D.C. Circuit Opinion

D.C. Circuit Opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2000 Decided February 16, 2001
No. 99-5430
Eric Eldred, et al.,
Appellants
v.
Janet Reno,
In her official capacity as Attorney General,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00065)
Lawrence Lessig argued the cause for appellants. With him on the
briefs were Charles R. Nesson, Jonathan L. Zittrain, Geoffrey S. Stewart,
Gregory A. Castanias, and Portia A. Robert.
Erik S. Jaffe was on the brief of amicus curiae Eagle Forum Education
& Legal Defense Fund.
Laura N. Gasaway, Lyman Ray Patterson, and Edward Walterscheid, appearing
pro se, were on the brief of amici curiae Laura N. Gasaway, et al.
Alfred Mollin, Counsel, U.S. Department of Justice, argued the cause
for appellee. With him on the brief were David W. Ogden, Acting Assistant
Attorney General, William Kanter, Counsel, and Wilma A. Lewis, U.S.
Attorney.
Peter L. Felcher, Carey R. Ramos, Carl W. Hampe, Lynn B. Bayard,
Gaela K. Gehring-Flores, Allan Adler, Fritz E. Attaway, Joseph J.
DiMona, I. Fred Koenigsberg, and James J. Schweitzer were on the brief
of amici curiae The Sherwood Anderson Literary Estate Trust, et al.
Before: Ginsburg, Sentelle, and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Separate opinion dissenting in part filed by Circuit Judge Sentelle.
Ginsburg, Circuit Judge:
The plaintiffs in this
case, corporations, associations, and individuals who rely for their
vocations or avocations upon works in the public domain, challenge
the constitutionality of the Copyright Term Extension Act of 1998
(CTEA), Pub. L. No. 105-298, 112 Stat. 2827. This marks the first
occasion for an appellate court to address whether the First Amendment
or the Copyright Clause of the Constitution of the United States constrains
the Congress from extending for a period of years the duration of
copy- rights, both those already extant and those yet to come. We
hold that neither does.
I. Background
The CTEA amends various provisions of the Copyright
Act of 1976, 17 U.S.C. § 101 et seq. The portions of the CTEA
at issue here extend the terms of all copyrights for 20 years as follows:
(1) For a work created in 1978 or later, to which an individual author
holds the copyright, the Act extends the term to the life of the author
plus 70 years. See Pub L. No. 105-298 § 102(b)(1), 112 Stat.
2827; 17 U.S.C. § 302(a). (2) For a work created in 1978 or later
that is anonymous, or pseudonymous, or is made for hire, the term
is extended from 75 to 95 years from the year of publication or from
100 to 120 years from the year of creation, whichever occurs first.
See Pub. L. No. 105-298 § 102(b)(3), 112 Stat. 2827; 17 U.S.C.
§ 302(c). (3) For a work created before 1978, for which the initial
term of copyright was 28 years, the renewal term is extended from
47 to 67 years, thereby creating a combined term of 95 years. See
Pub. L. No. 105-298 § 102(d), 112 Stat. 2827; 17 U.S.C. §
304. In all three situations, therefore, the CTEA applies retrospectively
in the sense that it extends the terms of subsisting copyrights. As
a result, the CTEA better aligns the terms of United States copyrights
with those of copyrights governed by the European Union. See S. Rep.
No. 104-315, at 7-8 (1996); Council Directive 93/98, art. 7, 1993
O.J. (L 290) 9.
The CTEA is but the latest in a series of congressional
extensions of the copyright term, each of which has been made applicable
both prospectively and retrospectively. In 1790 the First Congress
provided, both for works "already printed" and for those
that would be "[t]hereafter made and composed," initial
and renewal terms of 14 years, for a combined term of 28 years. Act
of May 31, 1790 § 1, 1 Stat. 124, 124. In 1831 the Congress extended
the initial term to 28 years, thereby creating a combined term of
42 years. See Act of Feb. 3, 1831 § 1, 4 Stat. 436, 436. So the
term remained until 1909, when the Congress extended the renew- al
term as well to 28 years, making for a combined term of 56 years.
See Act of March 4, 1909 § 23, 35 Stat. 1075, 1080.
Between 1962 and 1974 the Congress passed a series of
laws that incrementally extended subsisting copyrights. See Pub. L.
No. 87-668, 76 Stat. 555 (1962); Pub. L. No. 89-142, 79 Stat. 581
(1965); Pub. L. No. 90-141, 81 Stat. 464 (1967); Pub. L. No. 90-416,
82 Stat. 397 (1968); Pub. L. No. 91-147, 83 Stat. 360 (1969); Pub.
L. No. 91-555, 84 Stat. 1441 (1970); Pub. L. No. 92-170, 85 Stat.
490 (1971); Pub. L. No. 92-566, 86 Stat. 1181 (1972); Pub. L. No.
