`
`IN THE
`Supreme Court of the United States
`
`————
`
`LAWRENCE GOLAN, et al.,
`Petitioners,
`
`v.
`
`ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.,
`Respondents.
`
`————
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Tenth Circuit
`
`————
`
`BRIEF OF AMICUS CURIAE EAGLE FORUM
`EDUCATION & LEGAL DEFENSE FUND
`IN SUPPORT OF PETITIONERS
`
`————
`
`
`
`June 17, 2011
`
`ANDREW L. SCHLAFLY
`939 Old Chester Road
`Far Hills, NJ 07931
`(908) 719-8608
`aschlafly@aol.com
`Counsel for Amicus
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`
`
`ii
`
`QUESTIONS PRESENTED
`
`
`
`Section 514 of the Uruguay Round Agreements Act of
`1994 (Section 514 ) did something unique in the
`history of American intellectual property law: It
`“restored” copyright protection in thousands of works
`that the Copyright Act had placed in the Public
`Domain, where they remained for years as the
`common property of all Americans. The Petitioners
`in this case are orchestra conductors, educators,
`performers, film archivists and motion picture
`distributors, who relied for years on the free
`availability of these works in the Public Domain,
`which they performed, adapted, restored and
`distributed without restriction. The enactment of
`Section 514 therefore had a dramatic effect on
`Petitioners’ free speech and expression rights, as well
`as their economic interests. Section 514 eliminated
`Petitioners’ right to perform, share and build upon
`works they had once been able to use freely.
`
`The questions presented are:
`
`1. Does the Progress Clause of the United States
`Constitution prohibit Congress from taking works out
`of the Public Domain?
`
`2. Does Section 514 violate the First Amendment of
`the United States Constitution?
`
`
`
`
`
`iii
`
`
`
`TABLE OF CONTENTS
`
`
`
`Page
`
`QUESTIONS PRESENTED ....................................... ii
`TABLE OF CONTENTS ............................................ iii
`TABLE OF AUTHORITIES ....................................... iv
`INTEREST OF AMICUS CURIAE ............................. 1
`STATEMENT OF THE CASE ..................................... 2
`SUMMARY OF ARGUMENT ...................................... 4
`ARGUMENT ................................................................ 5
`I. THE FIRST AMENDMENT PROHIBITS TAKING
`WORKS OUT OF THE PUBLIC DOMAIN .................... 5
`II. THE PROGRESS CLAUSE DOES NOT
`AUTHORIZE CONGRESS TO REMOVE WORKS
`FROM THE PUBLIC DOMAIN, AND ELDRED
`SHOULD BE OVERRULED TO THE EXTENT ITS
`HOLDING IMPLIES OTHERWISE ............................ 10
`III. THE TENTH CIRCUIT ERRED IN DEFERRING TO
`FOREIGN INTERESTS AT THE EXPENSE OF THE
`U.S. CONSTITUTION ............................................. 16
`CONCLUSION ........................................................... 18
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`CASES
`Banks v. Manchester,
`128 U.S. 244 (1888) ............................................... 9
`Boos v. Barry,
`485 U.S. 312 (1988) ............................................. 17
`Burrow-Giles Lithographic Co. v. Sarony,
`111 U.S. 53 (1884) ............................................... 15
`Cox Broadcasting Corp. v. Cohn,
`420 U.S. 469 (1975) ............................................... 7
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) ..................................... passim
`Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001),
`aff’d, 537 U.S. 186 (2003) ................................... 14
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (1991) ................................. 12, 14, 15
`Fox Film Corp. v. Doyal,
`286 U.S. 123 (1932) ............................................. 14
`Geofroy v. Riggs,
`133 U.S. 258 (1890) ....................................... 16, 17
`Golan v. Gonzales, 501 F.3d 1179 (10th Cir.
`2007) (“Golan I”) ......................................... 3, 4, 11
`Golan v. Holder, 609 F.3d 1076 (10th Cir.
