Eldred v. Reno: Response brief of US
through more than two centuries. And it follows the trend of all of these prior
changes, in which the term of protection has steadily increased by relatively modest
and equal amounts. The terms of extension have been from 28 years, to 42 years,
to 56 years, to approximately 75 years,
to, currently,approximately 95 years./106
This continuous national tradition suggests strongly that plaintiffs’ proposed
construction of the Copyright Clause is wanting./107As the Supreme Court has
noted, in the context of a shorter national tradition:
The construction placed upon the constitution by the first act of 1790
and the act of 1802, by the men who were contemporary with its
formation, many of whom were members of the convention which
framed it, is of itself entitled to very great weight, and when it is
remembered that the rights thus established have not been disputed
during a period of nearly a century, it is almost conclusive./108
In this case, a continuous, undisputed tradition that reaches into four different
centuries is, if anything, more than nearly conclusive. Plaintiffs, to prevail, must do
far more than provide an alternate reading to a clause of the Constitution.
b. Upholding the CTEA’s extension of the terms of subsisting
copyrights does not mean Congress need not comply with the “limited
Times” provision of the Constitution.In essence, plaintiffs’ argue that upholding
the CTEA drains the term “limited” of any meaning:
However, except for CTEA and the 1976 Act, the extensions to which plaintiffs refer were merely placeholders,
maintaining the status quo until the revisions under consideration had been enacted.
106/Congress estimated the mean time between an author’s death and his obtaining a copyright at approximately
26 years, so life of the author plus 50 years is approximately 75 years. See note 3, supra.
107/The tradition of affording new benefits to subsisting copyrights as well as newly produced documents is not
limited to duration. For example, the expansion of copyright protection to include the right of public display was
given to subsisting copyrights. SeeEdward Samuels, The Public Domain in Copyright Law, Copyright Soc’y
U.S.A. 137, 172-73 (1993).
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884).
Eldred v. Reno: Response brief of US
[T]here could be no limit to Congress’ grant of a copyright, so long as
each term was fixed in length. A term of 1,000 years would be as
valid under the government’s reading as a term of 10 years. And a
term that retrospectively extends the copyright by 1,000 years, or that
recovers material from the public domain and re-protects it under the
copyright clause is also valid on the government’s reading./109
Plaintiffs are certainly correct insofar as they hypothesizethat the terms fixed by
the CTEA are not written in stone. Unforeseen circumstances could lead Congress
in the future to change the terms again. For example, the recent discovery of the
human genome might lead to dramatic increases in life expectancy, which might
lead Congress to reconsider the length of copyright term again. But this case does
not concern whether every fixed term is within the ambit of Congress’ powers
under the Copyright Clause. It may well be that some term extensions are so long
or so lacking in rational basis that a court could conclude that the Congress has in
effect created an unlimited term. But this case concerns a term extended on the
basis of changes in the indicia that have traditionally guided Congress in measuring
the fairness of a term:the life of the author and his offspring, has lengthened; the
commercial life of his products has lengthened; harmony with criteria of other
nations is desirable; and a unique opportunity to promote and secure art is at hand.
Thus, the CTEA has extended the terms of subsisting copyrights in a manner that is
consistent with the trend and pattern of all major copyright acts in this Country’s
history. An extension of subsisting copyright terms on such bases provides no
occasion for the Court to speculate upon whether or when a term extension, lacking
such rational and traditional predicates, wouldbecome constructively unlimited.
109/App. Brief 30.
Eldred v. Reno: Response brief of US
CONGRESS DID NOT VIOLATE THE FIRST AMENDMENT
BY EXTENDING THE TERM OF COPYRIGHT PROTECTION OF
PRE-EXISTING WORKS WITH SUBSISTING COPYRIGHTS
AS WELL AS NEWLY CREATED WORKS.
Plaintiffs argue that the CTEA violates the First Amendment both as it applies
to subsisting copyrights, and as it applies to copyrights issued on new works.
A. Plaintiffs Lack Standing To Challenge The Prospective Application
Of The CTEA.
Plaintiffs argue that adding 20 years of copyright protection to works created
after the effective date of the CTEA is inconsistent with the First Amendment.
