Case 1:01-cv-01854-LTB-BNB Document 156 Filed 04/03/09 USDC Colorado Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`LEWIS T. BABCOCK, JUDGE
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`Civil Case No. 01-cv-01854-LTB
`
`LAWRENCE GOLAN;
`ESTATE OF RICHARD KAPP;
`S.A. PUBLISHING CO., INC., 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,
`
`Plaintiffs,
`
`v.
`
`ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States; and
`MARYBETH PETERS, in her official capacity as Register of Copyrights, Copyright Office of
`the United States,
`
`Defendants.
`______________________________________________________________________________
`
`MEMORANDUM OPINION AND ORDER
`______________________________________________________________________________
`
`Babcock, J.
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`This case—as now presented—concerns the validity of Section 514 of the Uruguay
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`Round Agreements Act (“URAA”), 17 U.S.C. § 104A. Section 514 restores the United States
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`copyrights of foreign authors who lost those rights to the public domain for any reason other than
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`the expiration of a copyright term. Plaintiffs filed this suit in September 2001, asserting claims
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`challenging Section 514—as well as the Copyright Term Extension Act of 1998—under the
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`Copyright Clause and the First Amendment. This Court granted summary judgment in favor of
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`the Government or dismissal as to each of those claims. [Docket ## 28, 109]. On appeal, the
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`Tenth Circuit affirmed this Court’s rulings as to Plaintiffs’ Copyright Term Extension Act claims
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`and Plaintiffs’ Copyright Clause claims, but reversed this Court’s rulings as to Plaintiff’s First
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`Amendment challenge to Section 514. See Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007).
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`The Tenth Circuit remanded to this Court with instructions to assess whether Section
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`514—which the Tenth Circuit determined interfered with Plaintiffs’ “First Amendment interest
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`in using works in the public domain”—passed First Amendment scrutiny. The parties have filed
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`cross-motions for summary judgment on this issue [Docket ## 147, 148] as well as
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`responses/replies [Docket ## 154, 155]. An amicus brief was filed in support of the Government
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`[Docket # 152]. The motions are adequately briefed and oral argument would not materially
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`assist their determination. After consideration of the motions, the papers, and the case file, and
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`for the reasons stated below, I GRANT Plaintiffs’ motion [Docket # 148] and DENY the
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`Government’s motion [Docket # 147].
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`I. BACKGROUND
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`Plaintiffs in this case represent a broad range of artisans and businesses that rely upon
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`works in the public domain for their trade. As relevant to the issue presented here, these works
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`were produced by foreign authors and, for varying reasons—including the authors’ failure to
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`renew the copyrights with the Copyright Office, or failure to include a notice of copyright on the
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`copyrighted works—did not enjoy copyright protection in the United States prior to the
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`enactment of the URAA in 1994. Section 514 of the URAA ostensibly implements Article 18 of
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`the Berne Convention for the Protection of Literary and Artistic Works—an international treaty
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`first enacted in 1886, but not joined by the United States until 1988. Article 18 requires member
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`nations to provide copyright protection to works by foreign authors so long as the term of
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`copyright protection in the country of origin has not expired as to a specific work. See Berne
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`Convention, Art. 18. Section 514 of the URAA—by granting copyright protection to these
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`foreign authors—removed from the public domain the works upon which Plaintiffs relied. As
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`the subject works are now protected by United States copyright laws, Plaintiffs find themselves
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`in the position of having to either pay for their previously royalty-free use, or cease using the
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`works altogether. Plaintiffs argue their First Amendment rights were violated by Congress when
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`these works were removed from the public domain.
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`On April 20, 2005, I granted summary judgment to the Government on Plaintiffs’ First
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`Amendment claims, holding: “I see no need to expand upon the settled rule that private
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`censorship via copyright enforcement does not implicate First Amendment concerns.” [Docket
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`# 109]. On appeal, the Tenth Circuit reversed, holding: “since § 514 has altered the traditional
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`contours of copyright protection in a manner that implicates plaintiffs’ right to free expression, it
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`must be subject to First Amendment review.” Golan, 501 F.3d at 1197.