`2010) (“Golan II”) ........................................ 3, 4, 16
`Goldstein v. California,
`412 U.S. 546 (1973) ............................................... 2
`
`
`
`v
`Graham v. John Deere Co.,
`383 U.S. 1 (1966) ..................................... 10, 11, 12
`MGM Studios Inc. v. Grokster, Ltd.,
`545 U.S. 913 (2005) ............................................... 2
`Near v. Minnesota,
`283 U.S. 697 (1931) ............................................... 8
`Nebraska Press Ass’n v. Stuart,
`427 U.S. 539 (1976) ............................................... 8
`Nevada Comm’n on Ethics v. Carrigan,
`2011 U.S. LEXIS 4379 (June 13, 2011) ............. 10
`Organization for a Better Austin v. Keefe,
`402 U.S. 415 (1971) ............................................... 8
`Reid v. Covert,
`354 U.S. 1 (1957) ........................................... 16, 17
`Roth v. United States,
`354 U.S. 476 (1957) ............................................... 8
`Smith v. Daily Mail Pub. Co.,
`443 U.S. 97 (1979) ............................................. 5, 7
`United States v. Lopez,
`514 U.S. 549 (1995) ............................................. 14
`Veeck v. SBCCI,
`293 F.3d 791 (5th Cir. 2002) (en banc), cert.
`denied, 539 U.S. 969 (2003) .................................. 9
`
`
`
`CONSTITUTION AND STATUTES
`17 U.S.C. § 104A .................................................... 3, 4
`17 U.S.C. § 109 ........................................................... 2
`Copyright Term Extension Act, Pub. L. No.
`105-298, 112 Stat. 2827 (1998) ......................... 2, 3
`
`
`
`vi
`U.S. CONST. AMEND. I ................................................. 6
`U.S. CONST. ART. I, § 8, CL. 8 ................................. 4, 10
`Uruguay Round Agreements Act, Pub. L. No.
`103-465, 108 Stat. 4809 (1994) ................... passim
`
`
`CONSTITUTIONAL AND LEGISLATIVE
`MATERIALS
`1 Journals of the Continental Congress (1774) ........ 8
`2 The Documentary History of the Ratification
`of the Constitution (1976) ..................................... 6
`H.R. Rep. No. 2222, 60th Cong., 2d Sess. (1909) .... 13
`H.R. Rep. No. 100-609 (1988) .................................. 14
`
`OTHER AUTHORITIES
`1 Restatement of Foreign Relations Law of the
`United States (Tent. Draft No. 6, Apr. 12,
`1985) ................................................................... 17
`Ronald Coase, “The Problem of Social Cost,” 3
`J. LAW & ECON. 1 (1960) ..................................... 11
`Adam R. Fox, “The Economics of Expression
`and the Future of Copyright Law,” 25 OHIO
`N.U.L. REV. 5 (1999) ........................................... 11
`Carl S. Kaplan, “Free Book Sites Hurt by
`Copyright Law,” N.Y. Times on the Web
`(Oct. 30, 1998),
`http://www.nytimes.com/library/tech/98/10/c
`yber/cyberlaw/30law.html .................................. 15
`Neil Weinstock Netanel, “Locating Copyright
`Within the First Amendment Skein,” 54
`STAN. L. REV. 1 (2001) ......................................... 13
`
`
`
`vii
`Jed Rubenfeld, “The Freedom of Imagination:
`Copyright’s Constitutionality,” 112 YALE
`L.J. 1 (2002) .......................................................... 8
`Adam Smith, Wealth of Nations (Random
`House: 1994, Cannon ed.) ................................... 11
`
`
`
`
`No. 10-545
`
`IN THE
`Supreme Court of the United States
`
`LAWRENCE GOLAN, ET AL.,
`Petitioners,
`
`
`v.
`
`ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,
`Respondents.
`
`
`
`On Writ of Certiorari to the
`United States Court of Appeals for the Tenth Circuit
`
`
`
`
`
`INTEREST OF AMICUS CURIAE1
`Eagle Forum Education & Legal Defense Fund
`(“Eagle Forum ELDF”), a nonprofit organization
`founded in 1981, publishes information of educational
`and historical value, both in print and on the
`internet.
