, and Business Week magazine.

Reed Elsevier Inc. ("REI") is one of the country's

leading publishing and information companies, providing

information in both hard copy and electronic formats to the

government, scientific, legal, educational and business

communities. REI businesses include: Harcourt, a leading

provider of K-12 instructional materials and educational

assessment tools; Elsevier Science, one of the top publishers

of scientific and medical information; LexisNexis, the

industry leader in decision-support information and services

to legal, business, and government professionals; Reed

Business Information, the largest publisher of business and

professional publications in the United States; and Reed

Exhibitions, one of the country's premier exhibition

companies.

The Software & Information Industry Association

("SIIA") is the leading trade association committed to

promoting and protecting the interests of the software and

information industries. SIIA represents over 800 member

companies, including prominent publishers of software and

information products for reference, education, business,

consumer, the Internet and entertainment uses.

Each of these corporations and SIIA's members create

and distribute original works of authorship. Their ability to

do so is directly affected by the operation of the United

States copyright system. Events since the passage of the

— I —

Congress retain the constitutional authority to amend the law

in response to technological and international developments.

Amici file this brief in support of respondent Attorney

General because of the implications of petitioners’ arguments

for the functioning of the U.S. copyright system. Petitioners

assert limits on Congress's authority under the Copyright

Clause that, if adopted, would significantly curtail the ability

of Congress to enact effective copyright legislation in the

future; those arguments also cast doubt upon many past

exercises of the copyright power that amici rely on to protect

their intellectual property.

SUMMARY OF ARGUMENT

The complaint in this case appears not to present a

justiciable controversy. Petitioners base their standing to sue

the Attorney General on their alleged fear of criminal

prosecution if they reproduce works originally published in

the 1920s that have remained in copyright because of the

1998 Copyright Term Extension Act ("CTEA").’

Petitioners, however, do not allege that they have actually

infringed any 1920s copyrights, nor do they allege that there

are specific, named works they wish to reproduce, that those

works are, in fact, still in copyright, and that petitioners have

been unable to secure permission to publish from the

either prosecution or civil suit. And, even if one of the

petitioners were to infringe an existing copyright at some

time in the future, the possibility of a federal prosecution for

activities of the type in which they engage is, at best,

extremely remote. In these circumstances, petitioners’

wholly subjective "fear of prosecution” for actions they have

? Pub. L. No. 105-298, 112 Stat. 2827 (1998).

not taken does not establish justiciability. Their failure to

specify the actions they wish to take also deprives the case of

the concreteness that Article III requires.

On the merits, petitioners base their position on an

extraordinarily narrow and incorrect view of Congress's

power under the Copyright Clause. According to petitioners,

the only purpose that can support a copyright law—i.e., the

only way that such a law can be said to "Promote the

Progress" of literature and art—is for it to provide incentives

for authors to create new works. According to that view, the

new term of copyright provided by the CTEA cannot be

applied to works created before enactment of the CTEA

because "a term granted to a work already in existence, does

not promote Science." Pet. Br. 10.

This oddly wooden limitation is completely inconsistent

with the theory and history of U.S. copyright laws. It fails to

take into account that the first U.S. Copyright Act’ accorded

statutory copyright to works already in existence, that every

term extension since 1790 has applied to works already in

existence, and that other new benefits of copyright, such as

increased penalties for infringement and new exclusive rights

for copyright owners, have also commonly (and common-

sensically) been made available to the proprietors of existing

copyrights, as well as to authors of future works. Petitioners’

crabbed limitation on Congress's power would not only

invalidate a wide array of copyright laws enacted by

Congress in the past, it would also hamstring the ability of

Congress to enact future copyright statutes to deal with

threats to the rights in existing works.

Finally, petitioners’ invocation of the First Amendment

turns on their assumption that the "freedom of speech"

* Act of May 31, 1790, 1 Stat. 124.

protected by that Amendment includes the right to

mechanically reproduce and distribute the copyrighted works

of others without their permission, and even against their

expressed wishes. Amici doubt the validity of that premise.

But even if copyright infringement is to be considered as

constituting First Amendment activity, Congress's enactment

of a valid, content neutral copyright law pursuant to an

explicit Article I power merely constitutes action supported

by important governmental interests. And inclusion of a

broad fair use provision in that law, coupled with the

doctrine that copyright protects only an author's particular

means of expression—not the ideas set forth through that

expression—amply satisfies any narrow tailoring

requirement.

ARGUMENT

I. THE PETITION DOES NOT PRESENT A

JUSTICIABLE CONTROVERSY

Although justiciability was not questioned below,’ amici

believe that the complaint in this case does not present a

justiciable controversy. This Court has_ repeatedly

emphasized that constitutional issues may be resolved by

federal courts only when those issues arise between real

adversaries in a concrete factual context.” The present

proceeding does not remotely meet that standard.°

* In the court of appeals, respondent questioned petitioners’ standing

to claim that the First Amendment is violated by the application of the

CTEA to works "yet to be created." See Eldred v. Reno, 239 F.3d 372,

375 (D.C. Cir. 2001). Petitioners no longer challenge the

constitutionality of the CTEA's prospective application. See Pet. Br. 48.

> See, e. x., United Public Workers of America v. Mitchell, 330 U.S.

