Eldred v. Ashcroft
255 F.3d 849
February 16, 2001
Denial of motion for rehearing

(See Dissent of Judge Sentelle)
(See Cert. Granted)

Eric ELDRED, et al., Appellants,


In his official capacity as Attorney General, Appellee

Docket No. 99-5430
Argued Oct. 5, 2000.
Filed July 13, 2001

Before: GINSBURG, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.[FN*]

GINSBURG, Circuit Judge:

        The plaintiffs-appellants in this case, corporations, associations, and individuals who rely for their vocations and avocations upon works in the public domain, have petitioned for rehearing and filed a suggestion for rehearing en banc. They renew their contentions that the Copyright Term Extension Act of 1998 (CTEA), Pub.L. No. 105-298, 112 Stat. 2827, violates both the First Amendment and the Copyright Clause of the Constitution of the United States.

        The plaintiffs-appellants further complain that this court erred in its treatment of the contentions advanced by one of the amici. We are not persuaded. The district court's rejection of the plaintiffs-appellants' constitutional attack followed from its conclusion, in the light of our decision in Schnapper v. Foley, 667 F.2d 102, 112 (1981), that "[t]he introductory language of the copyright clause does not limit [the Congress's] power." Upon appeal, the plaintiffs-appellants did not challenge that determination; rather, they maintained only that the substantive grant of power in the Copyright Clause--authorizing the Congress to grant copyrights for "limited Times"--does not  authorize the Congress to extend the terms of copyrights as it did in the CTEA. In sharp contrast, an amicus contended that the CTEA violates the preamble to the Copyright Clause because extending the term of a subsisting copyright does not "promote the Progress of  Science and useful Arts."

        As we stated in Part III of our opinion, 239 F.3d 372, 378 (2001), the court deems it "particularly inappropriate" in this case to reach the merits of the amicus's position. To elaborate: First, in their brief the plaintiffs-appellants themselves took the position, diametrically opposed to that of the amicus, "that the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power"; when expressly offered the opportunity at oral argument to adopt the position of the amicus, the plaintiffs-appellants did not do so. Therefore, even if we were to read the plaintiffs-appellants' brief broadly as raising the issue whether the Copyright Clause as a whole--including both the preamble and the grant of authority--renders the CTEA unconstitutional, following the lead of the Supreme Court we would still not reach what would then be the supporting argument of the amicus. See New Jersey v. New York, 523 U.S. 767, 781 n. 3, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998) (although arguments of amici and party stem from same article of compact, court "must pass over the arguments of the named amici for the reason that ... the party to the case[ ] has in effect renounced them, or at least any benefit they might provide"); see also Amax Land Co. v. Quarterman, 181 F.3d 1356, 1367 (D.C.Cir.1999) (remanding where the parties "request[ed] us to remand to the district court for consideration of [legal] issue," whereas "the amicus' prefer[red] that we resolve it" ourselves, which we could readily have done); Narragansett Indian Tribe v. Nat'l Indian Gaming Comm'n, 158 F.3d 1335, 1338 (D.C.Cir.1998) ("Because we ordinarily do not entertain arguments not raised by parties ... we consider only the [party's] equal protection challenge" where amicus filed brief "supporting [party's] equal protection claim and reiterating its separation of powers and bill of attainder arguments"); Michel v. Anderson, 14 F.3d 623, 625 (D.C.Cir.1994) (court ordinarily "would not entertain an amicus' argument if not presented by a party").

        Second, the point advanced by the amicus--that the preamble of the Copyright Clause is a substantive limitation upon the power of the Congress--implicates discrete terms of the Clause that are not otherwise at issue. In that sense it poses an additional constitutional question, subject to the "rule of avoidance"; and there can hardly be a better reason to avoid a constitutional question than that the parties are in agreement. See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it' ").

        Third, because the plaintiffs-appellants did not take the same tack as the amicus, the Government did not on brief address the district court's interpretation of this court's decision in Schnapper. See New Jersey v. New York, 523 U.S. at 781 n. 3, 118 S.Ct. 1726. Therefore, our usual concern with "avoid[ing] unnecessary or premature constitutional rulings," here as in Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C.Cir.1989), "is heightened by the absence of meaningful argument by the parties on this question."

        Finally, as explained in Part III of the opinion, id. at 378-80, even if we considered the amicus's position we would not reach a different result in this case: Regardless whether, as the amicus contends, the preamble limits the power of the Congress, the CTEA still passes muster under the "necessary and proper review" applicable to the Congress's "exercise of a power enumerated in Article I." 239 F.3d at 378. The Congress found that extending the duration of copyrights on existing works would, among other things, give copyright holders an incentive to preserve older works, particularly motion pictures in need of restoration. Id. at 379. "Preserving access to works that would otherwise disappear--not enter the public domain but disappear--'promotes Progress' as surely as does stimulating the creation of new works." Id.

        We reject the plaintiffs-appellants' challenge under the First Amendment for the reasons stated in the prior opinion. Accordingly, the petition for rehearing is





        Appellants' petition for rehearing en banc and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

        A statement of Circuit Judge SENTELLE, joined by Circuit Judge TATEL, dissenting from the denial of rehearing en banc is attached.

FN* Circuit Judge SENTELLE dissents from the denial of rehearing.

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