` Eagle Forum ELDF has consistently
`advocated a limited federal government in adherence
`to the text of the U.S. Constitution, and self-
`
`1 This brief is submitted with the filed written consent of all
`parties. Pursuant to its Rule 37.6, counsel for
`amicus curiae
`authored this brief in whole, and no counsel for a party authored
`this brief in whole or in part, nor did any person or entity, other
`than amicus, its members, or its counsel make a monetary
`contribution to the preparation or submission of this brief.
`
`
`
`2
`government by the people based on strict
`constructionism. Eagle Forum ELDF opposes
`interpretation of the Progress Clause 2 in a way that
`interferes with First Amendment rights. Eagle
`Forum ELDF filed several
`amicus curiae briefs
`against an expansive interpretation of the Progress
`Clause in the litigation culminating in the decision of
`this Court in Eldred v. Ashcroft, 537 U.S. 186 (2003).
`Eagle Forum ELDF also filed an amicus curiae brief
`in favor of the First Amendment and against a
`copyright claim in MGM Studios Inc. v. Grokster,
`Ltd., 545 U.S. 913 (2005).
`
`
`
`STATEMENT OF THE CASE
`A collection of orchestra conductors, publishers,
`educators, and others challenged the constitutionality
`of congressional removal of works from the public
`domain. Initially they challenged both the Copyright
`Term Extension Act, Pub. L. No 105-298, § 102(b),
`(d), 112 Stat. 2827, 2827-28 (1998), and Section 514 of
`the Uruguay Round Agreements Act (“URAA”), Pub.
`L. No. 103-465, § 514, 108 Stat. 4809, 4976-81 (1994),
`as codified as amended at 17 U.S.C. §§ 104A, 109.
`
`
`2 Eagle Forum ELDF uses the term “Progress Clause” rather
`than “Copyright Clause” because “progress” (unlike “copyright”)
`is expressly used in this enumerated power, and there is no
`stand-alone “Copyright Clause.” This Court’s first express
`reference to a stand-alone, so-called “Copyright Clause” was not
`until 1973, and then with quotation marks around it.
`See
`Goldstein v. California , 412 U.S. 546, 548 (1973). Fewer than
`ten decisions of this Court since then have used the term
`“Copyright Clause,” despite copyright issues arising more
`frequently.
`
`
`
`3
`Section 514 of the URAA – the subject of this appeal
`– removed works from the public domain in the
`United States and granted copyright protection to
`them. An example of a work affected by this law is
`“Peter and the Wolf,” created in 1936 by the Soviet
`composer Sergei Prokofiev.
`In the initial appeal below, the Tenth Circuit
`upheld the constitutionality of the Copyright Term
`Extension Act based on this Court’s ruling in Eldred
`v. Ashcroft , 537 U.S. 186 (2003), and found Section
`514 of the URAA to be within congressional power
`under the Progress Clause. But the Tenth Circuit
`remanded to the district court to consider whether
`Section 514 of the URAA was a content-neutral or
`content-based restriction on speech, for the purpose of
`assessing whether it passed constitutional muster.
`Golan v. Gonzales , 501 F.3d 1179, 1196 (10th Cir.
`2007) (“ Golan I”). Subsequently finding it to be
`content-neutral, the Tenth Circuit upheld its
`constitutionality. Golan v. Holder , 609 F.3d 1076,
`1081 (10th Cir. 2010) (“Golan II”).
`Section 514 of the URAA removes works from the
`public domain on any one of three grounds: if the
`work lost copyright protection due to a failure to
`comply with copyright formalities, a lack of subject
`matter protection in the case of sound recordings
`fixed before February 15, 1972, or a lack of national
`eligibility. See 17 U.S.C. § 104A(a),(h)(6)(C). But
`artists have already relied on access to these works
`as part of the public domain, such as a deceased
`plaintiff’s creation of a sound recording based on
`compositions by Dmitri Shostakovich. Golan II, 609
`F.3d at 1082. Section 514 does not, however, restore
`copyright to works that entered the public domain
`
`
`
`4
`due to expiration of the copyright term. 17 U.S.C. §
`104A(h)(6)(B).
