COPYRIGHT RESTORATION UNDER § 104A: RETHINKING COPYRIGHT LAW 'S FIRST AMENDMENT IMMUNITY

John Presper *

Copyright © 2002 by Connecticut Journal of International Law; John Presper

I. INTRODUCTION

A copyright is a property right that exists in an original work of authorship as soon as that work is fixed in a tangible medium of expression. 1 In addition to arising under American law, this property right is recognized in more than one hundred countries that are signatories of the Berne Convention for the Protection of Literary and Artistic W orks ("Berne Convention" or "Berne"), 2 the leading forum for international copyright protection. 3 As world markets have become globalized in recent years, the importance of copyright protection across international borders has increased greatly. 4 Major exporters of copyrighted works, such as the United States, have a particularly strong interest in international copyright protection that successfully eliminates the piracy and counterfeiting that occurs in countries with ineffective copyright laws. 5

The advent of the North American Free Trade Agreement (NAFTA) 6 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 7 that evolved out of negotiations for the General Agreement on Tariffs and Trade (GATT) 8 has initiated a new means of international copyright protection through the integration of copyright requirements into the framework of major trade-related multilateral agreements. 9 The purpose of the copyright provisions in NAFTA and TRIPS is to bring the relatively strict American copyright laws into conformity with their foreign counterparts. 10 To achieve this consistency, the United States has allowed the reinstatement to foreign citizens certain copyrights that have fallen into the public domain for "noncompliance with formalities ... including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements." 11 Specifically, NAFTA's copyright restoration provisions apply to works that are either motion pictures fixed or published in Canada or Mexico, or works included in such motion pictures. 12 Although the scope of these provisions is narrow, the potential constitutional ramifications of the changes in United States copyright law are widespread.

Effective since January 1, 1996, the copyright provisions in NAFTA and TRIPS, implemented in 17 U.S.C. § 104A, restore copyright status to works currently in the public domain and conflict with the long-standing tradition in the United States of maintaining the pool of readily available knowledge for the creation of new works. 13 Thus, the question naturally arises whether § 104A will withstand constitutional sc rutiny. First, removal of works from the public domain by the federal government will undoubtedly harm those parties who have made a substantial investment in the exploitation of such works. 14 Those parties may have a claim against the federal government for just compensation under the Takings Clause of the Fifth Amendment. 15 Secondly, because § 104A restores foreign citizens' copyrights but not those of American citizens that have fallen into the public domain for the same reasons, the statute may be challenged on equal

protection and due process grounds. 16 These two constitutional arguments have received attention from legal scholars and commentators, with most believing that the statute passes constitutional muster. 17 But restoring the copyright status of works already in the public domain and imposing royalty provisions on reliance parties who have created derivative works based on the restored work may raise First Amendment free speech issues as well. 18 Determining whether § 104A withstands a First Amendment challenge requires a fresh analysis of the internal safety valves that have largely immunized copyright from First Amendment scrutiny and, if applicable, the appropriate level of that scrutiny.

This note will give a background of United States copyright law and its relationship to international trade-based agreements, and then explore the First Amendment ramifications of the new § 104A that resulted from these agreements. Part I surveys the history of copyright law in the United States, with an emphasis on the formalities necessary for protection. Part II discusses the evolution of international copyright protection in trade-related multi- lateral agreements and the consequences for United States copyright law. Part III examines the constitutional ramifications of § 104A in terms of the First Amen dment right to free speech. This note concludes with the author's view that copyright's traditional exemption from First Amendment scrutiny should be rethought, and the copyright restoration provisions of § 104A do not necessarily comport with the free speech values embedded in the First Amendment.

II. HISTORY OF COPYRIGHT LAW AND FORMALITIES IN THE UNITED STATES

United States copyright law has its roots in the Constitution, which grants Congress the 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 W ritings and Discoveries." 19 The "limited times" language in the Copyright Clause derives from the Statute of Anne 20 passed in 1710 by the English Parliament, which departed from the traditional notion of perpetual copyright protection 21 and provided authors with an exclusive right to publish for 14 years and a possible 14-year renewal term if the author was still alive to exercise such an option. 22 Contrary to the wishes of the W orshipful Company of Stationers whose control over the printing industry in England since the mid-sixteenth century was slowly eroding, 23 the House of Lords ruled in favor of the fixed copyright terms of the Statute of Anne in 1774. 24

The Statue of Anne also influenced the U.S. Copyright Act of 1790, signed into law by President W ashington on May 31, 1790 as "An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of Such Copies, during the Times Therein Mentioned." 25 Like the Statute of Anne, the Copyright Act of 1790 granted protection for a term of 14 years with the possibility of a 14-year renewal term if the author was still alive to exercise such an option. Registration and publication of registration was required at the beginning of each term, but there was no requirement that copyright notice be affixed to s20 each copy of a work. The Act did not afford any protection to the works of foreign authors.

Copyright notice was not a requirement until an amendment to the Act in 1802 made failure to affix such a notice on all publicly distributed copies of a work grounds for immediate placement of the work into the public domain and forfeiture of all federal copyright protection. 26 The Act was

revised in 1831 to extend copyright protection to musical works and lengthen the initial copyright term to 28 years. 27 The renewal term remained unchanged at 14 years. The 1831 revision also simplified copyright notice and did away with the publication of registration requirement. 28

Foreign authors were first afforded copyright protection under U.S. law when the International Copyright Act was enacted on March 3, 1891. 29 This Act protected the authors of foreign works if (1) their country was a signatory to an agreement providing reciprocity of protection to American authors, (2) they complied with all the formalities of U.S. law, and (3) the foreign works were printed or typeset within the United States. 30

Copyright law remained essentially unchanged for the next 20 years until the Copyright Act of 1909 was enacted. The 1909 Act extended the renewal term from 14 to 28 years, providing protection for a total possible term of 56 years. 31 The Act also benefited authors by containing "provisions preventing forfeiture for accidental omission of notice." 32 The 1909 Act did not, however, do away with the formal requirements of notice and deposit, and foreign authors were still obliged to comply wi th these formalities in order to receive protection. 33 The continued adherence of U.S. copyright law to strict formalities led to severe criticism by authors, among them W illiam F. Patry who condemned the 1909 Act for "continu[ing] the lamentable American tendency of retaining the early-eighteenth-century English formalities long after the English had moved to a more continental approach. By doing so, the United States deliberately stood outside the international copyright community for almost 50 years ...." 34 Although the Copyright Act of 1909 underwent a major revision in 1976, it s till governs works published before January 1, 1978 and therefore remains relevant to current copyright protection in the United States. 35

By the mid-twentieth century Congress realized the importance of belonging to an international copyright organization and passed legislation in 1952 ratifying the Universal Copyright Convention (UCC), an alternative to the Berne Convention created under the "auspices of the United Nations Educational, Scientific, and Cultural Organization (UNESCO)" 36 to "accommodate the peculiarities of American copyright law." 37 United States copyright formalities were eased somewhat as a result. Specifically, citizens of signatory countries were no longer required to manufacture or deposit their works in the United States in order to receive U.S. protection. 39 Copyright notice was still required, however, in the form of the © symbol followed by the year and name of the claimant. 40

The Copyright Act of 1976 significantly revised the 1909 Act and represents the current state of copyright law in the United States. It governs all works created and fixed in a tangible medium of expression after its effective date of January 1, 1978, 41 as well as those created but not published before that date. The 1976 Act brought about the end of renewal terms for those works covered under the Act by adopting a single copyright term that lasts for the duration of the author's life plus 70 years. 42 As a result, the danger of post-1977 works falling into the public domain for failu re to file a renewal application no longer exists. The requirement of copyright notice continued under the Act, however, as did more liberal provisions for curing improper notice. 43

