|Supreme Court Upholds CTEA in Eldred v.
|1/15. The Supreme Court issued
[89 pages in PDF] in
Eldred v. Ashcroft, upholding the constitutionality of
the Copyright Term Extension Act, which retroactively extended the maximum
duration of copyrights. Justice Ruth Ginsburg wrote the opinion of the Court,
in which Kennedy, O'Connor,
Rehnquist, Scalia, Souter, and Thomas joined. Both Breyer and Stevens wrote
Justice Ginsburg wrote that the Copyright Clause delegates to the Congress
the authority to set the terms for copyright protection, and the Supreme Court
will defer to the Congress' determinations. She also wrote that the First
Amendment does not limit the Congress' power to extend copyright terms. She
wrote "The First Amendment securely protects the freedom to make -- or
decline to make -- one's own speech; it bears less heavily when speakers assert
the right to make other people's speeches. To the extent such assertions raise
First Amendment concerns, copyright's built-in free speech safeguards are
generally adequate to address them." Such safeguards, wrote Ginsburg, include
fair use, and the principle that copyright protects expressions, but not the
ideas or facts contained in expressions.
Background. The 105th Congress passed the
Term Extension Act (aka CTEA) to extend the maximum duration of copyrights
from 75 to 95 years. The late Rep. Sonny Bono (R-CA) introduced HR 1621 for this
purpose in 1997. However, it was the Senate version, S 505, which ultimately was
passed by both the House and Senate on October 7, 1998. President Clinton signed
this bill on October 21, 1998. The Act applies retroactively. (See, P.L.
105-298, 112 Stat. 2827. It amends
The original plaintiff of record is Eric Eldred, the proprietor of the
unincorporated Eldritch Press, a website
which republishes the works of others
which are not protected by copyright. However, the suit was brought by a group
of activist law professors, including
Charles Nesson, and Jonathan
Zittrain. At the time the lawsuit was filed, all worked at
The Berkman Center for Internet &
Society at Harvard Law School.
Proceedings Below. On January 11, 1999, the plaintiffs filed a complaint in
U.S. District Court (DC) against Janet Reno, in her capacity as Attorney
Amended Complaint contains three counts. The first alleges that the CTEA is
unconstitutional because the term is too long. The second alleges the "public
trust doctrine." The third asserts that the CTEA restricts plaintiffs' freedom
of speech. The District Court action also involved the No Electronic Theft Act.
However, the only issues before the Supreme Court were "whether
the CTEA's extension of existing copyrights exceeds Congress' power under the
Copyright Clause; and whether the CTEA's extension of existing and future
copyrights violates the First Amendment." On October 27, 1999, the District
Court ruled that the CTEA does not violate the Constitution. See,
of the Court.
On February 16, 2001, the U.S. Court of
Appeals (DC) issued its
affirming the District Court. Chief Judge
Douglas Ginsburg wrote the opinion; Karen Henderson joined; and
Sentelle dissented. The Court of Appeals denied plaintiffs' petition for
rehearing en banc on July 13, 2001. Sentelle and David Tatel dissented. See,
opinion. The Supreme Court then granted certiorari.
Berkman Center case summary and
of the proceedings before the District Court
Copyright Clause Challenge. The Constitution, Article I, Section 8,
provides that "Congress shall have
the Power... To regulate Commerce ... To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries ... To make all
Laws which are necessary and proper for carrying into Execution the foregoing
Judge Ginsburg, writing for the seven Justice majority, stated that "the
Copyright Clause empowers Congress to prescribe ``limited Times´´ for
copyright protection and to secure the
same level and duration of protection for all copyright holders, present and
future." She continued that "Petitioners contend, however, that existing
copyrights extended to endure for that same term are not ``limited´´. Petitioners.
argument essentially reads into the text of the Copyright Clause the command
that a time prescription, once set, becomes forever ``fixed´´ or ``inalterable.´´
The word ``limited,´´ however, does not convey a meaning so constricted."