93-573, title I, § 104, 88 Stat. 1873 (1974). In 1976 the Congress
altered the way the term of a copyright is computed so as to conform
with the Berne Convention and with international practice. See H.R.
Rep. No. 94-1476, at 135 (1976). Thenceforth the term would be the
life of the author plus 50 years or, where there was no identifiable
author, the earlier of 75 years from the year of publication or 100
years from the year of creation. See Pub. L. No. 94-553 §§
302-05, 90 Stat. 2541, 2572-76 (1976). The CTEA amends this scheme
by adding 20 years to the term of every copyright.
The plaintiffs filed this suit against the Attorney
General of the United States to obtain a declaration that the CTEA
is unconstitutional. Among the plaintiffs are a non-profit association
that distributes over the internet free electronic versions of books
in the public domain; a company that reprints rare, out-of-print books
that have entered the public domain; a vendor of sheet music and a
choir director, who respectively sell and purchase music that is relatively
inexpensive because it is in the public domain; and a company that
preserves and restores old films and insofar as such works are not
in the public domain, needs permission from their copyright holders
-- who are often hard to find -- in order to exploit them.
The district court entered judgment on the pleadings
in favor of the Government and dismissed the plaintiffs' case in its
entirety. On appeal, the plaintiffs renew their claims that the CTEA
both violates the First Amendment to the Constitution and is in various
ways inconsistent with the Copyright Clause of Article I, § 8
of the Constitution, which authorizes the Congress: "To promote
the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries."
II. Analysis
The plaintiffs claim that the CTEA is beyond the power
of the Congress and therefore unconstitutional for three rea- sons:
first, the CTEA, in both its prospective and retrospective applications,
fails the intermediate scrutiny appropriate under the First Amendment;
second, in its application to preexisting works, the CTEA violates
the originality requirement of the Copyright Clause; and third, in
extending the term of subsisting copyrights, the CTEA violates the
"limited Times" requirement of the Copyright Clause -- a
requirement that they say is informed by the goal of "promot[ing]
the Progress of Science and useful Arts." Because each of these
grounds presents a pure question of law, we consider them de novo.
See, e.g., United States v. Popa, 187 F.3d 672, 674 (D.C. Cir. 1999).
A. First Amendment
The First Amendment aspect of the plaintiffs' complaint
attacks the CTEA not only in its application to subsisting copyrights
but also insofar as it extends the terms of copy- rights for works
yet to be created. The Government questions plaintiffs' standing to
complain in the latter regard.
1. Standing
Consider first the plaintiffs' standing with respect
to works that, though now subject to subsisting copyrights, will in
due course enter the public domain: The plaintiffs benefit from using
works in the public domain and, but for the CTEA, they would be able
to exploit additional works the copyrights to which would have expired
in the near future. As such, they suffer an injury in fact that is
traceable to the CTEA and that we could redress by holding the Act
invalid. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). The Government concedes as much.
In view of the plaintiffs' standing to challenge the
CTEA with respect to works already copyrighted, the Government's objection
to the plaintiffs' standing with respect to works yet to be created
seems very weak indeed. The plaintiffs benefit from works in the public
domain and are deprived of that benefit so long as such works are
under copyright. That is as true for works not yet created as for
extant works on which the copyrights are about to expire; the Government
does not draw any meaningful distinction between the two categories
of works. We conclude therefore that the plaintiffs have standing
to pursue their prospective claim under the First Amendment.
2. The merits
The decisions of the Supreme Court in Harper & Row
Publishers Inc. v. Nation Enters., 471 U.S. 539 (1985), and of this
court in United Video, Inc. v. FCC, 890 F.2d 1173 (1989), stand as
insuperable bars to plaintiffs' first amendment theory. In Harper
& Row the Court held that a magazine's advance publication of
excerpts from the memoirs of former President Gerald Ford infringed
the copyright thereon. 471 U.S. at 569. In doing so the Court explained
how the regime of copyright itself respects and adequately safeguards
the freedom of speech protected by the First Amendment.
[C]opyright's idea/expression dichotomy "strike[s]
a definitional balance between the First Amendment and the Copyright
Act by permitting free communication of facts while still protecting
an author's expression." No author may copyright his ideas or
the facts he narrates. 17 U.S.C. § 102(b). See e.g., New York
Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (Brennan,
J., concur- ring) (Copyright laws are not restrictions on freedom
of speech as copyright protects only form of expression and not the
ideas expressed).
Id. at 556 (citation omitted). The first amendment objection
of the magazine was misplaced "[i]n view of the First Amendment
protections already embodied in the Copyright Act's distinction between
copyrightable expression and uncopyrightable facts and ideas, and
the latitude for scholarship and comment traditionally afforded by
fair use." Id. at 560.
