No. 10-545
`
`IN THE
`Supreme Court of the United States
`
`LAWRENCE GOLAN ET AL.,
`
`v.
`
`ERIC H. HOLDER, JR. ET AL.,
`
`Petitioners,
`
`Respondents.
`
`ON WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
`
`BRIEF OF AMICUS CURIAE
`AMERICAN INTELLECTUAL PROPERTY
`LAW ASSOCIATION
`IN SUPPORT OF RESPONDENTS
`
`DAVID W. HILL
`President
`AMERICAN INTELLECTUAL
`PROPERTY LAW
`ASSOCIATION
`241 18th Street South,
`Suite 700
`Arlington, Virginia
` 22202
`(703) 415-0780
`
`EDWARD R. REINES
`Counsel of Record
`MARK J. FIORE
`JESSIE B. MISHKIN
`JAIME D. LODA
`WEIL, GOTSHAL & MANGES LLP
`201 Redwood Shores Parkway
`Redwood Shores, California
` 94065
`(650) 802-3000
`edward.reines@weil.com
`Attorneys for Amicus Curiae
`
`237475
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`IN THE
`Supreme Court of the United States
`
`LAWRENCE GOLAN ET AL.,
`
`v.
`
`ERIC H. HOLDER, JR. ET AL.,
`
`Petitioners,
`
`Respondents.
`
`ON WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
`
`BRIEF OF AMICUS CURIAE
`AMERICAN INTELLECTUAL PROPERTY
`LAW ASSOCIATION
`IN SUPPORT OF RESPONDENTS
`
`DAVID W. HILL
`President
`AMERICAN INTELLECTUAL
`PROPERTY LAW
`ASSOCIATION
`241 18th Street South,
`Suite 700
`Arlington, Virginia
` 22202
`(703) 415-0780
`
`EDWARD R. REINES
`Counsel of Record
`MARK J. FIORE
`JESSIE B. MISHKIN
`JAIME D. LODA
`WEIL, GOTSHAL & MANGES LLP
`201 Redwood Shores Parkway
`Redwood Shores, California
` 94065
`(650) 802-3000
`edward.reines@weil.com
`Attorneys for Amicus Curiae
`
`237475
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . .
`i
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . .
`
`iii
`
`STATEMENT OF INTEREST . . . . . . . . . . . . . . . .
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . .
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`I. THE TENTH CIRCUIT CORRECTLY
`FOUND THAT SECTION 514 DOES NOT
`VIOLATE THE FIRST AMENDMENT
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`
`
`A. Copy r ight Law a nd t he F i r st
`Amendment Fully and Rationally
`Coexist . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`
`
`B. Section 514 Does Not A lter the
`Traditional Contours of Copyright
`Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`
`
`C. Section 514 Is Entirely Consistent
`with Other Congressional Enactments
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`
`
`1
`
`2
`
`3
`
`3
`
`4
`
`5
`
`8
`
`D. Section 514 Addresses a Substantial
`G over n ment a l Int erest a nd Is
`Narrowly Tailored. . . . . . . . . . . . . . . . . .
`
`
`
`10
`
`
`
`ii
`
`Table of Contents
`
`Page
`
`II. CONGRESS HAS BROAD AUTHORITY
`TO PROMULGATE COPYRIGHT LAWS
`SUBJECT ONLY TO DEFERENTIAL
`REVIEW UNDER THE RATIONAL
`RELATIONSHIP TEST . . . . . . . . . . . . . . . .
`
`
`
`A. Because the Constitution Expressly
`Allocates to Congress the Power to
`Make Laws Regarding Copyrights,
`Deferential Judicial Rev iew Is
`Proper. . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`
`
`12
`
`12
`
`B. There Is No “Public Interest” or
`“Progress” Test for Laws Promulgated
`Pursuant to the Copyright Clause
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`
`
`
`C. Section 514 Rationally Promotes
`“Progress” and the “Public Interest”
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`
`
`D. Petitioners’ “Limited Times” Argument
`Is an Unduly Narrow Interpretation
`of the Copyright Clause and Is
` Without Merit . . . . . . . . . . . . . . . . . . . . .
