SECOND AMENDED COMPLAINT
This is an action for declaratory relief pursuant to 28 U.S.C. § 2201. Plaintiffs seek declaratory judgment that § 102(d)(1)(B) of the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 ("CTEA"), amending 17 U.S.C. § 304(b), is unconstitutional. Plaintiffs also seek preliminary and permanent injunctive relief against the criminal enforcement of § 2(b) of the No Electronic Theft Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 ("NET Act"), amending 17 U.S.C. § 506(a), with respect to works that would not have a valid copyright but for the enactment of § 102(d)(1)(B) of the CTEA.
1. Plaintiff Eric Eldred resides at 50 E. Derry Rd #21, E. Derry, New Hampshire, 03041-0021.
2. Plaintiff Eldritch Press is a non-profit unincorporated association located at 50 E. Derry Rd #21, E. Derry, New Hampshire, 03041 and found on the Internet at http://eldred.ne.mediaone.net. Eldritch Press's principal activity is to post literary works on the Internet in order to make them freely available to the entire world. Plaintiff Eldred is the Director of Eldritch Press.
3. Plaintiff Higginson Book Company ("Higginson") is located at 148 Washington Street, Salem, Massachusetts, 01970. Higginson is a for-profit sole proprietorship operated by Robert A. Murphy. Higginson reprints books based on consumer demand in fields such as genealogy, historic maps, local and county history, and the Civil and Revolutionary Wars.
4. Plaintiff Jill A. Crandall resides at 134 Buckeye Branch Drive, Athens, Georgia, 30605. Plaintiff Crandall is the choir director at St. Gregory the Great Episcopal Church in Athens, Georgia.
5. Plaintiff Tri-Horn International is a Massachusetts corporation located at 38 Surfside Road, P.O. Box 424, Scituate, Massachusetts, 02055. Tri-Horn International is in the business of developing and selling products involving the history and traditions of golf.
6. Plaintiff Luck's Music Library, Inc. is a Michigan corporation located at P.O. Box 71397, 32300 Edward, Madison Heights, Michigan, 48071. Luck's Music Library, Inc. is in the business of selling and renting classical orchestral sheet music.
7. Plaintiff Edwin F. Kalmus & Co., Inc. is a Florida corporation located at P.O. Box 5011, Boca Raton, Florida, 33431. Edwin F. Kalmus & Co., Inc. publishes orchestral sheet music.
8. Plaintiff American Film Heritage Association is a non-profit film preservation group that was established to represent documentary film makers, film preservationists, scholars, commercial archives and non-profit archives. The American Film Heritage Association is located at P.O. Box 438, Orland Park, Illinois, 60462.
9. Plaintiff Moviecraft, Inc. is a commercial film archive incorporated in Illinois and located at P.O. Box 438, Orland Park, Illinois, 60462.
10. Plaintiff Dover Publications, Inc. is a New York corporation located at 31 East 2nd Street, Mineola, New York, 11501. Dover Publications, Inc. is a large-scale commercial book publisher.
11. Plaintiff Copyright's Commons is a non-profit coalition located on the Internet at http://cyber.law.harvard.edu/cc and at The Berkman Center for Internet & Society, 1563 Massachusetts Avenue, Cambridge, Massachusetts, 02138. Copyright's Commons serves as a collective voice for students, professors, archivists and other members of the public who are concerned about the negative effects of copyright term extensions on the public domain.
12. Defendant Janet Reno is the Attorney General of the United States. Defendant Reno is responsible for the enforcement of the criminal laws of the United States, including the NET Act.
JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361 and 2201, because this declaratory judgment action challenges the constitutionality of a federal statute. There is personal jurisdiction over defendant Reno. Venue is properly laid in this District under 28 U.S.C. § 1391(e).
14. Plaintiffs have standing to bring and maintain this action because their activities have been, and will continue to be, directly affected by the CTEA. Each of the plaintiffs uses, copies, reprints, performs, enhances, restores or sells works of music, art, film or literature in the public domain. Plaintiffs plan to continue to do so for the indefinite future. Among the works that certain of the plaintiffs were preparing to use in some way were works created in 1923 that, but for enactment of the CTEA, could have been legally copied, distributed or performed on January 1, 1999. The total retail value of such works would have exceeded $1,000.