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`II. TENTH CIRCUIT OPINION
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`The Tenth Circuit began its review with an outline of basic principles of copyright law
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`and how those principles interconnect with the First Amendment:
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`Under the Copyright Clause, Congress may “promote the Progress of Science and
`useful Arts, by securing for limited Times to Authors . . . the exclusive Right to
`their [respective] Writings.” U.S. CONST. art. I, § 8, cl. 8. . . . “[O]nce the . . .
`copyright monopoly has expired, the public may use the . . . work at will and
`without attribution.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539
`U.S. 23, 33–34 (2003). These imaginative works inspire new creations, which in
`turn inspire others, hopefully, ad infinitum. This cycle is what makes copyright
`“the engine of free expression.” Harper & Row Publishers, Inc. v. Nation
`Enters., 471 U.S. 539, 558 (1985).
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`Congress’s power to bestow copyrights is broad. See Eldred v. Ashcroft, 537 U.S.
`186, 205 (2003) (“[I]t is Congress that has been assigned the task of defining the
`scope of the limited monopoly that should be granted to authors . . . in order to
`give the public appropriate access to their work product.”) (internal quotation
`marks omitted). But it is not boundless. . . . The Supreme Court has recognized
`that the First Amendment can limit Congress’s power under the Copyright
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`Clause. Id. at 219–21 (indicating that copyright acts are not “categorically
`immune from challenges under the First Amendment”) (internal quotation marks
`omitted). The Court has emphasized, however, that “copyright’s built-in First
`Amendment accommodations”—the idea/expression dichotomy and the fair use
`defense—generally protect the public’s First Amendment interest in copyrighted
`works. Id. at 219–20.
`
`Although these built-in free speech safeguards will ordinarily insulate legislation
`from First Amendment review, the Eldred Court indicated that such review is
`warranted when an act of Congress has “altered the traditional contours of
`copyright protection.” Id. at 221. The Court did not define the “traditional
`contours of copyright protection.” However, as we discuss in detail below, one of
`these traditional contours is the principle that once a work enters the public
`domain, no individual—not even the creator—may copyright it.
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`Golan, 501 F.3d at 1183–84.
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`In reaching its conclusion that Section 514—by removing works from the public
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`domain—“altered the traditional contours of copyright protection,” the court first noted “the
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`bedrock principle of copyright law that works in the public domain remain there.” See Golan,
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`501 F.3d at 1187. Indeed, the primary purpose of the Copyright Clause is to incentivize authors
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`to produce works to benefit the public good. See id. at 1188. Once a work is created, a
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`copyright attaches that allows the author to restrict the use of the work for the duration of the
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`copyright period—at which point the work enters the public domain for the free use of anyone.
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`See id. at 1189. This incentive drives “the engine of free expression” enshrined in the First
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`Amendment. See id. at 1188.
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`Section 514 altered the traditional copyright scheme such that “the copyright sequence no
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`longer necessarily ends with the public domain: indeed, it may begin there.” See id. at 1189.
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`Such an alteration is inconsistent with the copyright scheme as designed by the Framers and as
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`implemented by Congress in the ensuing years. See id. at 1190–92. Accordingly, “[Section] 514
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`deviates from the time-honored tradition of allowing works in the public domain to stay there.”
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`Id. at 1192.
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`Having established that Section 514 “altered the traditional contours of copyright
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`protection”—therefore requiring First Amendment review, see Eldred v. Ashcroft, 537 U.S. 186,
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`221 (2003)—the Tenth Circuit turned to the question of how the alteration affected the First
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`Amendment rights of Plaintiffs. The court first noted that Plaintiffs had, subject to
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`constitutionally permissible restraints, a non-exclusive right to “unrestrained artistic use of these
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`works” that was protected by the First Amendment. See Golan, 501 F.3d at 1193. Section 514
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`interfered with this right by making the cost of using the works prohibitive. See id.