In keeping with this approach, we held in United Video
that copyrights are categorically immune from challenges under the
First Amendment. There, certain cable companies petitioned for review
of an FCC regulation providing that the supplier of a syndicated television
program could agree to the program being broadcast exclusively by
a single station in a local broadcast area. 890 F.2d at 1176-78. We
rejected the first amendment aspect of their challenge as follows:
In the present case, the petitioners desire to make
commercial use of the copyrighted works of others. There is no first
amendment right to do so. Although there is some tension between the
Constitution's copy- right clause and the first amendment, the familiar
idea/expression dichotomy of copyright law, under which ideas are
free but their particular expression can be copyrighted, has always
been held to give adequate protection to free expression.
890 F.2d at 1191.
The plaintiffs argue that "these authorities are
restricted solely to the narrow case where a litigant demands a right
to use otherwise legitimately copyrighted material," which case
is "plainly distinct from [this] First Amendment challenge[ ]
to the constitutionality of the statute granting a [copy]right in
the first instance." We think the plaintiffs' purported distinction
is wholly illusory. The relevant question under the First Amendment
-- regardless whether it arises as a defense in a suit for copyright
infringement or in an anticipatory challenge to a statute or regulation
-- is whether the party has a first amendment interest in a copyrighted
work. The works to which the CTEA applies, and in which plaintiffs
claim a first amendment interest, are by definition under copyright;
that puts the works on the latter half of the "idea/expression
dichotomy" and makes them subject to fair use. This obviates
further inquiry under the First Amendment.
The plaintiffs cite no case to the contrary. In two
of the cases they do cite, Reno v. ACLU, 521 U.S. 844, 871-79 (1997),
and Simon & Schuster, Inc. v. Members of NY State Crime Victims
Bd., 502 U.S. 105, 115-23 (1991), the Supreme Court held statutes
unconstitutional under the First Amendment because they were unjustifiably
content based; the plaintiffs here do not claim that the CTEA is anything
but content neutral. In San Francisco Arts & Athletics, Inc. v.
United States Olympic Committee, also cited by the plaintiffs, the
Court did indeed apply heightened scrutiny under the First Amendment
to a statute granting the United States Olympic Committee trademark-like
protection for the word "Olympic." 483 U.S. 522, 535-41
(1987). Restricting the use of particular words "runs a substantial
risk of suppressing ideas in the process," the Court explained.
Id. at 532. As we have seen, however, copyright protection cannot
embrace ideas; it therefore does not raise the same concern under
the First Amendment. Finally, although the plaintiffs assert that
the Second Circuit has reached the merits of a first amendment challenge
to an aspect of the Copyright Act of 1976, in fact that court, after
reviewing the case law, concluded that the plaintiffs categorically
lacked "any right to distribute and receive material that bears
protection of the Copyright Act." Authors League of America v.
Oman, 790 F.2d 220, 223 (1986).
As this is all the support plaintiffs muster for their
proposition, we need not linger further in disposing of it. Suffice
it to say we reject their first amendment objection to the CTEA because
the plaintiffs lack any cognizable first amendment right to exploit
the copyrighted works of others.
B. Requirement of Originality
The plaintiffs' second challenge ostensibly rests upon
Feist Publications, Inc. v. Rural Telephone Service Co., in which
the Supreme Court held that telephone listings compiled in a white
pages directory are uncopyrightable facts: "The sine qua non
of copyright is originality." 499 U.S. 340, 345 (1991). "Originality
is a constitutional requirement" for copyright because the terms
"Authors" and "Writings," as they appear in the
Copyright Clause, "presuppose a degree of originality."
Id. at 346.
The plaintiffs reason from this that the CTEA cannot
extend an extant copyright because the copyrighted work already exists
and therefore lacks originality. Not so. Originality is what made
the work copyrightable in the first place. A work with a subsisting
copyright has already satisfied the requirement of originality and
need not do so anew for its copyright to persist. If the Congress
could not extend a subsisting copyright for want of originality, it
is hard to see how it could provide for a copyright to be renewed
at the expiration of its initial term -- a practice dating back to
1790 and not questioned even by the plaintiffs today.
The plaintiffs' underlying point seems to be that there
is something special about extending a copyright beyond the combined
initial and renewal terms for which it was initially slated. Nothing
in Feist or in the requirement of originality supports this, however:
All they tell us is that facts, like ideas, are outside the ambit
of copyright. Undaunted in trying to advance their novel notion of
originality, the plain- tiffs point to cases that do not address the
requirement of originality for copyright per se. They point to no
case or commentary, however, that calls into question the distinction
between a new grant of copyright -- as to which originality is an
issue -- and the extension of an existing grant. That distinction
reflects, at bottom, the difference between the constitutionally delimited
subject matter of copyright and the Congress's exercise of its copyright
authority with respect to that subject matter.
The plaintiffs do point out that the Supreme Court has
said the "Congress may not authorize the issuance of patents
whose effects are to remove existent knowledge from the public domain,
or to restrict free access to materials already available." Graham
v. John Deere Co., 383 U.S. 1, 6 (1966). The Court similarly stated,
over a century ago, that the issuance of a trademark could not be
justified under the Copyright Clause because the subject matter of
trademark is "the adoption of something already in existence."
