No. 01-618 
                                                  
 
                                              IN THE 
            Supreme Court of the United States 
                                                  
                                      ______________ 
                                                  
                                  ERIC ELDRED, ET AL., 
                                                                      Petitioners, 
                                                v. 
                                                  
JOHN D. ASHCROFT, IN HIS OFFICIAL CAPACITY AS ATTORNEY 
                                            GENERAL, 
                                                                     Respondent. 
 
                                      ______________ 
                                                  
        On Petition for a Writ of Certiorari to the United States 
        Court of Appeals for the District of Columbia Circuit 
                                       _____________ 
                                                  
            BRIEF AMICI CURIAE OF COPYRIGHT LAW 
          PROFESSORS IN SUPPORT OF THE PETITION 
                                       _____________ 
                                                  Jonathan Weinberg 
                                                     Counsel of Record 
                                                 Wayne State University 
                                                 471 West Palmer Street 
                                                 Detroit, Michigan 48202 
    (313) 
                                                         577-3942 
   

    






                               i 

               QUESTIONS PRESENTED 
                                 
1.  Does the language of Art. 1,  8, cl. 8 of the Constitution, 
giving Congress "power...To promote the Progress of 
Science and useful Arts" impose substantive constraints on 
Congress's enactments under that clause? 
 2.  Are copyright laws "categorically immune" from First 
Amendment scrutiny? 





























                                
       



                                             ii 

                          TABLE OF CONTENTS 
                                               
QUESTIONS PRESENTED.............................................................. i 
 TABLE OF CONTENTS.................................................................ii 
 TABLE OF AUTHORITIES...........................................................iii 
 INTERESTS OF AMICI CURIAE.....................................................1 
 INTRODUCTION...........................................................................1 
 SUMMARY OF ARGUMENT.........................................................1 
 ARGUMENT..................................................................................2 
 I.  Congress's Power To Enact Copyright Legislation 
             Is Constrained By The Language Of The Clause 
             That Grants That Power ...................................2 
 II.  Copyright Laws Are Not Categorically Immune 
             From First Amendment Scrutiny .......................8 
 CONCLUSION..........................................................11 
 












         



                                              iii 

                      TABLE OF AUTHORITIES 
                                                
Cases:                                                                                   Page 
 Boerne v. Flores, 521 U.S. 507 (1997).........................................5 
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) .................passim  
Feist Publications, Inc. v. Rural Telephone Service Co., 
           499 U.S. 340 (1991)........................................................7 
Felten v. Recording Industry Association of America 
           Inc., No. CV-01-2669 (D. N.J., filed June 6, 
           2001) .............................................................................12 
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).............................7 
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).........................4 
Golan v. Ashcroft, No. 01-B-1854  (D. Colo., filed  
           Sept. 19, 2001)................................................................8 
Graham v. John Deere, 383 U.S. 1 (1966) ...........................5, 6, 7 
Harper & Row v. Nation Enterprises, 471 U.S. 539 
           (1985) ..............................................................7, 9, 10, 12 
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..................4 
Railway Labor Executives' Ass'n v. Gibbons, 455 U.S. 
           457 (1982) .......................................................................5 
Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981)................4, 7 
Sony Corp. of America v. Universal City Studios, Inc., 
           464 U.S. 417 (1984)........................................................7 
South Dakota v. Dole, 483 U.S. 203 (1987).................................4 
Trade-Mark Cases, 100 U.S. 82 (1879) .......................................6 
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 
           (1976) ..............................................................................7 
United Video, Inc. v. FCC, 890 F.2d 1173 (D.C. Cir. 
           1989) ...............................................................................9 
United States v. Butler, 297 U.S. 1 (1936)..................................4 
United States v. Lopez, 514 U.S. 549 (1995)...............................4 
Universal City Studios, Inc. v. Reimerdes,  82 F. Supp. 
           2d  211 (S.D.N.Y. 2000)...........................................8, 12 
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) ..........................6 
 



                                               
       