In 1988, the Copyright Act was amended so that notice finally became optional instead of mandatory. 44 Effective March 1, 1989, the 1988 amendment resulted from the long-overdue entry of the United States into the Berne Convention, which ended over a century of American

isolation from the mainstream of world copyright law. 45 The Berne Convention is a treaty that attempts to harmonize international copyright law among signatory nations. 46 Pursuant to Article 5 section 2 of Berne which states that "[t]he enjoyment and the exercise of these rights shall not be subject to any formality ...", 47 the United States eliminated copyright notice as a requirement for protection within its borders for works distributed after March 1, 1989. 48 This amendment went a long way towards relaxing copyright formalities in U.S. law. 49

The Copyright Act was amended again in 1992 to ease copyright formalities with regard to renewal applications. 50 The 1992 amendment removed renewal applications altogether as a requirement to preserve copyright protection for works published between January 1, 1964 and December 31, 1977. 51 The renewal term began automatically for these works.

The formalities in U.S. copyright law taken from old English law have gradually been chipped away over the years so that registration, deposit, renewal, and notice are no longer required to secure copyright protection. This shift and U.S. entry into Berne went a long way towards making the comparatively austere U.S. copyright laws consistent with those of foreign nations, but more meaningful steps were necessary to provide effective intellectual property protection across international borders.

III. EVOLUTION OF INTERNATIONAL COPYRIGHT PROTECTION IN TRADE AGREEMENTS AND THE CONSEQUENCES TO U.S. COPYRIGHT LAW

Until the drafting of TRIPS and NAFTA's Chapter 17, the Berne Convention acted as the principal forum for international copyright protection. 52 Signatory countries are required to enact national legislation that meets minimum standards of copyright protection for literary, musical, visual, cinematic, and architectural works. 53 This drive towards national treatment of copyright law is the centerpiece of Berne. The Berne Convention is now administered by the W orld Intellectual Property Or ganization (W IPO), a specialized agency of the United Nations that oversees multi-lateral treaties concerning intellectual property. 54 But while Berne was a crucial step towards harmonizing international copyright protection, it was far from perfect. The chief drawback among W IPO-administered treaties is the lack of dispute settlement mechanisms that carry any significant weight among participants. 55 According to Berne, for example, disputes that arise between two or more member countries may be resolved by the International Court of Justice. 56 This mechanism is completely optional, however, since countries may simply declare that they are not bound by the terms of the provision. 57 Moreover, even if the International Court of Justice rendered a judgment against a member nation for noncompliance with the Convention, any penalty imposed on that country is accepted voluntarily. 58 W hen industrialized nations that are large exporter s of intellectual property, such as the United States and Japan, attempted to achieve stronger protection under the auspices of the W IPO, their efforts were continuously thwarted by less-developed member countries of the W IPO voting consistently as blocs against such measures.59

Faced with opposition by countries with little interest in even-handed copyright protection, industrialized nations looked to trade-based agreements such as GATT as a forum in which

concerns about the treatment of intellectual property across international borders could adequately be addressed. 60 Dissimilar economic interests among member countries freed GATT of the voting blocs that plagued the W IPO and led to the introduction of intellectual property protection provisions into the Uruguay Round of the GATT negotiations by the United States in 1986. 61 Furthermore, GATT proposed more effective multi-lateral consultation and dispute resolution mechanisms than those afforded by the W IPO. 62 For example, disputing countries must first consult each other directly, after which, if necessary, an arbitral panel composed of representatives of the signatory nations will convene to resolve the dispute by issuing findings with which the parties are directed to comply. 63 Thus, over the objections of developing nations, a code of trade- related intellectual property provisions was included in GATT. This inclusion was attributable to the W IPO Director-General's concession that GATT in fact had jurisdiction over intellectual property protection, the bargaining power and strong-arm efforts of industrialized nations over less developed countries that resisted such an inclusion, and provisions in the resulting TRIPS agreement that give extra time for developing nations to implement the required standards of intellectual property protection. 64

The United States and the European Community began the TRIPS dialogue with notably different goals for the level of copyright protection that the agreement would incorporate. 65 European nations sought to include the Berne Convention provisions more or less in their entirety, 66 with additional protection for neighboring rights of performers, broadcasting organizations, and producers of sound recordings in their works. 67 The United States, on the other hand, proposed that the TRIPS agreement include only certain economic rights related to copyright and none of the moral or non-economic rights provided for in Berne. 68 Although the TRIPS draft submitted by GATT Director-General Arthur Dunkel arguably contained a compromise between the United States and European Community positions that included the protection of neighboring rights but not the moral rights required by Berne, 69 the draft ultimately adopted by participants in the Uru guay Round negotiations as TRIPS nevertheless incorporated nearly the entire Berne Convention directly into its copyright provisions. 70

The copyright provisions of NAFTA's Chapter 17 stem from Dunkel's draft as well. After the NAFTA negotiations between Canada, Mexico, and the United States intensified late in 1991, representatives from the three nations turned to the new Dunkel draft as a fresh basis for their own talks as they pertained to intellectual property protection. 71 The final text of NAFTA was signed on December 17, 1992. 72 Like TRIPS, NAFTA requires its signatories to subscribe to the substantive provisions of the Berne Convention. 73 Both NAFTA and TRIPS also incorporate Berne's requirement of a minimum term of protection for the life of the author plus fifty years. 74 Although NAFTA is less deferential to the Berne Convention than TRIPS since NAFTA's signatories were already members of Berne, 75 both agreements are substantively similar due to their common origins and Berne's strong influence.

W hile U.S. compliance with the Berne Convention kept works first published on or after March 1, 1989, from entering the public domain for lack of notice, 76 it did nothing for those works that had already entered the public domain as a result of the prior law. For this reason, NAFTA included language that obligated the U.S. to protect certain Canadian and Mexican motion pictures that had been injected into the public domain under pre-existing law. Specifically, Annex 1705.7 of NAFTA requires the U.S. to provide protection to motion pictures produced in Canada or Mexico

that have been declared to be in the public domain pursuant to 17 U.S.C. § 405. 77 Thus, Congress passed the NAFTA Implementation Act which added a new Section 104A to the Copyright Act which provides for the restoration of copyright for such works published between January 1, 1978 and March 1, 1989. 78 Authors seeking restoration were required to file a statement of intent to restore with the Copyright Office by December 31, 1994; 79 failure to file will bar a future infringement claim. 80 This narrow restoration provision represented the first incarnation of copyright resurrection in the U.S. and was effective for only one year following NAFTA's coming into force, expiring on December 31, 1994. 81

W here NAFTA obligated the U.S. to provide for the relatively limited copyright restoration of certain motion pictures, TRIPS's stricter adherence to the Berne Convention provoked a broader change in U.S. copyright law. 82 Under the Uruguay Round Agreements Act, 83 the U.S. enabling legislation for TRIPS, restoration is automatic for all eligible artistic works and does not require filing a statement of intent by the author. 84 Automatic restoration is conditioned, however, on three tests. First, a work must be an original work of authorship that is not in the public domain in its source country but in the public domain in the United States for failure to comply with U.S. copyright formalities, lack of subject matter protection if the work is a sound recording fixed before February 15, 1972, or lack of national eligibility if the work's source country had no copyright relations with the United States at the time of publication. 85 Second, at least one author or right holder must be a national or domiciliary of a Berne Convention or W orld Trade Organization (W TO) member nation when the work was created. 86 Third, any publication must have initially been in a Berne Convention or W TO country and cannot have been in the United States until more than thirty days after initial publication. 87 In order to minimize potential unfairness to reliance parties, anyone whose actions would constitute infringement prior to restoration is granted a one-year period of immunity from most infringement claims if the restored copyright holder provides the reliance party with notice of intent to enforce the copyright or files a notic e of intent with the Copyright Office. 88 Hence, reliance parties may exploit the restored work for twelve months following the receipt of actual or constructive notice in any manner except for reproduction. 89

The incorporation of copyright provisions into the framework of major trade-related multilateral agreements like NAFTA and TRIPS illustrates the ever-increasing importance placed on copyright by the international community and the lengths that major exporters of copyrighted works like the United States are willing to go in the hopes of achieving similar protection abroad. In the next Part, I will discuss the First Amendment ramifications of the new § 104A that was enacted as a result of these trade agreements.