15. he CTEA can be civilly enforced against plaintiffs and, through the NET Act, criminally enforced as well. In addition, plaintiffs' constitutional rights to freedom of expression have been chilled by enactment of the CTEA.
16. As discussed further below, the combined effects of the CTEA and the NET Act have caused each of the plaintiffs concrete and particularized injuries to their freedom of expression and their ability to use works in the public domain. The chilling effect of these laws is an actual, present injury, and the threat of enforcement against plaintiffs who violate the laws causes an imminent injury. Therefore, plaintiffs have each suffered an injury in fact, and this injury has been caused by their fear of prosecution by Defendant Reno for violations of the NET Act. These injuries can be redressed by a declaratory judgment that the CTEA is unconstitutional and by preliminary and permanent injunctive relief against the criminal enforcement of the NET Act with respect to works that would not have a valid copyright but for the enactment of the CTEA.
A. Copyrights And Copyright Terms
17. Article I, § 8 of the United States Constitution confers upon Congress authority:
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.
Pursuant to that authority, Congress has enacted numerous laws since 1790 providing for copyrights upon a variety of literary and artistic works. Those statutes are codified at 17 U.S.C. § 101 et seq.
18. The duration of copyrights on literary and artistic works is generally governed by 17 U.S.C. § 301 et seq. Until it was amended by the CTEA, 17 U.S.C. § 304(b) provided:
(b) Copyrights in Their Renewal Term or Registered for Renewal Before January 1, 1978.--The duration of any copyright, the renewal term of which is subsisting at any time between December 31, 1976, and December 31, 1977, inclusive, or for which renewal registration is made between December 31, 1976, and December 31, 1977, inclusive, is extended to endure for a term of seventy-five years from the date the copyright was originally secured.
19. In addition, pursuant to 17 U.S.C. § 305, copyrights are deemed to run to "the end of the calendar year in which they would otherwise expire." Therefore, prior to the enactment of the CTEA, a copyrighted work that was created, for example, on August 20, 1923, if properly renewed, would have had a subsisting copyright between December 31, 1976 and December 31, 1977, and would have had a term of 75 years from the date of the original copyright. This term would have ended on December 31, 1998.
20. Upon the expiration of a copyright, a work comes into the public domain. This means that it may freely be copied, performed, distributed or used in the creation of derivative works by any person in the United States without the permission, license or authorization of the copyright holder.
B. The Copyright Term Extension Act of 1998
21. On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827. The CTEA amended 17 U.S.C. § 304 in relevant part as follows:
(d) Duration of Copyright: Subsisting Copyrights.
(1) In General.Section 304 of Title 17, United States Code, is amended-
. . .
(B) by amending subsection (b) to read as follows:
"(b) Copyrights in Their Renewal Term at the Time of the Effective Date of the Sonny Bono Copyright Term Extension Act.--Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured."
These changes to § 304 became effective immediately upon passage of the CTEA.
22. In general, the CTEA added twenty years to the term of most copyrights. Thus, prior to enactment of the CTEA, a work that was copyrighted during 1923 would have entered the public domain on December 31, 1998, because its term of 75 years would have ended. The CTEA, however, extended the copyright term of such a work to 95 years, meaning that it will not enter the public domain until December 31, 2018.
C. The No Electronic Theft Act
23. The No Electronic Theft Act of 1997 (the "NET Act") criminalizes certain forms of copyright infringement. It amended 17 U.S.C. § 506(a) to provide, in relevant part:
Section 2. Criminal Infringement of Copyrights.
. . .
"(a) Criminal Infringement.Any person who infringes a copyright willfully either
"(1) for purposes of commercial advantage or private financial gain, or
shall be punished as provided under section 2319 of title 18, United States Code."
"(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
24. 18 U.S.C. § 2319(c), in turn, makes it a felony to violate 17 U.S.C. § 506(a)(2):
(c) Any person who commits an offense under section 506(a)(2) of title 17, United States Code
25. The No Electronic Theft Act, as its name suggests, was enacted to criminalize the violation of copyrights through the posting of copyrighted materials on the Internet.1 The No Electronic Theft Act does not, however, merely criminalize the posting of copyrighted materials on the Internet. The statute criminalizes any "reproduction or distribution . . . during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000." 17 U.S.C. § 506(a). Therefore, anyone who uses, reproduces or distributes a copyrighted work without permission is subject to the stiff fines and prison terms of the NET Act.
