Eldred, Eric v. Reno, Janet

ELDRED, al., Appellants, et Eric capacity RENO, her official

Janet Appellee. Attorney General, 99-5430.

No. Appeals, Court of Circuit.

District of Columbia

Argued 2000. Oct. Feb.

Decided

373 GINSBURG, Judge: Circuit case, in this corporations, associations, and rely individuals who for their vocations or avocations works in domain, challenge the constitu- tionality of the Copyright Term Extension (CTEA), Act of 1998 Pub.L. No. 112 2827. This Stat. marks the first occa- sion for an appellate court to address whether the First Amendment or the of of Constitution United States constrains the period from for a years of duration of copyrights, already both those extant and come. We hold that neither does. Lessig Lawrence for argued cause appellants. With him were on briefs Background I. Nesson, Zittrain, Charles R. L. Jonathan The CTEA provisions amends various of Castanias, Stewart, Geoffrey Gregory A. S. § Act 17 U.S.C. A. and Portia Robert. portions et seq. the CTEA at issue Erik Jaffe was on the brief of amicus S. here extend the terms of all copyrights for Forum Eagle Legal curiae Education & (1) years as follows: For a work created Defense Fund. later, in 1978 or to which an individual copyright, author holds the Act ex- Gasaway, Lyman N. Ray Laura Patter- tends the term to the life of author son, Walterscheid, Edward appearing plus years. See Pub L. No. 105-298 se, pro on were the brief amici curiae 102(b)(1), 2827; § 112 Stat. 17 U.S.C. Gasaway, Laura N. et al. 302(a). (2) § For a work created Mollin, Counsel, Department Alfred anonymous, or later that is or pseudony- Justice, argued appellee. the cause for mous, hire, or is term made With him the brief were W. David years extended from 75 from the General, Ogden, Acting Attorney Assistant year publication or from Kanter, Counsel, William A. and Wilma creation, year from the whichever Lewis, Attorney. first. See Pub.L. 105-298 occurs No. Felcher, Carey Ramos, Peter L. R. Carl 102(b)(3), 2827; § 17 U.S.C. Hampe, Lynn Bayard, W. B. K. Gaela 302(c). (3) § For a work created before Adler, Gehring-Flores, Allan Fritz E. Att- 1978, for initial of copy- which the term DiMona, Joseph I. away, Koenigs- J. Fred years, was 28 the renewal term is berg, and James J. Schweitzer were on years, thereby 47 to extended from brief amici curiae The Sherwood creating a term 95 years. combined See Trust, Literary Anderson Estate et al. 102(d), § Pub.L. No. 105-298 112 Stat. 2827; In all three situa- U.S.C. 304. GINSBURG, SENTELLE, Before: and tions, therefore, applies retro- HENDERSON, Judges. Circuit that it extends the spectively sense copyrights. As re- terms Opinion for the filed Circuit sult, aligns the terms of the CTEA better Judge GINSBURG. those of copyrights opinion governed by Un- Separate dissenting part European filed 104-315, at Judge S.Rep. No. 7-8 Circuit SENTELLE. ion. 93/98, Among are a (1996); art. constitutional. Council Directive (L 290) association distributes over non-profit 1993 O.J. electronic internet free versions in a series of latest CTEA is domain; the a public company books in of the congressional extensions rare, books that reprints out-of-print made term, appli- each of which been domain; public the a vendor have entered retrospective- prospectively and cable both director, music a choir and who sheet provided, ly. Congress In 1790 First the purchase sell and music respectively “already for printed” both and for works relatively it is in inexpensive made and is because the “[thereafter that would be domain; terms of 14 a composed,” public company pre- initial and renewal and years. term of 28 years, for a combined old films and serves and restores insofar 1, 124, 81, § 1 May Act of 1790 Stat. works are do- such the Congress In the extended initial 1831 main, permission needs their copy- from thereby creating a years, term to 28 com- are often holders —who hard 3, years. of 42 See Act of Feb. bined term exploit order to them. find—in 1, 436, § 4 1831 Stat. 436. So term judgment The district court entered Congress remained until when the in favor of pleadings the Government term as well to 28 extended renewal plaintiffs’ and dismissed the case in its years, making for a combined term of 56 entirety. appeal, On renew § years. 1909 See Act of March 35 their claims that the CTEA both violates 1075,1080. Stat. the First Amendment Between and 1974 the 1962 ways and is various inconsistent with incrementally passed a series of laws that I, § Copyright of Article 8 subsisting copyrights. extended See Constitution, which authorizes (1962); 87-668, No. 76 555 Pub.L. Stat. Progress Congress: “To 89-142, (1965); 79 Pub.L. No. Stat. 581 Arts, by securing Science useful 90-141, (1967); Pub.L. No. 81 464 Stat. limited Times to Authors and Inventors 90-416, (1968); Pub.L. No. 82 397 Stat. Right respective the exclusive to their' 91-147, (1969); No. Pub.L. 83 Stat. 360 Writings and Discoveries.” 91-555, (1970); No. 84 1441 Pub.L. Stat. 92-170, (1971); Pub.L. No. 85 Stat. 490 92-566, (1972); No. 1181