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`Distinguishing Plaintiffs’ case from that at issue in Eldred, the court noted that the Eldred
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`plaintiffs did not have a right to copy the works at issue. See id. (“As the Eldred Court observed,
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`the most the Eldred plaintiffs could show was a weak interest in ‘making other people’s
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`speeches.’ By contrast, the speech at issue here belonged to plaintiffs when it entered the public
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`domain.”). The court concluded “that once the works at issue became free for anyone to copy,
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`plaintiffs in this case had vested First Amendment interests in the expressions, and § 514’s
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`interference with plaintiff’s rights is subject to First Amendment scrutiny.” Id. at 1194.
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`Finally, the Tenth Circuit considered whether “copyright’s built-in First Amendment
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`accommodations”—the idea/expression dichotomy and the fair use defense—were, when
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`combined with the additional protections explicitly included in Section 514, adequate to protect
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`Plaintiffs’ First Amendment interests. Addressing the idea/expression dichotomy, the court
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`found the rule to be inapplicable to Plaintiffs’ case because Plaintiffs’ interest was in the
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`expressions themselves, not merely the underlying ideas. See id. at 1194. Addressing the fair
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`use doctrine, the court found the doctrine to be an insufficient substitute for the unlimited use
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`allowed once a work was in the public domain. See id. at 1195. The court then held Section
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`514’s “supplemental protections”—which include a one-year safe harbor provision and a
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`provision allowing the continued use of derivative works, if a reasonable royalty is
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`paid—inadequate to insulate Section 514 from a First Amendment challenge. See id. at 1196;
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`see also Eldred, 537 U.S. at 221. The court remanded with instructions to apply a First
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`Amendment analysis.
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`III. STANDARD OF REVIEW
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`A. First Amendment Review
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`As mandated by the Tenth Circuit, the initial inquiry in my First Amendment analysis is
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`“whether § 514 is content-based or content-neutral.” See Golan, 501 F.3d at 1196. Content-
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`based restrictions on speech are those which “suppress, disadvantage, or impose differential
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`burdens upon speech because of its content.” Grace United Methodist Church v. City of
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`Cheyenne, 451 F.3d 643, 657 (10th Cir. 2006) (internal citations and quotations omitted). These
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`restrictions “are subject to the most exacting scrutiny.” See id. If Section 514 is a content-based
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`restriction, I must consider whether the Government’s interest in promulgating the restriction is
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`truly “compelling” and whether the Government might achieve the same ends through
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`alternative means that have less of an effect on protected expression. See United States v.
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`Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000). By contrast, “[a] regulation that serves
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`purposes unrelated to the content of expression is deemed neutral, even if it has an incidental
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`effect on some speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S.
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`781, 791 (1989). A content-neutral restriction must be “narrowly tailored to serve a significant
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`governmental interest.” Id. (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
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`293 (1984)).
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`The parties both argue Section 514 is content-neutral. I agree. A restriction will be
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`considered content-neutral when it can be justified without reference to the content of the speech
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`restricted. See Boos v. Barry, 485 U.S. 312, 320 (1988) (citing City of Renton v. Playtime
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`Theatres, Inc., 475 U.S. 41, 48 (1986); Virginia State Bd. of Pharmacy v. Virginia Citizens
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`Consumer Council, Inc., 425 U.S. 748, 771 (1976)). Here, the speech restricted is a general
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`category of speech—namely, speech created by foreign authors. The justification for the
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`restriction lies in the protection of the authors’ interests in the expressions themselves, not the
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`ideas the works encompass. Accordingly, Section 514 must be reviewed under the “content-
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`neutral” standard. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994) (“Turner I”).