Trade- mark Cases, 100 U.S. 82, 94 (1879). Applied mutatis mutandis
to the subject of copyright, these teachings would indeed preclude
the Congress from authorizing under that Clause a copyright to a work
already in the public domain.
The plaintiffs read the Court's guidance more broadly,
in the light of Feist, to mean that a work in the public domain lacks
the originality required to qualify for a copyright. That is certainly
not inconsistent with the Court's opinion: A work in the public domain
is, by definition, without a copyright; where the grant of a copyright
is at issue, so too is the work's eligibility for copyright, and thus
the requirement of originality comes into play. We need not adopt
a particular view on that point, however, as it has nothing to do
with this case. Here we ask not whether any work is copyrightable
-- indeed, the relevant works are already copyrighted -- but only
whether a copyright may by statute be continued in force beyond the
renewal term specified by law when the copyright was first granted.
For the plaintiffs to prevail, therefore, they will need something
other than the requirement of originality upon which to make their
stand.
C. The Limitation of "limited Times"
We come now to the plaintiffs' contention that the CTEA
violates the constitutional requirement that copyrights endure only
for "limited Times." This claim at last speaks to the duration
rather than to the subject matter of a copyright: If the Congress
were to make copyright protection permanent, then it surely would
exceed the power conferred upon it by the Copyright Clause.
The present plaintiffs want a limit well short of the
rule against perpetuities, of course. And they claim to have found
it -- or at least a bar to extending the life of a subsisting copyright
-- in the preamble of the Copyright Clause: "The Congress shall
have power ... To promote the Progress of Science and useful Arts...."
Their idea is that the phrase "limited Times" should be
interpreted not literally but rather as reaching only as far as is
justified by the preambular statement of purpose: If 50 years are
enough to "promote ... Progress," then a grant of 70 years
is unconstitutional. Here the plaintiffs run squarely up against our
holding in Schnapper v. Foley, 667 F.2d 102, 112 (1981), in which
we rejected the argument "that the introductory language of the
Copyright Clause constitutes a limit on congressional power."
The plaintiffs, however, disclaim any purpose to question the holding
of Schnapper; indeed, they expressly acknowledge "that the preamble
of the Copyright Clause is not a substantive limit on Congress' legislative
power." Their argument is simply that "the Supreme Court
has interpreted the terms 'Authors' and 'Writings' in light of that
preamble, and that this Court should do the same with 'limited Times.'
The problems with this argument are manifest. First,
one cannot concede that the preamble "is not a substantive limit"
and yet maintain that it limits the permissible duration of a copyright
more strictly than does the textual requirement that it be for a "limited
Time." Second, although the plain- tiffs claim that Feist supports
using the preamble to interpret the rest of the Clause, the Court
in Feist never so much as mentions the preamble, let alone suggests
that the preamble informs its interpretation of the substantive grant
of power to the Congress (which there turned upon the meaning of "Authors"
and of "Writings," each standing alone). 499 U.S. at 345-47.
Similarly, the Trade-Mark Cases cited in Feist rest upon the originality
implied by "invention [and] discovery" and by the "writings
of authors," and make no reference at all to the preamble. 100
U.S. at 93-94.
III. The Dissent
The foregoing suffices to dispose of plaintiffs' arguments
-- as Judge Sentelle, dissenting, implicitly recognizes -- and hence
to resolve this case. Our dissenting colleague nonetheless adopts
the narrow view of Schnapper urged by an amicus, although that argument
is rejected by the actual parties to this case and therefore is not
properly before us. See, e.g, 16A Charles Alan Wright et al., Federal
Practice and Procedure s 3975.1 & n.3 (3d ed. 1999); Resident
Council of Allen Parkway Vill. v. HUD, 980 F.2d 1043, 1049 (5th Cir.
1993) (amicus constrained "by the rule that [it] generally cannot
expand the scope of an appeal to implicate issues that have not been
presented by the parties to the appeal"); cf. Lamprecht v. FCC,
958 F.2d 382, 389 (D.C. Cir. 1992) (intervenor as nonparty "cannot
expand the proceedings" or "enlarge those issues presented").
This is particularly inappropriate because a court should avoid, not
seek out, a constitutional issue the resolution of which is not essential
to the disposition of the case before it. Moreover, because the plaintiffs
conspicuously failed to adopt the argument of the amicus, the Government
was not alerted to any need to argue this point and did not do so.
See Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989) (court
must "avoid unnecessary or premature constitutional rulings"
and this concern "is heightened by the absence of meaningful
argument by the parties on [constitutional] question"); Ashwander
v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis,
J., concurring) ("Court will not 'anticipate a question of constitutional
law in advance of the necessity of deciding it' ").