Pub.L. Stat. Analysis II. 93-573, I, No. Pub.L. title Stat. claim that the CTEA In 1976 the altered beyond of the way comput- the term of three therefore unconstitutional for rea ed so as to conform with the Berne Con- CTEA, first, prospec sons: both its practice. vention with international 94-1476, (1976), retrospective fails H.R.Rep. applications, No. tive scrutiny Cong. appropriate U.S. Code & Admin. News the intermediate un second, Amendment; 5751. Thenceforth the term would be the der the First in its or, life plus years of the author works, where application to preexisting author, was no there identifiable earli- requirement originality CTEA violates the years year publication er from Clause; third, in ex years year from of creation. tending the term of copyrights, §§ See Pub.L. No. 94-553 90 the “limited Times” CTEA violates 2541, 2572-76 amends of the requirement Clause—a by adding scheme this they say is informed requirement every term of copyright. “promot[ing] Progress the goal of Arts.” Science and useful Because each of against plaintiffs filed suit Attorney grounds presents pure to these General United States See, law, de e.g., obtain a that the CTEA un- we consider them novo. declaration Video, FCC, Popa, F.3d 674 court in United Inc. v. (D.C.Cir.1999). F.2d 1173 stand as insuperable bars to plaintiffs’ theory. first amendment

A. First Amendment Harper mag- & Row Court held that a aspect The First Amendment publication azine’s advance excerpts plaintiffs’ complaint attacks CTEA not from the memoirs former President application subsisting copy- Gerald infringed Ford the copyright there- also rights but insofar as extends the on. 471 U.S. at 2218. In terms of for works to be doing explained so the how the re- questions plain- created. The Government gime of copyright respects itself and ade- standing in complain tiffs’ the latter quately safeguards speech freedom regard. protected by the First Amendment. Standing [Cjopyright’s idea/expression dichotomy a definitional “strikefs] balance between plaintiffs’ Consider first the stand the First Amendment and the that, ing respect to though works now byAct permitting free communication of will in copyrights, due facts protecting while still public plain course enter the domain: The author’s from using public expression.” tiffs benefit works No may copyright author CTEA, and, domain but for the his ideas or the facts he narrates. exploit be able to additional works the 102(b). e.g., U.S.C. New York copyrights expired to which would have States, Times Co. v. United 403 U.S. such, they the near future. As suffer an *, 2140, n. S.Ct. 29 L.Ed.2d injury in fact is traceable to the (1971) J., concurring) (BREnnan, CTEA and we could redress hold (Copyright laws are not restrictions on ing Lujan the Act invalid. See v. Defend protects freedom of as speech copyright 555, 560-61, Wildlife, ers expression form of and not 2130, S.Ct. 119 L.Ed.2d 351 ideas expressed). Government concedes as much. (citation Id. at 105 S.Ct. 2218 omit- In plaintiffs’ standing view ted). objection The first amendment challenge respect the CTEA with to works magazine misplaced “[i]n was view of already copyrighted, the Government’s ob- protections already the First Amendment jection plaintiffs’ standing to the with re- embodied in the Act’s distinc- spect yet to works to be created seems tion copyrightable expression between very plaintiffs weak indeed. The benefit ideas, uncopyrightable facts and and the from works domain and are deprived long of that benefit so as scholarship such latitude for and comment tra- copyright. works are under That as ditionally by fair Id. afforded use.” at true for works not as for created ex- 105 S.Ct. 2218. copyrights

tant works which the are keeping approach, with this held expire; about to the Government does not are United Video cate- any meaningful draw distinction between challenges gorically immune from under categories the two We works. conclude There, the First Amendment. certain ca- plaintiffs therefore that the have standing ble companies petitioned for review claim pursue prospective their under regulation providing supplier FCC the First Amendment. syndicated

