Eldred v. Reno, 99-5430

• Decision Date: 16 February 2001
• Docket Number: No. 99-5430,99-5430
• Citation: 239 F.3d 372
• Parties: (D.C. Cir. 2001) Eric Eldred, et al., Appellants v. Janet Reno, In her official capacity as Attorney General, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 372

239 F.3d 372 (D.C. Cir. 2001)

Eric Eldred, et al., Appellants v. Janet Reno, In her official capacity as Attorney General, Appellee

No. 99-5430

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2000

Decided February 16, 2001

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 copyrights, 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. S 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 S 102(b)(1), 112 Stat. 2827; 17 U.S.C. S 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 S 102(b)(3), 112 Stat. 2827; 17 U.S.C. S 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 S 102(d), 112 Stat. 2827; 17 U.S.C. S 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 S 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 S 1, 4 Stat. 436, 436. So the term remained until 1909, when the Congress extended the renewal term as well to 28 years, making for a combined term of 56 years. See Act of March 4, 1909 S 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, S 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 S S 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, S 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 reasons: 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 copyrights 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. S 102(b). See e.g., New York Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (Brennan, J., concurring) (Copyright laws are not restrictions on freedom of speech as copyright protects only form of...