IV. § 104A and The First Amendment

Copyright's limitation on speech has traditionally been exempt from First Amendment challenges. This exemption is strange given that courts have applied First Amendment scrutiny to a host of other bodies of law, including trademark, right of publicity, defamation, right of privacy, interference with business relations, intentional infliction of emotional distress, wiretapping, and occasionally property. 90 A chief reason for this atypical treatment is the time-honored idea/expression dichotomy embodied in copyright law, which holds that the expression of an idea

is copyrightable, but the idea itself is not. 91

A. The Idea/Expression Dichotomy

In 1879, the Supreme Court held in Baker v. Selden 92 that the copyright of the complainant's book explaining and exhibiting a peculiar system of bookkeeping did not confer upon him the exclusive right to make and use the account books necessary for such a system, noting that "whil[e] no one has a right to print or publish [complainant's] book ... any person may practice and use the art itself which he has described and illustrated therin." 93 Thus, by granting authors the exclusive right to their original expression but giving others free reign to build on the ideas contained in a wor k, copyright law serves both the goal of the First Amendment to provide freedom of speech and the objective of the Copyright Clause to "promote the Progress of Science and useful Arts ...." 94

This early resolution of the conflict between copyright and free speech found a modern champion in eminent copyright and First Amendment scholar Melville Nimmer, whose seminal article published in 1970 echoed the reasoning in Baker and its judicial progeny. 95 Nimmer concluded that copyright's idea/expression dichotomy and limited term of protection provide adequate protection for free speech values, given that speakers who wish to express themselves with words or images that are banned to them can almost always choose other words or images to express the same idea. Error! Reference source not found. Nimmer acknowledged that a speaker's inability to use the words or images of his or her own choosing despite the availability of numerous other means of virtually identical expression is still a burden on the speaker's free speech interests, but he believed nonetheless that copyright's idea/expression dichotomy, temporary duration, and incentive for speech creation should forestall any First Amendment limitations except in rare cases. 97

The First Amendment exemption that Nimmer supported for copyright made its way into case law fairly rapidly in the years following the publication of his article. Several district court opinions referenced Nimmer in their repudiation of free speech defenses to copyright infringement, holding that copyright does not implicate the First Amendment because copyright limits expression, not the communication of facts or ideas. 98 Nimmer was then cited, along with these district court decisions, by the Supreme Court in a footnote in Zacchini v. Scripps-Howard Broadcasting Co. 99 for the proposition that "[federal] copyright law does not abridge the First Amendment because it does not restrain the communication of ideas or concepts." 100 W hat has come to be called the "Nimmer exoneration" has since been cited and relied upon quite frequently, including in the 1985 Supreme Court case of Harper & Row, Publishers, Inc. v. Nation Enterprises, 101 where in holding that the plaintiff magazine's advance publication of excerpts from the m emoirs of former President Gerald Ford infringed the copyright thereon, the Court explained that "copyright's idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression. No author may copyright his ideas or the facts he narrates." 102

W hile commentators and case law appear to have accepted the adequacy of copyright's idea/expression dichotomy, crucial problems remain. It is not difficult to conceive of times where

speech will be less moving or convincing if the speaker is forbidden from copying existing expression. Nimmer recognized this shortcoming and initially believed it to be limited to news photographs, in which case his answer was to allow copying of the necessary speech if the speaker pays a licensing fee. 103 This problem is well illustrated by the case of Time, Inc. v. Bernard Geis Associates, 104 wh ere the famous Zapruder film that serendipitously captured the moment of President Kennedy's assassination was the center of a copyright-versus-free speech controversy between a university professor and Life Magazine. The defendant included frames of the film in his book critical of the W arren Commission's investigation and was sued for copyright infringement by Life, which had acquired rights to the film. W hile he obviously could have verbally summarized the facts conveyed by the copyrighted footage, such a description would surely lack the lucidity and poignancy of the film itself. The defendant successfully asserted the defense of fair use and thus was not found liable, but the case nonetheless demonstrates the usefulness of Nimmer's compulsory licensing proposal, particularly in situations where the four determinative factors for establishing fair use (character of the use, nature of the work that is copied, amount of work that is copied, and the effect that the use has on the market for the original) tilt in favor of the plaintiff.

Since publishing his 1970 article, Nimmer has conceded that a speaker's need to copy protected expression in order to effectively communicate a particular message might extend beyond news photographs. 105 It is not difficult to imagine how much less effective and useful a speaker's message would be to the intended audience if (s)he was prohibited from duplicating significant portions of various word combinations that are central to the idea being conveyed, whether they be from books, newsletters, magazine articles, unpublished letters, poems, or song lyrics. As the Supreme Court noted in Cohen v. California, 106 "we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." 107

In addition to those instances where a speaker copies a significant portion of another's copyrighted expression verbatim, the usefulness of the idea/expression dichotomy is even more suspect in situations where a speaker reframes existing expression using sizeable amounts of his or her own creative input. Such is the case with reliance parties implicated by § 104A who have created derivative works based on those foreign works that had previously lapsed into the public domain in the United States but have since been restored to the copyright owner under the new statute. A prime example is Dam Things From Denmark v. Russ Berrie & Co., Inc., 108 where an American manufacturer of troll dolls based on a Danish company's restored copyright claimed that their allegedly infringing product was in fact a derivative work that qualified for the safe harbor protection of § 104A. In such cases, the question of infringement hinges upon whether the defendant actually copied the plaintiff's copyrighted expression or merely incorporated unprotected facts or ideas that are present in the plaintiff's work because a copyright owner's exclusive right of reproduction is not limited to literal or near-literal copying, but extends to derivative works as well. 109 The fact that the work in question is admittedly based on the plaintiff's copyrighted work makes drawing the subtle line between idea and expression that much more difficult. The Third Circuit recognized this problem when it vacated and remanded the district court's preliminary injunction in Dam Things for failing to properly assess the derivative nature of the allegedly infringing doll. 110

The idea/expression dichotomy does not always provide an equitable resolution of the conflict between copyright and free speech values. Situations arise like those described above that necessitate the copying of existing expression. Other copyright doctrines such as fair use purport to adequately address these concerns. The fair use doctrine, however, requires an open-ended, case- by-case analysis based on four nonexclusive factors that often result in the same kind of unprincipled and inconsistent application that plagues the idea/expression dichotomy (a subject not attended to here and perhaps worthy of another entire article). In any case, the inevitable conclusion is that the First Amendment protection afforded by copyright's traditional internal safeguards is uncertain at best. It is against this backdrop that a First Amendment analysis of a copyright restoration provision such as § 104A should be undertaken.