(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
26. The CTEA extended for another 20 years copyrights on all literary, musical and artistic works that, properly renewed, would have been subsisting between December 31, 1976 and December 31, 1977. The NET Act punishes as a felony any violations of such a copyright, if the Act's thresholds are met. Thus, for example, persons who violate the copyright of a work created in 1923 face criminal prosecution.
D. Effect of the CTEA On Plaintiffs
Eric Eldred and Eldritch Press
27. Eric Eldred founded the Eldritch Press in late 1995 as a means of demonstrating that computers could be used to present books on the Internet in new ways, and in ways that improved upon the capabilities of print books. The Eldritch Press posts books on its Web site2 located on the Internet at http://eldred.ne.mediaone.net. Initially, the Eldritch Press began with works of American literature, by authors such as Nathaniel Hawthorne, Oliver Wendell Holmes (Sr.), and Henry James. The Eldritch Press also has specialized collections of works such as World War I novels, writings about small boats, French and Russian literature (with some bilingual works), science and natural history, and works appropriate for reading aloud to children. It also has works of general interest, such as H. L. Mencken's "Declaration of Independence in American" and Louisa May Alcott's "An Old-Fashioned Thanksgiving." Because some of the works are not included in library collections or are long out of print, they are not obtainable in any other way. All of the works are in hypertext markup language ("HTML"), are hand-coded, can be found by most common Internet search engines, and are accessible by all Web browsers.
28. Works are derivative as well as exact reprints. In fact, because of the higher capabilities of electronic books, the Eldritch Press has added features to some of these works. These include color illustrations, notes, links to other Internet sources, bibliographies, modernized translations, glossaries, timelines of dates, maps, essay contests, discussion pages, distance learning via e-mail, all linked back to authoritative texts. All of these works also are accessible to blind readers through text-to-speech equipment. In addition, some of the works include text descriptions of art to further assist the blind.
29. The Eldritch Press Web site is globally accessible. The site receives as many as 4,000 visitors per day and has been accessed from virtually all countries in the world. It was been recognized as one of the 20 best humanities sites on the Web from edSITEment (National Endowment for the Humanities); its Hawthorne and Howells pages have been accepted as links by the Nathaniel Hawthorne Society and the William Dean Howells Society Web sites.
30. All works posted on the Eldritch Press Web site are in the public domain or are posted with the permission of copyright holders. Eldred personally researches each work before it is posted to determine whether it is copyrighted.
31. Eldred and Eldritch Press often post works on the Eldritch Press Web site as soon as the works come into the public domain. Thus, beginning in early 1999, Eldritch Press' Web site would have begun featuring literary works that had been created in 1923, such as "New Hampshire" by Robert Frost, "Horses and Men" by Sherwood Anderson, and "Racundra's First Cruise" by Arthur Ransome. Because of the CTEA's enactment, if Eldred or the Eldritch Press posted such works on the Eldritch Press Web site, they would violate both the work's copyright and the criminal provisions of the NET Act. 17 U.S.C. § 506(a).
32. Eldred and Eldritch Press do not accept donations of money or advertisements. The Eldritch Press, being a non-profit association with a meager budget, does not have the funds to pay for any fine levied against it if it were found guilty of violating the NET Act.
Higginson Book Company
33. The Higginson Book Company is a for-profit sole proprietorship that has been a book dealer since 1969 and has been reprinting books for the last twenty years. Higginson reprints books based on consumer demand in fields such as genealogy, historic maps, local and county history, and the Civil and Revolutionary Wars. Higginson has over 10,000 books available for sale. It focuses on books originally printed in small editions that are no longer in print and therefore difficult to obtain from any other source. Higginson has 30,000 active customers, including individuals, libraries, historians, schools and universities. It is located on the Internet at http://www.higginsonbooks.com.