of a television could program 2. The merits agree program being broadcast ex- clusively by single a station a local The decisions of 1176-78. broadcast area. F.2d at We Harper & Row Publishers Inc. v. rejected Enters., aspect the first amendment Nation S.Ct. their challenge 85 L.Ed.2d 588 of this follows: heightened case, apply indeed scruti- petitioners de- Court did present In the a stat- copy- ny commercial use the First Amendment to to make under sire There no of others. righted Olympic works granting ute Al- right do so. first amendment protection for trademark-like Committee tension between though there some “Olympic.” word clause and Constitution’s 97 L.Ed.2d 427 amendment, familiar particular Restricting the use of words idea/expression dichotomy of suppressing a substantial risk “runs law, are free but their under which ideas process,” explained. the Court ideas copyright- be can particular expression Id. 2971. As we ed, give ade- always been held however, seen, copyright protection cannot expression. quate protection free ideas; it therefore does not raise embrace F.2d at 1191. Amend- concern under the First same argue “these authori- Finally, although the as- ment. solely ties are narrow restricted reached sert that Second Circuit has litigant ease where a demands challenge the merits of first amendment legitimately copyrighted ma- use otherwise Copyright to an Act of aspect the terial,” “plainly distinct from which case court, in after the case reviewing fact challenge[ ] First Amendment [this] law, plaintiffs categori- concluded granting a constitutionality statute cally “any and right lacked distribute in the first instance.” We [copyright protection material that bears receive purported plaintiffs’ think the distinction is League the Act.” Authors wholly The relevant un- illusory. Oman, America F.2d regardless der First Amendment — a in a arises as defense suit for whether mus- support plaintiffs As this is all the infringement anticipato- in an copyright lin- proposition, ter for their we need not ry challenge regulation to a statute or —is ger in of it. it to disposing further Suffice has party whether the a amendment objec- say reject their first amendment work. The works copyrighted interest a plaintiffs tion to the CTEA because the and in applies, to which the CTEA which right any cognizable lack first amendment interest, a first amendment plaintiffs claim of others. exploit copyrighted works copyright; are definition under half latter puts works Originality Requirement B. “idea/expression dichotomy” makes fair This them use. obviates plaintiffs’ challenge os The second further under the First Amend- inquiry Publications, tensibly rests Feist ment. Co., in Inc. Telephone v. Rural Service cite plaintiffs The no case the con tele Supreme which the Court held that cite, they trary. In two of the cases do in a phone listings compiled pages white ACLU, 844, 871-79, Reno v. U.S. are “The directory uneopyrightable facts: (1997), 138 L.Ed.2d 874 copyright originality.” sine non of qua Schuster, & Inc. v. Members Simon Bd., N.Y. State Crime Victims (1991). “Originality is a con L.Ed.2d 358 501,116 105, 115-23, 112S.Ct. L.Ed.2d 476 requirement” copyright for be stitutional Court held statutes “Writings,” the terms “Authors” cause unconstitutional under the First Amend they appear they unjustifiably ment were con because originality.” a Id. “presuppose degree based; plaintiffs tent here do not claim 111 S.Ct. 1282. anything CTEA content plaintiffs reason from this that neutral. Arts & Athlet San Francisco copy ics, cannot extend extant Olympic Inc. v. States United Com mittee, al- right copyrighted work plaintiffs, cited because the also ready originali- preclude exists and therefore lacks authorizing from is what ty. Originality Not so. made the under that a copyright to a work place. in the first A copyrightable work already the public domain. copyright with a work al- guidance read Court’s ready original- satisfied the requirement Feist, more broadly, light to mean anew for ity copy- need not do so its public that a work domain lacks persist. If could not originality required qualify copy- for a a subsisting copyright extend want of right. certainly That is not inconsistent originality, it is hard see how it could opinion: the Court’s A work in the for a to be provide renewed at is, by definition, domain a without expiration of initial term —a prac- copyright; where the of a copyright dating ques- tice back to 1790 and not issue, is at so too is the eligibility work’s even plaintiffs today. tioned for copyright, thus the requirement plaintiffs’ underlying point seems to originality play. comes into We need something special there is be about adopt particular view on how- point, beyond the com- ever, nothing as it has to do with this case. initial bined and renewal terms for which it Here we ask not whether work is initially Nothing in was slated. Feist or copyrightable indeed, the relevant works — requirement originality supports are already copyrighted only whether —but this, facts, All tell however: us is that a copyright may by statute be continued ideas, like are outside ambit of beyond force the renewal term specified right. trying Undaunted in to advance law when the copyright granted. was first originality, plain- their novel notion of therefore, prevail, For point to tiffs cases that do not address the they something will need other the than requirement originality copyright of requirement originality upon of They se. no case which per point to or commen- however, tary, into make question calls the their stand. grant

