14.0691 copyright news

From: by way of Willard McCarty (willard@lists.village.Virginia.EDU)
Date: Wed Feb 21 2001 - 03:10:59 EST

  • Next message: by way of Willard McCarty: "14.0690 Digital Arts and Culture 2001"

                   Humanist Discussion Group, Vol. 14, No. 691.
           Centre for Computing in the Humanities, King's College London

             Date: Wed, 21 Feb 2001 07:59:39 +0000
             From: NINCH-ANNOUNCE <david@ninch.org>
             Subject: COPYRIGHT NEWS: Napster; Eldred v. Reno

    News on Networking Cultural Heritage Resources
    from across the Community
    February 20, 2001


                                       * * * *

        Rejects claim 2-1 that Copyright Term Extension Act is unconstitutional

    Two court decisions from last week: one quite celebrated on the Napster
    case, here as reported by Arts Wire; the other less celebrated - the DC
    Circuit Court's rejection of the Eldred v. Reno case on the
    constitutionality of the Sonny Bono Term Extension Act.

    David Green


    Arts Wire CURRENT February 20, 2001
    Arts Wire CURRENT Volume 10, No. 8
    Arts Wire CURRENT
    Arts Wire CURRENT Judy Malloy, Editor
    Arts Wire CURRENT jmalloy@artswire.org

    WASHINGTON, DC -- Last week, The Ninth Circuit Court of Appeals
    ruled that Napster, an online business which facilitates music sharing,
    was in violation of copyright law. The Court held that the
    District Court correctly recognized that a preliminary injunction
    against Napster's participation in copyright infringement was not
    only warranted, but required.

    "Napster by its conduct knowingly encourages and assists the
    infringement of plaintiffs' copyrights," The Ninth Circuit's
    opinion stated.

    "The decision represents a clear victory for the creative content
    community and the legitimate online marketplace," said Hilary
    Rosen, Recording Industry Association of America (RIAA) President
    and CEO. "We are gratified that the Ninth Circuit agreed with
    Judge Patel [Chief U.S. District Judge Marilyn Hall Patel] that
    Napster must take steps immediately to prevent further copyright

    The decision is likely to be applicable to future situations in
    many arts disciplines, in that although many artists may choose to
    make their work available as public art on the Internet, that is a
    decision, the Court affirmed, to be made by the artists
    themselves, and/or, if applicable, by their labels, publishers, or
    agents -- not by a business which uses their work without


    "Musicians, Execs Testify to Congress About Music Technologies"
    Arts Wire CURRENT --

    July 18, 2000

    "Judge Shuts Napster Down; Appeals Court Grants Stay"
    Arts Wire CURRENT --

    August 1, 2000

    "Napster Forms Alliance with Bertelsmann; Will Move to
    Subscription Model"
    Arts Wire CURRENT --

    November 14, 2000
    Arts Wire CURRENT is available at
    and an archive of past issues
    can be found at


        Rejects claim 2-1 that Copyright Term Extension Act is unconstitutional

    >From: "Copyright's Commons" <cc@cyber.law.harvard.edu>
    >To: <cc@eon.law.harvard.edu>
    >>Reno decision
    >Date: Mon, 19 Feb 2001 23:43:47 -0500


    On February 16, the DC Circuit handed down its decision in Eldred v. Reno,
    rejecting our claim that the Sonny Bono Copyright Term Extension Act is
    unconstitutional. In a 2-1 decision, the court held that retroactive term
    extensions are within Congress' authority under the Copyright Clause, and
    that the 20-year term extensions did not violate the First Amendment. The
    majority's opinion, written by Judge Ginsburg, is available in full at
    <<http://www.cadc.uscourts.gov>http://www.cadc.uscourts.gov>; a summary is
    available below. A spirited
    dissent by Judge Sentelle recognized the merits of our argument, as well as
    those of amicus curiae The Eagle Forum, concluding that retroactive
    extensions are beyond the 'outer limits' of congressional authority under
    the Copyright Clause. An appeal is underway, in which we will either seek a
    rehearing en banc in the DC Circuit, or bypass that step and appeal directly
    to the Supreme Court.