Even were we to proceed as urged by the amicus and the
dissent, however, we would only review the CTEA as we would any other
exercise of a power enumerated in Article I. That is we would ask,
following McCulloch v. Maryland, 17 U.S. 316, 421 (1819), whether
the CTEA is a "necessary and proper" exercise of the power
conferred upon the Congress by the Copyright Clause; assuming Judge
Sentelle is correct and Schnapper is wrong about the relationship
of the preamble to the rest of that Clause, this would require that
the CTEA be an "appropriate" means, and "plainly adapted"
to the end prescribed in the preamble, "promot[ing] Progress
of Science and useful Arts." The Congress found that extending
the duration of copyrights on existing works would, among other things,
give copyright holders an incentive to preserve older works, particularly
motion pictures in need of restoration. See S. Rep. No. 104-315, at
12 (1996). If called upon to do so, therefore, we might well hold
that the application of the CTEA to subsisting copyrights is "plainly
adapted" and "appropriate" to "promot[ing] progress."
See Ladd v. Law & Technology Press, 762 F.2d 809, 812 (9th Cir.
1985) (upholding the deposit requirement of the Copyright Act of 1976
as "necessary and proper" because the purpose was "to
enforce contributions of desirable books to the Library of Congress").
Judge Sentelle concludes otherwise only because he sees
a categorical distinction between extending the term of a subsisting
copyright and extending that of a prospective copyright. This distinction
is not to be found in the Constitution itself, however. The dissent
identifies nothing in text or in history that suggests that a term
of years for a copyright is not a "limited Time" if it may
later be extended for another "limited Time." Instead, the
dissent suggests that the Congress -- or rather, many successive Congresses
-- might in effect confer a perpetual copyright by stringing together
an unlimited number of "limited Times," although that clearly
is not the situation before us. The temporal thrust of the CTEA is
a good deal more modest: The Act matches United States copyrights
to the terms of copyrights granted by the European Union, see Council
Directive 93/98, art. 7, 1993 O.J. (L 290) 9; in an era of multinational
publishers and instantaneous electronic transmission, harmonization
in this regard has obvious practical benefits for the exploitation
of copy- rights. This is a powerful indication that the CTEA is a
"necessary and proper" measure to meet contemporary circumstances
rather than a step on the way to making copy- rights perpetual; the
force of that evidence is hardly diminish- ed because, as the dissent
correctly points out, the EU is not bound by the Copyright Clause
of our Constitution. As for the dissent's objection that extending
a subsisting copyright does nothing to "promote Progress,"
we think that implies a rather crabbed view of progress: Preserving
access to works that would otherwise disappear -- not enter the public
domain but disappear -- "promotes Progress" as surely as
does stimulating the creation of new works.
Footnote
* Indeed, each of the four later Congresses that extended the terms
of copyrights followed suit in doing so for subsisting as well as
prospective copyrights. See Act of Feb. 3, 1831 § 1, 4 Stat.
436- 39; Act of March 4, 1909 § 23, 35 Stat. 1075-88; Pub. L.
No. 94-553 § 301, 90 Stat. 2541-2602 (1976); Pub. L. No. 105-298,
112 Stat. 2827 (2000).
The position of our dissenting colleague is made all the more difficult
because the First Congress made the Copy- right Act of 1790 applicable
to subsisting copyrights arising under the copyright laws of the several
states. See Act of May 31, 1790, §§ 1 and 3, 1 Stat. 124-25.*
The construction of the Constitution "by [those] contemporary
with its formation, many of whom were members of the convention which
framed it, is of itself entitled to very great weight, and when it
is remembered that the rights thus established have not been disputed
[for this long], it is almost conclusive." Bur-row-Giles Lithographic
Co. v. Sarony, 111 U.S. 53, 57 (1884).
The plaintiffs, recognizing the import of this "almost
conclusive" point for their own theory, try to avoid it with
the suggestion that application of the Act of 1790 to subsisting copyrights
"is fully understandable under a Supremacy Clause analysis"
in that it "clarif[ied] which law (state or federal) would govern
th[o]se copyrights." But that will not do: A federal law is not
valid, let alone supreme, if it is not first an exercise of an enumerated
power. And the First Congress was clearly secure in its power under
the Copyright Clause to extend the terms of subsisting copyrights
beyond those granted by the States.
Such guidance as the Supreme Court has given further
confirms us in this view of the matter. The Court has made plain that
the same Clause permits the Congress to amplify the terms of an existing
patent. As early as 1843 it established that the status of a particular
invention and its protections
must depend on the law as it stood at the emanation
of the patent, together with such changes as have been since made;
for though they may be retrospective in their operation, that is not
a sound objection to their validity; the powers of Congress to legislate
upon the subject of patents is plenary by the terms of the Constitution,
and as there are no restraints on its exercise, there can be no limitation
of their right to modify them at their pleasure, so that they do not
take away the rights of property in existing patents.