75, 89 (1947) ("For adjudication of constitutional issues ‘concrete legal

issues, presented in actual cases, not abstractions’ are requisite. This is as

true of declaratory judgments as any other field.") (internal citation

omitted); Valley Forge v. Americans United for Separation of Church

Petitioners and their amici have a strong philosophical

disagreement with Congress's 1998 decision to extend the

term of U.S. copyright by 20 years. They seek to bring that

policy dispute to this Court by basing a constitutional claim

on their allegation that "certain of the plaintiffs were

preparing to use in some way" works that would have fallen

out of copyright’ but for enactment of the CTEA, and that

these unspecified petitioners have a "fear of prosecution" if

they do so. Pl.'s 2d Amd. Compl. 914. Petitioners have not,

however, named the works certain of them wish to use.

stated the way in which those petitioners wish to use those

works, alleged that the works are still, in fact, in copyright or

alleged that the use petitioners wish to make of the works

would actually be prohibited by the Copyright Act. Nor do

petitioners allege that they cannot obtain permission from

not even included as defendants, much less identified, the

and State, 454 U.S. 464, 472 (1982) (Legal questions must be resolved

“not in the rarified atmosphere of a debating society, but in a concrete

factual context conducive to a realistic appreciation of the consequences

of judicial action."); Coleman v. Miller, 307 U.S. 433, 460 (1939)

(Frankfurter, J. dissenting) ("[CJourts will not pass upon . . . abstract,

intellectual problems, but adjudicate concrete living contest[s] between

adversaries.") (internal quotation omitted).

° A defect in subject-matter jurisdiction is, of course, not waivable

by the parties and may be raised at any time, including by the Court on

its own motion. See, e.g., ns. Corp. of Ireland Ltd. v. Companie des

Banxites de Guinee, 456 U.S. 694, 702 (1982).

’ The CTEA added a twenty-year extension to the term of subsisting

copyrights. A work published in 1923 would have initially been entitled

to two 28-year terms of copyright if the author complied with applicable

statutory formalities, terms that would have ended in 1979. When

Congress passed the comprehensive 1976 revision of the Copyright Act,

it extended the term of subsisting copyrights so that copyrights in their

second 28-year term would have a term of 75 years from the date of

publication. Thus, works published in 1923 would have fallen out of

filed, but for the enactment of the CTEA in October of that year.

owners of the copyrights in the works in which they

supposedly are interested. They seek relief only against the

Attorney General, who has no civil copyright enforcement

authority and who has never threatened criminal enforcement

against petitioners or allegedly prosecuted anyone for

activities similar to those in which they purportedly wish to

engage. Petitioners thus present an unripe, academic and

completely hypothetical controversy against a nonadversarial

party defendant. Such a "case" is not justiciable.

A. The Attorney General Is Not A Proper

Defendant In The Absence Of A Credible

Threat of Federal Criminal Prosecution

The federal Copyright Act creates private rights that are

almost entirely privately enforced. The United States does

not civilly enforce the rights of copyright owners, nor does it

claim copyright in its own works. The Attorney General is

thus not an adverse party® in this case unless petitioners are

under a real and immediate threat of criminal prosecution by

the United States.’ Petitioners allege no such threat and, in

fact, none exists.

* The Attorney General must, however, be given notice of federal

court challenges to the constitutionality of an Act of Congress affecting

the public interest, and may intervene if he so wishes. 28 U.S.C. §

2403(a). This intervention authority applies only when a justiciable

controversy against an actual adversarial defendant exists; it plainly does

not authorize suit to be brought against the Attorney General simply

because plaintiff wishes to challenge the constitutionality of a federal

Statute.

* See, e.g, O'Shea v. Littleton, 414 U.S. 488, 491, 493 (1974)

(complaint seeking declaration against officials based on discriminatory

prosecution practices dismissed because no plaintiff was facing

prosecution); Boyle v. Landry, 401 U.S. 77, 80-81 (1971) (dismissing

declaratory judgment action against criminal intimidation statute because

no plaintiff had actually been charged under the statute); Golden v.

Zwicker, 394 U.S. 103, 109 (1969) (First Amendment challenge to statute

Petitioners collectively allege that they have a "fear of

prosecution by Defendant [Ashcroft] for violations of the

NET Act." Pl.’s 2d Amd. Compl. § 16. No basis for this

wholly subjective fear is set forth in the complaint. No

petitioner alleges, for example, that he, she or it has ever

been investigated, prosecuted or in any way threatened with

federal prosecution for copyright infringement. No

petitioner even alleges that they have been the subject of any

past (or threatened future) civil copyright infringement

action. The complaint contains no allegation that any

person, entity or company that conducts activities similar to

those conducted by any of the petitioners has ever been

subjected to (or even investigated for or threatened with) a

criminal prosecution.’°

In these circumstances, there is simply no existing threat

that any petitioner faces or would face imminent criminal

prosecution by the United States even if one or more of the

petitioners should, at some time in the future, violate a then-

existing copyright. It is important to bear in mind that the

occurrence of an act of copyright infringement does not

inevitably, usually, or even ordinarily lead to a federal

criminal prosecution. Federal prosecutions for copyright

infringement are, in fact, extraordinarily rare. Amici could,

for example, find no criminal case under the 1976 Copyright

Act—treported or otherwise—in which the basis for

prosecution was the reproduction of books or sheet music,

prohibiting distribution of anonymous election literature non-justiciable

because the prospect of prosecution was neither "real nor immediate”).

‘© Even were an infringement of a 1923 work to occur, the

$1,000.00—within 180 days—threshold for NET prosecution would

rarely be met. The described activities of some of the petitioners actually

appear to make them legally immune from prosecution. Most of the

petitioners appear to specialize in out-of-print works and works of

extremely limited general interest and valuing the damage caused by the

infringement of an out-of-print work is extremely difficult.

much less a criminal case based on the distribution of sheet

music or books that were in the last twenty years of their

by amicus’ practical experience. Amicus SIIA has an

extensive antipiracy program, through which it enforces

copyrights on behalf of its members. In SIIA's experience,

even in those instances when hundreds of thousands of

dollars are involved, it is extremely difficult to convince

federal prosecutors to bring cases involving infringements of

works released last year, much less seventy years ago. In

light of the routine appearance of pirated software, music,

and motion pictures on the Internet before or within days of

their public release, it strains credulity to believe that the

Justice Department would make prosecuting infringement of

works published in 1923 a law enforcement priority.'7

Moreover, not only have petitioners sued a party (the

Attorney General) with whom they have no justiciable

dispute, they have failed to sue any of the only parties with

whom they might have such a dispute—the owners of

copyrights of works they supposedly wish to reproduce.

