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 OF AMICI CURIAE
AMERICAN ASSOCIATION OF LAW LIBRARIES,
AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF
RESEARCH LIBRARIES, DIGITAL FUTURE COALITION,
MEDICAL LIBRARY ASSOCIATION AND SOCIETY
OF AMERICAN ARCHIVIST IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI
PETER JASZI
Attorney for Amici Curiae
4801 Massachusetts Ave., N.W.
Suite 394
Washington, D.C. 20016
(202) 274-4216
171064 A
((800) 274-3321 * (800) 359-6859
i
Cited Authorities
TABLE OF CONTENTS
Page
Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . iii
Statement of Interest of Amici Curiae . . . . . . . . . . . 1
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . 2
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. The Court Of Appeals Ignored The Original
Intent Of The Framers That The Limited
Monopoly Provided By Copyright Should Be
Consistent With The Preservation Of A
Vibrant Public Domain . . . . . . . . . . . . . . . . . 4
II. The DC Circuit's Decision Harms The Public
Interest In Copyright Law By Minimizing The
Public Domain . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Copyright Term Extension Harms
Disseminators Of Information . . . . . . . 13
a. Educators and librarians . . . . . . . . . 13
2. Copyright Term Extension Harms
Creative Users Of The Public Domain . . 14
a. Theatrical and musical performers
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ii
Cited Authorities
Contents
Page
b. Authors and publishers . . . . . . . . . 15
3. Copyright Term Extension Harms
Scholarly Institutions And Scholars Who
Utilize The Public Domain . . . . . . . . . . 17
a. Archivists and historians . . . . . . . . 17
b. Film scholars and archivists . . . . . 19
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Appendix I - The Growth Rate Of The Public
Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
iii
T Cited Authorities
ABLE OF CITED AUTHORITIES
Page
Cases:
Campbell v. Acuff-Rose, 510 U.S. 569 (1994) . . . . . 10
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) . . . . 2
Feist Publications, Inc. v. Rural Telephone Services
Co., 499 U.S. 340 (1991) . . . . . . . . . . . . . . . . . . . 9
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) . . . . 9
Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) . . . . 9
Marsh v. Chambers, 463 U.S. 783 (1983) . . . . . . . . 5
Sony Corp. v. Universal Studios, Inc., 464 U.S. 417
(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Suntrust Bank v. Houghton Mifflin Co., No. 01-
12200, 11th Cir. LEXIS at 1; 60 U.S.P.Q. 2d
(BNA) 1225 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 16
Twentieth Century Music Group v. Aiken, 422 U.S.
151 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Paramount Pictures, Inc., 334 U.S.
131 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States Constitution:
Art. I, § 8, cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6
iv
Cited Authorities
Page
Statutes:
17 U.S.C. § 108(h) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
17 U.S.C. § 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18
17 U.S.C. § 303(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12
17 U.S.C. § 304(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Act for the Encouragement of Learning, 1710 8 Anne
ch. 19 (Eng.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Act of May 31, 1790, ch. 15, 1 stat. 124 (repealed
1831) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Copyright Term Extension Act of 1998 (CTEA), Pub.
L. No. 105-298, 112 Stat. 2827 . . . . . . . . . . . . . 2, 4, 12
Other Authorities:
Yochai Benkler, Through the Looking Glass: Alice
and the Constitutional Foundations of the Public
Domain, (Nov. 2001) (unpublished Framing
Paper, available at http://www.law.duke.edu/pd/
papers.html) (last visited Nov. 29, 2001) . . . . . . 8
Biographical Directory of the United States
Congress, 1774 to Present, available at http://
bioguide.congress.gov/biosearch/biosearch.asp
(last visited Nov. 16, 2001) . . . . . . . . . . . . . . . . . 5
v
Cited Authorities
Page
Bob's World Literature Page at http://www.intac.
com/~rfrone/Lit/1106/1106-00.htm (last visited
Nov 18, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Canadian Copyright Act, § 77, R.S.C., C-30, S.1.,
available at http://www.cancopy.com (last
visited Nov. 20, 2001) . . . . . . . . . . . . . . . . . . . . . . 18
Gail Russell Chaddock, Public Interest v. Private
Rights, Chicago Sun-Times, June 21, 1998 . . . . 15
William Winslow Crosskey, Politics and the
Constitution in the History of the United States
486 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Charles Dickens, http://www.eastgate.com/catalog/
Dickens.html (last visited Nov. 27, 2001) . . . . . . 14
Dwight D. Eisenhower: Papers, Pre-Presidential,
1916-52 Finding Aid, available at http://www.
eisenhower.utexas.edu/listofholdings html/listof
h o l d i n g s E / E D D P R E P R E S I D E N T I A L /
1652.pdf, (last visited Dec. 6, 2001) . . . . . . . . . . 17
Elton Fukumoto, The Author Effect After the "Death
of the Author" Copyright in a Post-Modern Age,
72 Wash. L. Rev. 903, 933 (1997) . . . . . . . . . . . . 10
Jon M. Garon, Media & Monopoly in the Information
Age: Slowing the Convergence at the Marketplace
of Ideas, 17 Cardozo, Arts & Ent. L.J. 491 (1999)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v i
Cited Authorities
Page
"Happy Birthday" Song Sold to Warner
Communications, Time, Jan. 2, 1989 . . . . . . . . . . 15
Paul J. Heald & Suzanna Sherry, Implied Limits on
the Legislative Power: The Intellectual Property
Clause as an Absolute Constraint on Congress,
U. Ill. L. Rev. 1119 (2000) . . . . . . . . . . . . . . . . . . 7
Heidi Anne Heiner, Sur La Lune Annotated Fairy
Tales (Oct. 14, 2000) at http://members.aol.com/
rocketrder/frytales/snowhite/history.htm (last
visited Nov. 18, 2001) . . . . . . . . . . . . . . . . . . . . . . 11
Peter B. Hirtle, Unpublished Materials, New
Technologies, and Copyright: Facilitating
Scholarly Use. Interdisciplinary Conference On
The Impact Of Technological Change On The
Creation, Dissemination, And Protections Of
Intellectual Property, The Ohio State University
College of Law, Columbus, OH. March 8-10, 2001
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Horn Book Inc. at http://www.hbook.com/exhibit/
editorial_eh.html (last visited Dec. 4, 2001) . . . . 12
Tina Howe, Painting Churches, 11,35 (Samuel
French, Inc. 1982) 1984 . . . . . . . . . . . . . . . . . . . . 14
http://www.cb-cda.gc.ca/info/act-e.html#rid-33225
(last visited Dec. 6, 2001) . . . . . . . . . . . . . . . . . . . 18
http://www.law.asu.esu/homePages/Karjalaopposing
copyrightexpansion/constitutionality/phillips02.
