Opinion
Civil Case No. 01-B-1854 (BNB).
April 19, 2005
MEMORANDUM OPINION AND ORDER
This case on motions for summary judgment comes to the issue whether a provision of the Uruguay Round Agreements Act, Pub.L. No. 103-465 (amending, inter alia, 17 U.S.C. §§ 104A, 109(a)) ("URAA") accords with the United States Constitution. The defendants (collectively, the "Government") have filed a motion for summary judgment. The plaintiffs, Lawrence Golan, Richard Kapp, S.A. Publishing Co. Ind. d/b/a ESS. A.Y. Recordings, Symphony of the Canyons, Ron Hall d/b/a Festival Films, and John McDonough d/b/a Timeless Video Alternatives International, move for partial summary judgment on the question whether Congress exceeded its authority in enacting Section 514 of the URAA. The motions are adequately briefed and oral argument would not materially aid their resolution. For the reasons stated below, I GRANT the Government's motion and DENY the plaintiffs' motion.
At issue is Section 514 of the URAA, codified in 17 U.S.C. § 104A, which restores copyright protection to works of foreign authors that are not in the public domain in the source countries but passed into the public domain in the United States due (primarily) to noncompliance with formalities imposed by United States copyright law. Pub.L. 103-465, H.R. 5110, § 514. 17 U.S.C. § 104A now provides, inter alia,
(a) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration. Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States.
. . .
(h)(5) The term "restored copyright" means copyright in a restored work under this section.
(h)(6) The term "restored work" means an original work of authorship that —
(A) is protected under subsection (a);
(B) is not in the public domain in its source country through expiration of term of protection;
(C) is in the public domain in the United States due to —
(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;
(ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or
(iii) lack of national eligibility;
(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and
(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording.17 U.S.C. § 104A(a) and (h) (56).
The questions presented, in their broadest terms, are three. First, I must determine whether the Constitution grants Congress the authority to enact Section 514 of the URAA into law. Second, I must examine the Government's proffered basis for URAA Section 514 and resolve whether it is rationally related to a legitimate Government interest. Third, even if Congress' authority is established and Congress has exercised that authority properly, the parties dispute whether Section 514 of the URAA infringes upon the plaintiffs' constitutionally-protected rights.
The parties do not dispute that the plaintiffs are each purveyors and exploiters of intellectual property that was, prior to Congress' passage of the URAA, in the public domain and for which copyright protection has now been restored to the foreign creators.
The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). I shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Because the parties do not dispute issues of material fact, this case is singularly well-suited to summary disposition; the questions of constitutional and statutory construction raised here present legal questions properly resolved by summary judgment. Oklahoma ex rel. Department of Human Services v. Weinberger, 741 F.2d 290, 291 (10th Cir. 1983), cert. denied sub nom., Farrah v. United States, 466 U.S. 971, 104 S. Ct. 2343, 80 L. Ed. 2d 817 (1984); Higganbotham v. Okla. ex rel. Okla. Transp. Comm'n, 328 F.3d 638, 646 (10th Cir. 2003); Santana v. City of Tulsa, 359 F.3d 1241, 1246 (10th Cir. 2004).
I am deferential to Congress. Eldred v. Ashcroft, 537 U.S. 186, 213, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003); Oklahoma ex rel. Okla. Dep't of Pub. Safety v. United States, 161 F.3d 1266, 1269 (10th Cir. 1998), cert. denied, 528 U.S. 1114, 120 S. Ct. 930, 145 L. Ed. 2d 810 (2000). Statutes are presumed constitutional. United States v. Dorris, 236 F.3d 582, 585 (10th Cir. 2000), cert. denied 532 U.S. 986, 121 S. Ct. 1635, 149 L. Ed. 2d 495 (2001). It is generally for Congress, not the courts, to decide how best to pursue the Constitution's objectives. Eldred, 537 U.S. at 212.
I. Congressional authority
The plaintiffs doubt that URAA Section 514 is within the power granted to Congress because, they argue, it impermissibly removes works from the public domain. The Constitution provides, "The Congress shall have Power . . . 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;. . . ." U.S. Constitution, art. I, § 8, cl. 8. This Intellectual Property Clause ("IP Clause") "is both a grant of power and a limitation." Graham v. John Deere Co., 383 U.S. 1, 5, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966).
The primary purpose of the IP Clause is not to reward the labor of authors, but to promote the progress of science and the useful arts. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). The economic philosophy behind the IP Clause "is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.'" Mazer v. Stein, 347 U.S. 201, 219, 74 S. Ct. 460, 98 L. Ed. 630 (1954). Progress could not be encouraged if creative works were never subjects of public exploitation and development. For that reason, the IP Clause imposes important limitations upon Congress' authority to grant monopolies. Congress may grant exclusive rights to authors and inventors only for limited times, U.S. Constitution, art. I, § 8, cl. 8, and only for original intellectual conceptions of the author, Feist Publications, Inc., 499 U.S. at 346-347.
The plaintiffs suggest that the IP Clause imposes an additional limitation — copyrights cannot be restored to works that have passed into the public domain. The plaintiffs perceive this absolute bar in the text's commitment to the progress of science and useful arts; the exploitation of works aids the development of ideas and so the public domain must be inviolate. I recognize that the IP Clause implicitly guards the public domain in order to encourage intellectual progress and the free exchange of ideas.
Save for the limited protection accorded the creator of literary and intellectual works under the Copyright Act or its exceptions . . . anyone may freely and with impunity avail himself of such works to any extent he may desire and for any purpose whatever subject only to the qualification that he does not steal good will, or, perhaps more accurately stated, deceive others in thinking the creations represent his own work.Cable Vision, Inc. v. KUTV, Inc., 335 F.2d 348, 351 (9th Cir. 1964), cert. denied sub nom., KLIX Corp. v. Cable Vision, Inc., 379 U.S. 989, 85 S. Ct. 700, 13 L. Ed. 2d 609 (1965).