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`“A content-neutral regulation [of speech] will be sustained under the First Amendment if
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`it advances important governmental interests unrelated to the suppression of free speech and
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`does not burden substantially more speech than necessary to further those interests.” Turner
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`Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 189 (1997) (“Turner II”). While a content-neutral
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`restriction must be “narrowly tailored to serve a significant government interest” unrelated to the
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`suppression of free speech, it “need not be the least restrictive or least intrusive means of doing
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`so.” See Ward, 491 U.S. at 791, 798. The requirement of narrow tailoring is satisfied so long as
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`the restriction promotes a substantial government interest that would be achieved less effectively
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`absent the restriction. See id. at 798–99.
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`Review of Congress’s judgment is deferential; the only relevant question is whether, in
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`formulating its judgment, Congress has drawn reasonable inferences based on substantial
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`evidence. See Turner I, 520 U.S. at 195. “So long as the means chosen are not substantially
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`broader than necessary to achieve the government’s interest,” the restriction will not be invalid
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`simply because “the government’s interest could be adequately served by some less-speech-
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`restrictive alternative.” Ward, 491 U.S. at 800.
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`When determining whether a regulation of speech is “substantially broader than
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`necessary to achieve the government’s interest,” the Court asks whether the regulation
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`suppresses a substantial amount of protected speech judged in relation to the Government’s
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`legitimate interest. See Virginia v. Hicks, 539 U.S. 113, 118–19, 122–23 (2003). This requires a
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`balancing of Plaintiffs’ interests with those of the Government. See United States v. Williams,
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`128 S. Ct. 1830, 1838 (2008). The first step is to construe the challenged statute to determine the
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`scope of the speech the statute affects. See id. The second step is to determine the scope of
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`protected expressive activity necessarily suppressed by the statute’s terms. See id. at 1841. If
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`the statute “leaves unprotected a substantial amount of speech not tied to the Government’s
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`interest . . . it is overbroad and unconstitutional.” Ashcroft v. Free Speech Coalition, 535 U.S.
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`234, 256 (2002).
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`B. Summary Judgment
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`In a motion for summary judgment, the moving party “always bears the initial
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`responsibility of informing the district court of the basis for its motion, and identifying those
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`portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
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`together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
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`of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P.
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`56(c)). If this burden is met, then the non-moving party has the burden of showing there are
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`genuine issues of material fact to be determined. See id. at 322. It is not enough that the
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`evidence be merely colorable; the non-moving party must come forward with specific facts
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`showing a genuine issue remains. See id.; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
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`Corp., 475 U.S. 574, 587 (1986). A fact is material if it might affect the outcome of the suit
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`under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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`I shall grant summary judgment, therefore, only if the pleadings, depositions, answers to
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`interrogatories, admissions, or affidavits—construed viewing the evidence in the light most
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`favorable to the non-moving party and drawing all reasonable inferences in that party’s
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`favor—show there is no genuine issue of material fact and the moving party is entitled to
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`judgment as a matter of law. Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.
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`1992); Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 420 (10th Cir. 1990); FED. R. CIV. P.
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`56(c).
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`In a motion for summary judgment, I view the evidence “through the prism of the
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`substantive evidentiary burden.” Liberty Lobby, supra, 477 U.S. at 254. The inquiry is based on
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`“the quality and quantity of evidence required by the governing law” and “the criteria governing
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`what evidence would enable the jury to find for either the plaintiff or the defendant.” Id.
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`Where—as here—the parties file cross-motions for summary judgment, I am entitled to assume
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`that no evidence needs to be considered other than that filed by the parties. See Atlantic
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`Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
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`Nonetheless—as cross-motions for summary judgment are to be treated separately—the denial of
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`one does not necessarily require the grant of the other. See id.