html (last visited Oct. 3, 2001) . . . . . . . . . . . . . . 8
vii
Cited Authorities
Page
Hunchback of Notre Dame appeared in 1831, at http:/
/www.kirjasto.sci.fi/vhugo.htm, (last visited Nov.
18, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Thomas Jefferson to James Madison, August 28,
1789, The Papers of Thomas Jefferson, Julian P.
Boyd, ed., volume 15 (Princeton, New Jersey:
Princeton University Press, 1958) . . . . . . . . . . . . 6
Tiffany Jensen, Cinderella The Evolution of a Story:
An Examination of the Cultural Significance of
Oral History, available at http://www.usu.edu /
anthro/origins_of_writing/cinderella (last visited
Nov. 18, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Journal of the Copyright Society. Preliminary draft
version for conference attendees available at http:/
/cidc.library.cornell.edu/copyright/Hirtle_
OSU_paper.pdf, (last visited Nov. 22, 2001) . . . 18
Rudyard Kipling 1894, Jungle Book at http://
www.ricochet-jeunes.org/eng/biblio/author/
kipling.html (last visited Nov. 18, 2001) . . . . . . . 11
Robert Kolker, Chair, School of Literature,
Communication, and Culture, Ivan Allen College,
Georgia Institute of Technology (October 16,
2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Lawrence Lessig, Let the Stories Go, April 30, 2001,
N.Y. Times op-ed. http://www.nytimes.com/2001/
04/30/opinion/30LESS.html (last visited Oct. 25,
2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
viii
Cited Authorities
Page
Jessica Litman, Digital Copyright 1 (2001) . . . . . . 8
William J. Maher, University Archivist, Univ. Ill. at
Urbana Champaign, Oct. 31, 2001 . . . . . . . . . . . . 16
Merges, Robert et al., Intellectual Property In the
New Technological Age 346-47 (2d ed. 2000) . . 6
Neil Weinstock Netanel, Copyright and a
Democratic Society, 106 Yale. L.J. 283 (1996) . . 20
L. Ray Patterson & Stanley W. Lindberg, Nature of
Copyright 59 (1991) . . . . . . . . . . . . . . . . . . . . . . . 4, 7
Timothy R. Phillips, The Unconstitutionality of the
Copyright Term Extension Act of 1998, 72 . . . . . 7, 8
Rodgers and Hammerstein Theatre Library, Below
are Some Questions Commonly Asked By Theatre
Library Customers . . . , at http://www.rnh.com/
theatre/tlnews/qanda_test.html (last visited Nov.
18, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Roy Rosenzweig, The Road to Xanadu: Public and
Private Pathways on the History Web, 88 J. Am.
Hist. 2, (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
S. Rep. No. 104-315 at 37 (1996) . . . . . . . . . . . 11, 13, 19
University of Texas policy, available at http://
www3.utsystem.edu/ogc/IntellectualProperty/
cprtpol.htm (last visited Dec. 4, 2001) . . . . . . . . 12
ix
Cited Authorities
Page
Siva Vaidhyanathan, Copyrights and Copywrongs
186 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Jesse Walker, Copy Catfight, Reason On Line (March
2000) available at http://www.reason. com/0003/
fe.jw.copy.html, (last visited Dec. 5, 2001) . . . . . 19
1
STATEMENT OF INTEREST OF AMICI CURIAE1
This brief amici curiae in support of Petitioners is submitted
by the American Association of Law Libraries, the American
Library Association, the Association of Research Libraries, the
Digital Future Coalition, the Medical Library Association, and
the Society of American Archivists ("Amici") pursuant to Rule
37 of the Rules of this Court. Amici urge that the Court grant
the requested writ of certiorari and reverse the judgment of the
U.S. Court of Appeals for the District of Columbia Circuit.
The American Association of Law Libraries is a nonprofit
educational organization of over 5,000 members who respond
to the legal information needs of legislators, judges, and other
public officials at all levels of government, corporations and
small businesses, law professors and students, attorneys, and
members of the general public.
The American Library Association is a nonprofit
educational organization of approximately 61,000 librarians,
library educators, information specialists, library trustees, and
friends of libraries representing public, school, academic, state,
and specialized libraries
The Association of Research Libraries is a nonprofit
association of 123 research libraries in North America including
university, public, government, and national libraries whose
mission is to influence the future of research libraries in the
process of scholarly communication.
The Digital Future Coalition is a forty-one member
alliance of many of the nation's leading non-profit educational,
scholarly, library, and consumer groups, as well as major
1. Letters from all parties consenting to the filing of this brief have
been filed with the Clerk of this Court. No counsel for a party authored
this brief in whole or in part, and no person or entity other than amici
curiae, or their counsel, made a monetary contribution to the preparation
or submission of this brief. American University, Washington College
of Law, Glushko-Samuelson Intellectual Property Clinic Students
Christine Calareso, Lincoln Harris, Sheryl Rakestraw, and Timothy Tyre
prepared this work under the supervision of Professor Ann Shalleck and
Counsel of Record Professor Peter Jaszi.