                                              iv 

Constitutional Provisions: 
 U.S. Const., Art. I,  8, cl. 1.......................................................4 
U.S. Const., Art. I,  8, cl. 3 ...................................................3, 4 
U.S. Const., Art. I,  8, cl. 7 .......................................................3 
U.S. Const., Art. I,  8, cl. 8 ..............................................passim 
U.S. Const. Amend. I........................................................passim 
 Statutes and Legislative Materials: 
 Anti-counterfeiting Consumer Protection Act, Pub. L. 
             No. 104-153, 110 Stat. 1386, 1388 (1996)...................11 
Audio Home Recording Act, Pub. L. No. 102-563, 106 
             Stat. 4237 (1992)...........................................................11 
Computer Software Rental Amendments, Pub. L. No. 
             101-650, 104 Stat. 5089, 5134 (1990) ..........................11 
Copyright Act of 1976 (as amended), 17 U.S.C.  101 
             et seq. 
             17 U.S.C.  102(b)........................................................10 
             17 U.S.C.  104A............................................................8 
             17 U.S.C.  105.............................................................10 
             17 U.S.C.  107.............................................................10 
             17 U.S.C.  302...............................................................8 
             17 U.S.C.  303...............................................................8 
             17 U.S.C.  304...............................................................8 
             17 U.S.C.  1201.................................................8, 11, 12 
Copyright Remedy Clarification Act, Pub. L. No. 101-
             553, 104 Stat. 287 (1990)..............................................11 
Copyright Renewal Act, Pub. L. No. 102-307, 106 Stat. 
             264 (1992) .....................................................................11 
Digital Millennium Copyright Act, Pub. L. No. 105-
             304, 112 Stat. 2860 (1998).............................. 7-8, 11, 12 
Digital Performance Right in Sound Recordings Act, 
             Pub. L. No. 104-39, 109 Stat. 336 (1995) ...................11 
Digital Theft Deterrence and Copyright Damages 
             Improvement Act, Pub. L. No. 106-160, 113 
             Stat. 1774 (1999)...........................................................11 

         



                                              v 

Intellectual Property and Communications Omnibus 
           Reform Act of 1999, Pub. L. No. 106-113, 113 
           Stat. 1501, 1501A-521 (1999) ......................................11 
No Electronic Theft (NET) Act, Pub. L. No. 105-147, 
           111 Stat. 2678 (1997)....................................................11 
North American Free Trade Agreement Implementation 
           Act, Pub. L. No. 103-182, 107 Stat. 2057, 2115 
           (1993).   ...........................................................................8 
Sonny Bono Copyright Term Extension Act, Pub. L. 
           No. 105-298, 112 Stat. 2827 (1998)...................2, 3, 7, 8 
Uruguay Round Agreements Act, Pub. L. No. 103-465, 
           108 Stat. 4809, 4976 (1994)............................................8 
Work Made For Hire and Copyright Corrections Act of 
           2000, Pub L. No. 106-379, 114 Stat. 1444 
           (1999)   ..........................................................................11 
H.R. 354, 106th Cong., 1st Sess. (1999)  ...............................8, 12 
H.R. 2281, 105th Cong, 2d Sess. (1998),  501-502 ................8 
H.R. 2652, 105th Cong., 1st Sess. (1997)  ...................................8 
Security Systems Standards and Certification Act, 107th 
           Cong., 1st Sess. (Staff Working Draft, Aug. 6, 
           2001)   ............................................................................9  
Cyber Security:   Hearing Before the House Science 
           Committee, 107th Cong., 1st Sess. (October 10, 
           2001) ............................................................................9 
 Other Authorities: 
 Dan Gillmor, Entertainment Control Freaks have an 
           Ally in Microsoft, SAN JOSE MERCURY NEWS 
           (Oct. 24, 2001)................................................................9 
Neil Netanel, Locating Copyright Within the First 
           Amendment Skein, 54 STAN. L. REV. 1, 12-29 
           (2001) ..........................................................................11 
Edward C. Waltersheid, Defining the Patent and 
           Copyright Term: Term Limits and the 
           Intellectual Property Clause, 7 J. INTELL. PROP. 
           L. 315, 381-83 (2000) .....................................................6 


                                               
       



                                             vi 

Proposed Hollings Bill on Copyright Alarms Internet 
             Libertarians, Washington Internet Daily 
             (Sept. 11, 2001) ..............................................................9 


































         



                                               1 
                   INTERESTS OF AMICI CURIAE1 
                                                
            This brief amici curiae in support of the petition is 
submitted pursuant to Rule 37 of the Rules of this Court. 
Counsel for petitioner and respondent have consented to 
the filing of this brief.  Their consent letters have been filed 
with the Clerk of the Court. 
             