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`16
`
`19
`
`21
`
`
`
`iii
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`CASES
`
`American Geophysical Union v. Texaco Inc.,
` 802 F. Supp. 1 (S.D.N.Y. 1992), aff’d,
` 60 F.3d 913 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . .
`
`7
`
`Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
` 489 U.S. 142 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
`
`Compco Corp. v. Day-Brite Lighting, Inc.,
` 376 U.S. 234 (1964) . . . . . . . . . . . . . . . . . . . . . . . . .
`
`12
`
`Eldred v. Ashcroft,
` 537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . . . . . . passim
`
`Festo Corp. v.
`Shoketsu Kinzoku Kogyo Kabushiki Co.,
` 535 U.S. 722 (2002) . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Golan v. Holder,
` 609 F.3d 1076 (10th Cir. 2010) . . . . . . . . . . . . . . . .
`
`Gonzales v. Raich,
` 545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Graham v. John Deere Co. of Kansas City,
` 383 U.S. 1 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`19
`
`17
`
`13
`
`15
`
`Harper & Row Publishers, Inc. v.
`Nation Enterprises,
` 471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . passim
`
`
`
`iv
`
`Cited Authorities
`
`Page
`
`Luck’s Music Library, Inc. v. Gonzales,
` 407 F.3d 1262 (D.C. Cir. 2005). . . . . . . . . . . . . . . .
`
`Mazer v. Stein,
` 347 U.S. 201 (1954) . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Microsoft Corp. v. i4i Ltd. Partnership,
` 564 U.S. __, 131 S. Ct. 2238 (2011) . . . . . . . . . . . .
`
`Missouri v. Holland,
` 252 U.S. 416 (1920) . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Sears, Roebuck & Co. v. Stiffel Co.,
` 376 U.S. 225 (1964) . . . . . . . . . . . . . . . . . . . . . . . . .
`
`20
`
`7
`
`19
`
`11
`
`12
`
`Sony Corp. of America v.
`Universal City Studios, Inc.,
` 464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . 13, 14, 15, 17
`
`Stewart v. Abend,
` 495 U.S. 207 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
`
`Turner Broadcasting System, Inc. v. FCC,
` 512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . . . . .
`
`11
`
`Twentieth Century Music v. Aiken,
` 422 U.S. 151 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
`
`U.S. v. Comstock,
` 560 U.S. __, 130 S. Ct. 1949 (2010) . . . . . . . . . . . .
`
`13
`
`
`
`v
`
`Cited Authorities
`
`Page
`
`Universal City Studios v. Corley,
` 271 F.3d 429 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . .
`
`Wheaton v. Peters,
` 33 U.S. (8 Pet.) 591 (1834). . . . . . . . . . . . . . . . . . . .
`
`White-Smith Music Publ’g Co. v. Apollo Co.,
` 209 U.S. 1 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`11
`
`12
`
`12
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. art. I, § 8, cl. 8 . . . . . . . . . . . . . . . . . . passim
`
`U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . passim
`
`STATUTES
`
`17 U.S.C. § 104A. . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`
`17 U.S.C. § 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`17 U.S.C. § 109(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`17 U.S.C. § 111(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`17 U.S.C. § 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`17 U.S.C. § 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`9
`
`9
`
`9
`
`9
`
`9
`
`17 U.S.C. § 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
`
`
`
`vi
`
`Cited Authorities
`
`Page
`17 U.S.C. § 304(c)-(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
`
`Sup. Ct. R. 37.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Act of Dec. 18, 1919, Pub. L. No. 66-10241,
` 41 Stat. 368. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Act of Sept. 25, 1941, Pub. L. No. 77-258,
` 55 Stat. 732. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Act of Dec. 15, 1971, Priv. L. No. 92-60,
` 85 Stat. 649. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Act of Dec. 1, 1990, Pub. L. No. 101-650,
` 104 Stat. 5089. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`Act of Dec. 8, 1993, Pub. L. No. 103-182,
` 107 Stat. 2204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`1
`
`1
`
`20
`
`20
`
`20
`
`20
`
`20
`
`Copyright Act of 1790 . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 8
`
`Copyright Term Extension Act. . . . . . . . . . . . . 10, 13, 16
`
`Digital Performance Rights in Sound Recordings
` Act of 1995, Pub. L. No. 104-39, 109 Stat. 336. . .