B. The Category-Based Approach to Standards of Review Under the First Amendment

The last few decades have seen the surfacing of a category-based approach to standards of review for legislation that burdens speech, 111 an approach that has come to play a vital role in First Amendment jurisprudence. 112 W hen considering whether a government regulation violates the First Amendment, courts commonly place both the speech and the regulation in question into a pre-established category and then utilize a test of constitutionality that is specific to that particular cat egory. This analysis is made up of a two-part process. First, a court asks whether the regulation meets the threshold for First Amendment scrutiny, which is a necessary step because not all speech-burdening regulation is considered to raise First Amendment issues that call for a heightened level of judicial scrutiny. 113 Then, if the regulation in question meets the threshold for First Amendment scrutiny, courts will determine whether it is a content- based or content-neutral speech-restriction. If the regulation is content- based, then it is typically subject to strict judicial scrutiny. 114 A notable exception to this practice is certain "low-value" speech, particularly obscenity and false statements of fact that are seen to have little or no First Amendment value. 115 If, on the other hand, the regulation is deemed to be a content-neutral speech restriction, then it is subject to some level of intermediate judicial scrutiny. 116 This determination is usually dispositive of the case because, the aforementioned exception of "low- value" speech notwithstanding, content-based regulations are rarely upheld. 117

The distinction between content-based and content-neutral regulations is fundamental to the category-based approach. Content-based regulations place burdens on speech that has some perceived communicative impact. 118 Such regulations seek to suppress the expression of a particular viewpoint or the discussion of ill-favored subject matter. 119 Content-based restrictions on speech receive strict judicial scrutiny because of the underlying presumption that the government is limiting sp eech in a way that offends our understanding of the government's proper role in a democratic society, which has traditionally been to act in a neutral capacity in citizen's public discourse.

Content-neutral regulations, on the other hand, place limitations on expression regardless of the speaker's point of view or the subject matter being conveyed. 120 These kinds of regulations typically restrict the time, place, and manner of speech. Examples of content-neutral regulations include laws that prohibit the posting of signs on public property, impose limitations on when and where individuals may assemble publicly, or ban the use of billboards or sound trucks in

residential communities. 121 Content- neutral restrictions do not raise the same suspicions of an inappropria te government motive to suppress certain viewpoints and attitudes that are raised by content-based restrictions 122 because content-neutral regulations generally serve some kind of nonspeech purpose, such as property management or maintaining a comfortable noise level in a residential neighborhood. 123 Thus, they are not seen to pose as much of a danger to free expression as content-based regulations and accordingly receive a lower level of judicial scrutiny. The exact nature of this lower-level scrutiny content-neutral restrictions are to receive is an open question, however. Most courts refer to such scrutiny as "intermediate scrutiny." 124 But "intermediate" has become a somewhat amorphous term since courts have applied a variety of constitutional tests to content-neutral speech restrictions, ranging from fairly demanding to more deferential to speech-burdening regulations. 125 The kind of test applied to a content-neutral speech regulation depends largely on a further sub-categorization of that regulation. For exa mple, the Supreme Court recently stated in Bartnicki v. Vopper 126 that a content-neutral regulation outlawing the publication of truthful, lawfully obtained information must withstand a test that applies a rigorous standard to both the purported objective and the factual foundation of the prohibition. 127 By contrast, the Supreme Court has applied a much more deferential constitutional test in cases involving various time, place, and manner restrictions. 128

C. Applying the First Amendment Category-Based Approach to § 104A

So how does this analytical framework apply to § 104A? The first step is to determine whether the copyright restoration provision meets the threshold of First Amendment scrutiny. Following the aforementioned "Nimmer exoneration," courts have almost universally held provisions of Title 17 to be categorically immune from such scrutiny. This unqualified exemption is not necessarily justified, however, given that First Amendment scrutiny has been applied to a host of other bodies of law. 129

As previously mentioned, the idea/expression dichotomy is often held out as an adequate substitute for First Amendment scrutiny. Also previously discussed were the difficulties in applying such a model in a fair and effective manner. But what's more is the fact that courts have regularly placed First Amendment limitations on other intellectual property rights that contain a built-in means of protecting free speech interests. A good example is trademark law, the sine qua non of which is the likelihood of confusion requirement that purports to protect the free speech interests of would-be infringers. 130 In Dallas Cowboy Cheerleaders, Inc. v. Pussycat Cinema, Ltd., Error! Reference source not found. the Second Circuit utilized the heightened level of scrutiny of the "adequate alternative avenues of communication" test to affirm a finding for the plaintiff in a trademark infringement suit despite the defendant movie theater's free speech defense. 132 Although the free speech argument lost, the case illustrates how trademark rights have been subject to First Amendment scrutiny. So why should copyright be treated any differently?

It has also been implied that copyright law's origination in the Patent and Copyright Clause of the Constitution renders it immune from First Amendment scrutiny. 133 The Bill of Rights was ratified in 1791, so goes the argument, only two years after the ratification of the Constitution. But while the short time span between the ratification of the Constitution and the Bill of Rights may hint that the Framers did not intend for the First Amendment to render copyright unconstitutional

per se, it would be a mistake to assume that the First Amendment has no effect on copyright law whatsoever. Once again, the First Amendment has had its "say" in other areas of law derived from Congress' enumerated powers under the Constitution, including the punishment of counterfeiters 134 and the operation of a post office. 135

Now that we have formed a basis for subjecting copyright provisions such as § 104A to First Amendment scrutiny, the next step is to determine whether it is a content-based or content-neutral regulation. At first glance, it seems to appear that § 104A is content-based because one is liable for infringement based on the contents of the work in question and its similarity to the plaintiff's restored work. Indeed, there is some support among legal scholars for treating copyright law in general as content-based regulation. 136 But while liability under § 104A turns on the content of a reliance party's work, it is misleading to characterize copyright restoration as a content-based restriction. As previously noted, the underlying rationale behind classifying a regulation as content-based is the suspicion raised that the government is improperly suppressing speech based on subject matter or point of view. 137 Such is not the case with § 104A. The perceived rationale behind the copyright restoration provisions of NAFTA that led to the codification of § 104A was the hope that by retroactively granting copyright status to those owners of certain foreign (i.e., Canadian and Mexican) works that had lapsed into the public domain for failure to comply with the comparatively rigorous formalities of this country, the United States would garner support among these governments for the enforcement of the vast number of American copyrighted works now being exported and in the process bring domestic copyright formalities into conformity with their foreign counterparts. 138 Thus, § 104A does not discriminate based on the message being conveyed or seek to control the topics of public discourse and therefore falls into the content- neutral category.