Petitioners’ failure to include or identify any of the

technical omission. Copyright owners may have important

information and highly relevant perspectives to contribute to

judicial consideration of the constitutionality of the

'' See, e.g, Department of Justice, Computer Crime and

Intellectual Property Division, http://www.cybercrime.gov/ipcases.htm|

(visited June 21, 2002) (listing representative criminal intellectual

property cases in the last three years). The problem of seventy-year old

works reproduced on the Internet is not a law enforcement (or even in

some cases a copyright owner's) priority.

'? If a petitioner sought to bring an action for declaratory judgment

against a copyright owner, the failure to allege an existing threat of suit

for infringement would defeat federal jurisdiction. See generally Wright

and Miller, Federal Practice and Procedure, § 2761.

application of the CTEA to 1923 works. Petitioners’

principal argument on the merits is that Congress had no

rational basis for believing that the extension of the 1923

term of copyrights would contribute to the progress of

literature, art, and music. The owners of those copyrights—

those whom Congress intended to benefit from the extended

term—are uniquely situated to provide information about the

ways in which an extended term for their works may

encourage distribution, preservation or creation of works of

literature or art, or otherwise further the many proper

objectives of copyright law. Their conspicuous absence

deprives this case of the concreteness necessary to render it

justiciable.

B. Petitioners Present A Hypothetical And

Abstract, Rather Than A Ripe, Concrete

Controversy

Petitioners base their standing to sue on their alleged

desire to copy, reprint, perform, restore, or sell 1923 works.

Pl.'s 2d Amd. Comp. %§ 14, 16. As indicated above,

however, petitioners completely fail to specify which of

those works they wish to use, or to describe how they wish to

use those works. They allege instead that “certain of the

Plaintiffs were preparing in some way" (emphasis added) to

use some such works—primarily those that are out-of-print

and of little current commercial value.

By failing to provide specific information about which

works they seek to use and how they seek to use them,

petitioners have made it impossible to know whether there is

a ripe controversy—whether the works they might wish to

use are, in fact, presently subject to federal statutory

petitioners’ proposed uses would be prohibited by the

constitute copyright infringement, those uses might

nevertheless be authorized or permitted by the copyright

owner, if authorization were to be requested.

Petitioners’ failures may be based on an assumption that

any work created in 1923 would, of necessity, have had its

such work by a petitioner would necessarily constitute an act

of copyright infringement. Such an assumption would be

entirely incorrect.

e First, the fact that a work may have been created in

1923 does not mean that the copyright term would

have started to run in that year or even within the

mext several years. In 1923—and indeed for the

whole history of the U.S. statutory copyright law

between 1790 and 1978—federal copyright

protection typically began at the time of publication

of a work, not at the moment of its creation.'°

e Second, not all works published in 1923 are the

subject of statutory copyright protection. Such a

work, for example, might fail to meet the

constitutionally required standard of originality, see

17 U.S.C. § 101; Feist Pubs. v. Rural Telephone,

499 U.S. 311 (1991), or might be a work, such as a

sound recording, that was not the subject of federal

3 See, e.g., Act of March 4, 1909, § 10, 35 Stat. 1075 (1909); Act

of Feb. 3, 1831, § 5, 4 Stat. 436 (1831); Act of May 31, 1790 § 3, Stat.

124 (1790). Even under current law, a work is not “created” until it is

fixed in tangible form. 17 U.S.C. § 102(a).

'* See 17 U.S.C. § 301(c) (pre-1972 sound recordings subject to

state common law protection).

e Third, many works first published in 1923 may not

be under copyright protection, failure to comply

because of the formalities that were required in order

to obtain and keep statutory copyright. Under the

1909 Act, an author or his or her assignee would

irrevocably lose statutory protection if the work were

published without a proper notice of copyright.'°

Moreover, if the copyright proprietor did not comply

with the complex renewal provisions, the copyright

was forfeited at the end of its initial 28-year term.'°

e Fourth, even if copyright were properly obtained and

renewed for a 1923 work, the desired use of that

work by one of the petitioners may well not be

proscribed by today's copyright statute. Petitioner Jill

Crandall, for example, alleges that she has been

prevented from "freely copying [unspecified musical]

works that were copyrighted in 1923” that she wishes

to perform with the church choir that she directs.

Pl.'s 2d Amd. Compl. #] 36-38. Even if these works

have survived the copyright formalities, their

performance at church services is exempted from the

exclusive rights that currently belong to a copyright

owner. 17 U.S.C. § 110(3). And copying the scores

of those works for purposes of a church performance,

may—depending upon the size of her choir, whether

the scores are out of print,'’ what is done with the

'S Act of March 4, 1909, § 10.

'® The initial term of copyright in 1923 was 28 years, with an

additional 28-year term potentially available to the copyright owner, but

only if an eligible person applied for renewal in the proper form and

within the strictly limited window of time provided for that purpose. If

renewal were not properly applied for and obtained, copyright would

terminate at the end of the initial 28-year term. See Act of March 4,

1909, § 24.