However, that the public domain is indeed public does not mandate that the threshold across which works pass into it cannot be traversed in both directions. That is a very different question. Indeed, neither the Supreme Court nor any Circuit Court has adopted the rule that the plaintiffs suggest.
The plaintiffs analogize to cases that have arisen under Congress' patent power. The Government relies upon the history of congressional interpretation of the IP Clause, which, it argues, is suffused with removals of works from the public domain. The District Court for the District of Columbia, in Luck's Music Library, Inc. v. Ashcroft, 321 F. Supp. 2d 107 (D.D.C. 2004), has concluded that URAA Section 514 is consistent with that precedent.
I look first to the patent cases and then to the history of congressional interpretation of its copyright power.
A. The patent cases
The plaintiffs refer me to the Graham decision, in which the Supreme Court stated that "Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available." Graham, 383 U.S. at 6. "Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must `promote the Progress of . . . useful Arts.'" Id. Extrapolating from Graham, at least one circuit court has indicated in dicta that Congress is precluded from issuing a copyright to a work after it enters the public domain. Eldred v. Reno, 239 F.3d 372, 377 (D.C. Cir. 2001), aff'd sub nom., Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003).
The plaintiffs place greater weight upon the Eldred court's dicta than it was intended to bear. The court there explicitly disclaimed any attempt to resolve this question, which did not touch upon its holding. Ibid.
The plaintiffs also find support for their reading of Graham in various decisions standing for the unremarkable rule that materials in the public domain cannot be copyrighted. See, e.g., Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S. Ct. 1002, 41 L. Ed. 118 (1896); Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34, 123 S. Ct. 2041, 156 L. Ed. 2d 18 (2003); Country Kids 'N City Slicks v. Sheen, 77 F.3d 1280, 1287 (10th Cir. 1996); Bridge Publs. v. F.A.C.T.Net., 183 F.R.D. 254, 262 (D. Colo. 1998); Kepner-Tregoe, Inc. v. Executive Dev., Inc., 79 F. Supp. 2d 474, 492 (D.N.J. 1999), aff'd, 276 F.3d 577 (3d Cir. 2001); Jacobs v. Robitaille, 406 F. Supp. 1145, 1149 (D.N.H. 1976). Those courts concerned themselves with the boundaries of authors' statutory rights, not of congressional authority, and their decisions are neither helpful nor applicable here.
Even assuming that the principles enunciated in Graham govern copyright cases — a doubtful proposition, as shown below — the holding of that case is not sufficiently expansive to govern this case. The Graham Court determined the constitutionality of a congressional prohibition against the issuance of patents for obvious technological advances. Graham, 383 U.S. at 3. This is a distinction with a difference, for I am confronted here with the question whether Congress may properly restore to creators of intellectual property their copyrights; the Court in Graham concerned itself with the more foundational question under what circumstances those claiming entitlement to patent protection might constitutionally be denied such protection in the first place.
The Supreme Court has held that Congress may permissibly grant retroactive patent protection to an inventor who has failed to secure such protection at the time of the invention. McClurg v. Kingsland, 42 U.S. 202, 206, 1 How. 202, 11 L. Ed. 102 (1843); Eldred, 537 U.S. at 202-203. The Government argues that McClurg controls this case. The McClurg plaintiff, however, was not granted protection against the defendant, his employer, who had exploited the technology during the time between its creation and vestment of the patent. Though the plaintiff did not lose his rights vis-á-vis third parties by virtue of the defendant's exploitation, the defendant was properly shielded from liability to the plaintiff as a result of its reliance upon the plaintiff's delay in acquiring the patent and the plaintiff's utilization of the defendant's own resources in developing the technology. Id at 208-209. See also, Gill v. United States, 160 U.S. 426, 431, 16 S. Ct. 322, 40 L. Ed. 480 (1896); United States v. Dubilier Condenser Corp., 289 U.S. 178, 188, 53 S. Ct. 554, 77 L. Ed. 1114 (1933), amended by, 289 U.S. 706, 53 S. Ct. 687, 77 L. Ed. 1462 (1933). It is "inescapably plain that McClurg upheld the expanded patent application to an existing patent," not to the restoration of a patent right at the expense of the public domain. Eldred, 537 U.S. at 203 n. 9.
In all events, Graham and McClurg are of little assistance here. The considerations guiding those decisions are largely peculiar to the patent context because, "[w]hile a copyright confers on its owner an exclusive right to reproduce the original work, a patent provides its owner with the far broader right to exclusive use of the novel invention or design for a time-specific period." Demetriades v. Kaufmann, 680 F. Supp. 658, 662 (S.D.N.Y. 1988). "From their inception, the federal patent laws have embodied a careful balance between the need to promote innovation and the recognition that imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146, 109 S. Ct. 971, 103 L. Ed. 2d 118 (1989).
Removal of existent knowledge from the public domain is a persistent danger in the expansion of patent monopolies and, for that reason, informs courts' understanding of Congress' patent power to a considerable degree. See Forbro Design Corp. v. Raytheon Co., 532 F.2d 758, 761 (1st Cir. 1976). That danger, however, is not lurking within the retroactive expansion of copyrights; copyrights restrict the use of expressions but not of ideas themselves. Feist Publications, Inc., 499 U.S. at 349-350 ("[C]opyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."). For that reason, as demonstrated below, the history of patent regulation provides an outer limit for my analysis. It is unlikely that the public has a greater interest in copyrightable works than it does in patentable ones. However, the patent cases do not resolve the question before me.