34. Higginson only reprints works that are in the public domain or with the permission of the copyright holders. Higginson's officers and employees carefully research any book published after 1922 to determine whether or not it is copyrighted, but this is often very difficult given the rarity of the books in which they specialize. Higginson therefore must often wait until a book is in the public domain before it can reprint the book.
35. Higginson expected that works such as "History of Lawrence Massachusetts, with War Records," by Maurice B. Dorgan, copyrighted in 1924, would enter the public domain at the end of 1999. The CTEA prevented such works from entering the public domain for another 20 years. Because of the difficulties in tracking the owners of, or heirs to, the copyrights on old works, the CTEA effectively means that Higginson will be unable to reprint any books copyrighted in 1923 or after for at least another 20 years. If Higginson were to reprint such books, it would violate the book's copyright and the criminal provisions of the NET Act. 17 U.S.C. § 506(a).
Jill A. Crandall
36. Plaintiff Crandall is the choir director at St. Gregory the Great Episcopal Church in Athens, Georgia. She is responsible for selecting the music and preparing and leading the choir in singing during the worship services.
37. When selecting choir music Ms. Crandall must choose between music she can freely copy because it is in the public domain and music that is copyrighted and therefore requires her to purchase copies for each choir member. Since music typically costs $1.00 to $3.50 per song per choir member, it is much cheaper to copy music that is in the public domain. For this reason she most frequently selects works that were copyrighted before 1923.
38. The CTEA has prevented Crandall from freely copying works that were copyrighted in 1923, including works by such composers as Ralph Vaughan Williams, Gustav Holst, Charles Ives and Edward Elgar. If Crandall were to copy and perform copyrighted music it would violate the work's copyright and she would be subject to a copyright infringement action.
39. Tri-Horn International is a closely-held company started in 1993. Tri-Horn is in the business of developing and selling products relating to the history and traditions of golf. Certain of these products use images of famous golfers or golf scenes.
40. The 1920's were an important decade in the history of golf; therefore many images and other artistic works portraying the sport are from this decade. Tri-Horn International had planned to use works from 1923 and later years, such as pictures of golfers Bobby Jones and Walter Hagen, and incorporate these works into new products.
41. The CTEA has impeded Tri-Horn's plans to use pictures and other materials from the 1920's in its products. The CTEA's retroactive extension of copyright terms has raised significant problems for Tri-Horn because it is difficult, if not impossible, to research the copyright history of many works and to obtain permission to use them. Therefore some of the products Tri-Horn originally planned to produce may never be made. If Tri-Horn were to copy and make such derivative works without permission, it would be subject to copyright infringement actions as well as criminal prosecution. 17 U.S.C. § 506(a).
Luck's Music Library, Inc.
42. Luck's Music Library, Inc. ("Luck's") specializes in selling and renting classical orchestral sheet music. Luck's sells and rents music to approximately 7,000 orchestras and 12,000 individuals worldwide. The music Luck's distributes ranges from elementary-level to operatic.
43. Much of the music Luck's sells or rents is in the public domain. As a general rule, Luck's sells and rents music in the public domain at much lower prices than copyrighted music. For example, "Alborada Del Gracioso" by Maurice J. Ravel, which was written in 1923, is rented to community orchestras for $360.00 for two performances. Before enactment of the CTEA, Luck's had planned to begin selling the piece for $150.00 (to be performed an unlimited number of times) once it entered the public domain on January 1, 1999.
44. The CTEA prevented the Ravel piece and many others from entering the public domain at the end of 1998, adversely affecting Luck's business. If Luck's were to reproduce and sell such works, it would violate the work's copyright and the criminal provisions of the NET Act. 17 U.S.C. § 506(a). The CTEA also impedes the ability of orchestras, many of which have small annual budgets, from playing these famous works.
Edwin F. Kalmus & Co., Inc.
45. Edwin F. Kalmus & Co., Inc. ("Kalmus") is a for-profit corporation located in Boca Raton, Florida that publishes public domain music for orchestras. Masters Music, a division of the publishing company, specializes in publishing piano, solo and chamber music that is in the public domain. Kalmus has approximately 8,500 active customers.