However, plaintiffs are either individuals or entities whose sole allegations of injury
concern the effect the CTEA has on “[their]ability to go about their business,”
insofar as it extends the terms of subsisting copyrights by 20 years./110No plaintiff
alleges that it will be injured by the CTEA’s extending the copyright terms of new
works.111
But the question of standing turns upon “whether plaintiff has ‘alleged such a
personal stake in the outcome of the controversy’ as to warrant his invocation of
federal-court jurisdiction and to justify exercise of the court’s remedial powers on
his behalf.”/112As this Court noted in Schnapper, in the context of rejecting on
standing grounds a First Amendment challenge to a copyright law, plaintiffs “lack
standing * * * if they fail to allege any link between * * * the maintenance of the
110/App. Br. 14
SeeApp. Br. 12-15; Plaintiffs’ Complaint J.A. 35-45.
Warth v. Seldin, 422 U.S. 490, 498 (1975).
Eldred v. Reno: Response brief of US
copyright[] and the purported injury.”/113Plaintiffs have made no such
allegation./114Hence, plaintiffs lack standing to challenge the CTEA’s extension of
the copyright terms of newly created works.
B. Plaintiffs Have No First Amendment Right To Reproduce The
Copyrighted Works Of Others.
Plaintiffs argue that the CTEA is a content-neutral regulation of speech
“because it determines who can reproduce the particular expressionof someone
else.”/115They argue that “[c]ontent-neutral regulations of speech are governed by
the test first announced in United States v. O’Brien, 391 U.S. 367 (1968) * * *
[under which the regulation of speech] can be upheld only if it (1) advances
important Government interests unrelated to the suppression of free speech, and (2)
does not burden substantially more speech than necessary to further [those]
interests.”/116On the ground that the Government has not shown that the CTEA’s
20 year extension to copyrights does not keep substantially more art from entering
the public domain than is necessary to further progress in the arts, plaintiffs argue
that the CTEA violates the O’Brien test and is unconstitutional.
O’Briendoes not apply in situations where conflicting speech
Initially, it may be noted that the O’Brien test has never
been used in situations such as this, where competing speech interestshave been at
stake. Encouraging authors to publish by granting them fair returns is at least as
Schnapper v. Foley,667 F.2d at 113.
114/The party attempting to invoke the powers of the court carries the burden of establishing the elements of
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
115/App. Br. 17 (emphasis added.)
Eldred v. Reno: Response brief of US
much concerned with the public’s enjoying progress in the arts as is “feeding” the
public domain. Applying O’Brienin such circumstances would require the Court to
hold that feeding the public domain is the most significant means of serving progress
in the arts, and require Congress to demonstrate that any benefit provided to any
other means of promoting progress in the arts does not burden the public domain
more than is substantially necessary.
O’Brien comes into play when otherlegitimate Governmental interest are
competing with speech interests.
O’Brienhas no place in a court’s oversight of
Congress’ balance of the varying speech interests at stake in promoting art through
In any event, plaintiffs’ argument is foreclosed in this Circuit by existing
2. Because only expression and not ideas can be copyrighted, plaintiffs
lack a First Amendment right to use the works of subsisting copyright
The district court correctly concluded that this case is controlled by this
Court’s decision in United Video, Inc. v. FCC, where the Court stated:
[P]etitioners desire to make commercial use of the copyrighted works
of others. There is no first amendment right to do so. Although there
is some tension between the Constitution’s copyright clause and the
first amendment, the familiar idea/expression dichotomy of copyright
law, under which ideas are free but their particular expression can be
copyrighted, has always been held to give adequate protection to free
expression./117
116/App. Br. 17 (internal quotation marks omitted).
United Video, Inc. v. FCC, 890 F.2d at 1191.
Eldred v. Reno: Response brief of US
This judgment is firmly rooted in Supreme Court precedent. In Harper & Row
Publishers, Inc. v. Nation Enters., the Supreme Court held, in rejecting a First
Amendment challenge by a group of cable television companies who contended that
they had a First Amendment right to retransmit copyrighted television broadcasts:
[C]opyright’s idea/expression dichotomy ‘strike[s] a definitional
balance between the First Amendment and the Copyright Act by
permitting free communication of facts while still protecting an
author’s expression.’723 F.2d at 203. No author may copyright his
ideas or the facts he narrates. 17 U.S.C. § 102(b). See, e.g., New York
Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (Brennan, J.,
concurring) (Copyright laws are not restrictions on freedom of speech
as copyright protects only form of expression and not the ideas
expressed)./118
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As United Video set forth, “cases in which a first amendment defense is raised to a
copyright claim do not utilize an O’Brienanalysis.”/119
The decisions of the Supreme Court and the D.C. Circuit in Harper and
United Videoare controlling here. Because plaintiffs do not have a First
Amendment right to reproduce the copyrighted work of others in violation of the
Copyright Act, their First Amendment challenge to the CTEA is without merit.