            Amici are copyright law professors at American 
universities. Jessica Litman is Professor of Law at Wayne 
State University. Dennis Karjala is Professor of Law at 
Arizona State University. Laura N. Gasaway is the 
Director of the Law Library and Professor of Law at 
University of North Carolina.  Keith Aoki is Professor at 
the University of Oregon School of Law.   Stephen R. 
Barnett is Professor of Law at the University of California 
at Berkeley.  Ann Bartow is Assistant Professor of Law at 
the University of South Carolina School of Law. James 
Boyle is Professor of Law at Duke University.  Dan L. Burk 
is the Julius E. Davis Professor of Law at the University of 
Minnesota. Julie E. Cohen is Professor of Law at 
Georgetown University Law Center.  Shubha Ghosh is 
Associate Professor of Law at University at Buffalo Law 
School, State University of New York.  Paul Heald is the 
Allen Post Professor of Law at the University of Georgia.  
Lydia Pallas Loren is Associate Professor of Law at 
Northwestern School of Law, Lewis and Clark College.  
Michael J. Madison is Assistant Professor of Law at the 
University of Pittsburgh. Michael J. Meurer is Associate 
Professor of Law at Boston University School of Law. Tyler 
T. Ochoa is Associate Professor and Co-Director of the 
Center for Intellectual Property Law at Whittier Law 
School.  L. Ray Patterson is the Pope Brock Professor of 
                                                 
1 No counsel for a party authored this brief in whole or part, and 
no person or entity other than amici curiae made a monetary 
contribution to the preparation or submission of this brief. 


                                                
        



                                 2 
Law at the University of Georgia.  Malla Pollack is  
Visiting Associate Professor and Visiting Scholar at 
Northern Illinois University College of Law. R. Anthony 
Reese is Assistant Professor of Law at the University of 
Texas at Austin. Pamela Samuelson is the Chancellor's 
Professor of Law at the University of California at 
Berkeley.  Alfred C. Yen is the Associate Dean for 
Academic Affairs and Professor of Law at Boston College 
Law School.  Diane L. Zimmerman is Professor of Law at 
New York University School of Law. 
 
           Amici are deeply concerned with the integrity of 
copyright law and with the constitutional goals of 
promoting authorship and innovation and of encouraging 
the broad dissemination of works of authorship.  They are 
concerned that Congress should grant rights to copyright 
owners in a manner that is consistent, rather than in 
conflict, with those goals.  In their capacity as educators, 
amici make extensive use both of works protected by 
copyright and works in the public domain.  
                                  
                        INTRODUCTION 
 
           Amici support petitioners' argument that the court 
of appeals erred in rejecting petitioners' challenges to the 
Copyright Term Extension Act based on the Copyright 
Clause and the First Amendment.  Amici submit this brief 
to make the Court aware of the importance of the decision 
below and its potential to do significant damage in a wide 
range of copyright cases. 
 
                 SUMMARY OF ARGUMENT 
            The Court of Appeals for the D.C. Circuit erred in 
holding that the initial language of the Copyright Clause 
imposes no substantive limit on congressional power. In 



                                  
       



                                      3 
reaching this result, the court of appeals ignored the 
decisions of this Court on the scope of the constitutional 
power to enact patent and copyright laws.   The lower 
court compounded its error by concluding that copyright 
laws are immune from challenge under the First 
Amendment.  If the D.C. Circuit's opinion is allowed to 
stand, then any law purporting to be enacted pursuant to 
the Copyright Clause will be insulated from constitutional 
limitations.  Nothing in the text of the Constitution or in 
this Court's decisions supports such a result. 
  
                               ARGUMENT 

I.             CONGRESS'S POWER TO ENACT COPYRIGHT 
               LEGISLATION IS CONSTRAINED BY THE 
               LANGUAGE OF THE CLAUSE THAT GRANTS 
               THAT POWER. 
 