2
commercial trade associations representing leaders in consumer
electronics, telecommunications, computer, and network access
industries.
The Medical Library Association is an educational
organization of more than 1,000 institutions and 3,800 individual
members in the health sciences information field.
The Society of American Archivists represents more than
3,000 individuals and 400 institutions and is the authoritative
voice in the United States on issues that affect the identification,
preservation, and use of historical records.
* * * * *
Amici are organizations whose members engage in practices
such as preserving cultural heritage, providing educational
materials, sponsoring research, digitizing materials, teaching
our nation's youth, lending books, creating works, and
facilitating better technologically-adapted schools. Because
amici continuously face copyright issues, they support balanced
copyright laws. Restrictive copyright laws adversely affect
authors, artists, curators, archivists, historians, librarians, and
readers-the creators, recorders, keepers, disseminators, and
users of our culture. Amici submit this brief to assist the Court's
understanding of the practical consequences of this unique case
for large segments of the public.
SUMMARY OF ARGUMENT
The U.S. Court of Appeals for the District of Columbia
Circuit ("DC Circuit") erroneously held that Congress' grant of
twenty additional years of copyright protection as set forth in
the Copyright Term Extension Act (CTEA)2 is constitutional.3
The DC Circuit failed to recognize that Congress' act violates
the constitutional language that empowers Congress to grant
copyright protection for "limited times" as a means of
2. Copyright Term Extension Act of 1998 (CTEA), Pub. L. No.
105-298, 112 Stat. 2827.
3. Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001).
3
"promoting" the arts and sciences.4 This balance struck by the
Framers consisted of giving incentives for cultural production
through limited rewards to creators, while providing for an ever-
growing arena of ideas and materials available for the public.
Central to this balance was the public domain, whose importance
has been denigrated by the enactment of the CTEA.
The public domain is a vast expanse of knowledge,
experience and ideas embodied in artistic creations, including
written works, audio files, movies, and photographs, as well as
historical documents and archives, held in common for all people
to access, enjoy, research, and use as inspiration for future
creations. The public domain results from the Framers'
skepticism toward monopolies and remains an integral part of
the balance between the protection of works and promotion of
knowledge. Historically, copyright legislation and this Court's
jurisprudence have recognized the importance of the public
interest as embodied in this domain of information for the
people.
The CTEA cannot promote the creation of works that
already exist. But it will severely diminish the ability of modern
creators to generate new art and new knowledge based on
existing works - as did previous generations of authors and
scholars. Artists, musicians, theatrical performers, scholars,
educators, librarians, authors, publishers, archivists, and
historians, among others, utilize the public domain. The CTEA
harms these users by limiting their access to works through
prohibitively expensive licensing fees and conditional
permissions for use. The CTEA also prevents the timely
preservation of works, deprives scholars of research materials,
and reduces funds from educational institutions, thus hampering
the preservation and dissemination of information, stories, and
documentation of who we are as a people.
4. U.S. Const. art. I, § 8, cl. 8 ("To promote the Progress of Science
and useful Arts, by securing for limited Times [emphasis added] to
Authors and Inventors the exclusive Right to their respective Writings
and Discoveries"). Id.
4
ARGUMENT
I. The Court Of Appeals Ignored The Original Intent Of
The Framers That The Limited Monopoly Provided By
Copyright Should Be Consistent With The Preservation
Of A Vibrant Public Domain
The architecture of U.S. Copyright law embodies the principle
that works should be available to the public after a limited time,
through the avenue of the public domain. The public domain is
the priceless repository of works that are ineligible for copyright,
were created before copyright law existed, have had their copyrights
expire, or have been freely given to the public by their authors.
The Framers of the Constitution believed that dissemination
of information throughout society was a cornerstone of learning,
and thus of the democratic participation of citizens in the cultural
and political life of the nation. They were skeptical of all restraints
on the free exchange of ideas, whether by public tyranny or
private monopoly.5 Copyright operates as a monopoly for a
limited time granted to the creator by the government for exclusive
control over a work. This skepticism of the Framers shaped
the constitutional "bargain" they struck between creators and
the public: the grant of a limited monopoly in exchange for
the subsequent deposit of works into the public domain.
The DC Circuit, in upholding the constitutionality of the
Copyright Term Extension Act,6 abandoned this constitutional
5. [E]xclusion [of publishers] from the copyright clause is
probably explained by concern for the perceived potential
of a booksellers' monopoly in this country, the danger of
which the copyright litigation in eighteenth-century
England had made manifest . . . Given the vagaries of
the political process and the historically proven skills
of publishers as legislative lobbyist the limitations were
essential if the goals of copyright were to be achieved
and retained without being consumed by the monopolistic
practices in the book trade.
L. Ray Patterson & Stanley W. Lindberg, Nature of Copyright 59 (1991).
6. Copyright Term Extension Act of 1998 (CTEA), Pub. L. No.
105-298, 112 Stat. 2827.
5
bargain by ruling, in effect, that Congress has the power to use
repeated extensions of the length of copyright protection for
existing works (as well as new ones), transforming a limited
monopoly into a virtually limitless one.7 However, such ever-
increasing periods of protection ignore the Constitution's clear
directive to "Promote the progress of Science and useful Arts,"8
and constitute a dangerous expansion of the monopoly created
by copyright.
The dangers inherent in this expansion include rendering
some older works inaccessible, some prohibitively expensive,
and some available only upon restrictive conditions. Moreover,
long terms of copyright mean that it is difficult or impossible
even to determine who owns the rights that control the use of
many cultural resources. This state of affairs differs dramatically
from what the Framers envisioned.