3. Plaintiffs have failed to distinguish this case from Harper and
United Video.Plaintiffs argue that this case differs from United Video because, in
petitioners demanded a right to rebroadcast otherwise legitimately
copyrighted material. They were not claiming that the material at issue
could not be copyrighted. * * * [By contrast plaintiffs are not]
asserting the right to use otherwise legitimately copyrighted material *
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985)
United Video,890 F.2d at 1190.
Eldred v. Reno: Response brief of US
* *. Instead, this challenge is to the constitutionality of the statute
under which the property at stake was granted./120
But this is a distinction in phrasing, not in substance. The assertion by plaintiffs in
United Video, that they had a First Amendment right to use material that is
protected by copyright laws, could only have succeeded if the copyright law is
unconstitutional insofar as it forbids the use plaintiffs wish to make of it.
Video could thus be phrased a challenge to the constitutionality of the copyright law
insofar as it forbids some particular use. In any event, plaintiffs have not argued
whythe difference for which they contend should make any difference in the
Court’s First Amendment analysis. The duration of a copyright is akin to any other
element of the scope of copyright protection, and plaintiffs concede they have no
First Amendment right to challenge the scope of copyright./121
In addition, plaintiffs claim that applying the rule set forth in United Video
based on the distinction between expression and ideas in this context would lead to
absurd results such as a court’s “reject[ing] a copyright act that copyrighted the
United States flag, simply because it copyrighted ‘expression’ only.”/122The United
States’ flag is in the public domain. It is not subject to copyright because it is not
original. If plaintiffs mean that granting copyrights to works already in the public
domain raises different constitutional considerations, that argument has nothing to
do with this case. If plaintiffs mean instead that granting copyrights to a specific
120/App. Br. 52-53.
122/App. Br. 54.
Eldred v. Reno: Response brief of US
item, rather that a class of items, raises different constitutional consideration, that
argument has nothing to do with this case.
4. Plaintiffs’ arguments lead to unreasonable results.
arguments, if accepted, would prove too much. Plaintiffs argue, for example, using
valuation techniques that assume constant streams of income at assumed interest
rates, that the “increase in economic value [of the CTEA term prospective
extension] is tiny,”and that the benefits of the 20 year increase are “‘too
speculative a gain’“ to satisfy O’Brien’s requirement that a regulation not burden
substantially more speech than necessary./123It is undisputed that promoting
progress in the arts is an important Government interest. But for the plaintiffs, for
any fixed term, the Governmentmust demonstrate that the duration of the term
does not withdraw substantially more art from the public domain than is necessary
to further progress in the arts. Such arguments would apply with equal force to any
of the Nation’s copyright laws. It is not more demonstrable that 50 years plus the
life of the author, rather than 70 years, keep substantially more art from entering the
public domain than is necessary to promote progress in the arts to the fullest. Nor is
it demonstrable that the life of the author should be considered at all in such
calculations. Indeed, whether the term granted by the First Congress in the
Copyright Act of 1790, 28 years, does not keep substantially more art from entering
the public domain than is necessary to further to progress in the arts is not
Eldred v. Reno: Response brief of US
demonstrable. Under plaintiffs’ approach, all copyright acts have been
unconstitutional; indeed, no valid copyright act can be imagined.
The difficulty in setting duration limits of copyright protection has not gone
unrecognized. The Supreme Court noted that “the evolution of the duration of
copyright protection, tellingly illustrates the difficulties Congress faces in attempting
to ‘secur[e] for limited Times to Authors * * * the exclusive Right to their
respective Writings.’“/124All that can be expectedof any group of lawmakers in
this nearly rudderless context is that they behave rationally./125
For the foregoing reasons, the judgment of the district court should be
DAVID W. OGDEN
Acting Assistant Attorney General
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WILMA A. LEWIS
United States Attorney
WILLIAM KANTER
ALFRED MOLLIN
(202) 514-0236
Attorneys, Appellate Staff
Civil Division, Room 9554
Washington, D.C. 20530-0001
Stewart v. Abend, 495 U.S. at 230.
Eldred v. Reno: Response brief of US
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