4th Circuit Rules Copyright is Not a Constitutional Right

May 24, 2007. The U.S. Court of Appeals (4thCir) issued its opinion [14 pages in PDF] in Darden v. Peters, a case regarding registration of copyrights.

Introduction. This is an obscure case regarding standards of review in judicial review of decisions of the Copyright Office regarding registration of copyrights. In this case, whether or not to apply the abuse of discretion standard (which is a very low standard that makes reversal of a government agency difficult), or the de novo review standard (a higher standard), turns on the question of whether or not the review concerns a "constitutional right". Hence, the courts had to address the nature of copyright.

The gist of the opinion in this case is that while copyright is in the Constitution, and the Constitution states that it is a "Right", it does not follow that copyright is a Constitutional right. Therefore, Darden is not entitled to the higher standard.

The opinion is consistent with precedent of the Supreme Court and lower courts. However, this opinion, and the precedent upon which its relies, are inconsistent with the plain wording of the Constitution.

Moreover, these opinions affect far more than standards of review to be applied in challenges to registration decisions of the CO.

Background. William Darden created a web site that assists consumers in locating real estate appraisers. He hired another person to create digital interactive maps for his web site. Darden also seeks to license these works to other businesses. He attempted to register copyrights in these works. The CO refused, on the grounds that his works are not copyrightable subject matter. It concluded that they lacked sufficient originality because they were based upon U.S. Census maps. Darden next exhausted his administrative remedies.

Darden then filed a complaint in U.S. District Court (EDNC) against Marybeth Peters, the Register of Copyrights, alleging violation of the Administrative Procedure Act (APA), which provides remedies for denials of applications to register copyrights.

The District Court affirmed the decisions of the CO. This appeal followed.

Constitution and Statutes. Article I, Section 8, of the Constitution provides that "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".

The Copyright Act provides for the registration of copyrights with CO, and, with exceptions, provides that registration is a necessary precondition for judicial enforcement of copyrights.

17 U.S.C. § 410 provides, at subsection (b), that "In any case in which the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal."

Then, 17 U.S.C. § 701, at subsection (e), provides in part that, with certain exceptions, "all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act."

That is, Darden's remedy for the CO's denial is under the APA.

The APA provides, at 5 U.S.C. § 706, that "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall ... (2) hold unlawful and set aside agency action, findings, and conclusions found to be -- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; ..."

The standard of review associated with Section 706(2)(A) is abuse of discretion, while the standard of review associated with Section 706((2)(B) is de novo review.

Reasoning of the Court of Appeals. The Court of Appeals affirmed the judgment of the District Court. In so doing, it held that copyright is not a right, and that "whatever rights and remedies exist do so only because Congress provided them", citing Supreme Court precedent.

The opinion is 15 pages, but the key section on constitutional rights is brief. It is substantially set out in full below.

The Court began that "Darden cites no authority even remotely suggesting that any court has ever regarded the agency’s routine decision to deny registration as having constitutional ramifications for the claimant. Darden derives the basis for his argument from Article I of the United States Constitution which grants Congress the power to provide copyright protection to the extent Congress sees fit."

After quoting the copyright clause of the Constitution, the Court of Appeals wrote that "Congress is under no mandate from this clause, however, to provide copyright protection. See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 883 (9th Cir. 2005) (``As is clear from its text, that clause of the Constitution grants no substantive protections to authors. Rather, Congress is empowered to provide copyright protection.´´). Copyright is solely a creature of statute; whatever rights and remedies exist do so only because Congress provided them. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984)." (Parentheses in original.)

(See, opinion of the Supreme Court in Sony v. Universal City Studios. The U.S. Court of Appeals (9thCir) issued its opinion [9 pages in PDF] in Silvers v. Sony Pictures on June 3, 2003. See also, story titled "9th Circuit Rules That An Accrued Cause of Action for Copyright Infringement May Be Assigned" in TLJ Daily E-Mail Alert No. 673, June 4, 2003.)

The Court of Appeals then concluded, "Thus, as there is no constitutional right to copyright registration, the Register’s refusal to register Darden’s claim cannot be ``contrary to constitutional right´´ as it must be for section 706(2)(B) to apply."

Article I, Section 8, enumerates numerous Congressional powers. However, in only one of the these clauses does the Constitution designate that there is a "Right". The opinion does not address the question of why the founding fathers' use of the term "Right" does not mean that there is a Constitutional right.