Motivated by the need to promote the arts and sciences in a
new society where individual freedoms to pursue and share
knowledge through speech, religion, and the press were
fundamental, the First Congress of the United States passed the
Copyright Act of 1790, with the public domain as a central
feature of its architecture.9 This Court has in the past given
deference to the acts of the First Congress when seeking
enlightenment regarding Constitutional intent because many
members of the First Congress were also Framers of the
Constitution.10
7. See supra note 3.
8. See supra note 4.
9. See Act of May 31, 1790, ch. 15, 1 stat. 124 (repealed 1831).
10. See Marsh v. Chambers, 463 U.S. 783, 790 (1983) ("An act `passed
by the first Congress assembled under the Constitution, many of whose
members had taken part in the framing of that instrument . . . is
contemporaneous and weighty evidence of its true meaning.' "
(quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888)).
See also Biographical Directory of the United States Congress, 1774 to
Present, available at http://bioguide.congress.gov/biosearch/biosearch.asp
(last visited Nov. 16, 2001) (noting that of the 55 original Founding Fathers,
20 were delegates at the First Congress: 10 Representatives and 10 Senators).
6
Cognizant of British law, the First Congress modeled the
first statutory grant of copyright protection on the 1710 Statute of
Anne11 which itself reflected a deep anti-monopolistic bias.12
Thus Congress granted fourteen years of protection with a provision
for a fourteen-year renewal grant only if the author were alive.13
Prior to the finalization of the Bill of Rights, Thomas Jefferson
had proposed that it include the following language: "Monopolies
may be allowed to persons for their own productions in literature,
and their own inventions in the arts, for a term not exceeding
___ [sic] years, but for no longer term, and for no other purpose."14
Although he did not specify a term, Jefferson knew that protection
from unduly long copyright monopolies was a fundamental
right of the people.15 This idea was ultimately embodied in the
"limited times" language of the intellectual property clause of the
Constitution; like other Constitutional clauses, this one contained
a grant of power to Congress with built-in restraints.16
As Professor William Winslow Crosskey noted,
Reading the [copyright] power, then, in the light of
the Statute of Anne and then recent decisions of the
English courts, it is clear that this power of Congress
was enumerated in the Constitution, for the purpose
11. See An Act for the Encouragement of Learning, 1710 8 Anne
ch. 19 (Eng.) [hereinafter Statute of Anne].
12. See Merges, Robert et al., Intellectual Property In the New
Technological Age 346-47 (2d ed. 2000). Parliament turned its back on
publishers' unrestrained monopolies by enacting the Statute of Anne.
It vested the new monopoly in authors rather than publishers, and
limited it to fourteen years, with a possible renewal for another fourteen.
The process of obtaining rights was made complex and very strict.
Another anti-monopolistic measure in the statute provided for
government power to set maximum prices for copyrighted books upon
application by "dissatisfied" consumers. Id.
13. See Statute of Anne, supra note 11.
14. Thomas Jef ferson to James Madison, August 28, 1789,
The Papers of Thomas Jefferson, Julian P. Boyd, ed., volume 15
(Princeton, New Jersey: Princeton University Press, 1958), p.368.
15. Id.
16. See id. at note 4.
7
of expressing its limitations. And those limitations
were expressed, first, because the Convention did
not desire that Congress should have any power to
grant perpetual copyrights; and, second, because it
did desire, by restricting Congress to the creation of
limited rights, to extinguish, by plain implication of
"the supreme Law of the Land," the perpetual rights
which authors had, or were supposed by some to
have, under the Common Law.17
This history provides additional evidence of the Framers'
view of intellectual property as a creature of positive law,
designed for the public benefit.18 Likewise, the constitutional
language relating to copyright protection suggests three primary
goals: promotion of learning, protection of the author, and
preservation of the public domain.19 Consistent with the Framers'
views, the original copyright legislation and subsequent
congressional acts until the 1909 Copyright Act20 encouraged
an expansive vision of the public domain.21
Modern scholarship stresses the centrality of the public
domain to the public purpose of copyright law. 22 Professor
Jessica Litman has stated
American ideas of freedom are bound up with a
vision of information policy that counts information
as social wealth owned by all. We believe we are
17. William Winslow Crosskey, Politics and the Constitution in
the History of the United States 486 (1953).
18. Paul J. Heald & Suzanna Sherry, Implied Limits on the
Legislative Power: The Intellectual Property Clause as an Absolute
Constraint on Congress, U. Ill. L. Rev. 1119, 1154 (2000).
19. See supra note 5 at 49.
20. Pre-1909 term extensions were few and modest. See Timothy
R. Phillips, The Unconstitutionality of the Copyright Term Extension
Act of 1998, 72 n.27.
21. Jon M. Garon, Media & Monopoly in the Information Age:
Slowing the Convergence at the Marketplace of Ideas, 17 Cardozo, Arts
& Ent. L.J. 491, 513 (1999).
22. See id.
8
entitled to say what we think, to think what we want,
and to learn whatever we're willing to explore. Part
of the information ethos in the United States is that
facts and ideas cannot be owned, suppressed,
censored or regulated, they are meant to be found,
studied, passed along and freely traded in the
"marketplace of ideas."23
Further, Professor Yochai Benkler sees the public domain as a
vehicle for "a robust democratic discourse, of diversity of
antagonistic voices, and of individual expressive autonomy."24
Nevertheless, congressional copyright extensions have
dramatically suppressed the growth rate of the public domain.25
The CTEA, Congress' most aggressive extension to date,26
imposes extraordinary new restrictions on public access to
copyrightable works by adding twenty years to all but a portion
of one of the categories protected in the Copyright Act.27
The DC Circuit appropriately recognized congressional authority
to enact legislation that promotes creative labor through
copyrights. However, the DC Circuit failed to recognize that
lengthy copyright terms as embodied in the CTEA, violate the
Constitutional mandate "to promote the Progress of Science
and useful Arts."
Unless the court's decision is reversed, the public will be
deprived of new cultural resources that depend on the availability
of prior work on reasonable terms.