`Plaintiffs pursued their facial challenge against
`this law, seeking an injunction against it. Golan II,
`609 F.3d at 1081-1082. After the Tenth Circuit ruled
`against them, they petitioned here and Amicus Eagle
`Forum ELDF supports their challenge.
`
`
`SUMMARY OF ARGUMENT
`The First Amendment fully protects republication
`of what is in the public domain. Congress can no
`more prohibit republication of a work that has been
`in the public domain than it could ban a political book
`or speech. Withdrawing a work from the public
`domain is a form of censorship that is simply
`incompatible with the First Amendment.
`As a separate ground for reversing the decision
`below, the Progress Clause itself does not authorize
`Congress to remove works from the public domain.
`Congress may do no more in this field than “promote
`the Progress of Science and useful Arts.” U.S. CONST.
`ART. I, § 8, CL . 8. No such progress is promoted by
`granting copyright monopolies to works in the public
`domain. If anything, this sudden restriction on
`formerly free works expressly inhibits the very
`progress that the Constitution authorizes. The Tenth
`Circuit erred in applying a rational-basis standard in
`holding that Congress had not traversed the
`boundaries of its copyright power. Golan I, 501 F.3d
`at 1187. To the extent
`Eldred stands for the
`proposition that Congress may extend copyrights –
`constrained only by the deferential rational-basis
`standard of review – Eldred should be limited or
`overruled.
`
`
`
`5
`Finally, the Tenth Circuit erred in granting
`deference to foreign law at the expense of the U.S.
`Constitution. The First Amendment does not bend to
`accommodate foreign interests; the enumerated
`powers for Congress do not expand to harmonize with
`foreign laws. Conflicts with foreign law do not
`alleviate the obligations of Congress to remain
`faithful to the U.S. Constitution.
`The net effect of Section 514 of the URAA is to
`deny public access to numerous works that have been
`in the public domain. This does not comport with the
`First Amendment or the Progress Clause, and cannot
`be justified in the name of harmonizing with foreign
`law. If Congress wants to bolster the rights of foreign
`writers and authors to advance a goal of harmony,
`then its approach must fit within one of its
`enumerated powers, such as using the Spending
`Clause to directly provide any value deemed
`appropriate.
`
`
`ARGUMENT
`THE FIRST AMENDMENT PROHIBITS
`TAKING WORKS OUT OF THE
`PUBLIC
`DOMAIN.
`Material in the public domain is protected by the
`First Amendment, and Congress cannot censor
`speech about it based on private interests. “[O]nce
`the truthful information was … ‘in the public domain’
`the court could not constitutionally restrain its
`, 443
`dissemination.” Smith v. Daily Mail Pub. Co.
`U.S. 97, 103 (1979). Just as one cannot unscramble
`an egg, Congress cannot withdraw information that
`has already entered the public square.
` First
`
`I.
`
`
`
`6
`Amendment protection is not something that can be
`granted and then taken away willy-nilly by Congress.
`To hold otherwise, as the lower court did, would be to
`fundamentally weaken the very foundation of the
`First Amendment. U.S. CONST. AMEND. I (“Congress
`shall make no law … abridging the freedom of speech
`….”).
`Indeed, a primary motive for passing the First
`Amendment was precisely to combat this predictable
`expansion in government-granted copyright
`monopolies:
`“Though it is not declared that Congress
`have a power to destroy the liberty of the
`press; yet in effect, they will have it .... They
`have a power to secure to authors the right
`of their writings. Under this, they may
`license the press, no doubt; and under
`licensing the press, they may suppress it.”
`Ratification of the Constitution by the States,
`Pennsylvania, 2 The Documentary History of the
`Ratification of the Constitution 454 (1976) (quoting
`Pennsylvania Constitutional Convention Delegate
`Robert Whitehill on December 1, 1787). Today the
`“press” is increasingly the internet, and taking
`material out of the public domain of the internet is
`censorship, plain and simple. The notion of Congress
`somehow being able to choke off First Amendment
`rights in this way flies in the face of what the right of
`freedom of speech is all about.