`
`9
`
`Uruguay Round Agreements Act, § 514. . . . . . . passim
`
`
`
`vii
`
`Cited Authorities
`
`Page
`
`OTHER AUTHORITIES
`
`Joint Hearings, 103d Cong., 2d Sess., 262 (1994) . .
`
`17
`
`S. Rep. No. 100-352 (May 19, 1988) . . . . . . . . . . . . . . 16-17
`
`Stephen McJohn, Eldred’s Aftermath, 10 MICH.
` TELECOMM. TECH. L REV. 93 (2003) . . . . . . . . . . . .
`
`The Federalist No. 43 (C. Rossiter ed. 1961) . . . . . .
`
`8
`
`8
`
`
`
`1
`
`STATEMENT OF INTEREST1
`
`The American Intellectual Property Law Association
`(“AIPLA”) is a national association of approximately
`16,000 members whose interests lie in copyright, patent,
`trademark, trade secret, and other areas of intellectual
`property law. The AIPLA’s members include attorneys in
`private practice and attorneys employed by corporations,
`universities, and government, and represent both owners
`and users of intellectual property. Unlike many other
`areas of practice in which separate and distinct plaintiffs’
`and defendants’ bars exist, most, if not all, intellectual
`property attorneys represent both intellectual property
`owners and alleged infringers. The AIPLA has no stake in
`the parties to this litigation or the result of this case, other
`than its interest in seeking the correct interpretation of
`the law affecting intellectual property.2
`
`1 In accordance with Supreme Court Rule 37.6, amicus
`curiae states that this brief was not authored, in whole or in part,
`by counsel to a party, and that no monetary contribution to the
`preparation or submission of this brief was made by any person or
`entity other than the amicus curiae or its counsel. After reasonable
`investigation, AIPLA believes that (i) no member of its Board or
`Amicus Committee who voted to fi le this brief, or any attorney in
`the law fi rm or corporation of such a member, represents a party to
`this litigation in this matter, (ii) no representative of any party to
`this litigation participated in the authorship of this brief, and (iii)
`no one other than AIPLA, or its members who authored this brief
`and their law fi rms or employers, made a monetary contribution
`to the preparation or submission of this brief.
`
`2 In accordance with Supreme Court Rule 37.3(a), the parties
`to this litigation have consented to the fi ling of this brief by fi ling
`blanket consents with the Court.
`
`
`
`2
`
`SUMMARY OF ARGUMENT
`
`Article I, section 8, clause 8 of the Constitution (the
`“Copyright Clause”) grants to Congress the power to
`“promote the Progress of Science and useful Arts, by
`securing for limited Times to Authors and Inventors
`the exclusive Right to their respective Writings and
`Discoveries.” Section 514 of the Uruguay Round
`Agreements Act (“URAA”), which accords copyright
`protection to various foreign works that were previously in
`the public domain in the United States so long as the term
`of protection for those works would not have otherwise
`already expired, is a proper exercise of this Article I
`power and does not violate the First Amendment.
`
`Since the fi rst Copyright Act of 1790, Congress has
`repeatedly extended and expanded copyright protection
`pursuant to its powers under the Copyright Clause.
`Copyright restoration under section 514 of the URAA
`is consistent with this history, is a valid exercise of
`Congress’s power, and does not infringe the protections
`of the First Amendment. These First Amendment
`protections—namely, the fair use doctrine and the idea-
`expression dichotomy, which this Court has labeled as the
`“traditional contours” of copyright law—are left in place
`after the enactment of section 514, and the Court should
`thus conduct a deferential review of the statute. Even were
`the Court to apply a more rigorous review, the government
`has several substantial interests that justify enactment
`of section 514: compliance with international treaties,
`protection of the rights of U.S. copyright holders abroad,
`and protection of foreign holders of copyrights in the U.S.