distinction between a new of C. The Limitation of “limited to which originality is issue— —as Times” the an existing grant. extension of reflects, bottom, distinction That the plaintiffs’ We come now the con constitutionally difference between the de- tention that the CTEA violates the consti subject copyright limited matter of and the requirement tutional en Congress’s exercise of its au- dure only for “limited Times.” This claim thority respect subject with to that matter. speaks at last to the duration rather than plaintiffs The point do out that the Su- If subject copyright: the matter of a “Congress Court has the preme may said the copyright pro were make patents not authorize the issuance of permanent, tection then it surely would whose effects are remove existent exceed the the conferred domain, knowledge from the or to Copyright Clause. free already restrict access to materials present want a limit well Co., John available.” Graham v. Deere against perpetuities, short of of the rule 1, 6, 86 15 L.Ed.2d claim course. And to have found it— stated, similarly The Court over a or at least a the life of a bar to century ago, that the issuance of a trade- subsisting copyright preamble the—in could justified mark not be under the the “The Clause: subject the Copyright Clause because mat- shall ... the To adoption of trademark ter is “the some- ” Progress of Science useful Arts.... thing already in existence.” Trade-Mark phrase Their idea “limited Cases, is 82, 94, 25 L.Ed. interpreted literally Times” should be not Applied mutatis mutandis to copyright, teachings reaching only as far is these indeed rather as See, 16A properly e.g., not before us. statement of justified by preambular enough to R. years “pro- ARTHUR Miller & Wright, purpose: If 50 are Alan ChaRles a Progress,” mote ... then Edward H. Cooper, Federal Practice (3d Here the plain- ed.1999); unconstitutional. 3975.1 & n.3 Procedure holding our up against tiffs run squarely Allen v. Parkway Resident Council Vill. 102, 112 Foley, F.2d Schnapper v. (5th Cir.1993) HUD, F.2d rejected argument in which we (amicus rule “by [it] constrained language of the introductory “that scope cannot generally expand constitutes limit on Copyright Clause appeal implicate issues that have not congressional power.” plaintiffs, how- parties ap- been presented ever, any purpose disclaim FCC, Lamprecht peal”); v. cf. indeed, holding Schnapper, they ex- (intervenor (D.C.Cir.1992) as non- preamble pressly acknowledge “that the or party expand proceedings” “cannot not a substantive Clause is “enlarge presented”). those issues This Congress’ legislative power.” limit on particularly because a court inappropriate simply Their that “the Su- argument avoid, out, should not seek a constitutional preme interpreted terms of which is issue the resolution not essen- light ‘Writings’ ‘Authors’ and disposition tial to the case it. before and that this Court should do preamble, Moreover, plaintiffs conspicu- because the ” ‘limited the same with Times.’ ously adopt argument failed to argument problems this are amicus, the Government was not alerted to First, one cannot concede that manifest. argue point need to and did not do preamble “is a substantive limit” Thornburgh, so. See Harmon F.2d permis- that it limits the maintain (court (D.C.Cir.1989) “avoid must more strictly sible duration of unnecessary premature constitutional requirement than the textual that it does rulings” heightened by this concern “is Second, although be for a “limited Time.” meaningful argument by absence supports claim that Feist us- parties question”); on [constitutional] ing interpret rest of preamble Valley Authority, Ashwander v. Tennessee sug- the Court in Feist never 56 S.Ct. 80 L.Ed. its gests preamble that the informs inter- (1936) (Brandéis, J., concurring) pretation power of the substantive (“Court ‘anticipate will (which Congress upon there turned law in advance of neces- constitutional meaning of “Authors” and of “Writ- ”). it’ sity deciding alone). ings,” standing each U.S. we to as proceed urged by Even were 345-47, Similarly, 111 S.Ct. 1282. dissent, however, the amicus and we upon Trade-Mark Cases cited in Feist rest as only would review the CTEA we would by “invention originality implied [and] other exercise of a by “writings au- discovery” and ask, is in Article I. That we would follow- thors,” make no at all and reference (4 ing Maryland, McCulloch 93-94, preamble. U.S. at L.Ed. Wheat.) 316, 421, 4 L.Ed. “necessary whether the is III. The Dissent proper” exercise conferred Congress upon Copyright dispose foregoing suffices Clause; assuming Judge is correct Sentelle Sentelle, plaintiffs’ arguments Judge —as is Schnapper wrong about the rela- dissenting, implicitly recognizes—and tionship preamble to the rest of that dissenting hence to this resolve case. Our that require the CTEA colleague adopts nonetheless the narrow means, and amicus, “appropriate” “plainly be an Schnapper view of urged adapted” prescribed to the end although argument rejected that is parties preamble, “promotfing] Progress actual to this is of Sci- case therefore ence and useful Arts.” The making copyrights perpetual; the force of extending found that the duration of that evidence hardly diminished be- would, rights existing among works oth- cause, out, as correctly the dissent points things, give copyright er holders an incen- EU is not bound works, preserve particularly tive to older of our Constitution. As for the pictures motion in need of restoration. objection dissent’s extending that a sub- S.Rep. No. If sisting copyright nothing “promote does so, therefore, called to do might Progress,” we think implies a rather well hold that the application of the CTEA crabbed view progress: Preserving ac- subsisting copyrights “plainly adapt- cess works that would disap- otherwise “appropriate” ed” and “promot[ing] pear enter domain but dis- —not progress.” See Ladd v. Law & Technolo- appear “promotes Progress” surely as — (9th Press, Cir.1985) gy stimulating does the creation of new (upholding deposit requirement works. “necessary Act of 1976 as proper” purpose because the was “to en- position dissenting of our colleague force contributions of desirable books to is made all the more difficult because the Library Congress”). First made the Copyright Act of

