Supreme Court/Copyrights

A statute that extends the term of federal copyrights by 20 years exceeds the authority of Congress under the Constitution's copyright clause and violates the First Amendment, according to the petitioner in a Supreme Court case to be argued October 9 (Eldred v. Ashcroft, U.S., No. 01-618, briefs filed 5/20/02 and 8/5/02).

The petitioners argued that the statute ignores the constitutional requirement that the legislation must "promote" the progress of science and the useful arts, and must be for "limited times." The government, however, asserted that the copyright clause does not distinguish between present and future copyrights, but only between limited and unlimited periods of protection. It pointed out that the statute is indeed limited to a copyright term of life of the author plus 70 years.

Copyright Term Extension Act.

In October 1998, Congress enacted the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), amending Section 304(b) of the Copyright Act to extend the term of copyright by 20 years. Thus, the new term of copyright is the life of the author plus 70 years; for copyrights in their renewal term on the date CTEA was enacted, the term is 95 years from the date the copyright was originally secured.

This extension brought U.S. copyright law into line with the standard adopted by the European Union in 1995. Proponents of the legislation contended that, under the Berne Convention's "rule of the shorter term," the E.U. would not protect foreign works longer than they are protected in their home country. Thus, the U.S. copyright term needed to be extended, they argued, so that American authors could receive the same term copyright protection in Europe that is afforded European-produced works.

Eric Eldred and others (collectively, Eldred) sued the government for a declaratory judgment that the CTEA is unconstitutional. The plaintiffs include a non-profit Internet distributor of public domain books, a rare book distributor, a sheet music distributor, a choir director, and a film preservation company. They alleged that they were prepared to use works created before 1923, which could have been legally copied, distributed or performed as public domain works but for the CTEA.

Judge June L. Green of the U.S. District Court for the District of Columbia dismissed the suit. 74 F.Supp.2d 1, 53 USPQ2d 1217 (D.D.C. 1999) (59 PTCJ 357, 12/10/99). The circuit court affirmed, ruling that the CTEA did not violate the First Amendment or the Constitution's copyright clause authorizing Congress to grant exclusive rights for "limited times." 239 F.3d 372, 57 USPQ2d 1842 (D.C. Cir. 2001) (61 PTCJ 396, 2/23/01). Judge David B. Sentelle dissented in part.

The Court of Appeals refused a request for an en banc rehearing and rejected the contention that the CTEA violated the First Amendment and the copyright clause.

Eldred filed for Supreme Court review last October (62 PTCJ 584, 10/26/01).

Review Granted.

The Supreme Court granted review in the case on Feb. 19, 2002 (63 PTCJ 350, 2/22/02). On Feb. 25, 2002, the Court amended its order granting review and limited its review to the following questions:

•  Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retrospectively the term of existing copyrights? and

• Is a law that extends the term of existing and future copyrights categorically immune from challenge under the First Amendment?

Petitioner's Brief.

The Copyright Clause at Article I, Section 8, paragraph 8 of the Constitution, gives Congress the power to "promote the progress of science and useful arts, by securing for limited times, to authors and inventors the exclusive right to their respective writings and discoveries."

Eldred argued that this power is expressly limited by the phrases "to promote progress of science and useful arts" and "for limited times." There is no doubt, he maintained, that the Framers intended the copyright term to be short so that creative works would pass into the public domain after a short time without restraint. The Copyright Clause is the only power in Article I that specifies both its ends (to promote the progress of science) and also its means (securing for limited times), he said.

By repeatedly extending the terms of existing copyrights, Congress has violated the limited times and originality requirements of the Copyright Clause, Eldred explained. He pointed out that copyright terms have been extended 11 times in the past 40 years. This practice, he stressed, shows that copyright terms are not fixed or certain but perpetually changeable and expandable.

Retroactively extending copyright terms also violates the quid pro quo requirement of the Copyright Clause, according to Eldred. Congress may grant an exclusive right for a limited time in exchange for a writing by an author which will ultimately pass to the public domain, but it may not handout a monopoly over speech as a copyright extension in exchange for nothing. Thus, Eldred contended, the CTEA grants a windfall and is simply a boon to the heirs of copyright holders which violates the core of the quid pro quo built into the Copyright Clause.

In addition to violating the limited times requirement, Eldred continued, the CTEA's retroactive extension also violates the Constitution's originality requirement for copyrights, as explained in Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340, 18 USPQ2d 1275 (1991) (41 PTCJ 443, 453, 3/28/91). Existing works were original when protection first attached, but the originality requirement continues beyond the initial vesting, he argued.

Eldred also objected to the appellate court's invocation of Harper & Row Publishers Inc. v. Nations Enter., 47 U.S. 539, 225 USPQ 1073 (1985) (30 PTCJ 63, 5/23/85), as a bar to First Amendment challenges in copyright cases. He faulted the court's ruling below which found that copyrights are categorically immune from First Amendment challenges. Harper & Row refused to carve out a public figure exception to copyright infringement actions, Eldred explained, but it did not eliminate all First Amendment challenges to all copyright statutes.

Eldred insisted that the CTEA is subject to intermediate scrutiny for violations of the First Amendment, pointing out that the copyright term extension advances no important governmental interest without burdening substantially more speech than necessary. In any event, he urged, Congress could easily have achieved the same alleged pro-speech benefit by conditioning the extension of copyright upon the copyright holder's restoration of endangered works.