'" See Harper & Row v. The Nation, 471 U.S. 539, 553 (1986)

(observing that “a key, though not necessarily determinative, factor in

scores after the choir performance, and other factors

too numerous to describe'*—might well constitute

fair use of the material, thus providing a complete

defense to an infringement action.

e Finally, in order to violate the federal copyright

statute, a defendant must make the work available

without the consent of the copyright owner. Having

failed to specify the works they wish to use,

petitioners obviously cannot (and do not) allege that

they have sought permission from any copyright

owner to republish any work, or that they have been

unable to obtain permission.

In sum, petitioners allegations show, at most: (1) that

some works created in 1923 are presently subject to

to use one or more or these works; (3) that such uses might

possibly be prohibited by the Copyright Act; (4) that the

owners of the copyright might possibly not authorize

petitioners’ uses; and (5) that one or more petitioners

therefore might someday possibly be threatened with federal

criminal prosecution. A case based on that chain of

hypothetical possibilities is not an appropriate context for

judicial resolution of the constitutionality of an important

federal statute.

fair use is whether or not the work is available to the potential user,” and

that “If the work is ‘out of print’ and unavailable for purchase through

normal channels, the user may have more justification for reproducing

it"). The nonprofit use of out-of-print material by other petitioners may

also constitute fair use.

'§ Fair use is copyright’s equitable rule of reason that balances a

variety of interests in determining whether infringement is excused in a

particular case. See Sony v. Universal Studios, 464 U.S. 417, 448 n.31

(1984) (noting the case-by-case nature of fair use).

Il. THE CTEA IS A VALID EXERCISE OF

CONGRESS'S AUTHORITY UNDER THE

Petitioners argue that the "retroactive" application of the

CTEA's new term of copyright to works that existed at the

time of the CTEA's enactment is unconstitutional. Pet. Br.

17-31. They base their argument on their assertion that the

single permissible purpose that can justify a copyright law—

i.e., the only way that such a law can "Promote the Progress”

of literature, music and art—is for it to stimulate authors to

create new works.’ Since extension of the term of copyright

for a work already in existence cannot serve as an incentive

for the production of that work, petitioners argue, such an

extension cannot be a valid federal copyright law.7°

This is an odd and artificially straitjacketed view of what

Congress can do to "promote the Progress of Science and

useful Arts."*’ It is inconsistent with the theory and history

'° See Br. or Petitioner at 22-23 (To promote the “Progress of

Science,” a copyright term must, “stimulate . . ‘the creative activity of

authors.’... Whatever else a [copyright law] may do, it must promote

‘creative activity’ to satisfy the limits of the Constitution.”).

*° See Pet. Br. 22 ("It follows that a blanket extension of existing

copyrights cannot be a ‘limited Time []' that ‘promotes the Progress of

Science.’ It cannot, because the incentive is being given for work that

has already been produced. Retroactive extensions cannot ‘promote’ the

past. No matter what we offer Hawthorne or Hemingway or Gershwin,

they will not produce anything more.”).

Petitioners similarly argue that extending the copyright term of

existirg works violates what they call the "Quid Pro Quo Requirement”

of. the copyright clause. Pet. Br. 23 ("[Congress's] Copyright Clause

power is contingent upon an exchange. As nothing is received by the

public in exchange for, or conditioned upon, the retroactive extension [of

*! Amici agree with the court of appeals that the introductory

language of the Copyright Clause is not a judicially enforceable

limitation on Congress's powers under that Clause. See Eldred v. Reno,

239 F.3d 372, 380 (D.C. Cir. 2001). Because amici understand that

of U.S. copyright laws and it fails utterly to appreciate that

progress in art, literature and music and knowledge in

society can be promoted in a variety of ways in addition to

the direct stimulation of the creation of new works. The

reasons given by Congress for enactment of the CTEA, such

as encouraging dissemination, increased life expectancy of

authors and their heirs, and international harmonization are

more than sufficient for the exercise of its Article | power,

and are consistent with the historical exercise of that power

over the last 200 years. If adopted, petitioners’ contention

would handcuff Congress in addressing important copyright

problems in the future, and it would, in addition, render

unconstitutional all or part of virtually every copyright

statute that Congress has ever enacted.

A. Petitioners’ Argument is Inconsistent With

the History of the Copyright Clause, and

Takes an Unduly Narrow View of How

Congress May Promote Progress

1. Throughout most of the history of federal

upon publication and dissemination, not

upon creation.

For almost two hundred years, with minor exceptions,

federal copyright protection did not attach upon creation of a

work, but only when the work was published with the

necessary formalities—i.e., when copies of the work were

distributed to the public with notice of copyright.” During

respondent and other amici will address this point in detail, we focus our

comments on petitioners’ incorrect interpretation of the constitutional

language.

* See, e.g, Act of March 4, 1909, § 10 ("Any person entitled

thereto by this title may secure copyright for his work by publication

thereof with the notice of copyright required by this title."). Under § 12

the time period between a work's creation and its publication,

law.” Thus, for most of its history, federal copyright law

directly provided incentives to the process of dissemination,

not creation.’ It was not until January 1, 1978, the effective

date of the Copyright Revision Act of 1976, that federal

and fixation in tangible form.

Clearly, the Congress that enacted the first federal

major copyright revision laws in 1831,7> 1870°° and 19097’

were primarily concerned with enacting laws pursuant to the

existing works—something petitioners now tell us is an

inadequate constitutional basis for a copyright law.”*

Moreover, even in making the fundamental shift from a

publication-oriented copyright law to one that initiates

protection upon fixation of original works of authorship, the

94" Congress continued to show its concern with

encouraging dissemination. Section 303(a) of the 1976

existing unpublished works, substituting federal statutory

protection until December 31, 2002. But if the work were

of the 1909 Act, statutory copyright protection was available for certain

unpublished works, such as lectures and photographs, that were typically

publicly exploited by being performed or exhibited without the

distribution of copies to the public.