`It is axiomatic to First Amendment rights that “if
`a newspaper lawfully obtains truthful information
`about a matter of public significance then state
`officials may not constitutionally punish publication
`
`
`
`7
`of the information, absent a need to further a state
`interest of the highest order.” Daily Mail, 443 U.S. at
`103. But the ruling below contradicts this principle
`by allowing one to “punish publication of the
`information” that has been lawfully obtained from
`the public domain but then subsequently taken away
`by Congress.
`This Court struck down an attempt by a state to
`prohibit publication by a reporter of someone’s name
`after learning of it in court, which is conceptually
`similar to finding something in the public domain.
`See Cox Broadcasting Corp. v. Cohn , 420 U.S. 469
`(1975). “Once true information is disclosed in public
`court documents open to public inspection, the press
`cannot be sanctioned for publishing it. In this
`instance as in others reliance must rest upon the
`judgment of those who decide what to publish or
`broadcast.” Id. at 496. If a state cannot withdraw
`material from the public square consistent with the
`Constitution, then a fortiori neither can Congress.
`The implications of narrowing First Amendment
`protections to allow Congress to remove material are
`troubling. If this slippery slope were allowed, then
`would anything be completely safe from government-
`mandated censorship?
` Works of the U.S.
`Government have long been in the public domain, but
`under the ruling below Congress could generate some
`new revenue by removing the most popular items
`(such as the American flag) and charging copyright
`fees for publishing them. Free speech would then be
`reduced to “Congress-allowed” speech, and that is
`simply incompatible with First Amendment
`principles.
`
`
`
`8
`A copyright, after all, amounts to a prior restraint
`on speech, and “[a]ny prior restraint on expression
`comes ... with a ‘heavy presumption’ against its
`constitutional validity.” Organization for a Better
`Austin v. Keefe , 402 U.S. 415, 419 (1971). Put
`another way, “prior restraints on speech and
`publication are the most serious and least tolerable
`infringement on First Amendment rights.” Nebraska
`, 427 U.S. 539, 559 (1976).
`Press Ass’ns v. Stuart
`Numerous decisions of this Court have held likewise.
`“[I]t is the chief purpose of the [First Amendment]
`guaranty to prevent previous restraints upon
`publication.” Near v. Minnesota , 283 U.S. 697, 713
`(1931). “All ideas having even the slightest
`redeeming social importance,” such as those
`concerning “‘the advancement of truth, science,
`morality, and arts,’” are fully protected by the First
`Amendment. Roth v. United States , 354 U.S. 476,
`484 (1957) (quoting 1 Journals of the Continental
`Congress 108 (1774)).
`These robust First Amendment protections should
`not be circumvented based on a characterization of
`the copyright restriction as “content neutral.” A ban
`on publicizing what happens in court proceedings
`may be content neutral, but it is plainly
`unconstitutional just as withdrawing material from
`the public domain under copyright should be. As one
`commentator has pointed out, “copyright law blithely
`ignores … basic principles of free speech
`jurisprudence that elsewhere go without saying,”
`such as the “First Amendment principle ... against
`prior restraints.” Jed Rubenfeld, The Freedom of
`Imagination: Copyright’s Constitutionality, 112 Y ALE
`L.J. 1, 5-6, (2002). “In some parts of the world, you
`can go to jail for reciting a poem in public without
`
`
`
`9
`permission from state-licensed authorities. Where is
`this true? One place is the United States of
`America.” Id. at 3 (footnote omitted).
`Holding otherwise, as the Tenth Circuit has done,
`would cast doubt on the continued vitality of
`precedents prohibiting the copyrighting of judicial
`opinions and statutory requirements. See, e.g., Banks
`v. Manchester , 128 U.S. 244, 254 (1888) (no
`copyrights allowed in court opinions);
`Veeck v.