Judge Sentelle concludes otherwise applicable subsisting because he a categorical sees distinction arising under the copyright laws of the between extending the term of a subsisting 31, 1790, several states. May See Act of prospec- that of a 3,1 §§ 1 and 124-25.* The construc tive copyright. This distinction is not to tion of “by the Constitution con [those] itself, be found howev- formation, temporary with many er. The nothing dissent identifies text whom were members of the convention or in history suggests that a term of it, which framed is of itself entitled very for a is not a “limited great weight, and when it is remembered Time” if may later be extended for an- rights thus established have not Instead, other “limited Time.” the dissent disputed been long], [for this it is almost suggests rather, —or conclusive.” Lithographic Burrow-Giles many successive Congresses might ef- — Sarony, Co. v. perpetual fect confer a copyright by 28 L.Ed. 349 The plaintiffs, recog stringing together an unlimited number of nizing import of this “almost conclu Times,” “limited although clearly point theory, try sive” for their own not the situation before temporal us. The avoid it with suggestion applica good thrust of the CTEA is a deal more tion of the Act of 1790 to copy modest: The Act matches United States rights fully “is understandable under a copyrights copyrights to the terms of Supremacy analysis” in that Clause Union, granted by European the see Coun- (state federal) “clariffied] which law (L 93/98, 290) cil Directive art. 1993 O.J. govern copyrights.” But th[o]se. 9; in an era publishers of multinational valid, that will not do: A federal law is not transmission, instantaneous electronic har- let alone if it supreme, is not first regard prac- monization has obvious of an power. exercise And tical for exploitation benefits the Congress clearly the First was secure in rights. powerful This is a indication that its under the Clause to “necessary proper” the CTEA is a subsisting copyrights extend the terms of contemporary measure to meet circum- step way stances rather than a beyond granted by on the to the States. * Indeed, 436-39; Congresses § each of the four later that Stat. Act of March 1075-88; copyrights extended § the terms of followed suit Pub.L. No.94-553 (1976); doing prospec- subsisting so for as well as Stat. 2541-2602 Pub.L. No. 1,4 (2000). copyrights. tive See Act of Feb. 112 Stat. 2827 plain- the Clause. The as the Court under guidance