She then reviewed that history of Congressional legislation extending the
terms of copyright and patent terms. "History reveals an unbroken congressional
practice of granting
to authors of works with existing copyrights the benefit of term extensions so
that all under copyright protection will be governed evenhandedly under the same
She added that prior Courts had no problem
with extending the term of either copyrights, or applying the extended terms to
both new and existing copyrights. Hence, Ginsburg concluded that the CTEA
complies with the "limited terms" component of the Copyright Clause.
Next, she enquired whether enactment of the CTEA was a "rational exercise of
the legislative authority conferred by the Copyright Clause." In response, she
wrote, "On that point, we defer substantially to Congress. ... The CTEA reflects
judgments of a kind Congress typically makes, judgments we cannot dismiss as
outside the Legislature's domain." She found it particularly significant here
that the EU had already established the terms enacted by the CTEA.
"In sum," wrote Ginsburg, "we find that the CTEA is a rational enactment; we are
not at liberty to second-guess congressional determinations and policy judgments
of this order, however debatable or arguably unwise they may be. Accordingly, we
cannot conclude that the CTEA -- which continues the unbroken congressional
practice of treating future and existing copyrights in parity for term extension
purposes -- is an impermissible exercise of Congress. power under the Copyright
Ginsburg next addressed the petitioners
argument that applying the term extension retroactively failed to "promote
the Progress of Science and useful Arts". To this, Ginsburg responded, "We
have also stressed, however, that it is generally for Congress, not the courts,
to decide how best to pursue the Copyright Clause's objectives."
First Amendment Challenge. Finally, Justice Ginsburg rejected the argument
that the CTEA violates the First Amendment.
In doing so, she rejected any argument that the Copyright Clause and the First
Amendment are in conflict with each other.
She wrote that "The Copyright Clause and First Amendment were adopted close in
time. This proximity indicates that, in the Framers' view, copyright's limited
monopolies are compatible with free speech principles. Indeed, copyright's
purpose is to promote the creation and publication of free expression."
She elaborated that "In addition to spurring the creation and publication of new
expression, copyright law contains built-in First Amendment accommodations. ...
First, it distinguishes between ideas and expression and makes only the latter
eligible for copyright protection. ... Due to this distinction, every idea,
theory, and fact in a copyrighted work becomes instantly available for public
exploitation at the moment of publication."
Ginsburg added that "Second, the ``fair use´´
defense allows the public to use not only facts and ideas contained in a
copyrighted work, but also expression itself in certain circumstances."
She wrote too that "The First Amendment securely protects the freedom to make -- or
decline to make -- one's own speech; it bears less heavily when speakers assert
the right to make other people's speeches. To the extent such assertions raise
First Amendment concerns, copyright's built-in free speech safeguards are
generally adequate to address them."
In conclusion, Justice Ginsburg wrote that "As we read the Framers'
instruction, the Copyright Clause empowers Congress to determine the
intellectual property regimes that, overall, in that body's judgment, will serve
the ends of the Clause. ... (Congress may ``implement the stated purpose of the
Framers by selecting the policy which in its judgment
best effectuates the constitutional aim´´. (emphasis added)). Beneath the facade
of their inventive constitutional interpretation, petitioners forcefully urge
that Congress pursued very bad policy in prescribing the CTEA's long terms. The
wisdom of Congress' action, however, is not within our province to second guess.
Satisfied that the legislation before us remains inside the domain the
Constitution assigns to the First Branch, we affirm the judgment of the Court of
Reaction. Rep. John Conyers
(D-MI), ranking Democrat on the
House Judiciary Committee, stated in
a release that "I am not surprised that the Court upheld the prerogative of
Congress to promote and protect authorship. Copyright protection is the main
incentive that content owners have to create and distribute their creations; if
Congress does not act pursuant to its constitutional responsibilities to update
that protection as technology advances, we will take away that incentive and
lose what is this country's number one export. This decision demonstrates this
country’s commitment to encouraging authorship and free expression."
Representatives of industries that hold copyrights praised the Supreme
Court's opinion. Ken Wasch of the Software &
Information Industry Association (SIIA) stated in a
that "SIIA is pleased that the Supreme Court confirmed Congress' ability to
legislate in areas of intellectual property and deferred to Congress' judgment
in this important area of public policy. We are also very pleased with the Supreme
Court's analysis of the First
Amendment issues involved in the case. The Court recognized that First Amendment
considerations are contained within copyright law. Separate First Amendment
legal action is thus unwarranted in traditional copyright challenges."