Similarly, I need not consider the implications of the instances, cited by the Government, in which Congress has restored to individual inventors patent protection that had, for various reasons, lapsed. Though those statutes certainly make the Government's view more plausible, that they had only specific application renders them unhelpful in this case.
B. Historical analysis
1. The 1790 Copyright Act
The first occasion on which Congress purportedly removed ownership of copyrightable materials from the public domain was with passage of the Copyright Act of 1790, 1 Stat. 124 ("1790 Act"). By the 1790 Act, Congress established the terms by which authors would hold copyrights in their works, both previously written and to be created in the future. The 1790 Act stated, inter alia,
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passing of this act, the author and authors of any map, chart, book, or books already printed within these United States, being a citizen or citizens thereof, or resident within the same, his or their executors, administrators or assigns, who hath or have not transferred to any other person the copyright . . .; and any other person . . . who hath or have purchase or legally acquired the copyright . . ., in order to print, reprint, publish or vend the same, shall have the sole right and liberty of printing, reprinting, publishing and vending such [works] for the term of fourteen years from the recording the title thereof . . .: And that the author and authors of any [works] already made and composed, and not printed or published, or that shall hereafter be made and composed, . . . shall have the sole right of printing, reprinting, publishing and vending such [works] for the like term of fourteen years from the time of recording the title thereof. . . . And if, at the expiration of the said term, the author or authors, or any of them, be living, and a citizen or citizens of these United States, or resident therein, the same exclusive right shall be continued to him or them . . . for the further term of fourteen years: Provided, he or they shall cause the title thereof to be a second time recorded and published . . . and that within six months before the expiration of the first term of fourteen years aforesaid.
Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124. Sections 2 and 6 of the 1790 Act provided a cause of action and penalties for infringement. Sections 3 and 4 set forth the procedural requirements for securing a copyright.
Two interpretations of the 1790 Act are plausible. One might conclude either 1) that Congress in 1790 established uniform standards for pre-existing copyright protection within the several states or 2) that Congress was, by vesting copyright in authors, creating a right that had no parallel at common law. By the former interpretation, which is commended by Congress' acknowledgment in the 1790 Act that copyrights might previously have been transferred, the Act may be distinguished from URAA Section 514. By the latter interpretation, which the Luck's Music court adopted and the Government presses here, one might further conclude that Congress was in 1790 removing exclusive use of works from the public domain.
The Government points out that only ten of the thirteen states had effective copyright statutes in 1790. Thus, it argues, unless a common-law copyright existed at that time, I must conclude that Congress in 1790 deliberately removed works from the public domain in at least three states — Delaware, Maryland, and Pennsylvania. The Luck's Music court adopted this reasoning. Luck's Music, 321 F. Supp. 2d at 113-114.
The question of the common-law copyright's extent for centuries occupied many capable jurists, including the great William Blackstone. I cannot identify the boundaries of that right with certainty. However, because a slight expansion of then-existing copyright law in 1790 would be sufficient to support the Government's argument on this point, I need not probe the full depths of the uncertain history.
i. Wheaton v. Peters
In support of its holding, the Luck's Music court invoked Wheaton v. Peters, 33 U.S. 591, 8 Peters 591, 8 L. Ed. 1055 (1834), which it deemed dispositive. A close reading of Wheaton, however, reveals that the Court did not there decide the question whether the common law of Pennsylvania provided a copyright before passage of the 1790 Act but rather whether the copyright was before that time perpetual. After considering the history of common-law copyright in Great Britain and its abrogation by the Statute of 8 Anne, the Court stated,
From the above authorities, and others which might be referred to if time permitted, the law appears to be well settled in England, that, since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. And that, notwithstanding the opinion of a majority of the judges in the great case of Miller v. Taylor was in favour of the common law right before the statute, it is still considered, in England, as a question by no means free from doubt.
That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication, cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.Id. at 657.
So, the Wheaton Court did not doubt that an author had an exclusive common law property right in his creation. Rather, the question there was whether the exclusivity of right had been perpetual. In other words, the Court was faced with ascertaining the boundaries of the common-law copyright in Pennsylvania prior to passage of the 1790 Act. This understanding is confirmed by the Court's phrasing and rephrasing of the question then before it: does an author, by the common law of Pennsylvania, have a perpetual property in the copyright of his works. See id. at 657, 659.
The Luck's Music court, and the Government here, have both invoked the Wheaton Court's reasoning from the language of the IP clause. The Wheaton Court read the phrase "by securing," which is found both in the IP Clause and in the 1790 Act, to mean that the Constitution authorized Congress to create a new right, not to protect one already in existence under the common law. Ibid at 661. The Wheaton Court found support for its reading from the fact that the IP Clause refers to inventors as well as authors and that "it has never been pretended, by any one, either in this country or in England, that an inventor has a perpetual right, at common law, to sell the thing invented." Id. The Court also reasoned that Congress' provision in the 1790 Act that the author of a work "shall have the sole right and liberty of printing" would have been mere surplusage had the right for which the complainant was advocating existed at common law. Id. From these surveys the Wheaton Court concluded, "Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it." Id.
As is clear from the Wheaton Court's reasoning, the "right" that Congress created was a copyright of a particular length — fourteen years renewable once — not a general property right in one's own work. So, Wheaton does not stand for the proposition that the Government suggests; the Wheaton Court doubted the extent and duration of an author's exclusive rights in his intellectual property at common law but not the existence of those rights.