Such in this view has further us given objection confirms fails tiffs’ first amendment be- plain made of the matter. Court has they have no cognizable cause amend- the Con- permits the same Clause copyrighted ment interest the works of existing the gress amplify to terms objection others. Their the patent. early As as 1843 it established violates the subsisting copyright term of particular of a invention the status the requirement originality misses mark protections its by its originality because nature a it stood at depend on the law as must inquiry copyright- threshold relevant together the patent, the emanation ability, continuing not a concern relevant as since changes such have been authority of Congress to the the extend made; though may be retro- they for of a copyright. the term not a spective operation, in their that is folly Whatever wisdom or the validity; objection to the sound their particular the “limited may see in Times” powers Congress legislate upon Congress for which has set dura- subject patents plenary decision is copyrights, tion Constitution, terms of the and as there judicial rationality. review exercise, only for This there are no restraints its when can be no limitation of their is no less true modifies at their so that modify pleasure, them of an existing copyright the term than rights not take away do initially, it sets the when term existing patents. property opposed to one of the ami- —as How.) (1 McClurg Kingsland, dispute ci—do not that the CTEA satisfies 202, 206, 11 L.Ed. 102 question this standard review. preamble of the Copyright whether the realm of copyright, Within bars extension of present similarly era been def- judgment Congress. analy- erential to the to which —a “As the text of the makes Constitution Schnapper require a nega- sis seems plain, as- it is that has been may tive be revisited answer— signed scope the task of defining sitting en future court banc case in monopoly granted limited should be party litigation argues which a give to inventors in authors or order point. to their work appropriate access reasons, foregoing For decision product;” that “task a difficult involves district court [competing interests]” balance between frequent reflected in the modifications of Affirmed. Sony Corp. relevant statutes. v. Uni- Studios, Inc., City versal SENTELLE, Judge, Circuit dissenting 774, 78 104 S.Ct. L.Ed.2d 574 in part: recently: And more evolution still “Th[e] majori- While concur with much of copyright protection of the duration of tell- ty’s opinion, insofar as it holds constitu- ingly illustrates difficulties twenty-year tional the or more extension exercising copyright pow- [in faces existing works, copyright protection is not our to alter the er].... [I]t role This I dissent. issue calls us to Congress delicate balance has labored scope consider the of one of the clauses Abend, 207, v. achieve.” Stewart Congress, granting powers enumerated 230, 1750, 110 L.Ed.2d 184 S.Ct. 109 I, 8,§ Art. cl. 8: specifically, shall ... power pro-

IV. Conclusion: progress mote the of science and useful arts, sum, by securing for limited times to hold is a In the CTEA proper of the Congress’s power right exercise authors and inventors the exclusive

38J respective writings pressed posit any to their and discov- activity by an individ- ... eries. ual that power is without reg- ulate.”). I fear that the rationale offered an ascertaining breadth of enumer government power, ated would follow the lead of the for the ex- Supreme tension, Court United accepted by the district court 549, 552, Lopez, v. 514 States U.S. 115 majority, and the leads to such an unlimit- 1624, (1995), 131 L.Ed.2d 626 S.Ct. ed view of copyright power as the principles.” govern “start with first The rejected Court with reference to ing principle Lopez and in the the Commerce in Lopez. Clause matter before us is that “[t]he Constitution What then do I see as the appropriate creates a Federal Government of enumer limiting standard for that power? Again, powers.” ated at 115 U.S. S.Ct. the Lopez gives guidance decision us as to 8). I, (citing Art. The Framers of application of first principles to the adopted system determination of the limits of an enumerat- government limited central “to ensure the ed power. Citing Ogden, Gibbons protection of our fundamental liberties.” (9 Wheat.) 1, 189-190, U.S. 6 L.Ed. 23 452, 458, Gregory v. Ashcroft, 501 U.S. Lopez acknowledged (1991) (inter S.Ct. 115 L.Ed.2d 410 “that limitations on the power commerce omitted). quotations nal and citations very are inherent language of the decision, Lopez considering validity Commerce Clause.” 514 U.S. at Act, the so-called Gun-Free School Zones S.Ct. 1624. Just so with the reminded that “congressional power us un Clause. What does the empower' clause der the Commerce Clause ... 556-57, the Congress to do? outer limits.” 514 U.S. at 1624; S.Ct. see also United States v. Mor promote To the progress of science and rison, arts, useful by securing for limited times L.Ed.2d 658 to authors and inventors the exclusive apparent It would seem to me that this respective to their writings and concept of “outer limits” to enumerated discoveries.... powers applies not only to the Commerce empowers That clause the Congress to do but to powers, all the enumerated thing, thing only. one and one That one including which we thing progress is “to of sci- today. consider In determining whether may Congress ence useful arts.” How the legislation before it in such cases as “By securing do that? for limited times to Lopez exceeded the outer limit of the au- authors and inventors the exclusive right thority granted under the Commerce respective writings their and discover- Clatise, Lopez precise Court laid out a an open grant ies.” clause is not concededly outline not applicable power to rights. secure exclusive It is a clauses, terms to the construction of other power promote progress. of a but I think in conducting most useful The means which that is to be same sort of examination of the outer lim- certainly granting exercised is of ex- its of power. part As rights clusive open- an elastic and —not analysis, the Court examined the ex- means, ended use of that secur- of congressional authority tension to areas ing for limited times. Stewart v. beyond the core of the enumerated Abend, goal