Jack Valenti of the Motion Picture Association
of America (MPAA) wrote in a release
that "We are pleased that the Court has reaffirmed the absolute authority of Congress
to set copyright terms. We have always maintained and the law has
long-recognized that copyright, whose aim it is to provide incentive for the
creation and preservation of creative works, is in the public interest. That is
why this ruling is a victory not solely for rights holders but also for
Cary Sherman of the Recording Industry Association
of America (RIAA) stated
in a release that "This
is a decisive and important victory for creators and consumers. The
Supreme Court has affirmed the importance of the copyright system and the
authority of Congress to adapt it in response to evolving markets and
international developments. The Court also recognized, once again, that
copyright and the First Amendment are completely compatible, noting that our
copyright system contains “built-in free speech safeguards.”
In contrast, Gary Shapiro of the Consumer Electronics Association (CEA) stated in a
that "We are disappointed the Court has decided to uphold the Constitutionality
of the extension of copyrights. With this ruling, copyrights are now protected
for up to a century. The Constitutional mandate that copyright terms be
restricted to 'limited terms' becomes almost meaningless as Congress yielded to Hollywood's
|CompTel Releases UNE-P Report
|1/15. The Competitive Telecommunications
report [8 pages in PDF] regarding the unbundled network element platform (UNE-P).
CompTel wrote that "UNE-P remains the fastest growing form of local
competition, serving an estimated 10 million residential and small business
lines by the end of 2002."
It further argued that "UNE-P is unmistakably the principal
driver of competitive growth
in the local market today. During the first half of 2002, UNE-P accounted for
more than 85% of the net growth in competitive access lines. Said differently,
if UNEP were eliminated, competitive activity – and, importantly, competitive
benefit – would decline by roughly 85%. Not only would competition slow overall,
the decline would reduce benefits most dramatically for the typical residential
and small business customers that depend on analog services for their basic
|People and Appointments
|1/15. Judith Mann will become Federal
Communications Commission (FCC)
Chairman Michael Powell's
Confidential Assistant (CA). She replaces Powell's longtime CA, Antonia
McGowan, who will become Deputy Agenda and Publications Group Manager in the
Office of the Secretary. The CA handles, among other things, Chairman Powell's
1/15. President Bush announced his intent to appoint
James Hoffa (General President of the International Brotherhood of
Teamsters), and Paul Beckner (P/CEO of Citizens for a Sound Economy) to the
Advisory Committee for Trade Policy and Negotiations for two year terms. See,
1/15. President Bush announced his intent to nominate three persons to be
U.S. District Court judges: Dee Drell (Western District of
Louisiana), Patricia Minaldi (Western District of Louisiana), and Cecilia
Altonaga (Southern District of Florida). See,
|FCC Holds "State of the FCC" Meeting
|1/15. The Federal Communications Commission (FCC) held a
meeting to hear reports for Bureau Chiefs and the head of the Office
of Engineering and Technology. FCC Chairman
Michael Powell called it the annual "state
of the Federal Communications Commission" meeting. The FCC took no actions.
The presenters gave mainly retrospective summaries of accomplishments of their
bureaus or offices, including proceedings completed, actions taken, and reports made.
They also addressed employment levels, backlogs and other administrative
matters. See, PowerPoint
presentations of each presenter.
The FCC Commissioners widely praised the work of FCC staff, but made very few
comments about pending or impending FCC proceedings. Commissioner
Michael Copps stated
that he would like the FCC to revisit the definition of indecency. In
particular, he stated that he would like to expand the definition to include
violent programming. Chairman
Michael Powell responded that the the FCC
is restricted by opinions of the
Supreme Court interpreting the First Amendment.
OET Chief Ed Thomas suggested that action may be taken this year to amend the
FCC's rules to facilitate the provision of broadband Internet access services over power lines.
He added that
technological advancements in the past year may turn power companies into the
third major broadband competitor.
|Senators Write AG Ashcroft Re Data Mining by
Patrick Leahy (D-VT), Sen. Russ Feingold (D-WI), and
Sen. Maria Cantwell
(D-WA) wrote a
letter [8 page PDF scan] to Attorney General John Ashcroft to "inquire about
``data mining´´ operations, practices and policies at
the Department of Justice."
