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Complaint (for declarartion that the Copyright Term Extension Act is unconstitutional).
Re: Eldritch Press v. Reno.

Case No. 99-CV-0065 JG, U.S.D.C., Washington DC.
Date filed: January 11, 1999.
Source: The Berkman Center for Internet and Society at Harvard Law School.  The Berkman Center does not assert a copyright; nevertheless, Tech Law Journal obtained permission to reprint from Jonathan Zittrain of the Berkman Center.  This document has been edited for HTML, but not for content.


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________

ERIC ELDRED, 50 E. Derry Rd. #21,
E. Derry, NH 03041-0021,
(603)434-7746,
and ELDRITCH PRESS,
http://eldred.ne.mediaone.net,
50 E. Derry Rd. #21,
E. Derry, NH 03041-0021,
(603)434-7746,

Plaintiffs,
v.

JANET RENO, in her official
capacity as Attorney General
of the United States, U.S.
Department of Justice, Room
B-103, 950 Pennsylvania
Avenue, N.W., Washington,
D.C. 20530-0001

Defendant.

____________________________________

   CIVIL ACTION NO.

COMPLAINT

This is an action for declaratory relief pursuant to 28 U.S.C. 2201. Plaintiffs, the director of an unincorporated association that posts works of literature on the Internet and the association itself, seek declaratory judgment that 102(d)(1)(B) of the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 ("CTEA"), amending 17 U.S.C. 304(b), is unconstitutional. Plaintiffs also seek preliminary and permanent injunctive relief against the criminal enforcement of 2(b) of the No Electronic Theft Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 ("NET Act"), amending 17 U.S.C. 506(a), with respect to works that would not have a valid copyright but for the enactment of 102(d)(1)(B) of the CTEA.

PARTIES

1. Plaintiff Eric Eldred resides at 50 E. Derry Rd #21, E. Derry, New Hampshire, 03041-0021.

2. Plaintiff Eldritch Press is a non-profit unincorporated association located at 50 E. Derry Rd #21, E. Derry, New Hampshire, 03041 and found on the Internet at http://eldred.ne.mediaone.net. Eldritch Press’s principal activity is to post literary works on the Internet in order to make them freely available to the entire world. Plaintiff Eldred is the Director of Eldritch Press.

3. Defendant Janet Reno is the Attorney General of the United States and the head of the United States Department of Justice. Reno is responsible for the enforcement of the criminal laws of the United States, including the NET Act.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331, 1361, and 2201, because this declaratory judgment action challenges the constitutionality of a federal statute. There is personal jurisdiction over defendant Reno. Venue is properly laid in this District under 28 U.S.C.  1391(e).

STANDING

5. Plaintiffs have standing to bring and maintain this action because their activities have been, and will continue to be, directly affected by the CTEA. Plaintiffs have for many years routinely taken literary works that are in the public domain and posted full-text editions of those works on the Internet. Plaintiffs plan to continue to do so for the indefinite future. Among the works that plaintiffs are preparing to post on the Internet have been works created in 1923 that, but for enactment of the CTEA, could have been legally copied and distributed on January 1, 1999. The total retail value of such works would exceed $1,000.

6. The CTEA can be civilly enforced against plaintiffs and, through the NET Act, criminally enforced as well. In addition, plaintiffs' constitutional rights to freedom of expression have been chilled by enactment of the CTEA.

BACKGROUND

A. The Internet And The World Wide Web

7. Computers can be linked to other computers in order to share resources through the use of phone lines and modems or other networking technologies. Two or more computers linked in this way are known as a network.

8. The Internet is the world's largest network. It links smaller networks set up by the government, businesses, universities and non-profit organizations. The Internet has over more than 100 million users worldwide, a number that continues to grow.

9. The "World Wide Web" is a collection of easily accessible files and databases located on servers on the Internet. These servers are known as "Web sites" which provide resources associated with a certain person or organization. An individual or organization with a Web site can "post" a message, document, or other type of information on the Web site. A file that is posted on a Web site generally can, at the discretion of the Web site operator, be opened, read and copied (or "downloaded") by anyone who has access to the Internet.

10. Another protocol for transferring files across the Internet is known as "FTP." With this protocol, computers on the Internet can exchange files, which can contain electronic versions of literary works.