             The Copyright Term Extension Act was enacted 
pursuant to Congress's power under the Patent and 
Copyright Clause, which provides: 
              The Congress shall have Power . . . To 
             promote the Progress of Science and useful 
             Arts, by securing for limited Times to 
             Authors and Inventors the exclusive Right to 
             their respective Writings and Discoveries. 
              The Constitutional text does two things.  First, it 
empowers Congress to enact statutes that "promote the 
Progress of Science and useful Arts," much as other clauses 
of Art. 1,  8 empower Congress to enact statutes that 
"regulate Commerce . . . among the several States," or that 
"establish Post Offices and Post Roads."   Second, it sharply 
limits the means Congress may adopt to achieve that end:  
Congress, in exercising this power, is limited to "securing 


                                       
         



                                      4 
for limited Times to Authors and Inventors the exclusive 
Right to their respective Writings and Discoveries." 
            In this case, the court of appeals held that the 
Constitutional language granting Congress the power to 
"promote the Progress of Science and useful Arts" is mere 
surplusage.  According to the court of appeals, this 
language imposes no limit on Congress's power to enact 
statutes under the clause.  The court of appeals gave no 
authority in the text of the Constitution or the opinions of 
this Court to support its extraordinary view.  It concluded 
that this rule was required by its holding in Schnapper v. 
Foley, 667 F.2d 102 (D.C.Cir. 1981).  See Eldred v. Reno, 239 
F.3d 372, 378 (D.C. Cir. 2001).  But this view is plainly 
mistaken. 
            
                It is well-settled that the Constitutional language 
conferring a power on Congress constrains the scope of 
that power.  That is the very purpose of the Constitutional 
text:  The "powers of the legislature are defined and 
limited; and that those limits may not be mistaken, or 
forgotten, the constitution is written." Marbury v. Madison, 
5 U.S. (1 Cranch) 137, 176 (1803).  In the Commerce Clause 
context, the Court has been clear: "limitations on the 
commerce power are inherent in the very language of the 
Commerce Clause."  United States v. Lopez, 514 U.S. 549, 
553 (1995)(discussing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 
1, 194-95 (1824)).  Elsewhere, the Court has been similarly 
emphatic that Congress's power is "set in the clause which 
confers it."  United States v. Butler, 297 U.S. 1, 66 (1936).  The 
"language of the Constitution itself," for example, 
mandates that Congress exceeds its Spending Clause 
power "to lay and collect taxes . . . to pay the debts and 
provide for the common defense and general welfare," U.S. 
Const., Art. I,  8, cl. 1, if its action is not in fact intended to 
serve the "general welfare."  South Dakota v. Dole, 483 U.S. 



                                       
       



                                    5 
203, 207 (1987).  Similarly, the Court held in Railway Labor 
Executives' Ass'n v. Gibbons, 455 U.S. 457, 471 (1982), that 
"[t]he language of the Bankruptcy Clause," granting 
Congress power to "establish Uniform Laws on the subject 
of Bankruptcies," compelled a holding that Congress had 
no power to enact nonuniform bankruptcy laws.  
Although the Constitutional text may not be the end of the 
Court's analysis in assessing the scope of 
congressional power, it is always the beginning.  See Boerne 
v. Flores, 521 U.S. 507, 519 (1997). 
 
           The Constitutional text could not be more plain 
that the power conferred on Congress by Art. I,  8, cl. 8 is 
a "power . . . To promote the Progress of Science and useful 
Arts."  If an enactment cannot plausibly be said to be 
directed toward those goals, therefore, it is outside the 
scope of the power.   This Court expressly so held in 
Graham v. John Deere, 383 U.S. 1 (1966), in which it 
articulated the constitutional constraints on Congress's 
patent power: 
               At the outset it must be remembered 
           that the federal patent power stems from a 
           specific constitutional provision which 
           authorizes the Congress "To promote the 
           Progress of ... useful Arts, by securing for 
           limited Times to ...  Inventors the exclusive 
           Right to their ... Discoveries." Art. I,   8, cl. 
           8.  The clause is both a grant of power and a 
           limitation.  This qualified authority, unlike 
           the power often exercised in the sixteenth 
           and seventeenth centuries by the English 
           Crown, is limited to the promotion of 
           advances in the "useful arts." It was written 
           against the backdrop of the practices -- 
           eventually curtailed by the Statute of 
           Monopolies -- of the Crown in granting 