3 Under § 2 of the 1909 Copyright Act, there was no federal pre-

emption of state protection for unpublished works.

24 See Gorman and Ginsburg, Copyright 347 (2002).

> Act of Feb. 3, 1831, 4 Stat. 436.

6 act of July 8, 1870, 16 Stat. 212.

2” Act of March 4, 1909, 35 Stat. 1075.

28 Patent law similarly has always focused its protection on the act

of making an invention available to the public, not on the act of invention

itself. See Kewanee Oil v. Bicron Corp., 416 U.S. 470, 491-92 (1974)

(policy of patent law is to encourage disclosure).

published prior to that date, the work was to remain in

extended copyright protection for works created by authors

"dead for many years, or even centuries." M. Nimmer & D.

Nimmer, Nimmer on Copyright, § 5.04.

2. The First Congress clearly understood that

its power under the Copyright Clause

extended beyond providing incentives for

the creation of new work; later Congresses

have followed suit.

The Congress that enacted the first Copyright Act in

1790 established a term of federal statutory copyright

protection for works to be published in the future—i.e., after

enactment of the 1790 Act. In doing so, Congress provided

incentives for authors to create new works. But the 1790 Act

also afforded federal statutory protection to works already in

existence.” The First Congress thus could not possibly have

believed that its power under the Copyright Clause was, as

petitioners contend, artificially and absolutely limited to

enactments that would provide incentives for the creation of

new works.°’ As the court of appeals correctly observed,

"the First Congress was clearly secure in its power under the

2° The 1790 Act afforded authors protection for "any map, chart,

book or books, already printed within the United States,” as well as those

"already made and composed, but not printed or published, and that shall

thereafter be made and composed.” Act of May 31, 1790, § 1.

3° Congress took the same action in 1976 when it converted existing

state common-law rights into federal statutory ones. As it had in 1790,

Congress in 1976 gave federal protection to works that had already been

produced. It could not have done so if it believed that its only authority

was to incentivize new works. Nor was Congress in 1790 or 1976

required to protect works already in existence in order to avoid

unjustifiable destruction of existing rights under state law. If it truly

believed—as petitioners contend—that it had no constitutional power to

confer rights on works already in existence, it could simply have let the

States continue to protect those works.

copyrights beyond those granted by the States."®' And, as

this Court noted well over a century ago:

"(t]he construction placed on the constitution by the

first [copyright] act of 1790 ... by the men who

were contemporary with its formation, many of

whom were members of the convention which

framed it, is entitled to very great weight."

Furthermore, every time a subsequent Congress has

increased the term of copyright protection it has increased

the term of protection for subsisting works, as well as for

works yet to be created. Congress took such action in 1831,

1909, 1976 and 1998. This consistent understanding of

Congress's copyright power to provide additional protection

for existing works has remained legally unchallenged until

the instant litigation.’ Such unchallenged congressional

action over the length of our Nation's history is entitled to

great weight: "[W]Jhen it is remembered that the rights thus

established have not been disputed during a period of nearly

a century, it is almost conclusive." Burrow-Giles, 111 U.S.

at 57.

*! 239 F.3d at 379 (emphasis added).

*? Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57

(1883). Seventeen members of the First Congress had been delegates at

the Constitutional Convention. See Lynch v. Donnelly, 465 U.S. 668,

674 (1983).

* Similarly, each of the interim extensions that preceded the

enactment of the Copyright Revision Act of 1976 extended the renewal

term of subsisting copyrights that, but for those extensions, would have

expired while Congress considered adoption of that omnibus new law.

M. Nimmer and D. Nimmer, Nimmer on Copyright, § 9.11[A]. Once

again, Congress lacked this power if petitioners are correct.

3. Throughout History, Congress: Has

Frequently Enacted Copyright Laws That

Cannot Be Explained As Designed Only

To Provide Incentives For The Creation Of

New Works.

As was true in 1790, and in all legislation regarding

used its Article I power to enact provisions that did not

encourage the creation of new works.

(a) Applying New Rights To Existing

Works

When Congress has conferred new exclusive rights on

available, not only to the authors of works to be created after

enactment of the new law, but also to the proprietors of

existing works. For example, when Congress enacted the

Visual Artists Rights Act of 1990, it expressly made the

new Statutory rights of integrity and paternity applicable to

works created prior to the effective date of the Act.

Similarly, when Congress in 1976 expanded the rights of

publicly display certain works, it made that new right

applicable to both existing and future works.*® And while

** Pub. L. No. 101-650, 104 Stat. 5089 (1990).

* 17 U.S.C. § 106A(dX(2) (providing rights of paternity and

integrity if author held title as of effective date). See also Martin v. City

of Indianapolis, 982 F. Supp. 625, 638 (S.D. Ind. 1997) (Work created in

1987 deemed within ambit of Act); Edward Samuels, The Public Domain

in Copyright Law, 41 J. Copyright Soc'y U.S.A. 137, 172-73 (1993)

(discussing the manner in which Congress has over the entire history of

the copyright laws, expanded rights in existing works).

-* 17 USC. § 301(a). Under this provision, all of the exclusive

rights set forth in § 106 apply to works of authorship created before or

after the effective date of the Act. See also Digital Performance Right in

the subject matter of copyright was extended by Congress to

include musical compositions in 1831, it was not until 1897

that the law was amended to provide copyright owners with

the exclusive right to publicly perform musical works.*’ It

has always been understood that this new public

performance right applied to works existing at the time of the

1897 amendments, as well as to works produced after 1897.

