Eldred v. Reno
239 F.3d 372
February 16, 2001
Dissent of Judge Sentelle

(See Majority Opinion)
(See Rehearing Denied)
(See Cert. Granted)

Eric ELDRED, et al., Appellants,


Janet RENO,
In her official capacity as Attorney General, Appellee

Docket No. 99-5430
Argued Oct. 5, 2000.
Decided Feb. 16, 2001

Appeal from the U.S. District Court for the District of Columbia, Green, J.  

Sentelle, J., dissenting in part. 

        While I concur with much of the majority's opinion, insofar as it holds constitutional the twenty-year or more extension of copyright protection for existing works, I dissent. This issue calls upon us to consider the scope of one of the clauses granting enumerated powers to Congress, specifically, Art. I, 8, cl. 8:

In ascertaining the breadth of an enumerated power, I would follow the lead of the United States Supreme Court in United States v. Lopez, 514 U.S. 549, 552, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), and "start with first principles." The governing first principle in Lopez and in the matter before us is that "the Constitution creates a Federal Government of enumerated powers." 514 U.S. at 552 (citing Art. I, 8). The Framers of the Constitution adopted the system of limited central government "to ensure the protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991) (internal quotations and citations omitted). The Lopez decision, considering the validity of the so called Gun-Free School Zones Act, reminded us that "congressional power under the Commerce Clause ... is subject to outer limits." 514 U.S. at 556-57; see also United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 1748-49, 146 L. Ed. 2d 658 (2000).

        It would seem to me apparent that this concept of "outer limits" to enumerated powers applies not only to the Commerce Clause but to all the enumerated powers, including the Copyright Clause, which we consider today. In determining whether the legislation before it in such cases as Lopez exceeded the outer limit of the authority granted under the Commerce Clause, the Lopez Court laid out a precise outline concededly not applicable by its terms to the construction of other clauses, but I think most useful in conducting the same sort of examination of the outer limits of any enumerated power. As a part of that analysis, the Court examined the extension of congressional authority to areas beyond the core of the enumerated power with a goal of determining whether the rationale offered in support of such an extension has any stopping point or whether it would lead to the regulation of all human activity. See 514 U.S. at 564 ("Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."). I fear that the rationale offered by the government for the copyright extension, as accepted by the district court and the majority, leads to such an unlimited view of the copyright power as the Supreme Court rejected with reference to the Commerce Clause in Lopez.

        What then do I see as the appropriate standard for limiting that power? Again, the Lopez decision gives us guidance as to the application of first principles to the determination of the limits of an enumerated power. Citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-190 (1824), the Lopez Court acknowledged " that limitations on the commerce power are inherent in the very language of the Commerce Clause." 514 U.S. at 553. Just so with the Copyright Clause. What does the clause empower the Congress to do?

That clause empowers the Congress to do one thing, and one thing only. That one thing is "to promote the progress of science and useful arts." How may Congress do that? "By securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The clause is not an open grant of power to secure exclusive rights. It is a grant of a power to promote progress. The means by which that power is to be exercised is certainly the granting of exclusive rights--not an elastic and open-ended use of that means, but only a securing for limited times. See Stewart v. Abend, 495 U.S. 207, 228, 109 L. Ed. 2d 184, 110 S. Ct. 1750 (1990) ("The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist's labors."). The majority acknowledges that "[i]f the Congress were to make copyright protection permanent, then it surely would exceed the power conferred upon it by the Copyright Clause." Maj. Op. at 10. However, there is no apparent substantive distinction between permanent protection and permanently available authority to extend originally limited protection. The Congress that can extend the protection of an existing work from 100 years to 120 years; can extend that protection from 120 years to 140; and from 140 to 200; and from 200 to 300; and in effect can accomplish precisely what the majority admits it cannot do directly. This, in my view, exceeds the proper understanding of enumerated powers reflected in the Lopez principle of requiring some definable stopping point.