23. Jessica Litman, Digital Copyright 1 (2001).
24. Yochai Benkler, Through the Looking Glass: Alice and the
Constitutional Foundations of the Public Domain, (Nov. 2001)
(unpublished Framing Paper, available at http://www.law.duke.edu/pd/
papers.html) (last visited Nov. 29, 2001).
25. See supra note 20. See also http://www.law.asu.esu/homePages/
Karjalaopposingcopyrightexpansion/constitutionality/phillips02.html
(last visited Oct. 3, 2001).
26. See supra note 20.
27. See Copyright Act, 17 U.S.C. § 303(a) (2000). The one
exception is for the attributed works created but not copyrighted before
1978.
9
II. The DC Circuit's Decision Harms The Public Interest
In Copyright Law By Minimizing The Public Domain
The DC Circuit ignored the long line of Supreme Court
cases that affirm the primacy of the public interest in copyright
law.28 In particular, it overlooked the oft-stated view of this Court
as set forth in Twentieth Century Music Corporation v. Aiken:
The limited scope of the copyright holder's statutory
monopoly, like the limited copyright term required
by the Constitution, reflects a balance of competing
claims upon the public interest: creative work is to
be encouraged and rewarded, but private motivation
must ultimately serve the cause of promoting broad
public availability of literature, music, and the other
arts.29
The public domain is an essential component of a copyright
system that fulfills the public interest. In particular, it helps to
secure the "broad public availability" of information to which
this Court referred in Aiken. Restrictions on the growth of the
public domain directly and adversely affect that public interest
in a variety of ways.
Although the number of creators and creations has grown
over time, every term extension has created a period of "zero
28. See Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 429
(1984); Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994) ("The primary
objective of the Copyright Act is to encourage the production of original
literary, artistic, and musical expressions for the good of the public");
Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340,
349-50 (1991) ("The primary objective of copyright is not to reward the
labor of authors but to `promote the Progress of Science and useful
Arts' "); United States v. Paramount Pictures, Inc., 334 U.S. 131, 158
(1948) ("The copyright law, like the patent statutes, makes reward to
the owner a secondary consideration"); Fox Film Corp. v. Doyal, 286
U.S. 123, 127 (1932) ("The sole interest of the United States and the
primary object in conferring the [copyright] monopoly lie in the general
benefits derived by the public from the labors of authors").
29. Twentieth Century Music Group v. Aiken, 422 U.S. 151, 156
(1975).
10
growth" in the public domain as shown in chart i.30 The resulting
decline in the rate at which this resource accumulates is
unwarranted in a nation that cherishes the promotion of creative
and scientific works for the betterment of its people.
The public domain benefits the public by providing
inexpensive and ready access to many works of literary,
scientific, historic, social and artistic importance, and by
supporting innovation and the expansion of knowledge. Works
within the public domain are the foundation for new creativity:
creators rarely produce original works isolated from cultural
tradition, but in every era authors have drawn extensively on
public domain materials.31 While all works are not pastiche,
even the most innovative incorporate previous ideas and
expressions.32 For example, modern dance pioneer Martha
Graham frequently expressed her indebtedness to public domain
materials that encouraged her creative process and fostered
acclaimed new works.33
30. See appendix I.
31. For as Justice Story explained,
[i]n truth, in literature, in science and in art, there are, and
can be, few if any, things, which in an abstract sense, are
strictly new and original throughout. Every book in
literature, science and art, borrows, and must necessarily
borrow, and use much which was well known and used
before.
Campbell v. Acuff-Rose, 510 U.S. 569, 575 (1994) (quoting Emerson v.
Davies, 8. F. Cas. 615, 619 (1845)).
32. Elton Fukumoto, The Author Effect After the "Death of the
Author" Copyright in a Post-Modern Age, 72 Wash. L. Rev. 903, 933
(1997) ("Historically a recognition existed that imitation, borrowing,
and copying was an inevitable part of creating works of art, but only in
the post Romantic period did such artistic appropriation constitute
copyright infringement . . ."). Id.
33. Siva Vaidhyanathan, Copyrights and Copywrongs 186 (2001)
(describing how Graham was inspired by the Declaration of
Independence, Greek mythology, African culture, and Native American
legends).
11
Similarly, the Walt Disney Company has used many stories
and previous works from the public domain in creating its
internationally recognized animated movies. The old tales of
Snow White and the Seven Dwarves, Cinderella, and Sleeping
Beauty, as well as modern works of authorship such as
Pinocchio, the Jungle Book, and the Hunchback of Notre Dame,
were public domain works utilized by Disney to produce some
of American cinema's most memorable icons.34
Public domain status also gives the public new opportunities
to appreciate older works. In 1993 Willa Cather's My Antonia
entered the public domain and in 1994 seven new editions
appeared (costing from $2 to $24) making the story available to
many more people than had previously read it.35 Likewise, the
children's book The Velveteen Rabbit became a widely popular
classic once it passed into the public domain. Although the
original version is still in print, newly illustrated versions that
34. See Heidi Anne Heiner, Sur La Lune Annotated Fairy Tales
(Oct. 14, 2000) at http://members.aol.com/rocketrder/frytales/snowhite/
history.htm (last visited Nov. 18, 2001) (relating that Snow White was
originally recorded by the Grimm brothers in 1818); see Tiffany Jensen,
Cinderella The Evolution of a Story: An Examination of the Cultural
Significance of Oral History, available at http://www.usu.edu /anthro/
origins_of_writing/cinderella (last visited Nov. 18, 2001) (noting that
Cinderella and Sleeping Beauty are both direct representatives
of "Histoires ou Contes Du Temps Passe" [Tales of Times Past] by
Charles Perrault, 1697); see Bob's World Literature Page at http://
www.intac.com/~rfrone/Lit/1106/1106-00.htm (last visited Nov 18,
2001) (explaining that Pinocchio was originally created in 1883 by Carlo
Collodi, and released as a movie in 1940 by Disney). Jungle Book was
written in 1894 by Rudyard Kipling (who died in 1936) but which, had
CTEA's rules applied, would not have been available for use by Disney
until 2007, 40 years after Disney released its version as a movie,
at http://www.ricochet-jeunes.org/eng/biblio/author/kipling.html (last
visited Nov. 18, 2001); and the Hunchback of Notre Dame appeared in
1831, at http://www.kirjasto.sci.fi/vhugo.htm, (last visited Nov. 18,
2001).35. See S. Rep. No. 104-315 at 37 (1996) (Statement of Sen. Herb
Kohl).