This reading of Wheaton is bolstered by additional considerations. The Supreme Court has since stated that, prior to 1790, the common law recognized that authors had a protectable proprietary interest in their own handiwork. Mazer, 347 U.S. at 214-215. See also Wright v. Warner Books, Inc., 953 F.2d 731, 742 (2d Cir. 1991) (Van Graafeiland, J., concurring). Though Congress did not in 1790 describe the contours of pre-existing copyrights, it acknowledged that some of those copyrights might previously have been transferred between parties. Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124. Furthermore, in 1909, Congress explicitly recognized the persistence at that time of authors' common-law rights in their unpublished works. Shoptalk, Ltd. v. Concorde-New Horizons Corp., 168 F.3d 586, 590 (2d Cir. 1999), cert. denied, 527 U.S. 1038, 119 S. Ct. 2399, 144 L. Ed. 2d 798 (1999). So, the question is not whether a common-law of copyright existed prior to 1790 but rather the extent to which the 1790 Act abrogated that common law right.
ii. Abrogation of the common law right
As the Supreme Court has repeatedly stated, "In this country the right of an author to multiply copies of books, maps, etc., after publication, is the creation of the Federal statutes. These statutes did not provide for the continuation of the common-law right, but, under constitutional authority, created a new right." Globe Newspaper Co. v. Walker, 210 U.S. 356, 362, 28 S. Ct. 726, 52 L. Ed. 1096 (1908). See also Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 188, 30 S. Ct. 38, 54 L. Ed. 150 (1909); Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S. Ct. 546, 76 L. Ed. 1010 (1932). The common-law right that Congress in 1790 abrogated was not contiguous with what Congress then created. Mazer, 347 U.S. at 214-215.
As suggested above, the common law of copyright in England was a matter of some uncertainty at the time of the American founding. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291, 28 S. Ct. 72, 52 L. Ed. 208 (1907). Disputes concerning whether copyrights were perpetual at English common law survived passage of the Statute of 8 Anne in 1710. The landmark case of Millar v. Taylor, 4 Burr. 2303, in 1769, a mere seven years before the signing of the Declaration of Independence, did little to resolve those disputes. While a majority of judges took the view that a perpetual right had existed at common law, a different majority thought that the common-law remedy was no longer available after the Statute of 8 Anne. Not until 1774, in Donaldson v. Becket, 4 Burr. 2408, did the House of Lords rule definitively that copyrights were limited in their terms because the Statute of 8 Anne had extinguished the perpetual common-law right.
Blackstone in his famous treatise set out the arguments both for and against the existence of a perpetual common law copyright. On one hand, it was argued by many, "When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right." 2 William Blackstone, Commentaries on the Laws of England, 405-406 (1771). Blackstone continued,
On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtle and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.Id. at 406.
Meanwhile, in the nascent United States tied together by the Articles of Confederation, the Founders generally expressed antipathy to the establishment of monopolies by law. See generally, Graham, 383 U.S. at 7-10. This led some to doubt the legal protection afforded to creators of intellectual property in the United States. At the recommendation of Congress, and the urging of Noah Webster and other men of learning, twelve states followed England's example and enacted copyright legislation. Ten of those statutes took effect.
Each state legislature that enacted a copyright statute between 1783 and 1786 stated the ends to which it acted. Connecticut passed its "Act for the encouragement of literature and genius" so "that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings. . . ." Acts and Laws of the State of Connecticut, In America [Compiled by Roger Sherman and Richard Law], 133-134 (New London, Timothy Green 1784). Massachusetts adopted "An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions, for twenty-one years," in order "to encourage learned and ingenious persons to write useful books for the benefit of mankind." Acts and Laws of the Commonwealth of Massachusetts, 236 (Boston, B. Edes Sons 1781-1783). The consideration of the Maryland legislature was stated, "Whereas printers, booksellers, and other persons may take the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their great injury: For preventing therefore such practices, and for the encouragement of learned men." Laws of Maryland, made and passed, at a session of assembly, begun and held at the City of Annapolis on Monday the 21st of April, 1783, chapter 34 § I (Annapolis, F. Green, 1783). New Jersey adopted "An Act for the promotion and encouragement of literature," so "that men of learning who devote their time and talents to the preparing treatises for publication, should have the profits that may arise from the sale of their works secured them." Acts of the seventh general assembly of the State of New Jersey, at a session begun at Trenton, on the 22d day of October, 1782, and continued by adjournments, being the second sitting, 47 (Trenton, Isaac Collins, 1783). New Hampshire enacted its statute "for the encouragement of literature and genius, and for securing to authors the exclusive right and benefit of publishing their literary productions, for twenty years. The Perpetual Laws of the State of New-Hampshire, from July, 1776, to the session in December, 1788, continued into 1789, 161-162 (Portsmouth, J. Melcher, 1789). The Rhode Island legislature acted "for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions, for twenty-on years." December, 1783, At the general assembly of the governor and company of the State of Rhode-Island and Providence-Plantations, begun and holden at East-Greenwich on the 4th Monday of December, 1783, 6-7 (Providence, J. Carter, 1783). Pennsylvania created a fourteen-year copyright, at Congress' recommendation, because "printers, booksellers, and other persons have heretofore frequently taken the liberty of printing, reprinting, and publishing, or causing to be reprinted and published, books and other writings without the consent of the author or proprietors of such books and writings, to their very great detriment and the damage of their families." Laws enacted in the second sitting of the eighth general assembly of the Commonwealth of Pennsylvania, which commenced the 13th day of Jan., 1784, 306-308 § II (Philadelphia, T. Bradford, 1784). South Carolina adopted "An Act for the encouragement of arts and sciences." Acts, Ordinances, and Resolves of the General Assembly of the State of South Carolina, passed in the year 1784, 49-51 (Charleston, J. Miller, 1984). Virginia's purpose was to secure for "authors of literary works and exclusive property therein for a limited time." Acts passed at a General Assembly of the Commonwealth of Virginia, Begun and held in Richmond, on the 17th day of October, 1785, 8-9 (Richmond, J. Dunlap James Hayes, 1785). North Carolina announced its consideration, "Whereas nothing is more strictly a man's own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce." Laws of the State of North-Carolina, Published, according to Act of Assembly, by James Iredell, 563-564 (Edenton, Hodge Wills, 1791). Georgia appealed to "the principles of natural equity and justice," which "require that every author should be secured in receiving the profits that may arise from the sale of his works." A Digest of the Laws of the State of Georgia, From its first establishment as a British province down to the year 1798, inclusive, By Robert and George Watkins, 323-325 (Philadelphia, R. Aitken, 1800). The New York legislature likewise believed that "principles of natural equity and justice" demand "that every author should be secured in receiving the profits that may arise from the sale of his or her works." Laws of the State of New-York, passed by the legislature of said State at their ninth session, 99-100 (New York, Samuel and John Loudon, 1786).
