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Reply Brief of Petitioner for for Golan V. Holder; 10-545

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No. 10-545 IN THE Supreme Court of the United States LAWRENCE GOLAN et al., Petitioners, v. ERIC H. HOLDER, JR. et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT REPLY BRIEF THOMAS C. GOLDSTEIN ANTHONY T. FALZONE AMY HOWE Counsel of Record KEVIN K. RUSSELL JULIE A. AHRENS GOLDSTEIN, HOWE & DANIEL K. NAZER RUSSELL, P.C. STANFORD LAW SCHOOL 7272 Wisconsin Ave. CENTER FOR INTERNET Suite 300 AND SOCIETY Bethesda, MD 20814 559 Nathan Abbott Way Stanford, CA 94305 PAMELA S. KARLAN (650) 736-9050 STANFORD LAW SCHOOL [email protected] SUPREME COURT LITIGATION CLINIC HUGH Q. GOTTSCHALK 559 Nathan Abbott Way CAROLYN J. FAIRLESS Stanford, CA 94305 WHEELER TRIGG O’DONNELL LLP 1801 California St., Suite 3600 Denver, CO 80202 237741 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES . iii ARGUMENT. 1 I. Section 514 Violates The Specific Limitations Of The Copyright Clause . 2 A. The Text Of The Copyright Clause Shows Congress Cannot Remove Works From The Public Domain . 2 B. Two Centuries Of Unbroken Practice Confirm Congress Cannot Remove Works From The Public Domain . 5 II. Section 514 Violates The First Amendment . 13 A. Section 514 Is Subject To Intermediate Scrutiny Because It Alters The Traditional Contours Of Copyright Protection. 13 B. Section 514 Fails Intermediate Scrutiny And Is Substantially Overbroad. 17 1. The Government’s Interest In Complying With The Berne Convention Cannot Justify Section 514. 17 ii TABLE OF CONTENTS Page 2. The Government’s Interest In Promoting The Rights Of U.S. Authors Abroad Cannot Justify Section 514. 20 3. Section 514 Is Not Justified By Any Supposed Interest In Equitable Treatment . 22 III. Congress Cannot Avoid The Explicit Restrictions Of The Copyright Clause Or The First Amendment By Invoking Other Powers. 22 CONCLUSION . 23 iii TABLE OF AUTHORITIES Page CASES Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) . 22 Baker v. Selden, 101 U.S. 99 (1879) . 16 Blanchard v. Sprague, 3 F. Cas. 648 (C.C.D. Mass. 1839) . 11 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) . 4 Boos v. Barry, 485 U.S. 312 (1988) . 19 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) . 7 Capitol Records, Inc. v. Naxos of Am., Inc., 830 N.E.2d 250 (N.Y. 2005) . 6, 8 Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964) . 14-15 Donaldson v. Beckett, 4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774) . 7, 8 iv Table of Authorities Page Eldred v. Ashcroft, 537 U.S. 186 (2003) . passim Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) . 8 Evans v. Eaton, 16 U.S. (3 Wheat.) 454 (1818) . 11 Evans v. Jordan, 13 U.S. (9 Cranch) 199 (1815) . 10 Evans v. Jordan, 8 F. Cas. 872 (C.C.D. Va. 1813). 11 The Fire Extinguisher Cases, 21 F. 40 (C.C.D. Md. 1884) . 11 Folsom v. Marsh, 9 F. Cas. 342 (1841) . 16 Jordan v. Dobson, 13 F. Cas. 1092 (C.C.E.D. Pa. 1870). 11 McClurg v. Kingsland, 42 U.S. (1 How.) 202 (1843). 12 Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769) . 7, 8 v Table of Authorities Page Ryder v. United States, 515 U.S. 177 (1995) . 22 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) . 3 Therrien v. Target Corp., 617 F.3d 1242 (10th Cir. 2010) . 22 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) . 19 Union Pacifi c R.R. Co. v. Bhd. Locomotive Eng’rs, 130 S. Ct. 584 (2009) . 23 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). 8 CONSTITUTIONAL PROVISIONS U.S. CONST. amend. I . passim U.S. CONST. art. I, § 8, cl. 8 . passim STATUTES 17 U.S.C. § 110(5)(B) . 19 35 U.S.C. § 102(b) . 10 vi Table of Authorities Page Act of July 3, 1832, ch. 162, 4 Stat. 559. 10 Act of Feb. 19, 1849, ch. 57, 9 Stat. 763 . 11 Act of June 23, 1874, ch. 534, 18 Stat. 618 . 11 Act of Mar. 3, 1893, ch. 215, 27 Stat. 743 . 11 Act of Feb. 17, 1898, ch. 29, 30 Stat. 1396 . 11 Copyright Act of 1790, ch. 15, 1 Stat. 124. 6 Copyright Act of 1909, Pub. L. No. 60-349, 35 Stat. 1075. 13 Uruguay Round Agreements Act, Pub. L. No. 103-465, § 514, 108 Stat. 4809, 4976 (1994). passim OTHER AUTHORITIES The Federalist No. 43 (Paul Leicester Ford ed., 1898) . 8 34 H.L. Jour. 23 (1774) . 7 H.R. REP. NO. 23-397 (1834) . 10 H.R. REP. NO. 27-671 (1842) . 9 H.R. REP. NO. 37-47 (1862) . 9 vii Table of Authorities Page H.R. REP. NO. 77-619 (1941) . 12 H.R. REP. NO. 94-1476 (1976) . 13 H.R. REP. NO. 100-609 (1988) . 17 H.R. REP. NO. 103-826 (1994) . 18 M. Nimmer & D. Nimmer, Nimmer on Copyright (2010) . 12, 19 P. J. Federico, The Patent Trials of Oliver Evans, 27 J. PAT. OFF. SOC’Y 586 (1945) . 