Other examples abound of adding new rights to existing

copyrights. For instance, when Congress increased the

penalties for civil and criminal copyright infringement, it

applied the new increased penalties not only to infringement

of future works, but also to works already in existence on the

effective date of the increases. See the Digital Theft

Deterrence and Copyright Damages Improvement Act of

1999, Pub. L. No. 106-160, 113 Stat. 1774. Congress has

taken similar "retroactive" action when it has enacted laws in

response to harmful marketplace practices made possible by

new technologies. For instance, both the Record Rental

Amendment Act of 1984** and the Computer Software

Rental Act of 1990°° prohibited unauthorized rental practices

that displace the sales of copyrighted works. These laws

applied to music and software created and copyrighted prior

to their dates of enactment, as well as to works created after

those dates.*° And, when Congress enacted the

comprehensive 1976 revision of the Copyright Act, as a

Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336

(granting to existing copyright owners the new right to publiciy perform

sound recordings by means of digital transmission).

*” See Act of Jan. 6, 1897, 29 Stat. 481.

*8 See Pub. L. No. 98-450, 98 Stat. 1727 (1984); see also S. Rep.

No. 98-162 at 2 (1984).

*° Pub. L. No. 101-650, 104 Stat. 5089 (1990).

*° In order to avoid penalizing reliance on the fact that the law

previously did not prohibit these rental practices, both laws did not apply

to copies acquired prior to the date of enactment and in possession of the

renter as of that date.

general matter it applied the Act's rights and protections both

to pre-existing and future works.*! C ongress could not have

taken any of these actions if. as petitioners contend, it may

not use the copyright power to extend the protection of

existing copyrights.

(b) Other Examples

The foregoing examples demonstrate how C ongress has

consistently promoted progress by applying new rights and

protections to existing works—something Congress could

not do if petitioners’ arguments were to be taken seriouslv.

Congress has also enacted a host of other laws that cannot

possibly be explained as inducing the creation of new works

even in their wholly prospective application. Thus. C ongress

has passed laws to exempt from the exclusive rights of

or display of works during certain face-to-face teaching

activity (§110(1)), performances and display during the

course of religious services (§ 110(3)), the playing of radio

and television broadcasts to customers by certain commercial

establishments (§110(5)), and the performance of

nondramatic literary or musical works by nonprofit fraternal

and veterans’ organizations (§110(10)). Enactment of such

—— cannot possibly induce the creation of new

works.

m To take another example, the cable television compulsory license

contained in the 1976 Act, 17 U.S.C. § 111, for the first time required

cable operators to pay for the retransmissions of existing and future

copyrighted works. As its legislative history makes clear, that provision

was designed, in part, to facilitate dissemination of broadcast

programming on a national basis. See, e.g, Capital Cities Cable. Inc. v.

Crisp, 467 U.S. 691, 710 (1984) (noting that in enacting the compulsory

license, Congress clearly sought to further copyright clause goals by

allowing the public to benefit from wider dissemination).

Also completely unrelated to creating incentives for the

protection of new works is the Copyright Renewal Act of

1992.*° which eliminated the need for copyright owners of

works then in their initial term of copyright to take any

action to renew their copyrights in order to obtain the 28-

year statutory renewal term. Congress's actions had nothing

to do with stimulating the creation of new works: it sought to

address longstanding concerns that the renewal process had

functioned as a trap for the unwary, and removed this trap by

automatically granting the renewal term to existing works.

The deposit and registration provisions of the copyright law

also promote the progress of arts and sciences by enriching

the collections of the Library of Congress, and facilitating

business transactions between copyright owners and

potential licensees.”

B. Freed Of Petitioners’ Crabbed

Interpretation Of Congress's Power, The

CTEA Easily Passes Constitutional Muster

The foregoing discussion illustrates the broad variety of

ways in which Congress has used its copyright power for

purposes other than stimulating the production of new works.

It has protected existing copyrights against new means of

infringement, expanded the exclusive rights of the

proprietors of existing copyrights, increased penalties for the

* Pub. L. No. 102-307, 106 Stat. 274 (1992).

* See also 17 U.S.C. § 202 (overtuming series of state court

decisions holding that absent an agreement to the contrary, authors or

artists who sold a manuscript or work of art transferred the copyright as

well as physical object); H.R. Rep. No. 94-1476, at 124 (1976)

(explaining the rationale for the provision). . .

* See 17 U.S.C. §§ 701 ef seg. (describing operation of the

court has found it within Congress's power because it "sustains a national

library for the public use." Ladd v. Law & Technology Press, 762 F.2d

809, 812 (9 Cir. 1985).

infringement of existing copynghts. conferred copyright on

pre-existing works, increased the term of existing copynghts,

and removed traps through which proprietors of existing

works might lose rights. Congress has also acted to enrich

the collections of our national library, to provide

comprehensive copyright-related records. to harmonize our

laws with those of other nations. and to bring our laws into

conformity with international norms.** If petitioners’

artificially narrow interpretation of C ongress's power were to

be adopted. all of these laws would be unconstitutional, for

none of them can be explained as efforts to stimulate new

creation. Congress's ability to enact copyright legislation in

the future would also be greatly compromised. rendering

Congress incapable of adequately fulfilling its constitutional

responsibility to promote the progress of art. films. literature

and music.

Suppose, for example. a new form of piracy arose that

current copyright law did not adequately address. Petitioners

would permit Congress to amend the law to prohibit this new

form of piracy for works created after the amendment is

* See Berne Implementation Convention Act of 1988. Pub. L. No.