Nor does this opinion attempt to distinguish the copyright clause of the Constitution from the other clauses of the Constitution that both identify a right and provide Congressional authority to enact legislation. The courts have not relegated any of these other rights to non-rights status.

For example, the 13th Amendment provides that "Congress shall have power to enforce this article by appropriate legislation." The 14th Amendment (including due process and equal protection) provides that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Similarly, all of the "right" to vote amendments, 15th (race), 19th (sex), 24th (voting taxes), and 26th (18 year olds), also contain delegations of legislative authority to the Congress. Yet, the courts have not deconstructed any of these rights to the point that "whatever rights and remedies exist do so only because Congress provided them".

The courts have singled out the rights designation of the copyright clause for inconsistent treatment.

Consequences. There would likely be numerous consequences, other than the standard of review to be applied in challenges to denials of copyright registrations, were copyright to be recognized as a Constitutional right.

For example, this case involves review of a denial of a copyright registration application, not a challenge to a grant of a copyright registration application. Yet, the CO's regulations create no administrative procedure for challenging the validity copyright registrations, and it is the position of the CO that there is no such remedy, even though such registrations may be for works not authored by the registrant, and may cloud the title of the actual author. Hypothetically, were copyright recognized by the judiciary as a Constitutional right, an author would have a stronger claim to clearing his title by administrative process.

There is also the matter of registration fees. The courts have struck down other fees associated with the exercise of Constitutional rights. Yet, copyright registration fees deter some authors from registering their works. Moreover, the case would be even more compelling in the case of inventions. Not only are the U.S. Patent and Trademark Office's (USPTO) patent related fees prohibitively high for some inventors, but the Congress uses USPTO fees to subsidize other government programs unrelated to protecting the rights of inventors. That is, there is essentially a tax, in addition to a user fee, associated with the exercise of a "Right".

A system of rights generally limits the ability of majorities or organized interests to use the government to harm individuals protected by rights. In contrast, where an area of activity is left open to regulation by the Congress, majorities and organized interests can take from or harm minorities or individuals who lack their legislative prowess.

The language of the Constitution suggests that it was the understanding of the founding fathers who drafted, debated, ratified, and promptly amended the Constitution that certain activities, including those of authors, inventors, ministers, speakers, owners of printing presses, and those who petitioned the government, were too fundamental to the success of the nation, and too vulnerable to abuse by majorities, to be circumscribed by the whims of legislative action. Nevertheless, the recent holdings of the courts that "Copyright is solely a creature of statute; whatever rights and remedies exist do so only because Congress provided them" places copyright back within the legislative arena. Moreover, these opinions stand in contrast to those which confer Constitution rights status upon activities that are not mentioned in the Constitution, let alone designated as rights.

Today, authors and inventors are generally few, weak, geographically dispersed, and disorganized in the political process. In contrast, the aggregators, publishers and distributors of creative works, such as the movie studios, record companies, book publishers, broadcasters, and software companies, tend to be well organized and financed, and effective lobbyists. Their interests sometimes diverge from those of creators. And more recently, consumer electronics companies and internet based services companies, which are generally hostile to copyright, have demonstrated political effectiveness in Washington DC.

Under the present opinion, and other recent cases, authors and inventors have no recourse to the Constitution when the Congress limits the scope of their copyrights, or their ability to enforce them.

This case is William Darden v. Marybeth Peters, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1177, an appeal from the U.S. District Court for the Eastern District of North Carolina, D.C. No. 2:04-cv-00030-BO, Judge Terrence Boyle presiding. Judge Traxler wrote the opinion of the Court of Appeals, in which Judges Widener and Duncan joined.

President Bush had sought to elevate Judge Boyle to the Court of Appeals for the 4th Circuit in the 109th Congress. However, his nomination encountered opposition from Senate Democrats. Bush did not renominate Judge Boyle in the 110th Congress.

One of the groups that lobbied against Judge Boyle's confirmation was People for the American Way (PFAW). It wrote a report [27 pages in PDF] in 2005 stating that Judge Boyle issued troubling rulings in individual rights cases. The PFAW complained in its report about one of Judge Boyle's opinions involving copyright. The PFAW complained that Judge Boyle had allowed restitution from a copyright infringer. That is, for the PFAW, the rights of authors and copyright holders are not salient to the debate. Rather, convicted criminal infringers are the ones with the critical rights. (See, page 8.)