According to the category-based approach, a content-neutral regulation is subject to an intermediate standard of review. The Supreme Court laid out a three-pronged intermediate scrutiny test for "time, place, and manner" restrictions in W ard v. Rock Against Racism. 139 Under the W ard test, such content-neutral regulations will be upheld if they (1) "are justified without reference to the content of the regulated speech," (2) "are narrowly tailored to serve a significant governmental interest," and (3) "leave open ample alternative channels for communication of the information." 140 This and similar tests are highly deferential to government action and often result in the regulation being upheld. 141 Copyright restoration under § 104A, however, is not a "time, place, or manner" restriction. Instead, it is, as Professor Netanel asserts of copyright in general, a form of speech entitlement that the government assigns to foreign copyright holders whose works have fallen into the public domain. 20 142 Such entitlements include the rights to control what is expressed through a given channel of communication, to access prospective audiences, and to control the uses of particular expressive content. 143 Although the government gives such entitlements without regard to the viewpoint or subject matter being expressed, it is nevertheless seeking to further content-neutral interests by favoring one class of speaker over another and such regulations should therefore be scrutinized at a higher level than is ordinarily the case with "time, place, and manner" restrictions under the W ard test. 144

A leading example of the application of this heightened intermediate scrutiny to speech entitlements is Turner Broadcasting System, Inc. v. FCC. 145 That case involved a First

Amendment challenge brought by members of the cable television industry against the constitutionality of must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992 that required cable operators to carry local broadcast stations. In remanding the case for consideration of whether the must-carry provisions were reasonable in light of the totality of the evidence, the Supreme Court defined the regulation as content-neutral and applied the W ard test with uncharacteristic force . The Court required the government to show "that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry." 146 Furthermore, the Court held that the government "bears the burden of showing that the remedy it has adopted does not 'burden substantially more speech than is necessary to further the government's legitimate interests."' 147 And although it ceded "substantial deference" 148 to congressional motives, the Court stressed that such deference does not preclude its own "independent judgment of the facts" when considering First Amendment challenges. 149

On appeal from remand, the Supreme Court upheld the constitutionality of the must-carry provisions of the Act. However, the decision has not stopped lower courts since Turner from applying similar rigorous "intermediate scrutiny" to other content-neutral regulations that discriminate between media or classes of speakers. In Horton v. City of Houston, 150 the Fifth Circuit reversed and remanded a district court decision upholding the validity of a cable company's fee requirement for non-locally produced programs, holding instead that although the cable company's fee requirement was a content-neutral regulation which implemented a significant governmental interest in promoting loca lism, the cable company failed to meet its burden of proving that the fee was narrowly tailored to serve that interest. 151 In so doing, the Fifth Circuit explained that "[t]he directions presently available ... from the Supreme Court appear to require a standard less than that of strict scrutiny for [the cable company's] non-locally-produced fee rule, but they also require attention to the details of intermediate scrutiny. Regulations like this one which burden protected speech are not to be rubber-stamped." 152 Likewise, in Time W arner Entertainment Co., L.P. v. FCC, 153 the D.C. Circuit reversed and remanded a district court decision allowing FCC regulations that imposed limits on the channel capacity that large cable companies can assign to affiliate programmers, holding that the FCC had not presented substantial evidence that the collusion which instigated the regulations had in fact occurred or was likely to occur, nor had it justified the limitation as not burdening substantially more speech than necessary. 154 Thus, the Turner decision and its lower court progeny appear to stand for the application of a re-energized form of intermediate scrutiny to content-neutral speech entitlement regulations.

Applying this heightened intermediate scrutiny to § 104A yields problems for the government in the copyright context as well. First, the regulation must further an "important or substantial government interest." 155 The governmental interest behind § 104A, and the Copyright Act in general, is derived from the Con stitution. The Copyright Clause authorizes Congress to grant to authors exclusive rights in their writings for limited time periods in order to "promote the Progress of Science and useful Arts." 156 The Supreme Court has yet to depart from this utilitarian spirit, having consistently held that the purpose behind copyright law is to encourage the production of and dissemination of original expression for the accumulation of public knowledge. 157 So any provision of the Copyright Act that does not serve this fundamental purpose is not likely to further an important or substantial government interest. It is doubtful that copyright restoration under § 104A serves such a purpose. § 104A's primary beneficiaries are the owners of copyrights in

Canadian and Mexican motion pictures that have fallen into the public domain for failure to comply with U.S. copyright formalities. 158 New authors will not benefit at all from § 104A's restoration of existing copyrights. Indeed, the only plausible justifications for § 104A is that the amendment aims to benefit copyright holders by harmonizing U.S. copyright formalities with those of other nations, 159 and maybe improve foreign relations in the process. Since these goals do not serve the fundamental, if not sole, legitimate governmental interest for enacting copyright legislation, which is to provide an incentive for t he creation of new expression, it is unlikely that the first prong of heightened intermediate scrutiny under Turner as applied to copyright law is satisfied.

The requirement that the regulation be narrowly tailored such that it burdens no more speech than "is essential to the furtherance of that interest" 160 is not likely to pose much of threat to § 104A. In order to qualify for copyright restoration, a work must be either (1) a motion picture that is first fixed or first published in Canada or Mexico, or (2) any work included in such motion picture that is first fixed or first published with that motion picture. 161 It is unlikely that a narrower character requirement could be drafted that would accomplish the same governmental interest, assuming arguendo that the goal of harmonizing U.S. copyright law with that of other nations passes muster under the first prong. One could argue that because the letter of the NAFTA text only requires protection for motion pictures, 162 § 104A burdens more speech than is necessary since § 104A(a)(2) extends the restoration provision to other types of works first fixed or published in a qualifying motion picture as well (e.g., a novel or play on which the motion picture was based, or the motion picture's original screenplay, or the musical score featured on the motion picture's soundtrack). 163 But such works that are related to a motion picture typically are first published and protected under copyright along with the motion picture itself; so it would be inconsistent to extend copyright restoration only to a motion picture but not to its related works. 164

In order to qualify for copyright restoration, a work must also have entered the public domain in the United States because it was first published on or after January 1, 1978 and before March 1, 1989 without the copyright notice required during that time by § § 401-403, the absence of which has not been excused by the operation of § 405. 165 This eleven-year window covers the time period between the enactment of the 1976 Copyright Act and the date th e Berne Convention took effect in the United States, after which publication without proper notice no longer forfeited U.S. copyrights. Congress specifically meant to limit copyright restoration to only those works which had lost protection under the 1976 Act 166 and therefore could not have narrowed the timing requirement any further.

The alternative channels for communication requirement in the copyright context poses a dilemma akin to the problem of the inadequacy of the idea/expression dichotomy discussed previously. The core question is whether the subject matter of a copyright restored under § 104A can be effectively communicated through other means. In one sense, only the particular expression now protected by the restored copyright is off limits, leaving the underlying idea free for all to use creatively in other ways. On the other hand, a restored copyright that removes crucial expression from the public domain may make any subsequent attempts at similar expression woefully inadequate. This prong of intermediate scrutiny has routinely been applied to statutes restricting typical free speech activities like picket ing 167 and distributing leaflets, 168 but not to copyright law due to its traditional First Amendment exemption. 169 If applied to copyright, the alternative

channels of communication requirement may also pose a problem for the government since the courts will have already determined t hat internal safety valves such as the idea/expression dichotomy do not adequately prevent copyright law from unnecessarily burdening free speech.

In sum, § 104A is highly vulnerable to a facial First Amendment challenge because the governmental interest behind the enactment will not satisfy the first, nor possibly the third prong of the heightened intermediate scrutiny test as applied to government speech entitlement regulations under Turner. Implicit in this proposition is the notion that the categorical immunity enjoyed by copyright is undeserved and should be set aside.