with a determining whether the (1990) (“The copyright 109 L.Ed.2d 184 in support rationale offered of such an term is limited so that the will not any stopping point extension has or wheth- permanently deprived be of the fruits of regulation er it would lead to the of all labors.”). majority artist’s acknowl- activity. human See 514 (“Thus, were to edges make accept “[i]f S.Ct. 1624 if we were to Government’s arguments, copyright protection permanent, we are hard then it Thirdly, power original period. exceed conferred for the limited surely would Maj. by it Clause.” employed by Congress means here are However, apparent there is no Op. securing rights not the the exclusive permanent distinction between substantive but a different period, a limited rather are au- permanently and available protection altogether: of exclu- animal the extension protec- thority originally to extend limited not sivity previously secured. This is can extend the tion. The by Copy- means within the authorized protection existing work from it and constitutional. is not years, years protec- to 120 can extend that majority responds problem The to this 140; from 140 tion from to the statute’s the constitution exceeding 200; 300; in and from effect by Foley, v. Schnapper al reliance on accomplish majority what the precisely can (D.C.Cir.1981), “in we 667 F.2d 102 which This, my cannot do in directly. admits it rejected argument ‘that the introducto view, proper understanding exceeds the language of the con ry Copyright Clause powers Lopez enumerated reflected ” power.’ a limit on congressional stitutes principle requiring stop- definable some 112). Maj. Op. (quoting 667 F.2d at ping point. if I I will concede it does not matter clause Returning language of the disagree with the language Schnapper itself, impossible it is that the Framers of (which do) in fact as it is our Circuit contemplated permanent precedent by holding are bound protection, directly either obtained or at- until that through holding changed by unless and is guise progressive tained copyrights. extension of existing higher this court en banc or author by granted by power again See, the clause ity e.g., of the La Court. promote “to power progress of science A. Barry, v. Shawn 87 F.3d above, arts.” and useful As stated Con- (D.C.Cir.1996) (en banc) (“One three-judge gress empowered by this accomplish panel authority ... does not securing for limited rights. times exclusive panel overrule another three judge Extending existing copyrights pro- is not only That may court. be exercised arts, moting securing useful it exclu- nor is (citations omitted)); full by the court.” sivity for a limited time. Kolter, v. United States government no tenable has offered (D.C.Cir.1995) (“This panel would be theory as to how extension retrospective if prior] [a bound decision even we did can useful arts. As the Su- it.”). agree not preme noted in Lopez again Therefore, prior it is immaterial Morrison, is, my view, opinion erroneous styling a given piece legislation concluded granting clause of the sentence serves a constitutional not purpose “does merely introductory when fact it is the necessarily make it Lopez, so.” definition of the bestowed (internal quotes at 557 n. 115 S.Ct. 1624 Thus, prece- clause. unless and until this omitted); Morrison, at 1752. 120 S.Ct. away, wiped Schnapper dent is if has held argument, at oral Pressed counsel for the may language that we not look to government keeping referred the prom- phrase to determine the limitations original grant ise made of exclusivi- the clause then I that we are must concede ty easy for a limited time. The answer to join majori- holding bound this assertion is that not em- Congress However, ty’s appear result. does powered keep promises” to “make or the holding Schnapper. me that this is only those things to do Schnapper with limited Court dealt Article I. The problem second with the questions application related to the government’s assertion is that promise made no such an exten- laws works commissioned commit rights sion but exclusive government. answering secure the the U.S. Schnapper place. Court held that the statute the first questions, the This the ‘require need not that each “Congress extension does not do. It is not within the promote work be shown to copyrighted power. ” (quoting arts.’ 667 F.2d at 112 useful majority suggests my reading Group Bros. Film v. Cinema Mitchell Schnapper is by somehow foreclosed (5th Theater, 604 F.2d Adult Cir. fact that accepts argument of an 1979)). It was in that context that Maj. Op. amicus. at (citing 16A Schnapper employed wording al., CháRles Alan WRIGht et Federal majority upon by concerning relied 3975.1 & n.3 Practice Procedure “introductory language” Copyright (3d ed.1999); Resident Council Allen wording Insofar as that is taken Clause. HUD, Parkway Vill. v. anything to be more than the determina (5th Cir.1993)). disposition I concerning analysis, that limited it is tion suggest nothing offend either holding simply (perhaps not a dicta Wright’s Professor treatise or the cases dicta) binding obiter and not on future aligned with I it. Neither nor the amicus panels. parties raise issue not raised Rather, Schnapper analysis again case, disposed by majority nor Lopez approach us back to the takes Appellants the court. raise the issue judicial interpretation of the enumerated “whether ... the Copyright Clause of the Lopez, clauses. one of the powers Constitution of the States United con- to determine employed means the constitu- strains the from extending for a tionality application of extended period copyrights, the duration of inquiry Commerce Clause is an elemental already both those extant and those purportedly into whether each case the added). Maj. Op. (emphasis come.” regulated action “in affects inter- majority addresses issue and at state commerce.” 