B. Copyrights And Copyright Terms

11. Article I, 8 of the United States Constitution confers upon Congress 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 Writings and Discoveries.

Pursuant to that authority, Congress has enacted numerous laws since 1790 providing for copyrights upon a variety of literary and artistic works. Those statutes are codified at 17 U.S.C. 101 et seq.

12. The duration of copyrights on literary works is generally governed by 17 U.S.C. 301 et seq. Until it was amended by the CTEA, 17 U.S.C. 304(b) provided:

(b) Copyrights in Their Renewal Term or Registered for Renewal Before January 1, 1978.--The duration of any copyright, the renewal term of which is subsisting at any time between December 31, 1976, and December 31, 1977, inclusive, or for which renewal registration is made between December 31, 1976, and December 31, 1977, inclusive, is extended to endure for a term of seventy-five years from the date the copyright was originally secured.

13. In addition, pursuant to 17 U.S.C. 305, copyrights are deemed to run to "the end of the calendar year in which they would otherwise expire." Therefore, prior to the enactment of the CTEA, a copyrighted work that was created, for example, on August 20, 1923, if properly renewed, would have had a subsisting copyright between December 31, 1976 and December 31, 1977, and would have had a term of 75 years from the date of the original copyright. This term would have ended on December 31, 1998.

14. Upon the expiration of a copyright, a work comes into the public domain. This means that it may freely be copied or used in the creation of derivative works by any person in the United States without the permission, license or authorization of the copyright holder.

C. The Copyright Term Extension Act Of 1998

15. On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827. The CTEA amended 17 U.S.C. 304 in relevant part as follows:

(d) Duration of Copyright: Subsisting Copyrights.--

(1) In General.--Section 304 of Title 17, United States Code, is amended–

. . .

(B) by amending subsection (b) to read as follows:

"(b) Copyrights in Their Renewal Term at the Time of the Effective Date of the Sonny Bono Copyright Term Extension Act.--Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured."

These changes to 304 became effective immediately upon passage of the CTEA.

16. In general, the CTEA added twenty years to the term of most copyrights. Thus, prior to enactment of the CTEA, a work that was copyrighted during 1923 would have entered the public domain on December 31, 1998, because its term of 75 years would have ended. The CTEA, however, extended the copyright term of such a work to 95 years, meaning that it will not enter the public domain until December 31, 2018.

D. The No Electronic Theft Act

17. The No Electronic Theft Act of 1997 (the "NET Act") criminalizes certain forms of copyright infringement. It amended 17 U.S.C. 506(a) to provide, in relevant part:

Section 2. Criminal Infringement of Copyrights.

...

"(a) Criminal Infringement.--Any person who infringes a copyright willfully either--

"(1) for purposes of commercial advantage or private financial gain, or

"(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18, United States Code."

18. 18 U.S.C. 2319(c), in turn, makes it a felony to violate 17 U.S.C.  506(a)(2):

(c) Any person who commits an offense under section 506(a)(2) of title 17, United States Code--

(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;

(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and

(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.

19. The No Electronic Theft Act, as its name suggests, was enacted to criminalize the violation of copyrights through the posting of copyrighted materials on the Internet. The posting of a work on the Internet makes it extremely easy to access, read and copy that work. Because of the popularity of the Internet, moreover, any single copy of a work that is posted on the Internet could be read and copied many times over each month.

20. The CTEA extended for another 20 years copyrights on all literary works that, properly renewed, would have been subsisting between December 31, 1976 and December 31, 1977. The NET Act punishes as a felony any violations of such a copyright, if the Act’s thresholds are met. Thus, for example, on January 1, 1999, persons who violate the copyright of a work created in 1923 face criminal prosecution.

E. The Eldritch Press

21. Eric Eldred founded the Eldritch Press in late 1995 as a means of demonstrating that computers could be used to present books on the Internet in new ways, and in ways that improved upon the capabilities of print books. Initially, the Eldritch Press began with works of American literature, by authors such as Nathaniel Hawthorne, Oliver Wendell Holmes (Sr.), and Henry James. The Eldritch Press also has specialized collections of works such as World War I novels, writings about small boats, French and Russian literature (with some bilingual works), science and natural history, and works appropriate for reading aloud to children. It also has works of general interest, such as H. L. Mencken’s Declaration of Independence in American and Louisa May Alcott’s "An Old-Fashioned Thanksgiving." Because some of the works are not included in library collections or are long out of print, they are not obtainable in any other way. All of the works are in hypertext markup language ("HTML"), are hand-coded, can be found by most common Internet search engines, and are accessible by all Web browsers.