                                     
       



                                  6 
           monopolies to court favorites in goods or 
           businesses which had long before been 
           enjoyed by the public.  The Congress in the 
           exercise of the patent power may not 
           overreach the restraints imposed by the 
           stated constitutional purpose.  Nor may it 
           enlarge the patent monopoly without 
           regard to the innovation, advancement or 
           social benefit gained thereby.  Moreover, 
           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.  Innovation, advancement, and 
           things which add to the sum of useful 
           knowledge are inherent requisites in a 
           patent system which by constitutional 
           command must "promote the Progress of ... 
           useful Arts." This is the standard expressed 
           in the Constitution and it may not be 
           ignored.   
Graham v. John Deere, 383 U.S. 1, 5-6 (1966) (emphasis in 
original; footnote and citation omitted). See also Trade-Mark 
Cases, 100 U.S. 82, 93 (1879); Wheaton v. Peters, 33 U.S. (8 
Pet.) 591, 661 (1834)(interpreting the word "secure" in the 
Copyright Clause by reference to "the words and sentences 
with which it stands connected" and noting that the 
clause's application to both authors and inventors 
precluded finding that either had a perpetual right at 
common law); Edward C. Waltersheid, Defining the Patent 
and Copyright Term:  Term Limits and the Intellectual Property 
Clause, 7 J. INTELL. PROP. L. 315, 381-83 (2000).  The Court 
of Appeals for the D.C. Circuit failed to advance any 
reason that the clause granting Congress the power to 
enact patent and copyright laws should be read to limit 
Congress's power to enact patent legislation, but to impose 



                                   
       



                                7 
no limit whatsoever on Congress's power to enact 
copyright legislation.  Rather, the D.C. Circuit concluded 
that its reading of the Constitution was compelled by its 
earlier decision in Schnapper v. Foley, a decision that does 
not even mention this Court's opinion in John Deere. 
 
           Nor would it have made sense for the court of 
appeals to hold that the same Constitutional language is 
limiting in patent cases, but meaningless in copyright 
cases.  This Court has frequently invoked that very 
language in explaining the scope of the copyright laws.  As 
this Court has repeatedly reminded lower courts, "[t]he 
primary objective of copyright is not to reward the labor of 
authors, but '[t]o promote the Progress of Science and 
useful Arts.'" Feist Publications, Inc. v. Rural Telephone 
Service Co., 499 U.S. 340, 349 (1991).  See Fogerty v. Fantasy, 
Inc., 510 U.S. 517, 526-27 (1994); Sony Corp. of America v. 
Universal City Studios, Inc., 464 U.S. 417, 428-29, 431-32 
(1984); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 
156 (1975). Accord Harper & Row v. Nation Enterprises, 471 
U.S. 539, 546 (1985). 
      This misunderstanding has implications that reach far 
beyond the question whether the Copyright Term 
Extension Act contravenes Article I,  8, cl. 8 of the 
Constitution.  In recent years Congress has enacted a 
number of innovative copyright laws that seek to extend 
copyright owners' control of their works.  Several of these 
laws depart from the traditional copyright model, and 
arguably exceed the scope of Congress's copyright power.  
In 1998, for example, Congress enacted a law forbidding 
individuals from circumventing technological protection 
in order to gain unauthorized access to a protected work, 
regardless of whether the reason for seeking unauthorized 
access was to copy protected expression or to view 
unprotected facts, ideas, processes, systems. See Digital 



                                 
       