From this review it is apparent that the twelve states that enacted copyright legislation viewed the then-existent common law copyright protection as either inadequate or insufficiently defined to provide authors with the desired protection from infringement; each sought further to protect authors from infringement and to establish incentives for creation. This commends the conclusion that the states adopted the latter view articulated by Blackstone — the common-law copyright was extinguished at first publication and thereafter must have been preserved by statute, if at all.
Several courts in states that existed before 1790 have subsequently confirmed that common-law copyrights vested in authors at the creation of works but were extinguished at the time of first publication. Hughes Tool Co. v. Fawcett Publications, Inc., 315 A.2d 577, 580 (Del.Supr. 1974), aff'd, 350 A.2d 341 (Del. 1975); Wright v. Tidmore, 430 S.E.2d 72, 73 (Ga.App. 1993); Edgar H. Wood Associates, Inc. v. Skene, 197 N.E.2d 886, 889 (Mass. 1964), quoting Tompkins v. Halleck, 133 Mass. 32, 35 (1882); Haskins v. Ryan, 64 A. 436, 437 (N.J. Ch. 1906), aff'd, 73 A. 1118 (N.J. Err. App. 1909); Pushman v. New York Graphic Soc., 39 N.E.2d 249, 250-251 (N.Y. 1942); and Waring v. WDAS Broadcasting Station, Inc., 27 Pa. D. C. 297, 307-308 (Pa. Com. Pl. 1936), aff'd, 194 A. 631 (Pa. 1937).
The Supreme Court has also summarized the distinction between the common-law right and the federal statutory right that followed.
At common law, the exclusive right to copy existed in the author until he permitted a general publication. Thus, when a book was published in print, the owner's common-law right was lost. At common law an author had a property in his manuscript, and might have an action against anyone who undertook to publish it without authority. The statute created a new property right, giving to the author, after publication, the exclusive right to multiply copies for a limited period. This statutory right is obtained in a certain way and by the performance of certain acts which the statute points out. That is, the author, having complied with the statute, and given up his common-law right of exclusive duplication prior to general publication, obtained by the method pointed out in the statute an exclusive right to multiply copies and publish the same for the term of years named in the statute.Caliga, 215 U.S. at 188.
As the Caliga Court recognized, the common law of copyrights protected an author's interest prior to publication. See also, Shoptalk, Ltd., 168 F.3d at 590. "The common law recognize[d] three ways of exposing a work to the public: exhibition or performance, limited publication, and general publication. Of these, only general publication result[ed] in loss of the common-law copyright by the creator." Burke v. National Broadcasting Co., 598 F.2d 688, 691 (1st Cir. 1979), cert. denied, 444 U.S. 869, 100 S. Ct. 144, 62 L. Ed. 2d 93 (1979). A general publication is "such a dissemination of the work of art itself among the public as to justify the belief that it took place with the intention of rendering such work common property." American Tobacco Co., 207 U.S. at 299-300. It "occurs when a work is made available to members of the public at large without regard to who they are or what they propose to do with it." Burke, 598 F.2d at 691.
It might be speculated that the boundaries of the common-law right developed in response to the 1790 Act; protection between creation and general publication was omitted from the 1790 Act and was thus singularly within the purview of the states because it was not then preempted. However, nothing indicates that the common-law copyright was trimmed to accommodate the 1790 Act and, as set forth above, the more reasonable inference is that Congress and the legislatures of twelve states thought the common-law protections insufficient.
From all of the available authorities, it is reasonable to conclude that Congress in 1790 anticipated the removal of some works from the public domain; those authors who had lost exclusive rights in their creations by general publication at common law might have obtained copyrights pursuant to the 1790 Act. The First Congress evidently determined that such a practice was constitutionally permissible. As the Government points out, that Congress' understanding of the IP Clause is entitled to considerable deference. See Myers v. United States, 272 U.S. 52, 175, 47 S. Ct. 21, 71 L. Ed. 160 (1926). "The construction placed upon the constitution by the first act of 1790 . . . by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is . . . entitled to very great weight." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57, 4 S. Ct. 279, 28 L. Ed. 349 (1884).
2. The 1832 Patent Act
In 1832, Congress extended patent protection to works that had passed into the public domain as a result of inventors' inadvertent failures to comply with legal formalities. An Act concerning patents for useful inventions, 4 Stat. 559 (July 3, 1832) ("1832 Patent Act"). The 1832 Patent Act provided, inter alia,
And be it further enacted, That wherever any patent which has been heretofore, or shall be hereafter, granted to any inventor . . . shall be invalid or inoperative by reason that any of the terms or conditions prescribed in the third section of the [Patent Act of February 21, 1793], have not, by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, been complied with on the part of the said inventor, it shall be lawful for the Secretary of State, upon the surrender to him of such patent, to cause a new patent to be granted to the said inventor for the same invention for the residue of the period then unexpired, for which the original patent was granted, upon his compliance with the terms and conditions prescribed in the said third section of the said act.4 Stat. at 559, § 3.