100-568, 102 Stat. 2853. On several occasions. Congress has noted its

concern that domestic copyright terms were less generous than those in

other nations. When it passed the 1831 Act. Congress announced that

one of its key objectives was "to enlarge the period for the enjoyment of

copy-right, and thereby place authors in this country more nearly upon

equality with authors in other countries.” 7 Reg. Deb. 21, Cong. 2d Sess.

App. CXIX (Dec. 17, 1830). Similarly, the legislative history of the

1976 Act reveals that, in increasing copyright terms, Congress was

motivated in part by an interest in conforming U.S. terms to those in

foreign nations. See H.R. Rep. No. 94-1476, at 134-136 (1976). ("The

arguments as to the benefits of uniformity with foreign laws, and the

advantages of international comity that would result from adoption of a

life-plus-50 term, are also highly significant"). See also Supplemental

Report of the Register of Copyright on the General Revision of U.S.

the duration of U.S. copyrights conform to that prevalent abroad.").

enacted, but they deem it unconstitutional for Congress to

protect existing works from the new brand of piracy, for such

an amendment could do nothing to stimulate the creation of

existing works.*° Nor, if copyright infringement became a

more serious problem, could Congress increase the criminal

penalties for infringements of existing works, or the level of

statutory damages, for again those increases could not

possibly stimulate création of the works they would protect.

Such results would not only be unfortunate, they would be

patently absurd.

This Court should, instead, recognize Congress's

authority to select means, in its rational judgment, best

further the numerous goals of the Copyright Clause. Once

freed of the illogical and artificial limitation petitioners

would fasten on Congress's power, it is clear that application

of the CTEA's new term of copyright to existing, as well as

future, works was completely appropriate. As set forth in the

CTEA's legislative history, Congress had ample reasons for

following historical practice and applying the CTEA's new

term of copyright to existing works. These included creating

incentives to preserve and restore older works, helping to

harmonize U.S. copyright laws with the laws of other

nations, adequately rewarding authors and protecting their

heirs in view of increased life expectancies, and responding

to new technologies that increase opportunities for

proprietors of existing copyright to disseminate their

works.*”

existing works at the time of their creation. See Pet. Br. 23.

*” The rationality of Congress's actions with respect to the CTEA is

also reflected in the manner in which it conducted its legislative inquiry.

It utilized its fact-finding capabilities by holding balanced hearings that

evoked both strong support for and opposition to the term-extension

proposal. The Senate Judiciary Committee produced a thorough and

balanced Committee Report. Moreover, during the course of the

legislative process that covered two Congresses, changes were made to

Application of the CTEA's new copyright term to

existing works adheres to a common-sense tradition that

dates back to the very first federal copyright law in 1790.

The congressional action challenged in this case was thus

neither unprecedented nor aberrational—as petitioners

contend. It would have been aberrational had Congress

decided not to extend the CTEA's new copyright term to

existing copyrights. Congress had never before drawn an

arbitrary line that would leave authors of older works with

less protection that authors of future works. The

Constitution does not require it to do so now.*®

the proposal to accommodate concerns raised about the breadth of the

proposed term extension. For example, the CTEA includes a provision,

17 U.S.C. § 108(h), that provides an exemption from copyright

infringement during the extended term for qualified libraries, archives

and nonprofit educational institutions engaged in activities in the public

interest.

“* Congress is surely entitled to common-sense discretion to decide

to make the same set of rules applicable to all copyright proprietors and

infringers. Cf 7 Reg. Deb. 424 (statement of Mr. Huntington) (noting

that ‘justice, policy and equity alike’ forbade distinction between existing

and pre-existing works) (Jan. 7, 1831). To do otherwise would, in fact,

lead to a crazy-quilt of time-specific copyright rules. Under petitioners’

position, copyright owners could be accorded only those rights that were

part of the copyright law at the time of the creation of each particular

work. In judging infringement claims and actions, courts and litigants

would have to determine exactly when works were originally fixed in

tangible form so as to give the copyright proprietor only those precise

rights that existed at that time, not protections that might have been

added at a later time. It is one thing for Congress to decide for good

reason in particular cases not to apply new rights to existing works. It is

quite another for this Court to lay down a constitutional rule that would

deprive Congress of any ability to apply the same set of rules to all

copyrighted materials.

Ill. APPLICATION OF THE CTEA'S

COPYRIGHTS DOES NOT VIOLATE THE

FIRST AMENDMENT

Petitioners base their First Amendment challenge to the

application of the CTEA to existing copyrights on their

alleged constitutional right to express themselves by

mechanically reproducing and distributing the copyrighted

works of others without permission. It is very doubtful,

however, whether appropriating another's copyrighted work

without permission—as opposed to copying that may be

necessary for the purposes of comment or criticism—is the

copyists "speech," for purposes of the First Amendment.”

In all events, even if mechanical copying of another's

copyrighted work without permission is protectible speech,

application of the CTEA's extension of the term of copyright

to existing works easily passes the intermediate-scrutiny test

that petitioners invoke.

* In rejecting petitioners’ First Amendment claim, the court of

appeals may have erred when it stated that “copyrights are categorically

immune from challenges under the First Amendment." Eldred, 239 F.3d

at 377. One can imagine a copyright law—such as a law that would

provide copyright on the basis of the political viewpoint of a work—that

would violate the First Amendment. See United Christian Scientists v.

Christian Science Bd. of Directors, 829 F.2d 1152, 1164-65 (D.C. Cir.

1987) (holding that Congress cannot validly enact a private copyright

statute to ensure that Christian Scientists enjoy doctrinal purity).

However, a content-neutral copyright law that is a valid exercise of

Congress's copyright power, that does not purport to protect ideas, but

only the particular expression of the author, and that leaves room for

others to express themselves without unfairly appropriating an author's

work, may well be immune from a First Amendment challenge.