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`Although this case is presented in the light of summary judgment, the Court must still
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`accord substantial deference to the predictive judgment of Congress. See Turner I, 512 U.S. at
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`666. In this context, the question is whether Congress based its decision on reasonable
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`inferences and substantial evidence. See id. As long as there is no material dispute that there is
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`substantial evidence from which Congress could have drawn a reasonable inference, then the
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`government is entitled to summary judgment even if the evidence could reasonably lead to an
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`inconsistent conclusion. See Turner II, 520 U.S. at 1196. If, however, Plaintiffs show the
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`Government is unable to proffer such evidence, Plaintiffs are entitled to summary judgment. See
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`Edenfield v. Fane, 507 U.S. 761, 770–71 (1993); Sable Commc’ns of California, Inc. v. F.C.C.,
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`492 U.S. 115, 129–30 (1989).
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`IV. ANALYSIS
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`The burden is on the Government to show it has a significant interest that is protected by
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`limiting Plaintiffs’ speech and that Section 514 does not burden substantially more speech than
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`necessary to further the Government’s interest. See Turner I, 512 U.S. at 664–65. The
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`Government proffers three interests allegedly served by Section 514: (1) Section 514 brings the
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`United States into substantial compliance with its international treaty obligations under the
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`Berne Convention; (2) Section 514 helps protect the copyright interests of United States authors
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`abroad; and (3) Section 514 corrects for historic inequities wrought on foreign authors who lost
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`their United States copyrights through no fault of their own.
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`A. Compliance with the Berne Convention
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`It is not disputed that the Berne Convention requires the restoration of copyrights to
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`foreign authors. While compliance with international treaty obligations represents an important
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`governmental interest, “[a]t the same time, it is well established that ‘no agreement with a
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`foreign nation can confer power on the Congress, or on any other branch of Government, which
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`is free from the restraints of the Constitution.’” Boos, 485 U.S. at 324 (quoting Reid v. Covert,
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`354 U.S. 1, 16 (1957)); see Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
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`U.S. 418, 438 (2006). Accordingly, I must ask whether Section 514 meets the requirements of
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`the Berne Convention in a manner that is not “substantially broader that necessary to achieve the
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`government’s interest.” See Ward, 491 U.S. at 800. In determining whether Section 514 is
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`“substantially broader than necessary,” I must balance the Government’s interest against that of
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`Plaintiffs. See Williams, 128 S. Ct. at 1838.
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`As noted by the Tenth Circuit, Section 514 was inconsistent with the United States
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`copyright scheme as designed by the Framers and as implemented by Congress in the ensuing
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`years. See Golan, 501 F.3d at 1190–92. Moreover, Section 514 interfered with Plaintiffs’ vested
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`First Amendment rights to unrestrained use of the restored works. See id. at 1193–94. The
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`Government argues under Eldred that Plaintiffs have a diminished interest in the restored works
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`because Plaintiffs were not the original authors. See Eldred, 537 U.S. at 221 (“The First
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`Amendment securely protects the freedom to make—or decline to make—one’s own speech; it
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`bears less heavily when speakers assert the right to make other people’s speeches.”). The Tenth
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`Circuit, however, was not persuaded by this argument and distinguished Plaintiffs’ case from
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`that at issue in Eldred, holding: “plaintiffs’ First Amendment interests in public domain works
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`are greater than the interests of the Eldred plaintiffs. The Eldred plaintiffs did not—nor had they
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`ever—possessed unfettered access to any of the works at issue there. . . . By contrast, the speech
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`at issue here belonged to plaintiffs when it entered the public domain.” See Golan, 501 F.3d at
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`1193. Unlike the plaintiffs in Eldred, therefore, Plaintiffs here did not have an amorphous and
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`prospective “trivial interest” in property that belonged to someone else, but instead had “vested
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`First Amendment interests in the expressions” contained in the works themselves. See id. at
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`1188, 1194. The Tenth Circuit considered Plaintiffs’ interests “near the core of the First
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`Amendment.” See id. at 1193. The impact of removing the restored works without
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`accommodating Plaintiff’s reliance interests is substantial. See Golan, 501 F.3d at 1182 (noting
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`the added expense to Plaintiffs of complying with Section 514 made the exercise of their First
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`Amendment rights costs prohibitive). Accordingly, I do not find the Government’s argument
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`persuasive and conclude Plaintiffs’ interests in copying the works at issue is deserving of full
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`First Amendment protection.