`
`Reversal of the decision below would also encroach
`on the powers accorded Congress under the Copyright
`
`
`
`3
`
`Clause. Regulation of copyright protection is a matter
`best suited for Congress, not the courts, and Congress—
`which is in the best position to weigh the advantages and
`disadvantages of any particular copyright statute—has
`exercised those powers to great collective effect. As the
`Court recognized in Eldred v. Ashcroft, 537 U.S. 186
`(2003), since 1790, Congress has enacted many changes
`to the Copyright Act that have enhanced the rights of all
`holders of extant copyrights, and signifi cant investments
`have been made based on these enactments. Reversal
`in this case would be destabilizing and injurious to
`intellectual property owners, to international agreements
`and Congress’s efforts to comply with them, and to the
`U.S. economy.
`
`ARGUMENT
`
`I. THE TENTH CIRCUIT CORRECTLY FOUND
`THAT SECTION 514 DOES NOT VIOLATE THE
`FIRST AMENDMENT
`
`The Tenth Circuit held in this case that Congress
`infringed no First Amendment rights in enacting the
`copyright restoration provisions of section 514 of the
`URAA, as codifi ed at 17 U.S.C. § 104A. This decision was
`correct because copyright law and the First Amendment
`rationally coexist, and because section 514 does not
`alter the traditional contours of copyright law and is
`fully consistent with other congressional enactments. In
`addition, although only deferential review is necessary,
`section 514 does not offend the First Amendment even
`if intermediate scrutiny is applied because the statute
`addresses a substantial governmental interest and is
`narrowly tailored.
`
`
`
`4
`
`A. Copyright Law and the First Amendment Fully
`and Rationally Coexist
`
`Copyright law has built-in mechanisms to protect
`the First Amendment, and where these mechanisms
`are left intact, the First Amendment is not burdened.
`The Court acknowledged this fundamental principle in
`Justice Ginsberg’s opinion in Eldred, observing that where
`“Congress has not altered the traditional contours of
`copyright protection, further First Amendment scrutiny
`is unnecessary.” 537 U.S. at 221. Those “traditional
`contours”—the doctrines of fair use and the idea/
`expression dichotomy—are the Copyright Act’s built-in
`mechanisms to protect the First Amendment. They have
`consistently been found to provide ample respect for free
`speech, while allowing for Congress to act on its power
`“[t]o 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.” Art. I, Sec. 8, cl. 8.
`
`Nor is an expansion of copyright protection
`incompatible with the First Amendment’s goals. As this
`Court recognized in Eldred, “copyright’s purpose is to
`promote the creation and publication of free expression.”
`537 U.S. at 219 (emphasis in original). Put another way, as
`the “‘engine’” of free expression, copyright law provides
`incentives to authors to share their work with society.
`Id. (quoting Harper & Row Publishers, Inc. v. Nation
`Enterprises, 471 U.S. 539, 558 (1985)). The proximity of
`the enactment dates for the fi rst Copyright Act (1790)
`and the First Amendment (1791) at least suggests that
`the Founding Fathers were aware of the interlocking
`relationship of these protections.
`
`
`
`5
`
`The fair use doctrine and the idea/expression
`dichotomy, in particular, ensure that copyright law does
`not confl ict with the First Amendment. This Court has
`recognized the centrality of these doctrines, explaining
`that the idea/expression dichotomy, and, by extension,
`fair use, “strikes a defi nitional balance between the First
`Amendment and the Copyright Act.” Harper & Row,
`471 U.S. at 556 (internal quotation marks and citation
`omitted).3
`
`B. Section 514 Does Not Alter the Traditional
`Contours of Copyright Law
`
`Section 514 of the URAA granted, or “restored,”
`copyright protection for some foreign works that had
`fallen into the public domain in the U.S., allowing these
`works protection under the Copyright Act to nearly the
`same extent as a work by a U.S. author who had complied
`with all formalities of the Copyright Act. Section 514,
`however, contains important limitations. First, copyright
`restoration is not available for any work that is in the public
`domain of its source country through the expiration of
`its term of protection. See 17 U.S.C. § 104A(h)(6)(B). In
`addition, restoration is not available for works whose U.S.