                                8 
Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 
2860, 2863 (1998), (codified as amended at 17 U.S.C.  
1201).  The law, further, prohibits anyone from supplying a 
device or service designed to assist in circumventing 
technological protection. Id.  The district court for the 
Southern District of New York has held that this law is not 
subject to the fair use privilege. Universal City Studios, Inc. 
v. Reimerdes,  82 F. Supp. 2d  211, 219 (S.D.N.Y. 2000)("If 
Congress had meant the fair use defense to apply to such 
actions, it would have said so.").  
      In 1993, 1994, and again in 1998, Congress enacted laws 
that restored copyright protection to works that had 
entered the public domain.  See North American Free Trade 
Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 
2057, 2115 (1993); Uruguay Round Agreements Act, Pub. L. 
No. 103-465, 108 Stat. 4809, 4976 (1994), (codifed as 
amended at 17 U.S.C.  104A); Sonny Bono Copyright Term 
Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 
(1998)(codified in 17 U.S.C.  104A, 302, 303, 304).  See also 
Golan v. Ashcroft, No. 01-B-1854  (D. Colo., filed Sept. 19, 
2001)(challenging constitutionality of copyright 
restoration).  Congress has considered and the House of 
Representatives has on three occasions passed legislation 
that would extend intellectual property protection under 
Title 17 to the factual content of collections of information.  
See H.R. 354, 106th Cong., 1st Sess. (1999); H.R. 2281,  501-
502 , 105th Cong, 2d Sess. (Engrossed House Bill 1998); H.R. 
2652, 105th Cong., 1st Sess. (1997). 
      According to news reports, Congress is currently 
considering legislation that would prohibit the 
manufacture, sale, or distribution of any computer or other 






                                 
       



                                               9 
digital device2 unless it incorporates government-certified 
copyright-protection technology.  See Security Systems 
Standards and Certification Act (Staff Working Draft, Aug. 6, 
2001).  See, e.g., Dan Gillmor, Entertainment Control Freaks 
have an Ally in Microsoft, San Jose Mercury News (Oct. 24, 
2001); Proposed Hollings Bill on Copyright Alarms Internet 
Libertarians, Washington Internet Daily (September 11, 
2001); Cyber Security:  Hearing Before the House Science 
Committee, 107th Cong., 1st Sess. (October 10, 
2001)(testimony of Eugene H. Spafford, Professor of 
Computer Science, Purdue University).   
         Some or all of these laws may be comfortably within 
the limitations of Congress's copyright power, but, under 
the analysis adopted by the court of appeals, that 
determination would never be made.  Nothing in the 
Constitutional text or in this Court's decisions supports 
such 
              a 
              result. 
                             

II.           COPYRIGHT LAWS ARE NOT 
              CATEGORICALLY IMMUNE FROM FIRST 
              AMENDMENT SCRUTINY 
 
              The lower court's conclusion that copyright laws 
are never subject to First Amendment challenge 
compounds the gravity of its error.  The court read its own 
earlier opinion in United Video, Inc. v. F.C.C., 890 F.2d 1173 
(D.C. Cir. 1989), as having held "that copyrights are 
categorically immune from challenges under the First 
                                                 
2 SSSCA  109 defines the devices subject to the prohibition to 
include:  "any machine, device, product, software, or technology,  
whether or not included with or as part of some other machine, 
device, product, software, or technology, that is designed, 
marketed or used for the primary purpose of, and that is capable 
of, storing, retrieving, processing, performing, transmitting, 
receiving, or copying information in digital form." 


                                                
          



                                 10 
Amendment."  Eldred, 239 F.3d at 375.  It concluded that 
that opinion, and this Court's decision in Harper & Row v. 
Nation Enterprises, 471 U.S. 539 (1985), represented 
"insuperable bars" to plaintiffs' First Amendment 
challenge, 239 F.3d at 375, or, indeed, any First 
Amendment challenge to any copyright law.   
            In Harper & Row, this Court rejected the claim that 
the First Amendment required it to recognize a special 
privilege to quote the protected expression of former 
public officials.  It examined the copyright law and found 
that existing law amply accommodated the First 
Amendment interests asserted by respondent. 471 U.S. at 
559-60.  In view of the fact that the Framers intended 
copyright to be the "engine of free expression," id. at 558, 
this Court held that the idea/expression dichotomy and 
the privilege of fair use already embodied in the copyright 
statute supplied sufficient protection for First Amendment 
interests to obviate the need for a special public official 
privilege.   Far from holding copyright laws immune from 
First Amendment scrutiny, this Court subjected the law to 
First Amendment scrutiny and found it fully consistent 
with the First Amendment's requirements. Id. at 555-60. 
            The court of appeals read Harper & Row to preclude 
First Amendment examination of copyright laws. The 
illogic of that view is clear.  Most obviously, this Court's 
holding in Harper & Row was predicated on the existence 
of the idea/expression dichotomy and the fair use doctrine 
to accommodate the First Amendment concerns raised in 
that case.  Were Congress to enact a law repealing or 
limiting sections 102(b) or 107 of the copyright statute, the 
teaching of Harper & Row is that that law would be in 
serious jeopardy under the First Amendment.  But that is 
hardly the only First Amendment issue that could arise.  A 
repeal of section 105, which withholds copyright from 