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`Having determined the scope of the Government’s interest and Plaintiffs’ interest, I now
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`turn to the question whether Section 514 “leaves unprotected a substantial amount of speech not
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`tied to the Government’s interest.” See Ashcroft, 535 U.S. at 256. As noted by the Government,
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`Plaintiffs’ First Amendment speech is not entirely unprotected under Section 514. Plaintiffs—in
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`addition to the protections afforded under the “traditional contours of copyright protection”—are
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`immunized from liability for acts of copying occurring before restoration and are entitled to
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`continue copying so long as the original author does not file notice of intent to enforce his or her
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`copyrights. Plaintiffs are also entitled to sell or otherwise use copies of restored works for one
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`year, and may continue to exploit derivative works forever, so long as a reasonable royalty is
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`paid. What speech remains unprotected under Section 514, therefore, is any speech that involves
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`copying more than one year after notice has been filed, and any derivative works made after
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`notice is filed and without payment of a royalty. When compared to the limited amount of
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`speech that remains protected under Section 514, other than speech already protected by the
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`idea/expression dichotomy and the fair use doctrine—speech that the Government concedes
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`cannot be limited by its interest in complying with the Berne Convention—the amount
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`unprotected is clearly “a substantial amount.” See Ashcroft, 535 U.S. at 256. I therefore ask
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`whether the unprotected speech is “not tied to the Government’s interest” in complying with the
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`Berne Convention. See id.
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`I begin by noting that the Berne Convention does not provide any direct reference to the
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`question at issue here: whether or how member nations should accommodate “reliance
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`parties”—namely, those persons with a vested interest in previously public-domain works—once
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`the affected works are removed from the public domain and placed into the domain of copyright
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`protection. To the extent Berne addresses this issue at all, the determination is left to the
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`member nations: “respective countries shall determine, each in so far as it is concerned, the
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`conditions of application of this principle.” See Berne Convention, Art. 18(3).
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`I read Article 18, Section 3, as a grant of discretion to member nations to implement the
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`Berne Convention’s directive—that the copyrights of foreign authors be restored so long as the
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`term of copyright protection in the country of origin has not expired—in light of each member
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`nation’s established corpus of copyright law. Such discretion is not limited by Article 18,
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`Section 3, so long as the directive is applied within the bounds of existing law. See Fiscor
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`Report, Part E [Docket # 147-4]. In the United States, for example, it is not disputed that the
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`restored copyrights must still be subject to the well-established First Amendment exceptions
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`afforded by the fair-use doctrine and the idea/expression dichotomy. See Golan, 501 F.3d at
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`1194–95.
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`While the Government proffers an expert opinion stating that Article 18, Section 3,
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`requires such accommodations be temporary in nature—see Fiscor Report, Part E [Docket #
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`147-4]—nothing in the Berne Convention indicates this is necessarily the case. Several member
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`nations—including Germany, Hungary, the United Kingdom, Australia, and New
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`Zealand—provide accommodations that are temporally permanent so long as certain conditions
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`are met. See Ficsor Report, Part F [Docket # 147-4]. While these member nations imposed
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`various schemes limiting the rights of reliance parties, none of these nations restored copyrights
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`in the subject works in a manner that was equivalent—either in force or in time—to copyrights
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`in those works that had not fallen into the public domain. See Ficsor Report, Part F [Docket #
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`147-4].