        Returning to the language of the clause itself, it is impossible that the Framers of the Constitution contemplated permanent protection, either directly obtained or attained through the guise of progressive extension of existing copyrights. The power granted by the clause again is the power "to promote the progress of science and useful arts." As stated above, Congress is empowered to accomplish this by securing for limited times exclusive rights. Extending existing copyrights is not promoting useful arts, nor is it securing exclusivity for a limited time.

        The government has offered no tenable theory as to how retrospective extension can promote the useful arts. As the Supreme Court noted in Lopez and again in United States v. Morrison, that Congress concluded a given piece of legislation serves a constitutional purpose "does not necessarily make it so." Lopez, 514 U.S. at 557 n.2 (internal quotes omitted); Morrison, 120 S. Ct. at 1752. Pressed at oral argument, counsel for the government referred to keeping the promise made in the original grant of exclusivity for a limited time. The easy answer to this assertion is that Congress is not empowered to "make or keep promises" but only to do those things enumerated in Article I. The second problem with the government's assertion is that Congress made no promise to commit such an extension but only to secure the exclusive rights for the original limited period. Thirdly, the means employed by Congress here are not the securing of the exclusive rights for a limited period, but rather are a different animal altogether: the extension of exclusivity previously secured. This is not within the means authorized by the Copyright Clause, and it is not constitutional

        The majority responds to this problem of the statute's exceeding the constitutional grant by reliance on Schnapper v. Foley, 667 F.2d 102 [ 212 USPQ 235] (D.C. Cir. 1981), "in which we rejected the argument 'that the introductory language of the Copyright Clause constitutes a limit on congressional power."' Maj. Op. at 10 (quoting 667 F.2d at 112). I will concede that it does not matter if I disagree with the language of Schnapper (which in fact I do) as it is our Circuit precedent and we are bound by its holding unless and until that holding is changed by this court en banc or by the higher authority of the Supreme Court. See, e.g., LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) ("One three-judge panel . . . does not have the authority to overrule another three judge panel of the court. That power may be exercised only by the full court."(citations omitted)); United States v. Kolter, 71 F.3d 425, 431 (D.C. Cir. 1995) ("This panel would be bound by [a prior] decision even if we did not agree with it.").

        Therefore, it is immaterial that the prior opinion is, in my view, erroneous in styling the granting clause of the sentence as merely introductory when in fact it is the definition of the power bestowed by that clause. Thus, unless and until this precedent is wiped away, if Schnapper has held that we may not look to the language of this phrase to determine the limitations of the clause then I must concede that we are bound by that holding and join the majority's result. However, it does not appear to me that this is the holding of Schnapper. The Schnapper Court dealt with limited questions related to the application of the copyright laws to works commissioned by the U.S. government. In answering those questions, the Schnapper Court held that "Congress need not 'require that each copyrighted work be shown to promote the useful arts."' 667 F.2d at 112 (quoting Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 860 [ 203 USPQ 1041] (5th Cir. 1979)). It was in that context that the Schnapper Court employed the wording relied upon by the majority concerning the "introductory language" of the Copyright Clause. Insofar as that wording is taken to be anything more than the determination concerning that limited analysis, it is not a holding but simply dicta (perhaps obiter dicta) and not binding on future panels.

        Rather, the Schnapper analysis again takes us back to the Lopez approach to judicial interpretation of the enumerated powers clauses. In Lopez, one of the means employed to determine the constitutionality of extended application of the Commerce Clause is an elemental inquiry into whether in each case the purportedly regulated action "in question affects interstate commerce." 514 U.S. at 561. However, the jurisdictional element is not necessary under Lopez analysis of Commerce Clause regulation where Congress is directly regulating "the use of the channels of interstate commerce" or "persons or things in interstate commerce." Id. at 558. Similarly, I suggest that in analyzing the extent of congressional power under the Copyright Clause, the Schnapper holding that each individual application of copyright protection need not promote the progress of science and the useful arts does not mean that Congress's power is otherwise unlimited, anymore than the lack of a necessity for case-by-case analysis of the effect on interstate commerce validates anything Congress may wish to do under the rubric of the Commerce Clause. Though, under Schnapper, we may not require that each use of a copyright protection promote science and the arts, we can require that the exercise of power under which those applications occur meet the language of the clause which grants the Congress the power to enact the statute in the first place. This the extension does not do. It is not within the enumerated power.