46. Kalmus publishes a catalog at the beginning of every school year listing the titles of works that will be available for purchase. Kalmus's Fall 1998 catalog contained a list of works that it thought would be available on January 1, 1999, when the works were scheduled to enter the public domain. This list included works by such composers as Bela Bartok, Maurice J. Ravel and Richard Strauss.
47. The CTEA has adversely affected Kalmus's business. After the CTEA was passed, Kalmus was forced to distribute a correction to its catalog to notify its customers that works copyrighted in 1923 would not enter the public domain until January of 2019. Moreover, since Kalmus almost exclusively publishes music that has entered the public domain, Kalmus has been effectively prevented from adding any new works to its catalogs for the next 20 years.
American Film Heritage Association and Moviecraft, Inc.
48. The American Film Heritage Association ("AFHA") is a non-profit film preservation group. The AFHA was established to represent documentary film-makers, film preservationists, scholars, commercial archives and non-profit archives in opposing copyright term extension laws because of their significant adverse effects on film preservation, archival stock footage use and documentary film making.
49. Moviecraft, Inc. is a commercial film archive that is in the business of restoring and selling rare older films. Older films, such as those from the 1920's, are constantly deteriorating and in need of restoration. The Library of Congress has defined many of these films as "Orphan Works" because they are not being exploited by anyone; thus, while the films may be under copyright, the companies that produced them are no longer in existence or they have abandoned these films because of their age or ephemeral nature. Orphan Works make up a significant portion of the body of silent films.
50. Because the CTEA extends the copyrights on many of these films for 20 more years, Moviecraft will be unable to restore these films and many of them will be lost forever. If a surviving print of one of these works from the 1920's were discovered by Moviecraft, it could not be restored because Moviecraft could not exploit the film without authorization of the copyright owner. To acquire copyright clearances often is impossible. In the case of Orphan Works, the film preservationist cannot find a copyright owner because so much time has elapsed. For example, Moviecraft has a partial print of the film "Dixie," a civil war drama produced in 1924. Moviecraft had originally planned to restore this film when it was scheduled to enter the public domain at the end of 1999. Now, however, since "Dixie" will not enter the public domain for 20 more years, Moviecraft cannot restore the footage without exposing itself to actions for copyright infringement and criminal prosecution. 17 U.S.C. § 506(a).
Dover Publications, Inc.
51. Dover Publications, Inc. ("Dover") is a large-scale publisher of paperback books including adult fiction and children's books. Dover currently has approximately 6,500 titles in print, and an average of 400 new titles are added each year. Dover annually sells approximately 15,000,000 copies, and it has a current inventory of over 10,000,000 books.
52. Dover enjoys a considerable reputation for making English-language and translated foreign-language books readily available to interested readers at affordable prices when sold either through local bookstores or directly to catalog customers. Approximately one-third of Dover books are reprints from public domain sources, many of which would otherwise be completely out-of-print.
53. Dover had considerable plans, based on extensive research, to republish works from the 1920's and 1930's in the coming years when they were to enter the public domain. For example, this year Dover had planned to republish works copyrighted in 1923 such as "The Prophet" by Kahlil Gibran, "The Harp-Weaver and Other Poems" by Edna St. Vincent Millay and "Tulips and Chimneys" by e.e. cummings. The CTEA has prevented Dover from republishing these works at reasonable price levels for twenty more years. If Dover were to republish these works without permission from the copyright holders it would be subject to criminal prosecution under the NET Act as well as actions for copyright infringement.
54. Copyright's Commons is a non-profit coalition located at the Berkman Center for Internet and Society at Harvard Law School. The coalition is devoted to promoting the public availability of literature, art, music and film. Copyright's Commons serves as a collective voice for students, professors, archivists and members of the public who are concerned about the CTEA's negative effects on a vibrant public domain. Membership in Copyright's Commons is open to any person by means of its web page, located at http://cyber.law.harvard.edu/cc.
55. Members of Copyright's Commons routinely use, reproduce, reprint, perform, enhance, restore or sell works of music, art, film or literature in the public domain. Because the CTEA has prevented works from the 1920's and 1930's from entering the public domain for another 20 years, members of Copyright's Commons who had planned to use or reproduce works created in 1923 have been prevented from doing so for fear of being sued for copyright infringement or prosecuted under the NET Act. 17 U.S.C. § 506(a).