22. Works are derivative as well as exact reprints. In fact, because of the higher capabilities of electronic books, the Eldritch Press has added features to some of these works. These include color illustrations, notes, links to other Internet sources, bibliographies, modernized translations, glossaries, timelines of dates, maps, essay contests, discussion pages, distance learning via e-mail, all linked back to authoritative texts. All of these works also are accessible to blind readers through text-to-speech equipment. In addition, some of the works include text descriptions of art to further assist the blind.

23. The Eldritch Press Web site is globally accessible. The site receives as many as 4,000 visitors per day and has been accessed from virtually all countries in the world. It has been recognized as one of the 20 best humanities sites on the Web from edSITEment (National Endowment for the Humanities); its Hawthorne and Howells pages have been accepted as links by the Nathaniel Hawthorne Society and the William Dean Howells Society Web sites.

24. All works posted on the Eldritch Press Web site are in the public domain or are posted with the permission of copyright holders. Eldred personally researches each work before it is posted to determine whether it is copyrighted.

25. Eldred and Eldritch Press often post works on the Eldritch Press Web site as soon as the works come into the public domain. Thus, beginning in early 1999, Eldritch Press’s Web site would have begun featuring literary works that had been created in 1923, such as "New Hampshire" by Robert Frost, "Horses and Men" by Sherwood Anderson, and "Racundra's First Cruise" by Arthur Ransome. Because of the CTEA’s enactment, if Eldred or the Eldritch Press posted such works on the Eldritch Press Web site, they would both violate the work’s copyright and the criminal provisions of the NET Act. 17 U.S.C. 506(a).

26. Eldred and Eldritch Press do not accept donations of money or advertisements. The Eldritch Press, being a non-profit association with a meager budget, does not have the funds to pay for any fine levied against it if it were found guilty of violating the NET Act.

COUNT ONE

27. Plaintiffs repeat and reallege paragraphs 1 through 26.

28. The copyright laws grant the owners of a copyright in a literary work the exclusive right to reproduce, distribute or display that work. 17 U.S.C. 106. The posting of a literary work on a Web site involves the reproduction, distribution and display of the work to the millions of people that have access to the Internet. Therefore, the posting of a copyrighted work on the Internet, without the permission of the copyright owner, would be copyright infringement pursuant to 17 U.S.C. 501 et seq.

29. Article 1, Section 8 of the United States Constitution grants Congress the authority to:

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.

(Emphasis supplied). The purpose of this grant of power to Congress was to empower Congress to pass laws granting a limited monopoly over literary works in order to provide economic incentives to artists, authors, composers, inventors, playwrights, poets, and sculptors. However, the Constitution expressly confined Congress’s powers in this area to laws that conferred such grants solely for limited periods of time.

30. The historical antecedents of the Constitution, the record of the deliberations surrounding the drafting and adoption of the Constitution and contemporaneous evidence explaining the background and context of this language all demonstrate that the purpose of such time limitations was to assure that the proper balance was struck between providing incentives to "Authors and Inventors" on the one hand, and assuring eventual and inevitable entry of their work into public domain on the other. Thus, contemporaneous sources indicate that the grant of the "the exclusive Right to their respective Writings and Discoveries" was to be for a period of time commensurate with the remaining life of the author.

31. Despite this requirement that term for copyright be limited, Congress has repeatedly extended the term of copyright, both prospectively, and retrospectively. It has, in other words, given present authors a longer period to recover for any works they copyright in the future, and it has given past authors a longer period to recover for works they have already produced.

32. The original copyright statute of 1790 granted copyright terms of 14 years, with a 14 year renewal period. In 1831 the original copyright term was extended to 28 years, while the renewal term remained at 14 years. The renewal term was broadened from 14 to 28 years in 1909, creating a total possible copyright term of 56 years. There it stayed for more than half a century.