`SBCCI, 293 F.3d 791, 799 (5th Cir. 2002) (
`en banc),
`cert. denied , 539 U.S. 969 (2003) (publishers cannot
`copyright statutory requirements). A straightforward
`basis for understanding why copyright cannot attach
`to judicial opinions and statutory requirements is
`that once they initially entered the public domain,
`they cannot be taken back out. While those decisions
`relied on other grounds (the
`Veeck court found
`statutory requirements to constitute non-
`copyrightable “facts”, 293 F.3d at 801), allowing
`withdrawal of material from the public domain would
`cause legal difficulties.
` Could Congress grant
`copyright protection to these or other works that have
`passed into the public domain?
`A Pandora’s box of doctrinal difficulties would
`result if works could be pulled out of the public
`domain into copyright protection without violating
`the First Amendment. This Court has already
`rejected, in Eldred, the suggestion that copyrights are
`somehow “categorically immune from challenges
`under the First Amendment.” Eldred, 537 U.S. at
`221 (quotations omitted). A bright-line, principled
`approach is the best here: once something is in the
`public domain, the First Amendment ensures that it
`remains there.
`
`
`
`10
`
`
`II.
`
`THE PROGRESS CLAUSE DOES NOT
`AUTHORIZE CONGRESS TO REMOVE WORKS
`FROM THE PUBLIC DOMAIN, AND ELDRED
`SHOULD BE OVERRULED TO THE EXTENT
`ITS HOLDING IMPLIES OTHERWISE.
`This Court has held that “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). This sound principle – based in the very same
`Progress Clause – should be extended to copyrights
`as well, and requires reversal of the judgment below.
`The Progress Clause authorizes Congress to grant
`copyright monopolies only to the extent they
`“promote the Progress of Science and useful Arts.”
`U.S. CONST. ART. I, § 8, CL. 8. Occasionally referred to
`as the “Copyright Clause,” it actually uses the term
`“progress” rather than “copyright”, and should be
`interpreted with that word choice in mind. Progress
`is what is to be promoted, not merely narrow private
`interests. Congress cannot impose what the Progress
`Clause does not authorize, and obstructing progress
`or enriching private parties in the name of copyright
`does not comport with the understood purpose of this
`clause. Cf. Nevada Comm’n on Ethics v. Carrigan ,
`2011 U.S. LEXIS 4379, *30 (June 13, 2011) (Alito, J.,
`concurring) (emphasizing the understanding and
`precedents “during the founding era”).
`Nothing enacted during the founding era suggests
`that the People gave Congress carte blanche to create
`copyright monopolies on works already in the public
`domain.
` This Court observed that Thomas
`
`
`
`11
`“Jefferson, like other Americans, had an instinctive
`aversion to monopolies. It was a monopoly on tea
`that sparked the Revolution and Jefferson certainly
`did not favor an equivalent form of monopoly under
`the new government.” Graham, 383 U.S. at 7.
`Pulling works out of the public domain is also
`economically illogical: it exacerbates transaction
`costs, which is harmful to overall efficiency.
`See
`generally Ronald Coase, “The Problem of Social Cost,”
`3 J. LAW & ECON. 1 (1960).
`The American people are disadvantaged by
`removal from the public domain. “The level of
`information guaranteed by copyright law is merely
`the product of enforced scarcity, which might be good
`for the producers, but would surely not be good for
`the consumers who either pay higher prices for their
`enjoyment of new expression or forgo it entirely.”
`Adam R. Fox, “The Economics of Expression and the
`Future of Copyright Law,” 25 O HIO N.U.L. REV. 5, 15
`(1999). Adam Smith’s criticism of state-conferred
`monopolies in his Wealth of Nations applies here:
`under monopolies, “all the other subjects of the state
`are taxed … by the high price of goods.” Adam
`Smith, Wealth of Nations, 814 (Random House: 1994,
`Cannon ed.).
`It was error for the court below to rely heavily on
`inferences from
` in finding
`Eldred v. Ashcroft
`congressional power to withdraw material from the
`public domain, as done by Section 514 of the URAA.