                                  
       



                               11 
government works, plainly would require First 
Amendment analysis. (This is not fanciful; the United 
States, in fact, asserts ownership of copyright in United 
States government works abroad.)  A law withholding 
copyright protection from any text expressing terrorist 
sentiments would similarly be vulnerable to First 
Amendment challenge. Interpreting Harper & Row as 
creating a categorical First Amendment immunity, thus, is 
insupportable.   
            The current copyright statute has been amended 
repeatedly since 1985.  See Work Made For Hire and 
Copyright Corrections Act of 2000, Public L. 106-379, 114 Stat. 
1444 (1999); Intellectual Property and Communications 
Omnibus Reform Act of 1999, Public L. 106-113, 113 Stat. 
1501, 1501A-521 (1999); Digital Theft Deterrence and 
Copyright Damages Improvement Act, Public L. 106-160, 113 
Stat. 1774 (1999); Digital Millennium Copyright Act, Public L. 
105-204,  (1998); No Electronic Theft (NET) Act, Public L. 
105-147, 111 Stat. 2678 (1997); Anti-counterfeiting Consumer 
Protection Act , Public L. 104-153, 110 Stat. 1386, 1388 
(1996); Digital Performance Right in Sound Recordings Act, 
Public L. 104-39, 109 Stat. 336 (1995); Audio Home Recording 
Act, Public L. 102-563, 106 Stat. 4237 (1992); Copyright 
Renewal Act, Public L. 102-307, 106 Stat. 264 (1992); 
Computer Software Rental Amendments, Public L. 101-650, 
104 Stat. 5089, 5134 (1990); Copyright Remedy Clarification 
Act, Public L. 101-553, 104 Stat. 287 (1990). It is not the 
same law as the law before the Court in 1985. To hold that 
a particular copyright statute is fully consistent with the 
First Amendment is a far cry from establishing that any 
copyright law ever enacted will always be consistent with 
the First Amendment. See Neil Netanel, Locating Copyright 
Within the First Amendment Skein, 54 Stanford L. Rev. 1, 12-
29 (2001). 
            



                                 
       



                                             12 
             Congress has recently enacted, or is now 
considering, a variety of statutes posing First Amendment 
issues that cannot be avoided by a talismanic invocation of 
Harper & Row.  Section 1201 of the copyright statute, 
enacted in 1998, protects works from unauthorized access 
without regard to the idea/expression dichotomy, and has 
been interpreted by the district court for the Southern 
District of New York to be immune from any defense 
based on fair use. See Universal City Studios, Inc. v. 
Reimerdes, 111 F. Supp. 2d 294, 321-24 (S.D.N.Y. 2000); see 
also Felten v. Recording Industry Association of America, No. 
CV-01-2669 (D.N.J. filed June 6, 2001)(seeking declaratory 
judgment that  1201 does not prohibit publication of 
computer scientist's scholarly research paper).  The House 
of Representatives has passed legislation extending 
intellectual property protection under Title 17 to 
collections of factual information.  See, e.g., H.R. 354, 106th 
Cong., 1st Sess. (1999).  Under the reasoning of the court of 
appeals, no First Amendment challenge could be brought 
against any of these enactments.  That position has no 
support in logic nor in this Court's precedents. 
 
                                      CONCLUSION 
                                               
The petition for a writ of certiorari should be granted. 
  
                                              Respectfully submitted,  
                                                               
                                              Jonathan Weinberg 
                                                  Counsel of Record 
                                              Wayne State University 
                                              471 West Palmer Street 
                                              Detroit, Michigan 48202 
    (313) 
                                                    577-3942