56.Plaintiffs repeat and reallege paragraphs 1 through 55.
57. The copyright laws grant the owners of a copyright in a literary, artistic or musical work the exclusive right to reproduce, distribute, perform, or display that work, or derivative works. 17 U.S.C. § 106. Therefore, the posting of a copyrighted literary work on the Internet, the selling of a copyrighted literary work, the copying and selling of copyrighted music, the use of a copyrighted artistic work in creating a new work, or the restoration and selling of a copyrighted film, without the permission of the copyright owner, would be copyright infringement pursuant to 17 U.S.C. § 501 et seq.
58. Article 1, Section 8 of the United States Constitution grants Congress the authority to:
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.
(Emphasis supplied). The purpose of this grant of power to Congress was to empower Congress to pass laws granting a limited monopoly over original works of authorship in order to provide incentives to artists, authors, composers, inventors, playwrights, poets, and sculptors to produce new works. Any grant of exclusive rights then (a) must be for this limited purpose, by granting (b) a limited term (c) to authors. A grant of an exclusive right that was not for this limited purpose, or was not for a limited term, or was not a grant to authors, would fall outside the narrow exception to the Free Speech and Press Clause of the First Amendment established by the Copyright Clause.
59. The historical antecedents of the Constitution, the record of the deliberations surrounding the drafting and adoption of the Constitution and contemporaneous evidence explaining the background and context of this language confirm this plain reading of Article I, § 8, and demonstrate that the clause was designed to assure that a balance was struck between providing incentives to "Authors and Inventors" on the one hand, and assuring the eventual and inevitable entry of their work into the public domain.
60. Despite these requirements that the term of copyright be limited, and the purpose be to "promote the progress of science and useful arts," Congress has repeatedly extended the term of copyright, both prospectively (to works not yet in existence), and retrospectively (to works with subsisting copyright terms). It has, in other words, given future authors a longer period to recover for any works they copyright in the future, and it has given past authors a longer period to recover for works they already have produced.
61. The present term is far longer than the framers ever envisioned. The original copyright statute of 1790 granted copyright terms of 14 years, with a 14 year renewal period. In 1831 the original copyright term was extended to 28 years, while the renewal term remained at 14 years. The renewal term was lengthened from 14 to 28 years in 1909, creating a total possible copyright term of 56 years. There it stayed for more than half a century.
62. Beginning in 1962, Congress enacted a succession of laws that extended copyright terms for those copyrighted works whose terms were about to expire. The overall effect of these laws was to extend copyright terms to periods as long as 70 years. Then, in 1976, Congress enacted Pub. L. 94-553 which gave subsisting copyrights a total term of 75 years. Finally, the CTEA extended this 75-year term by 20 more years. The following table chronicles the extensions of the copyright terms:
||Copyright Term Extension
||Maximum Copyright Term
||Pub. L. 87-668
||Subsisting copyrights extended to 12/31/65
||Pub. L. 89-142
||Subsisting copyrights extended to 12/31/67
||Pub. L. 90-141
||Subsisting copyrights extended to 12/31/68
||Pub. L. 90-416
||Subsisting copyrights extended to 12/31/69
||Pub. L. 91-147
||Subsisting copyrights extended to 12/31/70
||Pub. L. 91-555
||Subsisting copyrights extended to 12/31/71
||Pub. L. 92-170
||Subsisting copyrights extended to 12/31/72
||Pub. L. 92-566
||Subsisting copyrights extended to 12/31/74
||Pub. L. 93-573
||Subsisting copyrights extended to 12/31/76
||Pub. L. 94-553
||Subsisting copyrights extended to 75 year total term
||Pub. L. No. 105-298
||Subsisting copyrights extended to 95 year total term
63. While formally, under each of these extensions, the term is limited, the practice of continually extending copyright terms retroactively means that Congress, in effect, is granting copyright holders more than a "limited term."
64. Because these retroactive extensions are for works that already exist, they do not "promote the progress of science and useful arts."