`Golan I, 501 F.3d at 1186-87. To the extent this
`Court’s ruling in Eldred suggests that Congress has
`the power to remove works from the public domain,
`that precedent should be overruled. No “progress” is
`
`
`
`12
`advanced by pulling works out of the public domain
`and granting monopolies in them.
`In Eldred, the majority opinion held that Congress
`has authority to extend copyright protection for old
`works having terms that are about to expire, despite
`a lack of any new value or
`quid pro quo from the
`creator.
` 537 U.S. at 208-18.
` That decision
`essentially allowed Congress to define the scope of its
`own power, and then analyzed the exercise of such
`power under the least demanding rational-basis
`standard of review. Id. at 199-200, 205, 213. The
`Eldred majority so held despite acknowledging that
`“we have described the Copyright Clause as ‘both a
`grant of power and a limitation,’ and that ‘the
`primary objective of copyright’ is ‘to promote the
`Progress of Science.’”
`Id. at 212 (quoting Graham,
`383 U.S. at 5, and Feist Publ’ns, Inc. v. Rural Tel.
`Serv. Co., 499 U.S. 340, 349 (1991)).
`But as Justice Breyer explained in his dissent in
`Eldred, the enumerated copyright power places a
`more meaningful limitation on congressional
`attempts to expand copyright:
`The “monopoly privileges” that the Copyright
`Clause confers “are neither unlimited nor
`primarily designed to provide a special
`private benefit.” Sony Corp. of America v.
`, 464 U.S. 417,
`Universal City Studios, Inc.
`429 (1984); cf., Graham v. John Deere Co. of
`Kansas City , 383 U.S. 1, 5 (1966). This
`Court has made clear that the Clause’s
`limitations are judicially enforceable. E.g.,
`Trade-Mark Cases, 100 U.S. 82, 93-94, 25 L.
`Ed. 550, 1879 Dec. Comm’r Pat. 619 (1879).
`And, in assessing this statute for that
`
`
`
`13
`purpose, ... take into account that the
`Constitution is a single document, that it
`contains both a Copyright Clause and a First
`Amendment, and that the two are related.
`, 537 U.S. 186, 243-44 (2003)
`Eldred v. Ashcroft
`(Breyer, J., dissenting).
`Commentators, too, have observed how expanding
`copyright protection “raises serious questions about
`copyright’s continued fit with its incentive-for-
`original-expression rationale. It has also imposed an
`increasingly onerous burden on speech.”
` Neil
`Weinstock Netanel, “Locating Copyright Within the
`First Amendment Skein,” 54 S TAN. L. REV. 1, 4
`(2001). What possible incentive is created by taking
`works out of the public domain? None. Instead it
`impedes the use of those public domain works to
`create derivative works, which in turn would enrich
`both the producer and society as a whole.
`Justice Breyer explained further how limitations
`on the copyright power are essential to its
`constitutional basis:
`Under the Constitution, copyright was
`designed “primarily for the benefit of the
`public,” for “the benefit of the great body of
`people, in that it will stimulate writing and
`invention.” ... [H.R. Rep. No. 2222, 60th
`Cong., 2d Sess., 7 (1909)]. And were a
`copyright statute not “believed, in fact, to
`accomplish” the basic constitutional objective
`of advancing learning, that statute “would be
`beyond the power of Congress” to enact. Id.,
`at 6-7. Similarly, those who wrote the House
`Report on legislation ... said that “the
`constitutional purpose of copyright is to
`
`
`
`14
`facilitate the flow of ideas in the interest of
`learning.” H.R. Rep. No. 100-609, p.22
`(1988) (internal quotation marks omitted).
`Eldred, 537 U.S. at 247 (Breyer, J., dissenting).
`Judge Sentelle, in dissenting in part from the lower
`D.C. Circuit opinion in Eldred, described his “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.”
`Eldred v. Reno , 239 F.3d 372, 381 (D.C. Cir. 2001)
`(Sentelle, J., dissenting), aff’d, 537 U.S. 186 (2003)
`(citing United States v. Lopez, 514 U.S. 549 (1995)).