9 S. REP. NO. 45-238 (1878) . 10 S. REP. NO. 66-326 (1919) . 12 S. REP. NO. 100-352 (1988) . 21 S. REP. NO. 103-412 (1994) . 18 USTR, Snapshot of WTO Cases Involving the United States (Feb. 17, 2009). 19 1 ARGUMENT For over two hundred years, Congress placed works into the public domain by declaring them free of copyright restriction, and it recognized that choice was permanent. Section 514 reversed course and “restored” copyrights in millions of these works, restricting and prohibiting their ongoing performance and distribution by the public. In doing so, it violated the Copyright Clause and the First Amendment. Once Congress places a work in the public domain, the “limited Time[]” the Constitution permits has expired by defi nition. The government’s contention that it may choose a new “limit” decades after the fi rst one passed renders this restriction meaningless. Independently, Section 514 violates the First Amendment because its restriction on the public’s ongoing use of millions of expressive works was not necessary to further any important governmental interest. Section 514 is a dramatic departure from historical practice. The handful of counterexamples the government identifi es provide limited and specifi c relief when global conflict or other external events made it impossible for authors of otherwise eligible works to comply with statutory requirements, or when eligible authors attempted to comply but failed. Even assuming the constitutionality of those measures, they provide no precedent for Section 514 and do not support the plenary power to “restore” any copyright the government asserts here. 2 I. Section 514 Violates The Specifi c Limitations Of The Copyright Clause. A. The Text Of The Copyright Clause Shows Congress Cannot Remove Works From The Public Domain. The government agrees the “limited Times” restriction requires Congress to set a fi xed and specifi c date on which copyright protection terminates. U.S. CONST. art. I, § 8, cl. 8; Eldred v. Ashcroft, 537 U.S. 186, 199 (2003); Resp. Br. 14-15. The only dispute is whether that fi xed and specifi c date must have any reliable consequence or meaning. The government contends “limited Times” means only that a copyright must have a nominal expiration date. Resp. Br. 13-15. Once that date has passed, the government asserts Congress is free to ignore it, and may grant a new period of protection any time. See id. That interpretation is inconsistent with the plain meaning of “limited Times” because it renders the “limit” attached to a copyright at any particular time illusory. If new protection may be granted long after a work enters the public domain, there is no way for the public to tell if the limit has been reached or rely on it. The “limit” the government proposes here does not “confi ne” “restrain” or “circumscribe.” Eldred, 537 U.S. at 199. It suggests no limit to Congress’s power: If the government can extend existing copyrights and remove works from the public domain any time it wishes, then nothing stops it from reaching back hundreds of years. While Eldred held Congress may extend the termination date before that date is reached, it did 3 so because an extension leaves in place a meaningful boundary – a termination date with consequence that would, in fact, “confi ne” and “restrain” once reached. See id. The government’s interpretation of “limited Times” would destroy the very boundary Eldred demands. A meaningful and permanent boundary is critical to the Copyright Clause’s fundamental purpose of promoting the creation and spread of knowledge and learning. Pet. Br. 28-30. The “limited Times” restriction furthers that purpose by guaranteeing a fi xed and specifi c date on which every work will become public property. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). It assures the unrestricted spread of existing works and provides the public with free access to the building blocks of future creativity. Removing works from the public domain destroys this guarantee, and frustrates the cycle of free expression and creativity the Copyright Clause is designed to ensure. It restricts the diffusion of works that once circulated freely, snatches back the building blocks of future creativity, and disrupts the settled expectations of those who used the public domain as the Framers intended. See Pet. Br. 16, 24. The government suggests there is “no plausible defi nition” of “limited Times” that permits the extension of existing terms, but prohibits Congress from removing works from the public domain.
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