A. Mechanical Copying of Another's

Copyrighted Work Without Permission Is

Not Free Expression For Purposes of the

First Amendment

Petitioners assert that mechanical copying of the work of

others and distributing it without their permission constitutes

free expression for purposes of the First Amendment: "By

barring the unauthorized use or dissemination of copyrighted

works, copyright law regulates speech.” Pet. Br. 37.°° That

is an extremely dubious proposition. The First Amendment

is designed to enable people to publish their own expression,

not to appropriate and distribute someone else's expression

without permission. No expressive conduct is involved in

running a photocopier or video tape recorder or in posting

another's book on the Internet without the author's

permission and against the author's wishes.

Petitioners’ unusual claim that intentional copyright

infringement constitutes First Amendment activity is not

supported by any citation of authority. However, at least two

cases in the courts of appeals flatly reject the contention. In

United Video, Inc. v. FCC, 890 F.2d 1173 (D-C. Cir 1989),

petitioner cable television companies were "in the position of

claiming that they have a first amendment right to express

themselves using the copyrighted material of others." /d at

1190. The court of appeals held that they did not: "[T]he

petitioners desire to make commercial use of the copyrighted

works of others. There is no first amendment right to do so.”

Id. at 1191. In reaching this conclusion, the court relied on

this Court's decision in Harper & Row v. Nation Enterprises,

*° We join with amicus Professor Samuels in questioning

petitioners’ related contention that the Constitution on its own face

creates a “public domain" where one has a constitutional right to

appropriate the works of others without their permission. See Br. of Prof.

Samuels as Amicus Curiae at 22-24.

471 U.S. 539 (1985), where the Court considered whether a

magazine's unauthorized reproduction of portions of

President Ford's memoirs was a violation of the Copyright

Act. The court of appeals noted that, in upholding the

application of the Act, the Court did not apply First

Amendment scrutiny, but instead based its decision entirely

on whether the magazine's publication constituted "fair use”

under the statute (a claim which the Court rejected). See

also Author's League of America v. Oman, 790 F.2d 220,

223 (2™ Cir. 1986) ("the cases establish that there is a

constitutional right to freely circulate one's ideas .... They do

not, however, create any right to distribute and receive

material that bears the protection of the Copyright Act.").

The Copyright Act appears not to regulate speech

because it does not impose liability based on the content of

the defendant's own expression. Independent creation is a

complete defense to infringement, and liability only flows

based on those portions of a work that are copied from

another. To the extent that any petitioner in this case claims

an interest in publishing their own expression, petitioners fail

to explain how the idea/expression dichotomy and the

freedom.”

*! Petitioners’ contention that mechanical copying is First

Amendment activity would, if accepted, raise doubts, not only about the

copying, such as 18 U.S.C. § 1832(a)(2) ("Whoever, with intent to

convert a trade secret, copies, duplicates ... or conveys such

information") and 18 U.S.C. § 1030 (prohibiting copying of information

from a protected computer), as well as numerous applications of the

Lanham Act, trade secret law and common law unfair competition and

mi tener tamer wa

B. Application of the CTEA's Copyright Term

to Existing Copyrights Satisfies Intermediate

Scrutiny

Amici believe that petitioners have not asserted any

cognizable First Amendment right, and that the Court's

inquiry should end there. Assuming arguendo that

mechanical reproduction of another's copyrighted material

without permission qualifies as protectible free expression,

application of the CTEA's extended term of copyright to

existing works easily satisfies intermediate scrutiny.

Petitioners’ argument to the contrary is based entirely on

their erroneous assertion that the only legitimate government

interest that can validly justify a federal copyright statute is

to encourage the production of new works. See Pet. Br. 40.

As we have shown in the prior section of this brief,

however, Congress's application of the CTEA's new term of

traditional exercise of the copyright power, supported by

Congress's desire to promote progress in literature, art and

music by encouraging distribution and preservation of

existing works, enhancing international harmonization, and

taking account of increased life expectancies. . Congress's

enactment of a valid copyright statute, pursuant to its express

constitutional authority to enact copyright legislation,

reflects an important governmental interest satisfying

intermediate scrutiny. At the same time, the presence of a

broad, flexible fair use provision and other exemptions and

limitations in that statute satisfies the intermediate scrutiny

requirement of narrow tailoring.~’

* There appears to be a consensus among those urging application

of the First Amendment to copyright infringement that intermediate

scrutiny would be the appropriate constitutional standard.

* See Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166

F.3d 65, 73 (2d Cir. 1999) (noting that First Amendment concerns are

CONCLUSION

The complaint in this case does not present a justiciable

controversy. If the Court reaches the merits of the petition,

the decision of the court of appeals should be affirmed.

Respectfully Submitted,

PAUL BENDER *

MICHAEL R. KLIPPER

CHRISTOPHER A. MOHR

MEYER & KLIPPER, PLLC

923 15th Street, N.W.

Washington, D.C. 20005

(202) 637-0850

On Behalf of The Bureau of

National Affairs, Inc., CCH

Incorporated, Houghton

Mifflin Company, Inc., The

McGraw-Hill Companies,

Reed Elsevier Inc., the

Software & Information

Industry Association

* Counsel of Record

August 2002

protected by the fair use doctrine); New Era Pubs. v. Henry Holt & Co.,

813 F.2d 576, 584 (2d Cir. 1989) ("The fair use doctrine encompasses all

claims of first amendment in the copyright field."); Dallas Cowboys

Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (Sth

Cir. 1979) (same); Walt Disney Productions v. Air Pirates, 58\ F.2d 751,

758-59 (9th Cir. 1978) (same); Wainwright Securities, Inc. v. Wall Street

Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977).

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.