D. Eldred v. Reno

On February 19th of this year, the Supreme Court granted certiorari to hear Eldred v. Reno. 170 Opening briefs were filed with the Court on May 20th, with arguments to be heard sometime this fall and a decision handed down next spring. The appellants are a group of archivists and publishers of public domain material who filed a complaint seeking to enjoin then Attorney General Janet Reno from enforcing the Sonny Bono Copyright Term Extension Act (CTEA) 171 on the grounds that the CTEA violates the First Amendment. 172 The CTEA extends the copyright term for an additional 20 years and applies retrospectively to existing copyrights as well as to works created after the Act comes into force. 173 Both the district court and D.C. Circuit have dismissed the plaintiffs' First Amendment claims. 174 In doing so, the D.C. Circuit followed in the erroneous footsteps of other courts by citing Nimmer's "definitional balance" for the proposition that "copyrights are categorically immune from challenges under the First Amendment." 175 It is now up to the Supreme Court to decide whether copyright's traditional, mistaken exemption from First Amendment challenges will continue, or the holdings of Eldred v. Reno will be overturned and copyright law will be subject to the same rigorous scrutiny that courts apply to other content-neutral allocations of speech entitlements to private parties. Should the CTEA be found to violate the First Amendment, an identical challenge to § 104A will not be far behind.

V. CONCLUSION

The globalization of world markets has greatly increased the need for international copyright protection. Until relatively recently, the rigid formalities embedded in U.S. copyright law stood in stark contrast to those of foreign nations. Congress attempted to close the gap by implementing the copyright stipulations in Chapter 17 of NAFTA, the result of which is the copyright restoration provisions enacted under 17 U.S.C. § 104A. Despite what may be the benevolent intentions of the federal government to lessen the effect that strict U.S. copyright formalities have had on works imported from our northern and southern neighbors, copyright restoration goes against the long-standing American trad ition of maintaining the store of public knowledge for the creation of new works and should therefore be viewed with skepticism.

Copyright restoration under § 104A provides the opportunity to rethink the persistent yet undeserved judicial exemption of copyright from First Amendment scrutiny. Traditional safety valves like the idea/expression dichotomy have proven inadequate to the task of dispelling First

Amendment concerns about copyright's free speech burdens. The time has come to subject copyright law to First Amendment scrutiny and treat it as a type of content- neutral speech restriction that warrants the heightened intermediate scrutiny that has been applied to other government speech entitlement regulations. This heightened intermediate scrutiny should place the burden on the government to show that copyright restoration under § 104A is narrowly tailored to further the fundamental utilitarian goal of copyright, which is to promote the progress of science and the arts by providing an incentive for the creation and propagation of original expression. If so applied, then First Amendment scrutiny will find that § 104A poses an impermissible burden on free speech.

*. J.D., University of Connecticut, expected 2003; B.S., Bucknell University, 1997. I would like to thank Professor Lewis Kurlantzick for his insight and assistance. Any errors or omissions are entirely my own, although every effort will be made to blame Professor Kurlantzick. This article is dedicated to my father, Dr. John H. Presper, who hasn't held it against me that I wanted to become a lawyer.

1. 17 U.S.C. § 102(a) (2002).

2. Berne Convention for the Protection of Literary and Artistic W orks, Sept. 9, 1886, revised Paris, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 [hereinafter Berne Convention].

3. EDMUND W . KITCH & HARVEY S. PERLMAN, INTELLECTUAL PROPERTY AND UNFAIR COMPETITION 536 (5th ed. 1998) [hereinafter KITCH & PERLMAN].

4. See Anne Moebes, Negotiating International Copyright Protection: The United States and European Community Positions, 14 LOY. L.A. INT'L & COMP. L. REV. 301, 301 (1992).

5. Cf. Christopher Kent, The Uruguay Round GATT TRIPS Agreement & Chapter 17 of the NAFTA: A New Era in International Intellectual Patent Protection, 10 CAN. INTELL. PROP. REV. 711, 712 (1994) (noting that the United States lost approximately $23.8 billion in 1986 due to the alleged inadequacy of international intellectual property protection).

6. North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.- U.S., 32 I.L.M. 289 [hereinafter NAFTA].

7. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, GATT Doc. MTN/FA II-A1C (Dec. 15, 1993), reprinted in 33 I.L.M. 81

(1994) [hereinafter TRIPS].

8. General Agreement on Tariffs and Trade, opened for signature Oct. 30, 1947, 61 Stat. A3, 55 U.N.T.S. 187 (the Uruguay Round of GATT negotiations concluded in December 1993).

9. Martin D.H. W oodward, Comment, TRIPS and NAFTA's Chapter 17: How W ill Trade-Related Multilateral Agreements Affect International Copyright?, 31 TEX. INT'L L.J. 269, 270 (1996).

10. See Thomas Gordon Kennedy, GATT-Out of the Public Domain: Constitutional Dimensions of Foreign Copyright Restoration, 11 ST. JOHN'S J. LEGAL COMMENT. 545, 545 (1996).

11. 17 U.S.C. § 104A(h)(6)(C)(i) (2002).

12. Jonathan D. Reichman & Joshua R. Bressler, Entertainment Update, Copyright After NAFTA (pt. 2) N.Y. L.J., Nov. 4, 1994, at 5.

13. Kennedy, supra note 10, at 545-46.

14. See 17 U.S.C. § 104A(h)(4)(A) (2002) (defining "reliance party" as any person who continues to use a restored work after it is restored to its foreign owner). It should not be overlooked that the removal of works from the public domain also has adverse effects on those who presently have not made an investment in them, namely through royalty and transaction costs that reduce access and limit the use of such works as building blocks for future creations.

15. See U.S. Const. amend. V ("nor shall private property be taken for public use, without just compensation.").

16. See U.S. Const. amend. V (providing that "No person shall be ... deprived of life, liberty, or property, without due process of law."); U.S. Const. amend. XIV § 1 (providing that "No state shall ... deny to any person within its jurisdiction the equal protection of the laws.").

17. See generally sources cited supra notes 10, 12.

18. See U.S. Const. amend. I (providing that "Congress shall make no law ... abridging the freedom of speech"); Adam P. Segal, Zombie Copyrights: Copyright Restoration Under the New §

104A of the Copyright Act, 13 Santa Clara Computer & High Tech. L.J. 71, 94 (1997).

19. U.S. Const. art. I, § 8, cl. 8.

20. An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, During the Times Therein Mentioned, 8 Anne, c. 19 (1710).

21. See 1 W ILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 3-4 (1994) (noting that the earliest copyrights were not statutorily created and thus were not limited by fixed terms).

22. Id. at 11.

23. Id. at 8-11.

24. See Donaldson v. Becket, 98 Eng. Rep. 257 (H.L. 1774).

25. Act of May 31, 1790, ch. 15, 1 Stat. 124 (repealed 1802).

26. 1 PATRY, supra note 21, at 36-38.

27. Act of February 3, 1831, ch. 16,4 Stat. 438.

28. Segal, supra note 18, at 76.

29. 1 PATRY, supra note 21, at 48-50.

30. Id. at 48.

31. Id. at 59.

32. 1 PATRY, supra note 21, at 59.

33. Id. at 59-60.

34. Id. at 61.

35. Segal, supra note 18, at 76-77.

36. 3 DAVID NIMMER & MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 17.01[C] [1][a] (1995).

37. Ancel W . Lewis, Jr. et al., Recent Developments in Copyright Law: The Berne Convention, 22 COLO. LAW . 2525 (1993).

38. 1 PATRY, supra note 21, at 68-69.

39. Segal, supra note 18, at 76.

40. 1 PATRY, supra note 21, at 69.

41. 17 U.S.C. § 102 (2001).

42. 17 U.S.C. § 302(a).

43. 17 U.S.C. § 405. See also 1 PATRY, supra note 21, at 89.

44. 1 PATRY, supra note 21, at 100.

45. KITCH & PERLMAN, supra note 3, at 542.

46. See Moebes, supra note 4, at 303.

47. Berne Convention, supra note 2, art. 5 (2).

48. The changes in American law made in order to conform to the requirements of the Berne Convention were made by the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988).