Respondent's Brief.

Early congressional modification of copyright terms in U.S. history has applied to both future and subsisting works, according to the government's brief on the merits. Since the CTEA's term of life plus 70 years is not unlimited or perpetual, it satisfies the constitutional mandate that copyrights lasts only for limited times, the government argued.

The Constitution's Copyright Clause does not distinguish between present and future copyrights, only limited and unlimited periods of protection, the government explained. The limited times requirement, it noted, does not preclude Congress from applying new copyright terms to future and existing copyrights alike.

Although Eldred suggested that Congress avoids the "limited times" restriction with repeated term extensions of existing copyrights, all but two of the 11 purported extensions (the 1976 Copyright Act and the CTEA) were temporary placeholders that were subsumed by the 1976 Copyright Act, the government said. The government added that the two copyright term extensions over the last 90 years was Congress's response to rapid changes in economic, technological, international and demographic areas.

Eldred's reading of the Copyright Clause converts the provision from an enumerated power of Congress to a limitation on Congress's power to enact "necessary and proper" legislation. Congress, however, has engaged in a longstanding practice of affording authors of existing works the benefits of after-enacted legislation as a necessary and proper component of the copyright clause, the government elaborated.

Congress reasonably concluded, the government pointed out, that this consistent practice promotes creativity and progress because it assures authors that they will not be unfairly penalized for creating or publishing earlier rather than later. Authors have greater incentive to create new works where the government has a reputation for ensuring appropriate compensation and equitable results, it added. "Particularly in light of Congress's 'constitutional authority and institutional ability to accommodate fully the varied permutations of competing interests,' … the legislative judgment that the CTEA fairly compensates authors of future and existing works, and that the historical pattern of such fair treatment enhances incentives for future creativity, warrants substantial deference," according to the government.

Moreover, applying the CTEA's term extension to subsisting copyrights also enhances the incentive for copyright holders to restore older works and to further disseminate them to the public, the government argued. Granting a longer term for existing works promotes the progress of science and useful arts by creating greater incentives for copyright holders to digitize, distribute, restore, or otherwise exploit their works, according to the government.

Furthermore, the government noted, Congress legitimately considered the trade effect of maintaining a copyright term that was out of step with foreign copyright protection. The CTEA's extension to existing works balances the rights of American authors abroad and makes the United States a more attractive place to create and publish in the first instance. Thus, by establishing parity for existing and future works, CTEA promotes progress by bolstering authors' incentive to publish their works first in this country, the government explained.

Contrary to Eldred's contention, the Feist decision on the originality requirement only determines whether a work is eligible for copyright protection, and has no relevance to the limited times for which a work may be protected. The CTEA, the government explained, merely applies a new copyright term to "original" works that properly qualified for copyright protection in the first instance.

The government also dismissed Eldred's concerns over perpetual copyright protection as unfounded. Congress has and continues to be conservative when revising copyright terms. For example, Congress waited a long time before it reformed the prior 56 year term of protection to conform to the life-plus-50 year term that had long been the international standard under the Berne Convention. In changing the term to life of the author plus 70 years, Congress merely recognized that longer life expectancies and new technology made the life plus 50 years inadequate, the government stressed.

Finally, the government insisted that the CTEA is consistent with the First Amendment. Harper & Row teaches that the First Amendment impact of copyright restrictions is exceedingly modest, since such restrictions mainly bar commercial competitors from exploiting an author's own creative expression.

Contrary to plaintiff's assertions, CTEA does not impermissibly restrict free speech and removes no work from the public domain. Instead, the government urged, CTEA preserves and encourages the creation of new works by prompting copyright holders and their licensees to undertake significant restoration and distribution of existing works. Eldred's intermediate scrutiny request should be rejected as they cite no copyright decision that has ever rejected the analysis employed in Harper & Row or that has invalidated a copyright enactment by employing intermediate scrutiny, the government's brief noted.

The Constitution entrusts selection of limited times to political branches, the government observed, and as long as the protection chosen by Congress meets the requirement of being limited, there is no basis for courts to second-guess its determinations under a heightened standard of review.

Eldred was represented by Lawrence Lessig, Stanford Law School, Stanford, Calif.

Briefs of Amicus Curiae.

Of the 38 briefs filed amicus curiae, the parties represented cover a wide spectrum of copyright interests, including motion pictures, computer software, libraries, book publishers, music publishers, sound recordings, trade associations, and intellectual property law professors. The breakdown is 17 for petitioner and 21 for the government.

Notable among the briefs are the filings on the side of the government by Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee when the CTEA was enacted, and by Reps. James Sensenbrenner (R-Wis.), Howard Coble (R-N.C.), and other ranking members of the House Judiciary Committee at that time. Predictably, these briefs argue that the decision to promote the progress of the sciences and useful arts is extend the copyright term was a legislative decision made after extensive hearings and deliberation, and that it warrants deference by the judiciary.

The Sen. Hatch's brief discusses the history of the Copyright Clause and considers the intentions of the drafters of the Constitution in light of research on the contemporaneous uses of the term "progress." Rather than the more recent understanding of the term as "advancement," writers in 1789 understood the term to mean "spread" or "dissemination." Interestingly, the research was conducted by Professor Malla Pollack of the University of Memphis Law School, who filed an amicus brief in support of Eldred.