514 U.S. against appellant. Maj. Op. holds However, jurisdictional 1624. el- (“we hold that the is a proper necessary Lopez analy- ement is not under Congress’s power exercise of the under the regulation sis of Commerce Clause where Clause”). That the ar- amicus directly regulating “the use of gues convincingly appellants’ more favor the channels of interstate commerce” or on the the appellants issue raised than things or in interstate com- “persons reject do no themselves is reason Id. at merce.” Simi- Indeed, argument of the amicus. our that in larly, suggest analyzing the ex- Rules that an brief provide Circuit amicus congressional power tent under repetition legal “must of facts or avoid Schnapper holding arguments principal (appel- made application copy- that each individual lant/petitioner appellee/respondent) or right protection need not points brief and focus on not made and the arts progress of science useful adequately princi- elaborated Congress’s power does not mean that brief, pal although relevant to the issues unlimited, anymore than the otherwise Rule 29. before this court.” Circuit Obvi- necessity analy- for case-by-case lack of a what the amicus has ously precisely sis of the effect on interstate commerce done in this case. anything Congress may wish to validates Parkway Allen Vil- Resident Council under the rubric of the Commerce do lage, majority, highlights relied on Though, Schnapper, Clause. under we introducing this difference between issues may require not that each use of a parties on the one hand raised right protection promote science and the making arguments new for issues oth- arts, require can that the exercise of As properly erwise raised on the other. which oc- applications under case, in that “[w]e the Fifth Circuit noted of the clause which language cur meet the only by the rule that an are constrained grants to enact independent power expand the rather retains the cannot generally curiae amicus apply proper construction identify implicate issues scope appeal ” Kamen v. (quoting law.’ Id. parties governing to of presented by have not been 90, 99, Servs., Inc., 500 Kemper Fin. (emphasis appeal.” (1991)). 1711, added). 114 L.Ed.2d 152 S.Ct. majority arguments I other Fifth Circuit find two Rule and the Our Circuit against my unpersuasive. dissent allowing amici to invokes good company are The enactment that address arguments make additional the state of regularizing have raised but parties which the issues protected by works respect in the same fashion. Su law with argued not ap- precisely that approved preexisting state acts preme Court Lane, Teague generis. v. 489 U.S. to be sui Necessari- approach. pears to me begin 103 L.Ed.2d 334 ly, something 109 S.Ct. had to be done to that Court considered law under the new operation of federal jury a fair section retroactivity May as to cross federal The Act of Constitution. (and raising a claim under in a case also venire created the first 79, 106 Kentucky, v. Batson only) copyright pro- many decades federal L.Ed.2d 69 The Court tection; extend it did not federal retroactivity question of “[t]he noted that copyrights pursuant enacted Consti- fair cross sec regard petitioner’s (8 Peters, with tution. Wheaton Cf. only in ami- claim has been raised an (1834) (“Con- tion Pet.) 591, 661, L.Ed. 300, 109 S.Ct. 1060. cus brief.” 489 U.S. act, then, by [copyright] instead gress, Noting “question foreign sanctioning existing right, an as con- who addressed retroactiv parties, it.”). for, created The fact that the tended petitioner’s Batson ity respect copyrights “matches United States claim,” id., proceeded to address Court by the copyrights granted to the terms of argument. the merits Union,” Maj. (citing European Op. at 379 (L 93/98, 7,1993 Directive art. O.J. Council parties’ Nor are we constrained 290) 9), question. is immaterial agreement as to the state of the apparent European Union nor its con- Neither Schnapper. law under nation states are bound stituent it clear that we cannot be Court has made That of the United States. Constitution by stipulations of law between the bound may have all sorts of laws about and Union parties, where there is “a real case other which are issue.” controversy beyond constitutionally of our Indep. Nat’l Bank Or. v. Inc., Am., government. central Agents Ins. defined 124 L.Ed.2d 402 Therefore, respectfully dissent. it, High put “‘[w]hen As the court, before the properly issue or claim is particular court is not limited to the parties, but

legal theories advanced

Case Details

Case Name: Eldred, Eric v. Reno, Janet

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 16, 2001

Citation: 239 F.3d 372

Docket Number: 99-5430

Court Abbreviation: D.C. Cir.