The three wrote that "We raise this inquiry against the backdrop of public
concern over the Total Information Awareness System (TIA) being developed under
the supervision of Admiral Poindexter within the
Defense Advanced Research Project Agency (DARPA). TIA is intended, according
to Department of Defense officials, to
generate tools for monitoring the daily personal transactions by Americans and
others, including tracking the use of passports, driver's licenses, credit
cards, airline tickets, and rental cars. The Administration's goal is to turn
these tools over to law enforcement agencies. According to press reports, one
such tool, a software program called ``Genoa,´´ has already been delivered by
DARPA to the Department of Justice."
Sen. Leahy (at right) is the ranking Democrat on the
Senate Judiciary Committee,
which oversees the Department of Justice, but not the Department of Defense, or
DARPA. Sen. Feingold and Sen. Cantwell are members of the Committee.
The letter propounds numerous interrogatories to the DOJ. For example, it asks
the DOJ to "identify any private sector or proprietary databases obtained or
being used by the Department of Justice for data-mining or pattern-recognition
activities as well as any databases from government agencies outside DOJ being
used for such purposes."
|Groups Write House Armed Service Committee
Re Total Information Awareness
|1/14. Nine groups wrote at
pages in PDF] to Rep. Duncan Hunter
(R-CA), the new Chairman of the House Armed
Services Committee, and Rep. Ike
Skelton (D-MO), urging the Congress "to stop
further development of a Defense Advanced
Research Projects Agency (DARPA) system called ``Total Information Awareness´´".
These groups wrote that "TIA would put the details of Americans' daily lives
under the scrutiny of government agents, opening the door to a massive domestic
surveillance system. Congress should prohibit the development of TIA." They
added that "Congress should not allow the Defense
Department to develop unilaterally a surveillance tool that would invade the
privacy of innocent people inside the United States."
The signatory groups are the American Civil
Liberties Union, American Conservative Union, Americans for Tax Reform, Center
for Democracy and Technology, Center for National Security Studies, Eagle Forum,
Electronic Frontier Foundation, Electronic Privacy Information Center, and Free
|USPTO Orders Reexamination of NTP Patents
|1/14. The U.S. Patent and Trademark Office
(USPTO) ordered a reexamination of five patents held by NTP, Inc. The patents,
pertain to wireless e-mail technology, are at the heart of ongoing litigation
between NTP and Research in Motion (RIM). NTP has
already obtained a jury verdict
of infringement against RIM, the maker of the Blackberry
portable communications devices.
The patents to be reexamined are U.S. Patent Nos.
titled "Electronic mail system with RF communications to mobile processors",
titled "System for transferring information from a RF receiver to a processor
under control of a program stored by the processor and method of operation
titled "Electronic mail system with RF communications to mobile radios",
titled "Electronic mail system with RF communications to mobile processors", and
titled "Electronic mail system with RF communications to mobile processors".
§ 303 provides that the Director of the USPTO,
within three months of the filing of a request for reexamination, "will
determine whether a substantial new question of patentability affecting any
claim of the patent concerned is raised by the request ..."
NTP filed a complaint in U.S. District
Court (EDVa) against RIM in November 2001
alleging patent infringement. On November 21, 2002, the trial jury returned a
verdict of infringement against RIM, and awarded NTP over $23 Million in
This case is NTP, Inc. v. Research in Motion, Inc.. It is pending in the U.S.
District Court for the Eastern District of Virginia, at Richmond, Judge James
Spencer presiding. It is D.C. No. 3:01CV767. NTP is represented by
James Wallace of
the law firm of Wiley Rein & Fielding.