49. Segal, supra note 18, at 78.

50. PATRY, supra note 21, at 108-09.

51. See 17 U.S.C. § 304 (2002).

52. See Monique L. Crodray, GATT v. W IPO, 76 J. PAT. & TRADEMARK OFF. SOC'Y 121, 124 (1994).

53. See Moebes, supra note 4, at 303.

54. See Kent, supra note 5, at 714.

55. See id.

56. Berne Convention, supra note 2, art. 33(1).

57. Id. art. 33(2).

58. See Cordray, supra note 52, at 132.

59. Id. at 137.

60. W oodward, supra note 9, at 272.

61. Id.

62. Kent, supra note 5, at 716-17.

63. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Dec. 15, 1993, Understanding on Rules and Procedures Governing the Settlement of Disputes, 33 I.L.M. 112 (1994).

64. W oodward, supra note 9, at 273.

65. Id.

66. Guidelines and Objectives Proposed by the European Community for the Negotiations on Trade-Related Aspects of Substantive Standards of Intellectual Property Rights, pt. III(D)(3)(c.1), GATT Doc. MTN.GNG/NG11/W /26 (July 7, 1988).

67. Id. pt. III(D)(3)(c.2).

68. Suggestion by the United States for Achieving the Negotiating Objective -- Revision, pt. III (C), GATT Doc. MTN.GNG/NG11/W /14 Rev. 1 (Oct. 17, 1988).

69. Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Annex III, GATT Doc. MTN.TNC/W /FA (Dec. 20, 1991).

70. See TRIPS, supra note 7, art. 9(1), requiring the compliance of signatories with arts. 1 through 21 and the Appendix of the Berne Convention. "However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom." Id.

71. RICHARD B. NEFF & FRAN SMALLSON, NAFTA: PROTECTING AND ENFORCING INTELLECTUAL PROPERTY RIGHTS IN NORTH AMERICA 8 (1994).

72. Id. The relative speed of NAFTA's approval one year before the Uruguay Round negotiations that produced TRIPS is largely attributable to the fact that NAFTA only had to be agreed upon by three countries.

73. See NAFTA, supra note 6, art. 1701(2)(b).

74. See Berne Convention, supra note 2, art. 7(1).

75. W oodward, supra note 9, at 275. NAFTA's copyright provisions only specifically incorporate that section of Berne defining the scope of protected works. NAFTA also requires its signatories to provide rights not explicitly included in Berne, such as the right to the first public distribution of an original or copy of a work. See NAFTA, supra note 6, art. 1705(2)(b).

76. See supra text accompanying notes 44-49.

77. 17 U.S.C. § 405 as originally enacted provides in part that the omission of copyright notice does not invalidate the copyright in a work if (1) the notice has been omitted from no more than a relatively small number of copies distributed to the public, (2) registration for the work has been made before or is made within five years after the publication without notice to all copies that are distributed to the public in the United States after the omission has been discovered, or (3) the notice has been omitted in violation of an express requirement in wri ting that, as a condition of the copyright owner's authorization of the public distribution of copies, they bear the prescribed notice.

78. NAFTA Implementation Act of 1993, Pub. L. No. 103-182, § 334(a), 107 Stat. 2057, 2115 (1993) [hereinafter NAFTA Implementation]; Arthur I. Navarro, Recent Development: Selected Recent Developments in Copyright, 3 TEX. INTELL. PROP. L.J. 107, 113 (1995).

79. NAFTA Implementation, supra note 78, § 334(b), 107 Stat. at 2115.

80. See Hoepker v. Kruger, 200 F.Supp. 2d 340 (holding that a photographer who failed to comply with the notice provision of the 1994 amendment to the Copyright Act for restoring the expired U.S. copyright to his German-published photo cannot recover for infringement).

81. NAFTA Implementation, supra note 78.

82. See supra note 75 and accompanying text.

83. Pub. L. No. 103-465, 108 Stat. 4809 (1994).

84. W oodward, supra note 9, at 282.

85. Id. at 282-83; 17 U.S.C. § 104A(h)(6)(A)-(C) (2001).

86. W oodward, supra note 9, at 283; 17 U.S.C. § 104A(h)(6)(D), (h)(3) (2001). The law of the source country will determine copyright ownership.

87. W oodward, supra note 9, at 283; 17 U.S.C. § 104A(h)(6)(D)(h)(3) (2001).

88. W oodward, supra note 9, at 283; 17 U.S.C. § 104A(c), (d)(2)(A)- (B) (2001).

89. W oodward, supra note 9, at 283.

90. Neil W einstock Netanel, Locating Copyright W ithin the First Amendment Skein, 54 STAN. L. REV. 1, 7 (2001).

91. See 17 U.S.C. § 102(b) (2001) (stating that copyright does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."). The fair use doctrine is also a contributing factor to copyright's traditional exemption from First Amendment scrutiny, but is not discussed here. See 17 U.S.C. § 107 (2001).

92. 101 U.S. 99 (1879).

93. Id. at 104.

94. U.S. Const. art. I, § cl. 8. See also United Video, Inc. v. FCC, 890 F.2d 1173, 1191 (D.C. Cir. 1989) (in rejecting the first amendment aspect of cable companies' petition for review of an FCC regulation providing that the supplier of a syndicated television program could agree to the program being broadcast exclusively by a single station in a broadcast area, the D.C. Circuit noted that "[a]lthough there is some tension between the Constitution's copyright clause and the first amendment, the familiar idea/exp ression 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."); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340,

349-50 (1991) (citing the fundamental objectives of copyright law laid out in Art. I, § 8, cl. 8 of the Constitution).

95. Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV. 1180, 1186-1204 (1970); see also Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 CAL. L. REV. 283, 289-99 (1979).

96. Nimmer, supra note 95, at 1193-2000.

97. See id. at 1192. Nimmer argued that because copyright is of limited duration, the First Amendment should trump copyright only with regard to news photographs, and then only by imposing a compulsory license, not allowing free use. His contention was that the visual impact of photographs, such as those of the Kennedy assassination and My Lai massacre, make "a unique contribution to an enlightened democratic dialogue," a contribution which expresses ideas that are not susceptible to adequate verbal description. See id. at 1197-99.

98. See, e.g., Jondora Music Publ'g Co. v. Melody Recordings, Inc., 362 F. Supp. 494, 499 (D.N.J. 1973) (holding that writ of seizure issued ex parte raises no First Amendment issue); W alt Disney Prods. v. Air Pirates, 345 F. Supp. 108, 115-16 (N.D. Cal 1972), aff'd in part, 581 F.2d 751 (9th Cir. 1978) (rejecting First Amendment defense for counterculture comic book parody, holding that defendants did not need to copy plaintiff's expression to express their message); Robert Stigwood Group Ltd. v. O'Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972) (holding that preliminary injunction against priests' performance of copyrighted song does not violate the First Amendment).

99. 433 U.S. 562 (1977).

100. Id. at 577 n. 13. This more concise form of Nimmer's exemption of copyright from First Amendment scrutiny makes no mention of Nimmer's recognition that copyright does in fact impose some burdens on speech.

101. 471 U.S. 539 (1985).

102. Id. at 556.

103. See supra note 97 and accompanying text.

104. 293 F. Supp. 130 (S.D.N.Y. 1968).

105. 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.10(D) (2002) (noting instances in which "vital news elements will be lost unless the exact language can be quoted").