    We argued that the CTEA is unconstitutional on three grounds: First, the
    CTEA fails the intermediate scrutiny test required to protect freedom of
    expression under the First Amendment. Second, the retrospective term
    extension violates the originality requirement of copyright. Third,
    congressional power to extend copyright protection is constrained both by
    the preamble of the Copyright Clause and by that clause's "limited Times"
    requirement. The majority rejected all three of our arguments.

    FIRST AMENDMENT. The court held that the Supreme Court's decision in Harper
    & Row v. Nation Enterprises and the DC Circuit's decision in United Video,
    Inc. v. FCC stand as "insuperable bars" to our first amendment claims - the
    former holding that adequate first amendment protections are already
    embodied in copyright's idea/expression dichotomy and the fair use doctrine,
    and the latter that "copyrights are categorically immune from challenges
    under the First Amendment." We had distinguished these cases in that both
    were limited to the context of litigants seeking first amendment access to
    the legitimately copyrighted works of others, while ours is a challenge to
    the legitimacy of the copyright in the first instance. The court, however,
    dismissed this distinction as "wholly illusory," writing instead that the
    only "relevant question under the First Amendment . . . is whether the party
    has a first amendment interest in a copyrighted work."

    ORIGINALITY. The court refused to apply the reasoning of Feist Publications
    v. Rural Telephone Service Co. to the present case, limiting Feist to the
    question of the initial eligibility of certain subject matter for copyright,
    rather than applying it more broadly to congressional authority over that
    subject matter, once in the ambit of copyright. We had argued that the
    requirement of originality precludes statutory extension of pre-existing
    copyrights because any such extension grants new monopolies to what are now
    unoriginal works. The court rejected this approach and declined to read
    Feist in anything but the narrowest of terms. The court also distinguished
    Graham v. John Deere Co. (holding that Congress could not grant a patent
    which would have the effect of restricting access to material already
    available) and the Trademark Cases (excluding trademarks from the Copyright
    Clause because trademarks covered something "already in existence") as
    inapplicable in the context of copyright. Ultimately, the court concluded
    that "[o]riginality is what ma[kes] the work copyrightable in the first
    place. A work with a subsisting copyright has already satisfied the
    requirement of originality and need not do so anew for its copyright to

    LIMITED TIMES. We had argued that congressional authority was constrained
    both by the "promote progress" requirement in the preamble to the Copyright
    Clause and by the "limited times" restriction within it, an argument
    justified by the Supreme Court's interpretation of 'Authors' and 'Writings'
    in light of that preamble. But the court invoked its decision in Schnapper
    v. Foley as a bar to any argument "that the introductory language of the
    Copyright Clause constitutes a limit on congressional power." Having
    rejected any suggestion that congressional action in this area must be shown
    "to promote the progress of science and the useful arts," the court affirmed
    the CTEA as a rational exercise of what, given the court's understanding of
    Schnapper, is a nearly unlimited congressional authority to define the terms
    of copyright.


    As a preliminary matter, Judge Sentelle's dissent emphasized the limited
    nature of Congressional copyright authority. The Copyright Clause "is not an
    open grant of power to secure exclusive rights. It is a grant of power to
    promote progress. The means by which that power is to be exercised is
    certainly the granting of exclusive rights -- not an elastic and open-ended
    use of that means, but only a securing for limited times." With this
    understanding of the Copyright Clause as background, Sentelle based much of
    his dissenting opinion on the Supreme Court's decision in United States v.
    Lopez. In applying what he termed the "Lopez principle," Sentelle explained
    that limited congressional authority under the Copyright Clause, just as
    under the Commerce Clause, must have some "definable stopping point," an
    articulable and predictable horizon. According to Sentelle, the CTEA lacks
    such a horizon because there is "no apparent substantive distinction between
    permanent protection and permanently available authority to extend
    originally limited protection." The required "stopping point" can only be
    found in the distinction between prospective and retrospective term
    extensions, the latter being beyond the outer limits of Congress' enumerated


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