12
creatively interpret the story have been released, and seven
different editions are now listed in Books in Print.36
Generally, the CTEA extends the term (and therefore the
economic reward) of copyright protection, creating disturbing
consequences. Users must incur further costs for licensing fees
(which effectively limit the amount of material available for
public use), while many creators and scholars face costly
impediments to identifying and locating rights holders for older,
lesser-known works, which may entail multiple ownership tiers.
Even the necessity of seeking permission to use such works
may be prohibitive because of the high search and negotiation
costs involved. The CTEA, under certain circumstances, may
subject the public and institutions that disseminate information
to additional expense and burdens with very uncertain benefits.37
As a consequence, institutions large and small may forgo use of
those works. For example, the University of Texas, apparently
conscious of potential liability, prohibits students, faculty or
staff from using copyrighted works if permission cannot be
obtained, even if a good faith effort is made to secure such
permission, and even if a persuasive fair use argument may be
made.38
Specifically, the CTEA imposes a twenty-year moratorium
on works entering the public domain.39 Were it not for the CTEA,
36. See Horn Book Inc. at http://www.hbook.com/exhibit/
editorial_eh.html (last visited Dec. 4, 2001).
37. Amici are well aware that the CTEA provides an exemption in
§ 108(h) of Title 17 U.S.C. (Copyright Act) for librarians and archivists
to have access to a limited group of works within the last twenty years
of a work's copyright protection term. However, use of the exemption
requires compliance with various conditions.
38. University of Texas policy, available at http://
www3.utsystem.edu/ogc/IntellectualProperty/cprtpol.htm (last visited
Dec. 4, 2001).
39. See supra note 6. The only exception to this proposition is
represented by unpublished works whose authors died prior to 1933; if
not published by the end of 2002, these works will become generally
available to the public. Copyright Act, 17 U.S.C. § 303(a) 2000.
13
the decades from 1998 to 2018 would have seen the entry into
the public domain of a wide variety of works published in the
United States between 1923 and 1943, in addition to many
unpublished works by authors who died prior to 1968.40
The following examples illustrate the harms flowing from the
general phenomenon of the erosion of the public domain by
copyright extension.
1. Copyright Term Extension Harms Disseminators Of
Information
Primary disseminators of information include educators,
archivists and librarians. These individuals and their
organizations serve the public without commercial gain, seeking
only to benefit users through promoting accessible information,
exposure to arts and sciences, and cultural enrichment, drawing
in part on the public domain.
a. Educators and librarians:
Educators face many difficulties obtaining works by
important authors at reasonable prices. The CTEA affects
educational enterprises by adding to the cost of books that are
commonly assigned for class use, such as The Great Gatsby
and A Farewell to Arms.41
Copyright term extension also inhibits educators' efforts
to provide students with texts in electronic form. Electronic
teaching tools have become an important resource for educators,
as evidenced by the success of The Dickens Web, a successful
40. Id. at § 303 and 304(a). 304(a)-terms based on publication
and 303-unpublished works, providing an alternative basis for calculating
term (life of author or until the end of 2002, whichever is longer).
41. See S. Rep. No. 104-315 at 34 (1996) (Statement of Sen. Hank
Brown). In 1996 Bantam Books conducted a study and determined that
almost 12 million literary classics are sold each year to high schools and
colleges. One analysis concluded that if copyright were extended twenty
years, consumers including schools and students would pay out an
additional $345 million in royalties. Id. at 34. See also S. Rep. No. 104
315 at 37 (1996) (Statement of Sen. Herb Kohl). Moreover, firms like
Scribners, publisher of Fitzgerald and Hemingway, long charged
their educational customers high prices for reprints of modern classics.
Id. at 37.
14
hypertextual research and educational site detailing the world
of Charles Dickens.42 The creation of such pedagogical tools
becomes difficult or impossible if the information needed
remains under copyright protection. Thus, copyright concerns
will continue to inhibit the development of similar resources
for the study of twentieth-century culture.
2. Copyright Term Extension Harms Creative Users
Of The Public Domain
Copyright term extension adversely affects not just
institutional disseminators, but also a wide variety of creative
users of public domain material. These include theatrical and
musical performers, authors, publishers, and film scholars.
a. Theatrical and musical performers:
Without the public domain, every theater in the nation, be
it a high school or the Kennedy Center, would first need to obtain
permission from Shakespeare's heirs to perform any work by
Shakespeare. In the future, under the current regime of repeated
copyright term extension, this requirement of securing
permission may be the case for the plays of Tennessee Williams
and other twentieth-century playwrights for many decades to
come. Term extension poses additional dilemmas for would-be
performers of dramatic works. For example, a recently published
play, Painting Churches, includes the following direction to
potential licensees: "Note: Permission to produce Painting
Churches does not include permission to use this song [`Nothing
Could Be Finer'], which ought to be procured from the copyright
owner;" and on another page, "Note: This song is still under
copyright protection. Permission to use it in productions of
Painting Churches ought to be procured from the copyright
owner."43 The potential producer must identify, locate, and
42. See http://www.eastgate.com/catalog/Dickens.html (last visited
Nov. 27, 2001) (offering educational software package that provides
electronically linked text and images that interact and provide different
pathways of information for the user to follow).
43. Tina Howe, Painting Churches, 11,35 (Samuel French, Inc.
1982) 1984.
