Return of the AmeriKat II: Berne takes a bite out of the US Constitution

The brief arguments before the Supreme Court

The Plaintiffs (Petitioners) appealed to the Supreme Court. Certiorari was granted on 7 March 2011. The Petitioners’ argument basically boils down to the following:

The Copyright Clause gives Congress power to grant authors copyrights for “Limited time” and only to “promote the [p]rogress of knowledge and learning”. From 1790 to 1994, Congress exercised its power to expand the duration and scope of copyright protection no fewer than 19 times and each time copyright protection and duration was extended, the works in the public domain were left intact. The entry of a work into the public domain must mark the end of the protection, not an intermission where it can rise again. Otherwise, the protection for a “Limited time” and the public domain is meaningless; there must be a fixed boundary for the public domain. Otherwise, such uncertainty negates the “progress of knowledge and learning.” The thrust of the argument comes down to this statement in the brief: “There is no legitimate interest in giving away public speech rights in the hope of creating private economic windfalls. In complying with Article 18 of Berne, there was no requirement to remove works from the public domain.

The US Government (Respondent) argued in their brief as follows (picture, right - US Solicitor General Donald Verrilli Jr.):

Section 514 is compliant with the Copyright Clause and the provision for protection for “Limited time”. This is because, copyright restored under Section 514 expired on the same day it would have expired if the work received copyright protection when it was first published. Section 514 did not restore copyright protection to foreign works whose term of protection expired. The AmeriKat notes that “Limited time” means that Congress cannot grant rights in perpetuity, not that Congress cannot extend protection to works that had entered the public domain due to lack of formalities, such as the author not being nationally eligible or that it means that once set a “limited time” becomes forever fixed or inalterable. The first federal copyright statute in 1790 granted copyright protection for works that had previously been open for public exploitation – to say that there has been a bright line drawn around the public domain, be it in copyright or patent law, is a misnomer. [The Amerikat says, “Cute, but given it was the first copyright statute, what was the alternative?] The traditional contours of copyright protection, as discussed in Eldred v Ashcroft, include the idea/expression dichotomy, the fair use defence and restriction of unauthorized exploitation of other peoples expression. In so far as Congress legislates pursuant to those traditional features, the First Amendment inquiry is essentially at an end.

Rushing to the aid of the plaintiffs’ public domain argument were over 15 amici briefs, including one by Google – always a fan of the public domain. A mere 8 amici briefs supported the Government’s position by the usual suspects – us intellectual property lawyers, trade associations, Hollywood organizations and the American Bar Association (ABA).

The Oral Arguments before the Supreme Court

Save for during her day job, there is nothing that entertains the AmeriKat more than incredibly intelligent judges really testing the limits of counsels' arguments. If you get a chance, the AmeriKat suggests you read the mere 56-page (double spaced) transcript of the oral arguments (here) because the transcript shows the Justices doing just that. If reading is not your thing, you can listen to the arguments here (click here for the Oyez page)

Given the dicta in Eldred, the Justices were resistant to the plaintiff's argument that "Limited time" was to be interpreted as being finite and inalterable. Justice Ginsburg made the point that a work cannot be held to have "Limited time" if it had no time at all because it wasn't being protected. It is no secret that the AmeriKat is a big fan of Justice Ginsburg (picture, left) (and her daughter Jane). A mere four pages into the transcript of the oral arguments before the Supreme Court confirmed her life-long admiration. As a little treat, the AmeriKat sets out her favorite extract:

JUSTICE GINSBURG: They didn't get the equivalent of what a U.S. author -- but let's take the large category, because it's the ones that you feature. You're talking about Shostakovich, Stravinski, and I say, well, what's wrong with giving them the same time that Aaron Copeland got?

MR. FALZONE: Congress has been setting the limited time at zero since 1790. In the 1790 Act, Congress set the limit at zero for a wide array of works, those that did not comply with formalities, those that were written by foreign authors -

JUSTICE GINSBURG: That's not a limited time. That's saying you have no time.

MR. FALZONE: Well, but saying you have no time is itself picking the limit because the language of
the Copyright Clause forces Congress to pick a limit that constrains copyright by marking its end. And when -- if a limit does not mark the end once reached, then there is no limit; there is no end.

JUSTICE GINSBURG: But it has to have a beginning, too. And that -- for these people who were unprotected, because we didn't recognize their copyright, there's no beginning.

MR. FALZONE: No, there does not need to be a beginning. It is within Congress's discretion. Remember, this is permissive. Congress may grant exclusive rights, but it can also say your limit is going to be zero; we decide that you're not going to get any exclusive rights.

The Justices, in particular Justice Sotomayor, seemed less than convinced that Section 514's effect was to negate the "progress of knowledge and learning", especially because there was evidence that the provision was enacted in order to progress the Copyright Clause by virtue of reciprocity protection in foreign countries. Counsel for the Government, Solicitor General Verrilli, stated that "what Section 514 does --514 is, in essence, the price of admission to the international system". Justice Scalia of course took issue with this and argued that either Congress was permitted to enact Section 514 under federal law and the Copyright Clause or they were not; no bearing should be placed on the fact that the Senate, the President and some foreign country agreed that the US needed to be in compliance with Article 18 of Berne. Counsel for the Petitioners picked up on Justice Scalia's (picture, right) point in rebuttal, and closed the oral arguments by saying:

"If government can get around First Amendment limits by signing a treaty....then the First Amendment is defined only by the perceptions, the complaints, and frankly, the imagination of foreign countries. That can't be the way it works."

Yikes....

Much of the interpretation by the Justices will have to come down to whether their decision in Eldred v Ashcroft enables Congress to enact legislation, such as Section 514, that changes the "Limited time" of protection afforded to authors. Do not forget, says the AmeriKat, it was Justice Ginsburg herself that delivered the opinion of the court in Eldred v Ashcroft (see here) - thus her particular interest in the plaintiffs' "Limited time" argument. Although the elasticity of "Limited time" (shoutout to Einstein) and how well fenced-in the public-domain is and should be under the Copyright Clause will be tested in this case, the AmeriKat would find it extraordinary if the Supreme Court were to find Section 514 unconstitutional given the international repercussions. Otherwise, if you don't like the menu you better leave the restaurant....