        The majority suggests that my reading of Schnapper is somehow foreclosed by the fact that it accepts the argument of an amicus. See Maj. Op. at 11 (citing 16A Charles Alan Wright et al., Federal Practice and Procedure 3975.1 & n.3 (3d ed. 1999); Resident Council of Allen Parkway Vill. v. HUD, 980 F.2d 1043, 1049 (5th Cir. 1993)). The disposition I suggest would offend nothing in either Professor Wright's treatise or the cases aligned with it. Neither I nor the amicus raise any issue not raised by the parties to the case, nor disposed of by a majority of the court. Appellants raise the issue "whether . . . the Copyright Clause of the Constitution of the United States constrains the Congress from extending for a period of years the duration of copyrights, both those already extant and those yet to come." Maj. Op. at 2 (emphasis added). The majority addresses that issue and holds against the appellant. Maj. Op. at 15 ("we hold that the CTEA is a proper exercise of the Congress's power under the Copyright Clause"). That the amicus argues more convincingly in appellants' favor on the issue raised by the appellants than they do themselves is no reason to reject the argument of the amicus. Indeed, our Circuit Rules provide that an amicus brief "must avoid repetition of facts or legal arguments made in the principal (appellant/petitioner or appellee/respondent) brief and focus on points not made or adequately elaborated upon in the principal brief, although relevant to the issues before this court." Circuit Rule 29. Obviously that is precisely what the amicus has done in this case.

        Resident Council of Allen Parkway Village, relied on by the majority, highlights this difference between introducing issues not raised by the parties on the one hand and making new arguments for issues otherwise properly raised on the other. As the Fifth Circuit noted in that case, "[w]e are constrained only by the rule that an amicus curiae generally cannot expand the scope of an appeal to implicate issues that have not been presented by the parties to the appeal." 980 F.2d at 1049 (emphasis added).

        Our Circuit Rule and the Fifth Circuit are in good company in allowing amici to make additional arguments that address issues which the parties have raised but not argued in the same fashion. The Supreme Court has approved precisely that approach. In Teague v. Lane, 489 U.S. 288 (1989), that Court considered a question of retroactivity as to a fair crosssection jury venire in a case also raising a claim under Batson v. Kentucky, 476 U.S. 79 (1986). The Court noted that "[t]he question of retroactivity with regard to petitioner's fair cross section claim has been raised only in an amicus brief." 489 U.S. at 300. Noting that the "question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim," id., the Court proceeded to address the merits of the argument.

        Nor are we constrained by the parties' apparent agreement as to the state of the law under Schnapper. The Supreme Court has made it clear that we cannot be bound by stipulations of law between the parties, where there is "a real case and controversy extending to that issue." United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993). As the High Court put it, "'[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."' Id. (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).

        I find two other arguments the majority invokes against my dissent unpersuasive. The enactment by the first Congress in 1790 regularizing the state of copyright law with respect to works protected by state acts preexisting the Constitution appears to me to be sui generis. Necessarily, something had to be done to begin the operation of federal law under the new federal Constitution. The Act of May 31, 1790, 1 Stat. 124, created the first (and for many decades only) federal copyright protection; it did not extend subsisting federal copyrights enacted pursuant to the Constitution. Cf. Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 661 (1834) ("Congress, then, by this [copyright] act, instead of sanctioning an existing right, as contended for, created it."). The fact that the CTEA "matches United States copyrights to the terms of copyrights granted by the European Union," Maj. Op. at 13 (citing Council Directive 93/98, art. 7, 1993 O.J. (L 290) 9), is immaterial to the question. Neither the European Union nor its constituent nation states are bound by the Constitution of the United States. That Union may have all sorts of laws about copyrights or any other subject which are beyond the power of our constitutionally defined central government.

        Therefore, I respectfully dissent.

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