15
receive permission from unnamed copyright owners, a costly
and burdensome exercise.
Today, many regional theaters forgo performing classic
American musicals because producers cannot afford the
necessary licensing fees.44 Even if they can, the copyright holder
may restrict the interpretation of the work to reflect
contemporary times and issues. For example, theaters are barred
by the Gershwin Family Trust from producing Porgy and Bess
(1934) with casts including white performers.45 Permission to
perform Rodgers and Hammerstein works is also subject to strict
conditions.46 Copyright extension reduces opportunities for new
artists to expand on or reinterpret materials that would otherwise
have been part of the public domain.
Merely singing songs in the most innocent of situations is
touched by copyright extension. For example, restaurants where
waiters serenade customers with "Happy Birthday" (in which
the copyright now will not expire until at least 2030)47 might be
forced to pay performance rights fees to copyright holders.48
b. Authors and publishers:
Term extension yields other examples of results completely
disconnected from the incentive rationale for copyright
protection. In one instance, a university press required the author
of a book on city planning to pursue permissions for use of a
44. See supra note 44 at 37.
45. Gail Russell Chaddock, Public Interest v. Private Rights,
Chicago Sun-Times, June 21, 1998, at 31.
46. Rodgers and Hammerstein Theatre Library, Below are Some
Questions Commonly Asked By Theatre Library Customers . . . , at http:/
/www.rnh.com/theatre/tlnews/qanda_test.html (last visited Nov. 18,
2001).47. "Happy Birthday" Song Sold to Warner Communications,
Time, Jan. 2, 1989, at 88 (describing how Warner Communications
bought the copyright to "Happy Birthday to You" for an estimated price
of $25 million, stating that "Warner is equipped with computer capacity
and other resources to track uses;" at the time Warner purchased the
song, the expected copyright expiration was 2010).
48. See supra note 45.
16
previously unpublished photograph of Charles Mulford
Robinson, who died in 1917. The photographer's name was
unknown, and securing permission was impossible.49 In another
instance, a television network required permission to use a
similarly unpublished 1912 photograph of Jim Thorpe running
on the deck of a ship en route to the Stockholm Olympics.
The photograph, containing no indication of the photographer,
established no clear evidence of ownership, and thus a clear
path for securing permission could not be established.50
Even when creators can surmount the costs of permissions and
invest the complicated and time-consuming effort, this
requirement creates enormous burdens for scholarship,
documentary filmmakers and authors.
In the domain of fiction, as well, excessive copyright can
restrict, rather than promote, creative production. A notorious
recent example of attempted private censorship utilizing
copyright law is the case of Alice Randall's The Wind Done
Gone. This work, offering a revisionist portrait of the antebellum
South, is a creative and critical commentary on Margaret
Mitchell's Gone With the Wind in the form of the first-person
narrative of Scarlett O'Hara's black half-sister.51 Only because
of copyright term extension could the Mitchell estate sue to
suppress Randall's work. At the time of its first publication,
Gone With the Wind was due to enter the public domain no later
than 1992. However, because of successive term extensions,
this work will not be freely available for public use until 2031
(presuming no further extensions by Congress).52
49. Personal communication with William J. Maher, University
Archivist, Univ. Ill. at Urbana Champaign, Oct. 31, 2001.
50. Id.
51. See Suntrust Bank v. Houghton Mifflin Co., No. 01-12200, 11th
Cir. LEXIS at 1; 60 U.S.P.Q. 2d (BNA) 1225 (2001). Randall, an African-
American woman, was disturbed by the characterization of blacks in
the novel.
52. See Lawrence Lessig, Let the Stories Go, April 30, 2001,
N.Y. Times op-ed. http://www.nytimes.com/2001/04/30/opinion/
30LESS.html (last visited Oct. 25, 2001).
17
3. Copyright Term Extension Harms Scholarly
Institutions And Scholars Who Utilize The Public
Domain
a. Archivists and historians:
Those who preserve and interpret history face similar problems.
For example, important documents relating to World Wars I and II
remain and will continue to remain inaccessible. Dwight D.
Eisenhower died in 1969, so the copyright in his non-presidential
papers will not expire until the end of 2039, restricting use of
his letters ruminating on the conduct of World War II until nearly
a century after that war was fought. Meanwhile, Eisenhower's
thoughts on his service in World War I cannot be fully utilized
in historical scholarship without costs and/or restrictions until
more than 121 years after the 1918 Armistice.53
Copyright term extensions can severely limit the publication
of scholarly works, as a recent article on the Civil War submitted
to a historical journal demonstrates.54 The author used
compelling excerpts from soldiers' diaries and letters to compare
the perceptions and sentiments of western soldiers with those
of their eastern counterparts. The journal would not accept the
article unless the researcher obtained signed permissions from
the families (and other copyright holders if applicable) of every
soldier who was quoted, since the materials could conceivably
still enjoy copyright protection. The last Civil War veteran died
in 1959; thus, under the CTEA, the copyright on some previously
unpublished letters could endure until 2030.55 Because archives
53. See DWIGHT D. EISENHOWER: Papers, Pre-Presidential,
1916-52 Finding Aid, available at http://www.eisenhower.utexas.edu/
listofholdingshtml/listofholdingsE/EDDPREPRESIDENTIAL/1652.pdf,
(last visited Dec. 6, 2001). The guide notes that "Literary rights in the
writings of Dwight D. Eisenhower are held by his literary executor,
John S.D. Eisenhower." Id.
54. E-mail from Peter Hirtle, Co-Director Cornell Institute for
Digital Collections, to Peter Jaszi, Counsel of Record (Nov. 29, 2001).
55. Civil War correspondence published in even a limited edition
before 2003 would enjoy protection until 2047, a term extended by the
CTEA. Id.