`This Court has emphasized that “the sole interest
`of the United States and the primary object in
`conferring the monopoly lie in the general benefits
`derived by the public from the labors of authors.” Fox
`, 286 U.S. 123, 127 (1932)
`Film Corp. v. Doyal
`(emphasis added). That interest is utterly lacking in
`removing foreign works from the public domain in the
`United States. The merely “secondary consideration”
`of reward to the copyright owners – ones who already
`created the subject work – should not be the
`prevailing factor here. Eldred, 537 U.S. at 227 n.4
`(Stevens, J. dissenting).
`Put another way, “originality is a constitutional
`requirement” for protection under copyright,
`Feist,
`499 U.S. at 346, and originality no longer exists for a
`work that has been in the public domain. Once
`originality is lost, it cannot be magically regained by
`a new Act of Congress any more than shattered glass
`may be rendered unbroken. This requirement of
`originality is inherent in the Progress Clause: “the
`
`
`
`15
`Court made it unmistakably clear that its terms
`presuppose a degree of originality.”
`Id. (citing The
`Trade-Mark Cases , 100 U.S. 82 (1879) and Burrow-
`Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)).
`“The originality requirement articulated in
`The
`Trade-Mark Cases and Burrow-Giles remains the
`touchstone of copyright protection today. It is the
`very premise of copyright law.” Feist, 499 U.S. at 347
`(quotations and citations omitted).
`Removing material from the public domain has
`the same deleterious effect as extending copyright for
`already-created works: this denies the public the
`benefit of numerous works, particularly over the
`internet. Michael S. Hart, the director of an online
`publisher of works known as the Gutenberg Project,
`estimated with respect to copyright extension that
`the CTEA would “essentially prevent about one
`million books from entering the public domain over
`the next 20 years.” Carl S. Kaplan, “Free Book Sites
`Hurt by Copyright Law,” N.Y. Times on the Web (Oct.
`30, 1998). 3 Neither Adam Smith nor the Founders
`like Thomas Jefferson would have supported giving
`Congress the power of harming so many people to the
`windfall of so few, based on the Progress Clause.
`
`
`
`
`3
`http://www.nytimes.com/library/tech/98/10/cyber/cyberlaw/30law
`.html (viewed 6/16/11).
`
`
`
`16
`
`
`III. THE TENTH CIRCUIT ERRED IN DEFERRING
`TO FOREIGN INTERESTS AT THE EXPENSE
`OF THE U.S. CONSTITUTION.
`It was error for the Tenth Circuit to create a more
`deferential standard of review merely due to the
`existence of related foreign law and interests. The
`court below adopted “considerable deference to
`Congress” simply because its regulation of domestic
`free speech was based on foreign law. Golan II, 609
`F.3d at 1085. The lower court did caution that “we do
`not suggest that Congress’s decisions regarding
`foreign affairs are entirely immune from the
`requirements of the First Amendment.” Id. In fact,
`no extra deference is justified based on foreign law,
`particularly with respect to application of the U.S.
`Constitution to domestic speech.
`Foreign law cannot result in erosion of
`constitutional rights, or expansion of enumerated
`powers for Congress. “[N]o agreement with a foreign
`nation can confer power on the Congress, or on any
`other branch of Government, which is free from the
`restraints of the Constitution.” Reid v. Covert , 354
`U.S. 1, 16 (1957). Similarly, this Court has held that
`“[i]t would not be contended that [treaty power]
`extends so far as to authorize what the Constitution
`forbids, or a change in the character of the
`government or in that of one of the States ….” Id. at
`17-18 (quoting Geofroy v. Riggs , 133 U.S. 258, 267
`(1890)).
`Section 514 of the URAA must still comport fully
`with the First Amendment, and must stand or fall
`based on the scope of congressional powers, no matter
`
`
`
`17
`how much harmony Congress purportedly seeks to
`bring to a foreign land. “‘[R]ules of international l