`copyright would have already expired, since the length of
`restored U.S. protection extends only until the end of the
`U.S. term had the work never entered the public domain in
`the U.S. See id. § 104A(a)(1)(B). Other limitations include:
`
`3 The Court in Harper & Row concluded that the “balance” it
`articulated meant that abuse of the fair use doctrine—in that case,
`the bad-faith use of a stolen manuscript—would not be tolerated.
`Although the fair use defense failed in Harper & Row, the Court
`was careful to explain and affi rm the doctrine’s centrality to the
`concept of copyright law.
`
`
`
`6
`
`the requirement that if copyright owners wish to pursue
`enforcement against “reliance” parties, they must fi le a
`notice of intent to enforce their restored copyrights within
`24 months of restoration or, alternatively, they must serve
`actual notice of such intent directly on reliance parties,
`id. §§ 104A(c), 104A(d)(2)(A)(i); and the right of reliance
`parties—that is, parties that have engaged in acts covered
`by section 106 of the Copyright Act prior to the restoration
`of the foreign work at issue—to continue to engage in those
`acts for 12 months following notice. Id. § 104A(d)(2)(A)(ii).
`
`Even setting aside the foregoing signifi cant limitations,
`section 514 leaves entirely untouched the protective
`doctrines of fair use and the idea/expression dichotomy.
`Eldred made two foundational observations: (i) absent
`alteration of the “traditional contours” of copyright
`law, no First Amendment scrutiny is necessary; and
`(ii) changing the scope of copyright protection does not
`alter these “traditional contours” because it leaves in
`place fair use and the idea/expression dichotomy. These
`observations show that the very purpose of protecting the
`“traditional contours” of copyright law is to safeguard
`First Amendment values. Section 514 does not violate
`this purpose. Surely if the fair use doctrine and the idea/
`expression dichotomy were unimpeded in Eldred, then
`they too are unimpeded here, where section 514 expands
`copyright protection in an even more limited fashion than
`the term extension at issue in Eldred.
`
`A mere increase in copyright protection does not,
`ipso facto, alter the traditional contours of copyright
`law and thereby detract from First Amendment rights.
`The First Amendment is intended to protect the right to
`free speech, but it is not intended to make the copying
`
`
`
`7
`
`of someone else’s speech free. This Court recognized
`as much in Eldred, stating that the First Amendment
`“bears less heavily when speakers assert the right to
`make other people’s speeches.” 537 U.S. at 221. The Court
`followed that observation with the further statement that
`“copyright’s built-in free speech safeguards” generally
`are adequate to address First Amendment concerns. Id.
`Here, section 514’s removal of certain works from the
`public domain does not subject the statute to constitutional
`invalidation. Contrary to the assertion by the Petitioners,
`Courts generally do not consider the public domain to be
`essential for the “creation of knowledge and its spread.”
`Brief for the Petitioners (“Pr. Brief”) 24. Rather, the
`opposite proposition is correct: it is copyright protection
`that is largely responsible for the “creation of knowledge
`and its spread.” Id.
`
`The judiciary has acknowledged repeatedly the
`strong relationship between reward and the “Progress
`of Science.” The economic philosophy behind copyright
`law “is the conviction that encouragement of individual
`effort by personal gain is the best way to advance public
`welfare through the talents of authors and inventors.”
`Mazer v. Stein, 347 U.S. 201, 219 (1954). Quoting a
`district court opinion, the Court in Eldred noted that
`copyright law celebrates the profi t motive by recognizing
`that the profi t incentive underlying copyright protection
`“‘will redound to the public benefi t by resulting in the
`proliferation of knowledge.’” Eldred, 537 U.S. at 212 n.18
`(quoting American Geophysical Union v. Texaco Inc.,
`802 F. Supp. 1, 27 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 (2d
`Cir. 1994)); see also Harper & Row, 471 U.S. at 558 (“the
`Framers intended copyright itself to be the engine of
`free expression”); Twentieth Century Music v. Aiken,
`
`
`
`8
`
`422 U.S. 151, 156 (1975) (stating that the immediate effect
`of copyright law is a fair return for the author, but “the
`ultimate aim is, by this incentive, to stimulate artistic
`creativity for the general public good.”).