65. The CTEA therefore violates the restrictions of Article I, § 8 and is unconstitutional.
(a) The CTEA confers benefits retroactively. This can have no rational basis, since no incentive to future individual creativity is provided by conferring an economic reward upon someone who has already created the work in question.
(b) The CTEA confers benefits to someone to whom the creator of the work transferred or sold the rights in the work in a transaction that contemplated a shorter copyright term. This is outside the constitutional power to grant rights to "Authors" and this too can create no incentive to future individual creativity.
(c) Whatever may be said about the benefits living authors can receive from continued royalties for preexisting works whose term of protection has been retroactively extended, the same may not be said about dead authors. Since dead authors cannot create new works, the sole incentive that copyright is intended to providebringing new works to marketcannot be fulfilled. Nevertheless, Congress has retroactively bestowed the extended term on assignees of dead authors, violating the constitutional limitation of promoting the progress of science.
66. Since the unconstitutional sections of the CTEA are not severable from the remainder of the CTEA, the entire act must be declared unconstitutional.
67. A declaratory judgment will terminate the controversy between the parties.
68. Plaintiffs repeat and reallege paragraphs 1 through 55.
69. While copyright creates a present interest in the copyright holder, it simultaneously creates a future interest in the public. The Public Trust Doctrine holds that government may not transfer the public property of a commons into private hands in the absence of any public benefit in exchange. While this doctrine has traditionally been applied in the context of public lands, the same principle should apply to the reallocation of public rights in intangible property, such as copyright.
70. The retroactive extension of the CTEA transfers those future interests from the public to private parties. The free use of such works by the public as a whole, contemplated both by the public and the creators of the works under copyright terms prevailing at the time of the works' creation, is thus pretermitted.
71. The only legitimate aim that Congress may have in effecting a transfer of public intangibles is that aim specified in the copyright clauseto "promote the progress of science and the useful arts." A retroactive extension will not promote that progress.
72. The retroactive extension of the term of copyrights attempted by Section 102(d)(1)(B) of the CTEA is therefore an abdication by the government of control of public resources held for the common use in violation of the Public Trust Doctrine.
73. Since the unconstitutional sections of the CTEA are not severable from the remainder of the CTEA, the entire act must be declared unconstitutional.
74. A declaratory judgment will terminate the controversy between the parties.
75. Plaintiffs repeat and reallege paragraphs 1 through 55.
76. The First Amendment restricts Congress's power to "make" any law "abridging the freedom of speech, or of the press."
77. The CTEA restricts plaintiffs' speech. But for the CTEA, plaintiffs could, without threat of legal punishment, publish works originally copyrighted in 1923, and whose copyrights are presently subsisting. If the CTEA stands, plaintiffs can only publish such works with the permission of the coypright holder.
78. Whether the restrictions of the CTEA are consistent with the requirements of the First Amendment depends upon the application of First Amendment principles to the statute.
79. Whether the CTEA is considered a content-based restriction on speech, or a content-neutral restriction on speech, it restricts speech unconstitutionally. Even under the lesser standard of intermediate scrutiny, the government cannot establish that the CTEA "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than is necessary to further those interests." Turner Broadcasting Systems v. FCC, 520 U.s. 180, 189 (1997).
80. Since the unconstitutional sections of the CTEA are not severable from the remainder of the CTEA, the entire act must be declared unconstitutional.
81. A declaratory judgment will terminate the controversy between the parties.
WHEREFORE, plaintiffs Eric Eldred, Eldritch Press, Higginson Book Company, Jill A. Crandall, Tri-Horn International, Luck's Music Library, Inc., Edwin F. Kalmus Co., American Film Heritage Association, Moviecraft, Inc., Dover Publications, Inc. and Copyright's Commons request that this Court enter judgment:
1. Declaring that 17 U.S.C. § 304(b), as amended by the CTEA, is unconstitutional;
2. Enjoining defendant, her successor and their subordinates from enforcing the NET Act, 17 U.S.C. 506(a), against persons whose infringement of a copyright would not have happened but for the CTEA's amendment of 17 U.S.C. § 304(b);
3. Awarding plaintiffs the costs of this action, including reasonable attorneys' fees; and
4. Awarding such further relief as the Court deems just and appropriate.
Dated: June ___, 1999