18
include items of mixed and unknown provenance, the task of
clearing such copyrights may involve genealogical and probate
inquiries dwarfing the scope of the original research effort.56
The journal's reluctance to gamble on a potential copyright
infringement action prevented the publication of this important
article.57
Similarly, archivists desiring to make digital copies of Civil
War materials available to schools and universities to further
public understanding are thwarted in their efforts by excessive
copyright terms.58 As Roy Rosenzweig noted in a recent article
in the Journal of American History, "[f]or historians, copyright
protection has redlined . . . much twentieth-century history . . ."59
56. In some cases the soldier 's family may have donated or sold
the letters and diaries to a repository, while other documents and letters
may have been originally found in old houses, furniture, or suitcases by
people with no direct connection to the writers. Ownership of a physical
letter does not necessarily carry with it the right to use the contents,
17 U.S.C. § 303.
57. Had this incident occurred in Canada, the author would only
have had to make a documented good faith effort to locate the copyright
owners and submit the documentation of the unsuccessful search to the
Copyright Board. In cases where a copyright holder cannot be located,
the Board is authorized by Canada's Copyright Act to grant a license.
License fees are held in trust for missing rights holders who may claim
royalties up to 5 years after the expiration of a Board-issued license as
codified in § 77 of the Canadian Copyright Act, R.S.C., C-30, S.1.,
available at http://www.cancopy.com (last visited Nov. 20, 2001).
U.S. law contains no such provision. Id. See also http://www.cb-
cda.gc.ca/info/act-e.html#rid-33225 (last visited Dec. 6, 2001).
58. Peter B. Hirtle, Unpublished Materials, New Technologies, and
Copyright: Facilitating Scholarly Use. Interdisciplinary Conference On
The Impact Of Technological Change On The Creation, Dissemination,
And Protections Of Intellectual Property, The Ohio State University
College of Law, Columbus, OH. March 8-10, 2001. Forthcoming in the
Journal of the Copyright Society. Preliminary draft version for conference
attendees available at http://cidc.library.cornell.edu/copyright/
Hirtle_OSU_paper.pdf, (last visited Nov. 22, 2001).
59. Roy Rosenzweig, The Road to Xanadu: Public and Private
Pathways on the History Web, 88 J. Am. Hist. 2, (2001).
19
If copyright term extension survives constitutional challenge,
opportunities for new artists to expand on the culture of the
past will be fewer, and citizens will miss opportunities to be
exposed to, and enriched by, primary historical documents and
knowledge.
b. Film scholars and archivists:
A film scholar and author of the book Film, Form, &
Culture, a textbook with an accompanying CD-ROM, chronicles
the difficulty and cost of identifying and obtaining permission
for use of films from the twentieth century. The Second Edition
increased in cost when the author included clips from two "B"
gangster films of the late 1940's and 50's, for which the copyright
owner demanded $2,000 for 120 seconds of clips. This same
author also could not use any clips by Disney-owned works,
which are not licensed for CD-ROM use as a general policy.60
Although a modified version of Film, Form, and Culture was
eventually published, the need to obtain permission may chill
similar publications for decades to come, since under the CTEA
many pre-1960 American films will be protected well into the
twenty-first century.
Although the CTEA is sometimes characterized as
promoting the preservation of America's film heritage, the reality
is otherwise.61 Thousands of old movies sit on shelves
deteriorating because the companies that hold the copyrights
make no efforts to restore them or make them available, while
their copyright status prevents others from preserving such
works.62 By the time many of these works are finally available
to enter the public domain, prints and negatives will have
physically disintegrated. These endangered works include not
60. Telephone interview with Robert Kolker, Chair, School of
Literature, Communication, and Culture, Ivan Allen College, Georgia
Institute of Technology (October 16, 2001).
61. See supra note 41 at 30.
62. Jesse Walker, Copy Catfight, Reason On Line (March 2000)
available at http://www.reason. com/0003/fe.jw.copy.html, (last visited
Dec. 5, 2001).
20
only film "classics," but also industrial films, forgotten examples
of silent cinema, footage from uncompleted projects (such as
Orson Welles' Don Quixote), and kinescopes of programs from
the "golden age" of television.63
CONCLUSION
Unless the decision of the DC Circuit is reversed, the CTEA
and subsequent extensions of copyright terms will continue to
impede the growth of the public domain. Amici do not argue
against licensing fees as an appropriate means of rewarding
authors and creators, nor do we suggest that we are prevented
from invoking the fair use doctrine in appropriate situations.
However, the practical result of copyright term extension, by
maintaining unnecessary barriers to the accessibility of
information, diminishes the ability of the public to be educated,
to be entertained, and to engage in debate. Through excessive
copyright extension, copyright owners will continue to restrict
access to and exert censorial control over millions of works,
thereby chilling discourse and cultural development long after
incentives for production have ceased to operate.64 The Framers
of our Constitution envisioned a very different role for
copyrights.
Every member of society, from the toddler who hears a
fable for the first time to the archivist who meticulously
inventories the wealth of information present on the World Wide
Web, has the constitutional right to use and receive information.
Amici urge this Court to recognize the breadth of the harms the
public will suffer if the CTEA is not found unconstitutional and
to reaffirm the Framer's intent for Congress to promote the
public's interest through balanced copyright law.
For the foregoing reasons, this Court should grant the writ
of certiorari and the judgment of the DC Circuit should be
vacated and reversed.
63. Id.
64. Neil Weinstock Netanel, Copyright and a Democratic Society,
106 Yale. L.J. 283, 285 (1996).
21
Respectfully submitted,
PETER JASZI
Attorney for Amici Curiae
4801 Massachusetts Ave., N.W.
Suite 394
Washington, D.C. 20016
(202) 274-4216
1a
APPENDIX I - Appendix A
THE GROWTH RATE OF THE
PUBLIC DOMAIN
1. This chart is a visual representation of amici's understanding
of the decline of the growth of public domain as a result of repeated
copyright term extensions.