`
`Accordingly, “as James Madison observed, in
`copyright, ‘[t]he public good fully coincides … with the
`claims of individuals.’” Eldred, 537 U.S. at 212 n.18
`(quoting The Federalist No. 43, p. 272 (C. Rossiter ed.
`1961)). Petitioners thus miss the mark in arguing that
`more copyright protection—including protection for works
`which, in fairness, should have been protected from the
`beginning—will “inhibit[] the spread of existing works,
`reduce[] the universe of material available to the public for
`further creation, [or] threaten[] to destroy the incentive to
`use even those works that remain unprotected.” Pr. Brief
`24. Instead, stronger copyright protection can and will
`“suppl[y] the economic incentive to create and disseminate
`ideas.” Harper & Row, 471 U.S. at 558.
`
`C. Section 514 Is Entirely Consistent with Other
`Congressional Enactments
`
`Consistent with the recognition that copyright
`protection fosters creativity, Congress has expanded
`such protection in numerous ways, including ways
`that, under Petitioners’ theory, would limit the use of
`expressive content. In fact, the boundaries of copyright
`law—both as to the subject matter of works entitled
`to protection and the length of that protection—have
`changed extensively since the fi rst Copyright Act of 1790,
`with no Constitutional confl icts. See Stephen McJohn,
`Eldred’s Aftermath, 10 MICH. TELECOMM. TECH. L REV. 93,
`118 (2003). All of these enactments undercut Petitioners’
`
`
`
`9
`
`claim that section 514 amounts to an unprecedented shift
`of copyright protection to the detriment of users and the
`public. See Pr. Brief 43-44.
`
`As Petitioners’ brief explains in detail, the “scope and
`duration” of copyright have been expanded some 19 times
`since 1790. Pr. Brief 34-36. From 14 years of protection for
`published maps, charts and books in 1790, through today’s
`protection for the life of the author plus 70 years for an
`even greater variety of works, published or not, the law has
`taken many steps forward to broaden copyright protection.
`Eldred, 537 U.S. at 193-94. In addition, Congress granted
`a new right altogether with the enactment of the Digital
`Performance Rights in Sound Recordings Act of 1995,
`Pub. L. No. 104-39, 109 Stat. 336 (“DPRA”). That act
`gave sound recording copyright owners the exclusive
`right to prevent others from publicly performing their
`works without authorization or compensation. The right
`was given not only to creators of new sound recordings,
`but also to copyright owners for sound recordings created
`before the effective date of the DPRA. 17 U.S.C. § 106.
`Congress also has extended the Copyright Act through
`grants of rights in architectural works, increases in the
`compulsory license fees for existing works, and limits on
`the fi rst sale doctrine for computer software and sound
`recordings. 17 U.S.C. § 120 (1990); id. §§ 111(d), 115 (1976);
`id. § 109(b) (1976).
`
`The Copyright Act contains other mechanisms
`which, under Petitioners’ theory, also would raise
`Constitutional questions. For example, sections 203 and
`304 expressly provide for parties who previously granted
`their copyrights to others to “terminate” those grants,
`thereby preventing those others from further exercising
`
`
`
`10
`
`the rights and reverting the rights to the transferor. 17
`U.S.C. §§ 203, 304(c)-(d). Moreover, section 304(d), which
`was enacted as part of the Copyright Term Extension Act
`(“CTEA”), created an entirely new termination right for
`transferors whose previous termination right had expired.
`Id. § 304(d).4
`
`In sum, far from showing what Petitioners call a
`“two-hundred-year tradition dating back to 1790,” Pr.
`Brief 39, of expanding only the duration and scope of
`copyright, history in fact shows a wide array of Congress’s
`exercises of its power under the Copyright Clause, none of
`which have been deemed to violate the First Amendment.