The Government asserts that the mechanics and effects of the 1832 Patent Act are indistinguishable from those of URAA Section 514. The Government unnecessarily overstates its case; the distinctions between patent and copyright analyses under the IP Clause actually give the 1832 Act stronger precedential effect here than it would have if the concerns were identical.
The Supreme Court has explained the two fundamental differences in the means by which patents and copyrights respectively further the objectives of the IP Clause.
[P]atents and copyrights do not entail the same exchange, and . . . our references to a quid pro quo typically appear in the patent context. This is understandable, given that immediate disclosure is not the objective of, but is exacted from, the patentee. It is the price paid for the exclusivity secured. For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright. Indeed, since the 1976 Act, copyright has run from creation, not publication.
Further distinguishing the two kinds of intellectual property, copyright gives the holder no monopoly on any knowledge. A reader of an author's writing may make full use of any fact or idea she acquires from her reading. The grant of a patent, on the other hand, does prevent full use by others of the inventor's knowledge.Eldred, 537 U.S. at 216-217 (citations omitted). In both of those distinctions it can be observed that copyright protection aids the dissemination of knowledge — the objective of the IP Clause — in ways that patent monopolies do not; while copyrights protect the expressions of ideas and facts, patents protect the ideas and facts themselves. For that reason, expansion of the copyright does not impede the progress of science and the useful arts to the extent that expansion of the patent might. Congress did not in 1832 perceive a danger in expanding patent rights retroactively. It presumably would have seen no cause for alarm at enforcement of URAA, which will have a comparatively negligible deleterious effect upon the progress of science and the useful arts.
The plaintiffs dispute that Congress by the 1832 Patent Act restored protection to works that were in the public domain. They argue that the effect of the Act was merely to provide procedural redress for inventors who submitted patent applications with deficient specifications and that the integrity of the resulting patents would not, in those cases, have been suspect. That creative interpretation of the 1832 Patent Act ignores the phrase, "shall be invalid or inoperative," from which it is clear that Congress intended to restore patent protection in cases where the invention had passed into the public domain.
3. The 1919 and 1941 Copyright Acts
In 1919, and again in 1941, Congress authorized the President to restore copyright protection to foreign authors of certain works published during World Wars I and II, respectively. An Act to amend sections 8 and 21 of the Copyright Act of 1909, 41 Stat. 368-369 (December 18, 1919) ("1919 Act"); An Act to amend section 8 of the Copyright Act of 1909, 55 Stat. 732 (September 25, 1941) ("1941 Act"). Both the 1919 and 1941 Acts amended Section 8 of the Copyright Act of 1909, which dealt with copyrights for foreign authors. See An Act To amend and consolidate the Acts respecting copyright, 35 Stat. 1077, § 8 (1909) ("1909 Act").
The 1919 Act added, inter alia,
. . . that all works made the subject of copyright by the laws of the United States first produced or published abroad after August 1, 1914, and before the date of the President's proclamation of peace, of which the authors or proprietors are citizens or subjects of any foreign State or nation granting similar protection for works by citizens of the United States, the existence of which shall be determined by a copyright proclamation issued by the President of the United States, shall be entitled to the protection conferred by the copyright laws of the United States from and after the accomplishment, before the expiration of fifteen months after the date of the President's proclamation of peace, of the conditions and formalities prescribed with respect to such works by the copyright laws of the United States: Provided further, that nothing herein contained shall be construed to deprive any person of any right which he may have acquired by the republication of such foreign work in the United States prior to the approval of this Act.41 Stat. at 369, § 8. The 1941 Act added, inter alia,
Provided, That whenever the President shall find that the authors, copyright owners, or proprietors of works first published or produced abroad and subject to copyright or to renewal of copyright under the laws of the United State, including works subject to ad interim copyright [under Section 21 of the 1909 Act], are or may have been temporarily unable to comply with the conditions and formalities prescribed with respect to such works by the copyright laws of the United States, because of the disruption or suspension of facilities essential for such compliance, he may by proclamation grant such extension of time as he may deem appropriate for the fulfillment of such conditions or formalities by authors, copyright owners, or proprietors who are citizens of the United States or who are nationals of countries which accord substantially equal treatment in this respect to authors, copyright owners, or proprietors who are citizens of the United States: Provided further, That no liability shall attach under the Copyright Act for lawful uses made or acts done prior to the effective date of such proclamation in connection with such works, or in respect to the continuance for one year subsequent to such date of any business undertaking or enterprise lawfully undertaken prior to such date involving expenditure or contractual obligation in connection with the exploitation, production, reproduction, circulation, or performance of any such work.55 Stat. at 732, § 8.
Exercising their authority under the 1919 and 1941 Acts, Presidents Wilson, Harding, F. Roosevelt, Truman, Eisenhower, and L. Johnson each issued proclamations restoring copyright protection to works that had passed into the public domain. 41 Stat. 1790 (1920); 42 Stat. 2271-2278 (1922); 3 C.F.R. § 2608 (1944); 3 C.F.R. § 2722 (1947); 2 C.F.R. § 2729 (1947); 3 C.F.R. § 2683 (1949); 3 C.F.R. § 2953 (1951); 3 C.F.R. § 3353; 3 C.F.R. § 3792 (1967).
The plaintiffs argue that Congress did not in 1919 or 1941 express an intention to amend the prohibition, found in Section 7 of the 1909 Act, against copyrighting materials in the public domain. They argue that the Government's interpretation of the 1919 and 1941 Acts runs up against Section 7 of the 1909 Act, which they read as a prohibition against retroactive restoration of copyright. They remind me that I must regard Section 7 of the 1909 Act as persistent absent a clear indication of amendment in the 1919 and 1941 Acts. See J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 143-144, 122 S. Ct. 593, 151 L. Ed. 2d 508 (2001).