McClurg v. Kingsland, 42 U.S. 202, 206.
Within the realm of copyright, the Court has to the
present era been similarly deferential to the judgment of the Congress.
"As the text of the Constitution makes plain, it is Congress
that has been assigned the task of defining the scope of the limited
monopoly that should be granted to authors or to inventors in order
to give the appropriate public access to their work product;"
that "task involves a difficult balance between [competing interests]"
as reflected in the frequent modifications of the relevant statutes.
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
And still more recently: "Th[e] evolution of the duration of
copyright protection tellingly illustrates the difficulties Congress
faces [in exercising its copyright power].... [I]t is not our role
to alter the delicate balance Congress has labored to achieve."
Stewart v. Abend, 495 U.S. 207, 230 (1990).
IV. Conclusion:
In sum, we hold that the CTEA is a proper exercise of
the Congress's power under the Copyright Clause. The plaintiffs' first
amendment objection fails because they have no cognizable first amendment
interest in the copyrighted works of others. Their objection that
extending the term of a subsisting copyright violates the requirement
of originality misses the mark because originality is by its nature
a threshold inquiry relevant to copyrightability, not a continuing
concern relevant to the authority of the Congress to extend the term
of a copyright.
Whatever wisdom or folly the plaintiffs may see in the
particular "limited Times" for which the Congress has set
the duration of copyrights, that decision is subject to judicial review
only for rationality. This is no less true when the Congress modifies
the term of an existing copyright than when it sets the term initially,
and the plaintiffs -- as opposed to one of the amici -- do not dispute
that the CTEA satisfies this standard of review. The question whether
the preamble of the Copyright Clause bars the extension of subsisting
copyrights -- a question to which the analysis in Schnapper seems
to require a negative answer -- may be revisited only by the court
sitting en banc in a future case in which a party to the litigation
argues the point.
For the foregoing reasons, the decision of the district
court is
Affirmed.
Sentelle, Circuit Judge, dissenting in part:
While I concur with much of the majority's opinion, insofar as it
holds constitutional the twenty-year or more extension of copyright
protection for existing works, I dissent. This issue calls upon us
to consider the scope of one of the clauses granting enumerated powers
to Congress, specifically, Art. I, s 8, cl. 8:
Congress shall have power ... to promote the progress
of science and useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings and
discoveries....
In ascertaining the breadth of an enumerated power,
I would follow the lead of the United States Supreme Court in United
States v. Lopez, 514 U.S. 549, 552 (1995), and "start with first
principles." The governing first principle in Lopez and in the
matter before us is that "[t]he Constitution creates a Federal
Government of enumerated powers." 514 U.S. at 552 (citing Art.
I, § 8). The Framers of the Constitution adopted the system of
limited central government "to ensure the protection of our fundamental
liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal
quotations and citations omitted). The Lopez decision, considering
the validity of the so-called Gun-Free School Zones Act, reminded
us that "congressional power under the Commerce Clause ... is
subject to outer limits." 514 U.S. at 556-57; see also United
States v. Morrison, 120 S. Ct. 1740, 1748-49 (2000).
It would seem to me apparent that this concept of "outer
limits" to enumerated powers applies not only to the Commerce
Clause but to all the enumerated powers, including the Copyright Clause,
which we consider today. In determining whether the legislation before
it in such cases as Lopez exceeded the outer limit of the authority
granted under the Commerce Clause, the Lopez Court laid out a precise
outline concededly not applicable by its terms to the construction
of other clauses, but I think most useful in conducting the same sort
of examination of the outer limits of any enumerated power. As a part
of that analysis, the Court examined the extension of congressional
authority to areas beyond the core of the enumerated power with a
goal of determining whether the rationale offered in support of such
an extension has any stopping point or whether it would lead to the
regulation of all human activity. See 514 U.S. at 564 ("Thus,
if we were to accept the Government's arguments, we are hard pressed
to posit any activity by an individual that Congress is without power
to regulate."). I fear that the rationale offered by the government
for the copyright extension, as accepted by the district court and
the majority, leads to such an unlimited view of the copyright power
as the Supreme Court rejected with reference to the Commerce Clause
in Lopez.
What then do I see as the appropriate standard for limiting
that power? Again, the Lopez decision gives us guidance as to the
application of first principles to the determination of the limits
of an enumerated power. Citing Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1, 189-190 (1824), the Lopez Court acknowledged "that limitations
on the commerce power are inherent in the very language of the Commerce
Clause." 514 U.S. at 553. Just so with the Copyright Clause.
What does the clause empower the Congress to do?
To promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries....