`Section 514 is no different. Because section 514 leaves in
`place the “traditional contours” of copyright, the statute
`should not be subject to further scrutiny.
`
`D. S ection 514 Add resses a Substa ntial
`Governmental Interest and Is Narrowly
`Tailored
`
`Even were section 514 subject to stricter review
`here, it still plainly should be upheld. For a law to pass
`intermediate scrutiny, it must: (i) be a content-neutral
`restriction of free speech; (ii) serve a substantial
`government interest that is unrelated to the suppression
`
`4 These termination provisions also undermine Petitioners’
`suggestion that section 514 is advantaging the “heirs of foreign
`authors” at the expense of the United States public. Pr. Brief
`30. The Copyright Act already recognizes that heirs often have
`the same rights as the authors from whom they descended;
`the termination provisions in fact give heirs many of the same
`termination rights that the authors themselves would have had.
`17 U.S.C. §§ 203, 304(c)-(d).
`
`
`
`11
`
`of free speech; and (iii) not burden more speech than
`necessary to further that government interest. Universal
`City Studios v. Corley, 271 F.3d 429, 454 (2d Cir. 2001);
`Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,
`662 (1994). Section 514 handily meets these requirements.
`
`Section 514 serves at least three principal interests:
`compliance with international agreements under the
`treaty power of Congress; ensuring legal protection
`for U.S. copyright holders abroad; and remedying past
`harm to foreign copyright holders. Of particular note, the
`U.S. has a strong interest in harmonizing U.S. law with
`international schemes of copyright protection, and long-
`standing precedent allows Congress to legislate where
`a “national interest of very nearly the fi rst magnitude is
`involved. It can be protected only by national action in
`concert with that of another power.” Missouri v. Holland,
`252 U.S. 416, 435 (1920). Bringing U.S. law on this issue
`into compliance with international standards is surely
`an important government interest. Copyright itself is
`enshrined in the Constitution, and measures to ensure
`its ongoing viability cannot be seen as a frivolous act by
`Congress.
`
`Moreover, section 514 specifi cally limits its burden on
`speech. It not only requires, among other things, notice of
`at least one year to reliance parties, as discussed above,
`but it also expressly provides for licensing of works with
`restored copyrights, if a derivative work depends on such
`works. See 17 U.S.C. § 104A(d)(2)-(3). In addition, as also
`discussed above, the provision leaves untouched the fair
`use doctrine and the idea/expression dichotomy. Section
`514 thus does not burden substantially more speech
`than is necessary to further the signifi cant purposes of
`
`
`
`12
`
`the provision. Quite the opposite is the case: there are
`important limitations on the restoration right expressly
`embodied in section 514.
`
`II. CONGRESS HAS BROAD AUTHORITY TO
`PROMULGATE COPYRIGHT LAWS SUBJECT
`ONLY TO DEFERENTIAL REVIEW UNDER
`THE RATIONAL RELATIONSHIP TEST
`
`A. Because the Constitution Expressly Allocates
`to Congress the Power to Make Laws Regarding
`Copyrights, Deferential Judicial Review Is
`Proper
`
`Copyright is a creature of statute, as authorized
`by the Copyright Clause, and the protection granted
`is limited to that which Congress has determined to
`be appropriate. Wheaton v. Peters, 33 U.S. (8 Pet.) 591,
`663 (1834) (copyright “does not exist at common law—it
`originated, if at all, under the acts of congress”); White-
`Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 15 (1908)
`(“[I]t is perfectly well settled that the protection given to
`copyrights in this country is wholly statutory.”). Congress
`has the ultimate and sole authority to legislate regarding
`patents and copyrights. Bonito Boats, Inc. v. Thunder
`Craft Boats, Inc., 489 U.S. 142, 168 (1989); Sears, Roebuck
`& Co. v. Stiffel Co., 376 U.S. 225, 229 (1964); Compco Corp.
`v. Day-Brite Lighting, Inc., 376 U.S. 234, 237 (1964).