The plaintiffs perceive a conflict where none exists. "[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Ibid. Section 7 of the 1909 Act did not prohibit Congress from restoring copyright protection after it had been lost. It provided:
[t]hat no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof. . . .35 Stat. at 1077. This was merely a codification of the general constitutionally-mandated rule of originality — no author could obtain a monopoly over expressions that already were in the public domain or had previously been published without being copyrighted. Nothing in this provision prohibited Congress from restoring copyright protection to an author who once had enjoyed it.
The plaintiffs' reading of the 1909 Act is untenable for another reason. In both the 1919 and 1941 Acts Congress included protections from liability for those persons who had exploited foreign works during the periods in which those works had been unprotected. 41 Stat. at 369; 55 Stat. at 732. The plaintiffs' reading would render those provisions mere surplusage.
Thus conflict with the 1919 and 1941 Acts is avoided. Congress well understood what it was doing in 1919 and 1941; it intended to restore copyright where it had previously lapsed. Nothing in Section 7 of the 1909 Act is inconsistent with that express purpose.
4. Conclusion
On the whole, Congress has historically demonstrated little compunction about removing copyrightable materials from the public domain. That practice, though no doubt in some cases working a hardship upon parties who have exploited public domain materials, does no violence to the principle that the IP Clause is designed to protect. The courts have agreed that the progress of science and the useful arts is impeded slightly, if at all, because ideas remain public property, even while expressions of those ideas are restored to their authors. In light of this unbroken string of authority, I find the dicta on which the plaintiffs rely inapplicable to this case and conclude that Congress acted within its authority.
II. Rational basis
I turn next to the question whether a rational basis underlies URAA Section 514. See Eldred, 537 U.S. at 204. "Under the rational basis test, the challenged legislation is presumptively constitutional, and the [plaintiff] bears the `very difficult burden' of establishing `that the statute is irrational or arbitrary and that it cannot conceivably further a legitimate governmental interest.'" Grigsby v. Barnhart, 294 F.3d 1215, 1220 (10th Cir. 2002), quoting United States v. Phelps, 17 F.3d 1334, 1345 (10th Cir. 1994), cert. denied, 513 U.S. 844, 115 S. Ct. 135, 130 L. Ed. 2d 77 (1994). Congress' choice "is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." Cordoba v. Massanari, 256 F.3d 1044, 1049 (10th Cir. 2001), cert. denied, 534 U.S. 1131, 122 S. Ct. 1071, 151 L. Ed. 2d 974 (2002).
The Government suggests that the United States' compliance with treaties governing intellectual property protection, accomplished through enforcement of URAA Section 514, is in the best interest of American authors; by enforcing the treaties' uniform standards here, the Government can be justified in expecting similar enforcement within other signatory nations. That, it argues, constitutes a rational basis for the provision. Eldred, 537 U.S. at 213. The Government's proffered justification need not be Congress' actual rationale. Powers v. Harris, 379 F.3d 1208, 1223 (10th Cir. 2004). Nevertheless, Congress' stated reasoning can provide a compelling rational basis for upholding a statute. That is the case here. As the relevant House Reports demonstrate, Congress passed the URAA in order to bring federal copyright and other laws into conformance with treaties to which Congress had already agreed. H.R. Rep. 103-826(I), 1994 U.S.C.C.A.N. 3773; H.R. Rep. 103-826(II), 1994 U.S.C.C.A.N. 4013; S. Rep. 103-412 (1994). That basis is rationally related to Congress' mandate to promote the progress of science and useful arts.
The House Committee on Ways and Means ("HWMC") described the URAA as a bill "to implement the Uruguay Round Agreements in U.S. domestic law." H.R. Rep. 103-826(I) at 4. The Uruguay Round Agreements ("URA") were, in the HWMC's estimation, "vital to our national interest and to economic growth, job creation, and an improved standard of living for all Americans." Id. at 16. The HWMC anticipated that the URA, "by lowering tariff and other barriers to international trade and investment, will lead to increased levels of world and U.S. output, trade, real income, savings, investment, and consumption." Id. Most relevant here, the HWMC stated, "The agreement on intellectual property will dramatically improve protection and enforcement of U.S. intellectual property rights abroad." Id. As the House Committee on Energy and Commerce noted, intellectual property had "never before been made subject to a multilateral discipline." H.R. Rep. 103-826(II) at 2.
Adoption and implementation of the URA was not without consequence for United States domestic law. Title V of the URAA, which concerned intellectual property, was but one of many provisions that amended federal law on a wide variety of subjects, and Section 514 was but one of several changes proposed within Title V. Section 514 appears to have generated little controversy during congressional investigation of the URAA's implications; both of the reporting House committees and three of the four reporting Senate committees declined to discuss Title V at all. The Senate Committee on the Judiciary ("SJC") gave Title V only cursory treatment. S. Rep. 103-412 at 224-230.
The SJC's proffered justification for Title V consisted of one sentence. The SJC first explained that the intellectual property portion of the URA "establishes comprehensive standards for the protection of intellectual property and the enforcement of intellectual property rights in WTO member countries." Ibid at 224. It identified two "outstanding flaws" in the agreement, neither of which are significant here. Id. "Nonetheless," it concluded, "once in force, worldwide intellectual property protection should be significantly improved." Id.
The SJC then explained the history behind Section 514.
The legislation includes language to restore copyright protection to certain foreign works from countries that are members of the Berne Convention or WTO that have fallen into the public domain for reasons other than the normal expiration of their term of protection. The Agreement requires WTO countries to comply with Article 18 of the Berne Convention. While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention. Article 18 requires that the terms of the convention apply to all works that have fallen into the public domain by reasons other than the expiration of its term of protection. (Examples include failure to file a timely renewal application and failure to affix a copyright notice).Ibid at 225.