That clause empowers the Congress to do one thing, and
one thing only. That one thing is "to promote the progress of
science and useful arts." How may Congress do that? "By
securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries." The clause
is not an open grant of power to secure exclusive rights. It is a
grant of a power to promote progress. The means by which that power
is to be exercised is certainly the granting of exclusive rights --
not an elastic and open-ended use of that means, but only a securing
for limited times. See Stewart v. Abend, 495 U.S. 207, 228 (1990)
("The copyright term is limited so that the public will not be
permanently deprived of the fruits of an artist's labors.").
The majority acknowledges that "[i]f the Congress were to make
copyright protection permanent, then it surely would exceed the power
conferred upon it by the Copyright Clause." Maj. Op. at 10. However,
there is no apparent substantive distinction between permanent protection
and permanently available authority to extend originally limited protection.
The Congress that can extend the protection of an existing work from
100 years to 120 years; can extend that protection from 120 years
to 140; and from 140 to 200; and from 200 to 300; and in effect can
accomplish precisely what the majority admits it cannot do directly.
This, in my view, exceeds the proper understanding of enumerated powers
reflected in the Lopez principle of requiring some definable stopping
point.
Returning to the language of the clause itself, it is
impossible that the Framers of the Constitution contemplated permanent
protection, either directly obtained or attained through the guise
of progressive extension of existing copyrights. The power granted
by the clause again is the power "to promote the progress of
science and useful arts." As stated above, Congress is empowered
to accomplish this by securing for limited times exclusive rights.
Extending existing copyrights is not promoting useful arts, nor is
it securing exclusivity for a limited time.
The government has offered no tenable theory as to how
retrospective extension can promote the useful arts. As the Supreme
Court noted in Lopez and again in United States v. Morrison, that
Congress concluded a given piece of legislation serves a constitutional
purpose "does not necessarily make it so." Lopez, 514 U.S.
at 557 n.2 (internal quotes omitted); Morrison, 120 S. Ct. at 1752.
Pressed at oral argument, counsel for the government referred to keeping
the promise made in the original grant of exclusivity for a limited
time. The easy answer to this assertion is that Congress is not empowered
to "make or keep promises" but only to do those things enumerated
in Article I. The second problem with the government's assertion is
that Congress made no promise to commit such an extension but only
to secure the exclusive rights for the original limited period. Thirdly,
the means employed by Congress here are not the securing of the exclusive
rights for a limited period, but rather are a different animal altogether:
the extension of exclusivity previously secured. This is not within
the means authorized by the Copyright Clause, and it is not constitutional.
The majority responds to this problem of the statute's
exceeding the constitutional grant by reliance on Schnapper v. Foley,
667 F.2d 102 (D.C. Cir. 1981), "in which we rejected the argument
'that the introductory language of the Copy- right Clause constitutes
a limit on congressional power.' " Maj. Op. at 10 (quoting 667
F.2d at 112). I will concede that it does not matter if I disagree
with the language of Schnapper (which in fact I do) as it is our Circuit
precedent and we are bound by its holding unless and until that holding
is changed by this court en banc or by the higher authority of the
Supreme Court. See, e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395
(D.C. Cir. 1996) (en banc) ("One three-judge panel ... does not
have the authority to overrule another three- judge panel of the court.
That power may be exercised only by the full court." (citations
omitted)); United States v. Kolter, 71 F.3d 425, 431 (D.C. Cir. 1995)
("This panel would be bound by [a prior] decision even if we
did not agree with it.").
Therefore, it is immaterial that the prior opinion is,
in my view, erroneous in styling the granting clause of the sentence
as merely introductory when in fact it is the definition of the power
bestowed by that clause. Thus, unless and until this precedent is
wiped away, if Schnapper has held that we may not look to the language
of this phrase to determine the limitations of the clause then I must
concede that we are bound by that holding and join the majority's
result. However, it does not appear to me that this is the holding
of Schnapper. The Schnapper Court dealt with limited questions related
to the application of the copyright laws to works commissioned by
the U.S. government. In answering those questions, the Schnapper Court
held that "Congress need not 'require that each copyrighted work
be shown to promote the useful arts.' " 667 F.2d at 112 (quoting
Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 860
(5th Cir. 1979)). It was in that context that the Schnapper Court
employed the wording relied upon by the majority concerning the "introductory
language" of the Copyright Clause. Insofar as that wording is
taken to be anything more than the determination concerning that limited
analysis, it is not a holding but simply dicta (perhaps obiter dicta)
and not binding on future panels.
Rather, the Schnapper analysis again takes us back to
the Lopez approach to judicial interpretation of the enumerated powers
clauses. In Lopez, one of the means employed to determine the constitutionality
of extended application of the Commerce Clause is an elemental inquiry
into whether in each case the purportedly regulated action "in
question affects interstate commerce." 514 U.S. at 561. However,
the jurisdictional element is not necessary under Lopez analysis of
Commerce Clause regulation where Congress is directly regulating "the
use of the channels of interstate commerce" or "persons
or things in interstate commerce." Id. at 558. Similarly, I suggest
that in analyzing the extent of congressional power under the Copyright
Clause, the Schnapper holding that each individual application of
copyright protection need not promote the progress of science and
the useful arts does not mean that Congress's power is otherwise unlimited,
anymore than the lack of a necessity for case-by-case analysis of
the effect on interstate commerce validates any- thing Congress may
wish to do under the rubric of the Commerce Clause. Though, under
Schnapper, we may not require that each use of a copyright protection
promote science and the arts, we can require that the exercise of
power under which those applications occur meet the language of the
clause which grants the Congress the power to enact the statute in
the first place. This the extension does not do. It is not within
the enumerated power.