`
`Accordingly, legislation authorized pursuant to the
`Copyright Clause need only be rational: “[r]ather than
`subjecting Congress’ legislative choices in the copyright
`area to heightened judicial scrutiny, we have stressed that
`‘it is not our role to alter the delicate balance Congress has
`
`
`
`13
`
`labored to achieve’.… Congress’ exercise of its Copyright
`Clause authority must be rational.” Eldred, 537 U.S at 205
`n.10 (quoting Stewart v. Abend, 495 U.S. 207, 230 (1990)).
`Thus, in Eldred, the Court rejected the argument that the
`CTEA failed constitutional review under the Copyright
`Clause, because the CTEA was a “rational enactment”;
`the Court held that it is “not at liberty to second-guess
`congressional determinations and policy judgments of
`this order, however debatable or arguably unwise they
`may be.” Id. at 208; see also Sony Corp. of America v.
`Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“[I]
`t is Congress that has been assigned the task of defi ning
`the scope of the limited monopoly that should be granted
`to authors … in order to give the public appropriate access
`to their work product.”).
`
`The level of review afforded legislation under the
`Copyright Clause should be no more intrusive than that
`applied to legislation authorized under other Article I,
`section 8 clauses. See U.S. v. Comstock, 560 U.S. __, 130 S.
`Ct. 1949, 1956 (2010) (holding that Necessary and Proper
`Clause grants Congress legislative authority to enact a
`particular federal statute where the statute “constitutes a
`means that is rationally related to the implementation of a
`constitutionally enumerated power”); Gonzales v. Raich,
`545 U.S. 1, 22 (2005) (holding that because “Congress had
`a rational basis” for concluding that a statute implements
`Commerce Clause power, the statute falls within the scope
`of congressional “authority to ‘make all Laws which shall
`be necessary and proper’ to ‘regulate Commerce … among
`the several States’”) (ellipsis in original).
`
`Petitioners’ purported limitation on Congress’s
`authority under the Copyright Clause—that Congress
`
`
`
`14
`
`can only exercise its power to promote the judiciary’s
`determination of “progress” and “public interest”—is
`inconsistent with Supreme Court precedent holding that
`congressional action should not be invalidated as long as
`it has a rational relationship to the implementation of a
`constitutionally enumerated power. Here, as in Eldred, the
`legislative enactment at issue bears a rational relationship
`to the promotion of science and the useful arts, and
`Petitioners’ attempt to impose a heightened “progress”
`or “public interest” test is misplaced.
`
`B. There Is No “Public Interest” or “Progress”
`Test for Laws Promulgated Pursuant to the
`Copyright Clause
`
`This Court has held that copyright supplies the
`economic incentive to “create and disseminate ideas”
`for the benefi t of the public. Harper & Row, 471 U.S.
`at 558; Eldred, 537 U.S. at 219. Accomplishing the goal
`of promoting public access to creative works requires
`balancing “the interests of authors and inventors in the
`control and exploitation of their writings and discoveries
`on the one hand, and society’s competing interest in the
`free fl ow of ideas, information, and commerce on the
`other hand.” Sony, 464 U.S. at 429; see also Stewart, 495
`U.S. at 230 (referring to “the delicate balance Congress
`has labored to achieve”). Any application of copyright
`law necessarily must refl ect this balance. See Bonito
`Boats, 489 U.S. at 146 (the Copyright Clause “refl ects a
`balance between the need to encourage innovation and the
`avoidance of monopolies which stifl e competition without
`any concomitant advance in the ‘Progress of Science and
`useful Arts’”). The Court has never held, however, that
`copyright legislation is unconstitutional on the ground that
`
`
`
`15
`
`copyright is “not primarily designed to provide a special
`private benefi t.” Sony, 464 U.S. at 429. It should not do
`so here—especially because such a determination could
`lead to the result that the Court would independently,
`and improperly, second-guess Congress on every enacted
`intellectual property law.
`
`Petitioners analogize to the holding in Graham v.
`John Deere Co. of Kansas City, 383 U.S. 1 (1966), that
`Congress may not authorize the issuance of patents which
`would remove existent knowledge from the public domain.
`Graham is distinguishabl
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