33. Beginning in 1962, Congress enacted a succession of laws that extended copyright terms for those copyrighted works whose terms were about to expire. The overall effect of these laws was to extend copyright terms to periods as long as 70 years. Then, in 1976 Congress enacted Pub. L. 94-553 which gave subsisting copyrights a total term of 75 years. Finally, the CTEA extended this 75-year term by 20 more years. The following table chronicles the extensions of the copyright terms:

Year

Law

Copyright Term Extension

Maximum
Copyright
Term

1962 Pub. L. 87-668 Subsisting copyrights extended to 12/31/65 59 years
1965 Pub. L. 89-142 Subsisting copyrights extended to 12/31/67 61 years
1967 Pub. L. 90-141 Subsisting copyrights extended to 12/31/68 62 years
1968 Pub. L. 90-416 Subsisting copyrights extended to 12/31/69 63 years
1969 Pub. L. 91-147 Subsisting copyrights extended to 12/31/70 64 years
1970 Pub. L. 91-555 Subsisting copyrights extended to 12/31/71 65 years
1971 Pub. L. 92-170 Subsisting copyrights extended to 12/31/72 66 years
1972 Pub. L. 92-566 Subsisting copyrights extended to 12/31/74 68 years
1974 Pub. L. 93-573 Subsisting copyrights extended to 12/31/76 70 years
1976 Pub. L. 94-553 Subsisting copyrights extended to 75 year total term 75 years
1998 Pub. L. No. 105-298 Subsisting copyrights extended to 95 year total term 95 years


34. While formally, under each of these extensions, the term is limited, the practice of continually extending copyright retroactively means that Congress, in effect, is granting copyright holders more than a "limited term."

35. The CTEA violates the restrictions of Article I, 8 and is therefore unconstitutional. This is because:

a. The CTEA confers benefits retroactively. This can have no rational basis, since no incentive to future individual creativity is provided by conferring an economic reward upon someone who has already created the work in question or upon someone to whom the creator of the work transferred or sold the rights in the work in a transaction that contemplated a shorter copyright term. This is equally true when the author is dead. However, this is exactly what the CTEA does, since it extends the copyright term for existing copyrighted works by another 20 years.

b. The CTEA confers copyright protections for a period of 95 years from the date of a work’s creation. This period extends beyond any reasonable expectation of the life expectancy of an author, since few authors begin creating works until they are at least adolescents and since there are few, if any, authors who have lived to an age exceeding 110 years.

36. A declaratory judgment will terminate the controversy between the parties.

COUNT TWO

37. Plaintiffs repeat and reallege paragraphs 1 through 48.

38. The Public Trust Doctrine holds that government may not transfer the public property of a commons into private hands in the absence of any public benefit in exchange. While this doctrine has traditionally been applied in the context of public lands, the same principle should apply to the reallocation of public rights in intangible property, such as copyright.

39. The retroactive extension of the term of copyrights attempted by Section 102(d)(1)(B) of the CTEA transfers control of the intangibles recognized by such copyright from the public domain, into which the works covered would have entered beginning this year, to the private holders of those copyrights. The free use of such works by the public as a whole, contemplated both by the public and the creators of the works under copyright terms prevailing at the time of the works' creation, is thus pretermitted.

40. The retroactive extension of the term of copyrights attempted by Section 102(d)(1)(B) of the CTEA is therefore an abdication by the government of control of public resources held for the common use in violation of the Public Trust Doctrine.

41. A declaratory judgment will terminate the controversy between the parties.

WHEREFORE, plaintiffs Eric Eldred and Eldritch Press request that this Court enter judgment:

1. Declaring that 17 U.S.C. 304(b), as amended by the CTEA, is unconstitutional;

2. Enjoining defendant, her successor and their subordinates from enforcing the NET Act, 17 U.S.C. 506(a) against persons whose infringement of a copyright would not have happened but for the CTEA’s amendment of 17 U.S.C. 304(b);

3. Awarding plaintiffs the costs of this action, including reasonable attorneys' fees; and

4. Awarding such further relief as the Court deems just and appropriate.

Respectfully submitted,

____________________________________
Geoffrey S. Stewart (DC Bar No. 287979)
Pamela J. Jadwin
HALE AND DORR LLP
1455 Pennsylvania Avenue NW
Washington, DC 20004
Tel.: (202) 942-8400


_____________________________
Charles R. Nesson
Lawrence Lessig
Jonathan L. Zittrain
THE BERKMAN CENTER FOR INTERNET & SOCIETY
1563 Massachusetts Avenue
Cambridge, Massachusetts 02138
Tel.: (617) 495-7547

 

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