106. 403 U.S. 15 (1971). In a free-speech case that did not involve copyright law, Cohen was charged and convicted of disturbing the peace for entering a courthouse while wearing a jacket exhibiting the words "Fuck the Draft." Incidentally, Melville Nimmer represented Cohen pro bono in his successful appeal before the Supreme Court.

107. Id. at 26.

108. 290 F.3d 548 (3rd Cir. May 14, 2002).

109. This right originates from language in the Copyright Act of 1870, which provides that "authors may reserve the right to dramatize or to translate their own works." Act of July 8, 1870, ch. 230, § 86, 16 Stat. 212 (1871). The Copyright Act of 1909 added the right to make adaptations and other versions of certain types of original works. See Act of March 4, 1909, ch. 320, § 1 (b), 35 Stat. 1075. This right was expanded again when the Copyright Act of 1976 gave authors the exclusive right to prepare derivative works based upon any type of copyrighted work. See 17 U.S.C. § 106(2) (2002). "Derivative work" is broadly defined to include "a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted." Id. at § 101.

110. Dam Things, 290 F.3d 548, at *564.

111. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 W M. & MARY L. REV. 189, 189 (1983) (noting that the categorization of speech-burdening regulation into content-based and content- neutral is now "the most pervasively employed doctrine in the jurisprudence of free expression").

112. See DANIEL A. FARBER, THE FIRST AMENDMENT 21 (1998) ("The content distinction is the modern Supreme Court's closest approach to articulating a unified First Amendment doctrine.").

113. Regulation of verbal activity and general conduct regulations that impose only incidental restrictions on speech are not deemed to be the subject of heightened scrutiny under the First Amendment. See generally Frederick Schauer, Cuban Cigars, Cuban Books, and the Problem of Incidental Restrictions on Communications, 26 W M. & MARY L. REV. 779, 787-89 (1985).

114. See Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (laying down the standard for strict scrutiny) (quoting Arkansas W riters' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)).

115. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988).

116. See, e.g., Bartnicki v. Vopper, 200 F.3d 109, 121 (3d Cir. 1999), aff'd, 121 S. Ct. 1753 (2001) (repeating the ruling of the initial panel that "the ... wiretapping statutes are 'content neutral' and therefore subject to 'intermediate scrutiny"').

117. See Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 48 (1987) [hereinafter Stone].

118. See United States v. Eichman, 496 U.S. 310, 317 (1990) (holding that a law prohibiting any physical harm to the flag except for disposal of damaged flags was a content-based regulation because the law "suppresses expression out of concern for its likely communicative impact" despite the government's interest in preserving the flag as a national symbol).

119. See, e.g., Reno v. ACLU, 521 U.S. 844, 844 (1997) (holding that a statute prohibiting the sending of sexually explicit material over the internet was impermissibly content-based).

120. See Stone, supra note 117, at 48.

121. See, e.g., Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (upholding a restriction on decibel levels as a reasonable time, place, and manner restriction).

122. See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 445- 47 (1996).

123. See generally Kovacs v. Cooper, 336 U.S. 77 (1949).

124. See supra note 116.

125. See Nixon v. Shrink Missouri Gov't PAC, 120 S. Ct. 897, 903 (2000) (distinguishing between "O'Brien intermediate scrutiny," the "similar standard applicable to merely time, place, and manner restrictions," and the "exacting scrutiny" applied to campaign contribution limits under Buckley v. Valeo, 424 U.S. 1, 16 (1976) (per curiam)).

126. 532 U.S. 514 (2001).

127. Id. at 514.

128. Such regulations must be "narrowly tailored to serve a significant governmental interest" and also "leave open ample alternative channels for communication of the information." W ard v. Rock Against Racism, 491 U.S. 781, 791 (1989).

129. See supra note 90.

130. See Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 970 (10th Cir. 1996) (describing trademark law's likelihood of confusion requirement as a built-in mechanism that serves to avoid First Amendment concerns).

131. 604 F.2d 200 (2d Cir. 1979).

132. See id. at 206.

133. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (stressing that the tension between copyright and free speech should be alleviated by the fact that the Framers viewed copyright as "the engine of free expression").

134. See Regan v. Time, Inc., 468 U.S. 641, 643 (1984) (invalidating on First Amendment grounds provisions of an anti-counterfeiting statute enacted by Congress pursuant to its power enumerated under Article I to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States").

135. See Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (invalidating on First Amendment grounds the prohibition of mailing communist advocacy, enacted pursuant to the enumerated power to operate a post office).

136. See Mark A. Lemly & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147, 186 (1998).

137. See supra text accompanying notes 118-19.

138. See supra text accompanying notes 4, 5, 10.

139. 491 U.S. 781, 791 (1989).

140. W ard, 491 U.S. at 791.

141. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1203-04 (1996) (describing the O'Brien test, which the Supreme Court applies to government regulations of expressive conduct in a similar manner as the W ard test, as "toothless").

142. See Netanel, supra note 90, at 55.

143. Id.

144. Id. at 55-56.

145. 512 U.S. 622 (1994).

146. Id. at 664-65.

147. Id. at 665 (quoting W ard, 491 U.S. at 799).

148. Id. at 665.

149. Id. at 666 (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989)).

150. 179 F.3d 188 (5th Cir. 1999).

151. Id. at 189.

152. Id. at 197.

153. 240 F.3d 1126 (D.C. Cir. 2001).

154. Id. at 1128.

155. Turner, 512 U.S. at 662 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).

156. U.S. Const. art. I, § 8, cl. 8.

157. See, e.g., Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (stating that "[c]reative 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").

158. 17 U.S.C. § 104A(h)(6)(C)(i) (2002) (restoring works in the public domain in the United States due to "noncompliance with formalities imposed at any time by the United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements").

159. See supra text accompanying notes 4, 5, 10.

160. Turner, 512 U.S. at 662 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).

161. 17 U.S.C. § 104A(a).

162. NAFTA, supra note 6, Annex 1705.7.

163. 17 U.S.C. § 104A(a)(2); see also Reichman & Bressler, supra note 12, at 5.

164. Reichman & Bressler, supra note 12, at 5.

165. 17 U.S.C. § 104A(a)(2).

166. See generally S. Rep. No. 103-189 (1993).

167. See, e.g., Frisby v. Schultz, 487 U.S. 474 (1988) (holding that a state had a substantial and justifiable interest in banning public speech in order to protect those who were presumptively unwilling to receive it; therefore, the nature and scope of the interest made the ban narrowly tailored and thus constitutional).

168. See, e.g., Schneider v. State, 308 U.S. 147 (1939) (holding that municipal ordinances forbidding or regulating distribution of literature in the streets or other public places were void and the alleged reasoning of keeping the streets clean was insufficient to justify prohibiting defendants from handing out literature to those willing to receive it).

169. See supra text accompanying notes 92-102.

170. 239 F.3d 372 (2001). The name of the appellee has been changed after John Ashcroft replaced Janet Reno as Attorney General.

171. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, § 102, 112 Stat. 2827 (1998).

172. See Amended Complaint at 2, Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999), available at http:// cyber.law.harvard.edu/eldredvreno/complaint.html (last visited July 2, 2002).

173. See Netanel, supra note 90, at 70.

174. See Eldred, 74 F. Supp. 2d at 3 ("The District of Columbia Circuit has ruled definitively that there are no First Amendment rights to use of the copyrighted works of others."); Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001).

175. Eldred v. Reno, 239 F.3d at 375 (citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985) and United Video, Inc. v. FCC, 890 F.2d 1173, 1176-78 (D.C. Cir. 1989), both of which in turn cite to 1 NIMMER & NIMMER, supra note 105, at § 1.10 (B)).