The majority suggests that my reading of Schnapper is
somehow foreclosed by the fact that it accepts the argument of an
amicus. See Maj. Op. at 11 (citing 16A Charles Alan Wright et al.,
Federal Practice and Procedure s 3975.1 & n.3 (3d ed. 1999); Resident
Council of Allen Parkway Vill. v. HUD, 980 F.2d 1043, 1049 (5th Cir.
1993)). The disposition I suggest would offend nothing in either Professor
Wright's treatise or the cases aligned with it. Neither I nor the
amicus raise any issue not raised by the parties to the case, nor
disposed of by a majority of the court. Appellants raise the issue
"whether ... the Copyright Clause of the Constitu- tion of the
United States constrains the Congress from extending for a period
of years the duration of copyrights, both those already extant and
those yet to come." Maj. Op. at 2 (emphasis added). The majority
addresses that issue and holds against the appellant. Maj. Op. at
15 ("we hold that the CTEA is a proper exercise of the Congress's
power under the Copyright Clause"). That the amicus argues more
convincingly in appellants' favor on the issue raised by the appellants
than they do themselves is no reason to reject the argument of the
amicus. Indeed, our Circuit Rules provide that an amicus brief "must
avoid repetition of facts or legal arguments made in the principal
(appellant/petitioner or appellee/respondent) brief and focus on points
not made or adequately elaborated upon in the principal brief, although
relevant to the issues before this court." Circuit Rule 29. Obviously
that is precisely what the amicus has done in this case.
Resident Council of Allen Parkway Village, relied on
by the majority, highlights this difference between introducing issues
not raised by the parties on the one hand and making new arguments
for issues otherwise properly raised on the other. As the Fifth Circuit
noted in that case, "[w]e are constrained only by the rule that
an amicus curiae generally cannot expand the scope of an appeal to
implicate issues that have not been presented by the parties to the
appeal." 980 F.2d at 1049 (emphasis added).
Our Circuit Rule and the Fifth Circuit are in good company
in allowing amici to make additional arguments that address issues
which the parties have raised but not argued in the same fashion.
The Supreme Court has approved precisely that approach. In Teague
v. Lane, 489 U.S. 288 (1989), that Court considered a question of
retroactivity as to a fair cross-section jury venire in a case also
raising a claim under Batson v. Kentucky, 476 U.S. 79 (1986). The
Court noted that "[t]he question of retroactivity with regard
to petitioner's fair cross section claim has been raised only in an
amicus brief." 489 U.S. at 300. Noting that the "question
is not foreign to the parties, who have addressed retroactivity with
respect to petitioner's Batson claim," id., the Court proceeded
to address the merits of the argument.
Nor are we constrained by the parties' apparent agreement
as to the state of the law under Schnapper. The Supreme Court has
made it clear that we cannot be bound by stipulations of law between
the parties, where there is "a real case and controversy extending
to that issue." United States Nat'l Bank of Or. v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 446 (1993). As the High Court put
it, " '[w]hen an issue or claim is properly before the court,
the court is not limited to the particular legal theories advanced
by the parties, but rather retains the independent power to identify
and apply the proper construction of governing law.' " Id. (quoting
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).
I find two other arguments the majority invokes against
my dissent unpersuasive. The enactment by the first Congress in 1790
regularizing the state of copyright law with respect to works protected
by state acts preexisting the Constitution appears to me to be sui
generis. Necessarily, something had to be done to begin the operation
of federal law under the new federal Constitution. The Act of May
31, 1790, 1 Stat. 124, created the first (and for many decades only)
federal copyright protection; it did not extend subsisting federal
copyrights enacted pursuant to the Constitution. Cf. Wheaton v. Peters,
33 U.S. (8 Pet.) 591, 661 (1834) ("Congress, then, by this [copyright]
act, instead of sanctioning an existing right, as contended for, created
it."). The fact that the CTEA "matches United States copyrights
to the terms of copyrights granted by the European Union," Maj.
Op. at 13 (citing Council Directive 93/98, art. 7, 1993 O.J. (L 290)
9), is immaterial to the question. Neither the European Union nor
its constituent nation states are bound by the Constitution of the
United States. That Union may have all sorts of laws about copyrights
or any other subject which are beyond the power of our constitutionally
defined central government.
Therefore, I respectfully
dissent.