RIM stated that "Of the eight patents listed in the original complaint, only
five patents were litigated during the jury trial. Four of the five patents
litigated have now been ordered to be reexamined." See, RIM's
January 14, 2003
release. See also, RIM's November 21, 2002
RIM's November 21, 2001
|Thursday, January 16
|10:00 AM. The Department of Treasury
(DOT), Office of Management and Budget (OMB), and Internal Revenue Service
(IRS) will hold a press conference to announce the details of IRS Free File,
which pertains to preparing and filing federal tax forms online. The
participants will include Acting Treasury Secretary Kenneth Dam, OMB Director
Mitchell Daniels, and Acting IRS Commissioner Robert Wenzel. See also, story
titled "IRS Enters Into Agreement with Electronic Tax Preparation Consortium"
in TLJ Daily
E-Mail Alert No. 539, October 31, 2002. The DOT stated in its
that "Media without Treasury or White House press credentials should contact
Treasury's Office of Public Affairs at (202) 622-2960." Location: DOT press
room (Room 4121).
11:15 AM. Sen. Russ Feingold
(D-WI) will hold a press conference to announce the introduction of a bill
that would prohibit data mining initiatives such as Total Information
Awareness. Other scheduled speakers include Jim Dempsey (Center
for Democracy and Technology), David Sobel (Electronic
Privacy Information Center), Katie Corrigan (ACLU). Location: Room SC-4,
12:15 PM. The FCBA's Cable Practice Committee will host a brown bag lunch. The topic will be "Engineering
Issues". The speakers will be John Wong and Michael Lance of FCC's Media
Bureau. For more information, contact Lisa Cordell at 202 939-7900. RSVP to
Wendy Parish at firstname.lastname@example.org. Location:
NCTA, 1724 Massachusetts Ave., NW.
12:15 PM. The FCBA's
Young Lawyers Committee will host a brown bag lunch. The topic will be
planning for the new year. For more information, contact Yaron Dori at
email@example.com or Ryan Wallach at
Hogan & Hartson, 555 13th St., NW, Confr. Rm. 9E-407.
The FCBA's Diversity Committee
and Young Lawyers Committee will
host a series of Law School Outreach Programs for law students interested in
practicing communications law at Washington DC area law schools.
The event at American University will be held at 4:30 PM. The event at Catholic
University will be a 6:00 PM. The event at
George Mason University will be at 4:45 PM. The event at Georgetown University
Law Center will be at 5:30 PM. The event at Howard University will be at 4:30
|Friday, January 17
|9:30 AM. The Senate
Governmental Affairs Committee will hold a hearings on the nomination of
Tom Ridge to be Secretary of Homeland Security. Location: Room 342,
EXTENDED AGAIN, TO FEBRUARY 18.
Extended deadline to submit reply comments to the
Federal Communications Commission (FCC) in
response to its
Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding
titled "In the Matter of Digital Broadcast Copy Protection". This NPRM
proposes that the FCC promulgate a broadcast flag rule, and seeks comment on
this, and related questions. This is MB Docket No. 02-230. See,
FCC release [PDF] and
Order [PDF] of October 11, 2002 extending deadlines. See also,
Order [PDF] of January 3, 2003.
|Monday, January 20
|Martin Luther King Day. The FCC will be closed. Legal holiday.
The Securities and Exchange Commission's
(SEC) final rule
providing relief for Internet investment advisers goes into effect. The rule
exempts certain investment advisers who provide advisory services through the
Internet from the prohibition on SEC registration. The rule change permits
advisers whose businesses are not connected to any state to register with the
SEC instead of with state securities authorities. See also,
notice in Federal Register,
December 18, 2002, Vol. 67, No. 243, at Pages 77619 -77626, and story titled
"SEC Amends Rule for Internet Investment
Advisers" in TLJ Daily E-Mail Alert No. 568, December 16, 2002.
For more information, contact Marilyn Barker or Jamey Basham 202
|Wednesday, January 22
|5:00 PM. The FCBA's
Diversity Committee and Young Lawyers Committee will host a Law School
Outreach Program at the University of Baltimore for law students interested in
practicing communications law.
6:00 - 8:00 PM. The FCBA
will host a CLE seminar titled "The Transition to Digital Television".
The price to attend is $60 for FCBA members, $50 for government/law student members,
and $80 for
non-members. Registrations & cancellations are due by 5:00 PM on January
RSVP to Wendy Parish firstname.lastname@example.org.
Location: Wiley Rein & Fielding Conference
Center, 1750 K Street, NW, 10th Floor.
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