Taken together, the reports of the various congressional committees concerning the URAA lend credence to the Government's view that Congress was here attempting to promote protection of American authors by ensuring compliance with the Berne Convention within our own borders. That constitutionally-permissible end is rationally related to, and constitutes a rational basis for, URAA Section 514.
III. The plaintiffs' constitutional rights
A. First Amendment protection
The plaintiffs argue that their First Amendment speech rights are infringed by the burdens of complying with the copyright protections that the URAA Section 514 has restored to works that they once freely disseminated. They cannot, of course, sincerely argue that their participation in speech is prohibited; they are free to contract with copyright holders for permission to disseminate the works. Instead, they argue that the barrier to exploitation of the works — the payment of royalties or fees — is too onerous a constraint upon their free expression of ideas.
I see no need to expand upon the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns. Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999); Los Angeles News Service v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992); SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263-1264 (11th Cir. 2001), reh'g denied, 275 F.3d 58 (11th Cir. 2001); Eldred v. Reno, 239 F.3d at 375.
B. Fifth Amendment due process
The plaintiffs argue that URAA Section 514 poses an unconstitutionally retroactive burden upon them for the purposes of substantive due process review because it restores protection to works that have for varying periods of recent history been unprotected. They cite Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161 (3d Cir. 1999), cert. denied sub nom., Anker Energy Corp. v. UMW Combined Benefit Fund, 528 U.S. 1003, 120 S. Ct. 496, 145 L. Ed. 2d 383 (1999), in which the Third Circuit stated that
the "heart of retroactivity analysis is an evaluation of the extent of the burden imposed by a retroactive law in relation to the burdened parties' prior acts" and . . . that "where Congress acts reasonably to redress an injury caused or to enforce an expectation created by a party, it can do so retroactively."Id. at 173, quoting Unity Real Estate Co. v. Hudson, 178 F.3d 649, 671 (3d Cir. 1999), cert. denied, 528 U.S. 963, 120 S. Ct. 396, 145 L. Ed. 2d 309 (1999).
1. Retroactivity of Section 514
The Tenth Circuit has explained that my first job is to "determine whether [Section 514] would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Daniels v. United States, 254 F.3d 1180, 1187 (10th Cir. 2001). I conclude that none of those effects are present here.
The plaintiffs' argument is premised upon a confusion of two distinct concepts. Though URAA Section 514 grants many retroactive benefits to authors, it does not impose retroactive burdens upon the plaintiffs. Contrast Eastern Enters. v. Apfel, 524 U.S. 498, 118 S. Ct. 2131, 141 L. Ed. 2d 451, 528-529 (1998). This is because Section 514 does not impose upon the plaintiffs liability for, or new duties as a result of, their past conduct. Daniels, 254 F.3d at 1187. Nor does Section 514 impair rights that the plaintiffs possessed when they acted. Id. In short, Section 514 does not alter the legal consequences of the plaintiffs' completed acts. Eco Mfg. LLC v. Honeywell Int'l, Inc., 357 F.3d 649, 652 (7th Cir. 2003).
The plaintiffs point to the investments that they made in the expectation that they could permissibly exploit the works at issue. The Government does not dispute that the plaintiffs have so acted in reliance upon the works' availability to the public. However, "A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) (citations omitted).
Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates `retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.Id. at 269-270.
Though the plaintiffs reasonably relied upon the entry of the works at issue into the public domain, any expectations they had of perpetual rights of exploitation could not reasonably have been settled. Ibid at 269-270. As established above, Congress has on several occasions throughout its history removed works from the public domain. Any rights that the plaintiffs acquired in these particular works by virtue of their exploitation of them were thus anything but inviolate. It remained at all times within Congress' authority to rectify the unfairness with which foreign authors were afflicted. Compare United States v. Real Prop. in Section 9, 241 F.3d 796, 799 (6th Cir. 2001). As the Supreme Court has noted, "If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever." Id. at 269 n. 24, quoting L. Fuller, The Morality of Law 60 (1964).
2. Rational basis
Even if URAA Section 514 can be said to be retroactive in effect, it does not offend the Fifth Amendment. Because no fundamental right is here implicated, rational-basis review is appropriate. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15-16, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976); Powers, 379 F.3d at 1214-1215. To satisfy the rational basis test, URAA Section 514 need only be rationally related to a legitimate government purpose in both its prospective and retroactive applications. Pension Ben. Guaranty Corp. v. R.A. Gray Co., 467 U.S. 717, 730, 104 S. Ct. 2709, 81 L. Ed. 2d 601 (1984).
As set forth above, the Government has established a rational basis for the statute generally. In addition, the Government's proffered interest justifies both prospective and retroactive application of Section 514 to authors. See Landgraf, 511 U.S. at 268 n. 21. Congress could rationally have concluded that extension of such protection to foreign authors best served its goal of securing similar adequate protection for American authors.
In any event, URAA Section 514 accords the plaintiffs some relief. It excludes them from its general enforcement provisions, 17 U.S.C. § 104A(d)(1), and grants to them notice rights and a 12-month grace period, § 104A(d)(2), and continued rights of exploitation of derivative works, subject to payment of reasonable royalties, § 104A(d)(3). In these ways, Section 514 strikes a careful balance between the plaintiffs' interests as reliance parties and Congress' express purpose. See General Motors Corp. v. Romein, 503 U.S. 181, 112 S. Ct. 1105, 117 L.Ed. 2d 328 (1992).
Accordingly, IT IS ORDERED that
(1) the Government's Motion for Summary Judgment is GRANTED;
(2) the plaintiffs' motion for partial summary judgment is DENIED; and
(3) judgment shall enter for the Government on all claims with costs.