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`Congress itself—by affording reliance parties certain protections in Section 514 that went
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`beyond those normally required to accommodate copyright law and First Amendment
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`concerns—implicitly recognized that Article 18, Section 3, does not require the full restoration
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`of equivalent copyrights. See 17 U.S.C. § 104A(d). Some of these protections—such as
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`allowing reliance parties to use restored works for an unlimited period of time if the author fails
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`to file a notice of intent to enforce his copyright, and allowing reliance parties to use derivative
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`works for so long as a reasonable royalty is paid to the original author—are temporally
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`permanent in nature. Although, as noted by the Tenth Circuit, none of these provisions are
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`adequate to fully protect Plaintiffs’ First Amendment interests, they provide some protection
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`beyond that which a normal copyright would allow. See Golan, 501 F.3d at 1193–94. By
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`enacting such protections, Congress demonstrated it understood the broad latitude provided
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`member nations to protect reliance parties—even for an unlimited amount of time.
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`In light of the discretion afforded it by Article 18, Section 3, Congress could have
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`complied with the Berne Convention without interfering with a substantial amount of protected
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`speech—for example, by permanently “excepting parties, such as plaintiffs, who have relied
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`upon works in the public domain,” see Golan, 501 F.3d at 1196; see also Ridder Dec. Ex. A
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`[Docket # 150-9]. Accordingly—to the extent Section 514 suppresses the right of reliance
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`parties to use works they exploited while the works were in the public domain—Section 514 is
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`“not tied to the Government’s interest” in complying with the Berne Convention. See Ashcroft,
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`535 U.S. at 256. Section 514 is therefore “substantially broader than necessary to achieve the
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`government’s interest.” See Ward, 491 U.S. at 800. Resolution of this question of law shows
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`summary judgment in favor of Plaintiffs and against the Government is appropriate on this issue.
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`See Mares, 971 F.2d at 494; FED. R. CIV. P. 56(c).
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`B. Protection of United States Authors’ Copyrights Abroad
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`Although the Government argues Section 514 serves the additional important
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`Government interest of protecting the copyrights of United States authors abroad, this
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`justification is largely intertwined with its argument regarding compliance with Article 18 of the
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`Berne Convention—a justification which has been rejected as insufficient to justify the
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`infringement of Plaintiffs’ First Amendment rights above. It is unnecessary to readdress these
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`concerns here.
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`In addition to Article 18, however, the Government also argues Section 514 is necessary
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`to protect United States authors from reprisal under Article 6. Article 6 states:
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`Where any country outside the Union fails to protect in an adequate manner the
`works of authors who are nationals of one of the countries of the Union, the latter
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`country may restrict the protection given to the works of authors who are, at the
`date of the first publication thereof, nationals of the other country and are not
`habitually resident in one of the countries of the Union. If the country of first
`publication avails itself of this right, the other countries of the Union shall not be
`required to grant to works thus subjected to special treatment a wider protection
`than that granted to them in the country of first publication.
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`By its own terms, Article 6 allows sanctions only against a “country outside the Union [that]
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`fails to protect in an adequate manner the works of authors who are nationals of one of the
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`countries of the Union.” (emphasis added). As the United States is “one of the countries of the
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`Union,” Article 6 provides no basis for sanctions to be levied against United States authors.
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`Accordingly, compliance with Article 6 cannot provide an important Government interest. See
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`Turner I, 512 U.S. at 664 (“when the Government defends a regulation on speech as a means to .
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`. . prevent anticipated harms, it must . . . demonstrate that the recited harms are real, not merely
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`conjectural”).
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`The Government next appears to argue that Section 514—to the extent it suppresses the
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`right of reliance parties to use works they exploited while the works were in the public
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`domain—serves an important Government interest because it protects American authors whose
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`works had entered the public domain of other countries from having those public domain works
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`exploited by reliance parties in those countries. Although the precise contours are not clear, the
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`essence of this argument appears to be an assumption that Section 514 will encourage other
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`countries to limit the rights of reliance parties, despite—as held above—having no obligation to
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`do so under the Berne Convention.
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`In support of its argument, the Government proffers evidence of the economic impact
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`caused by foreign piracy of copyrighted United States works. The Government’s evidence,
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`however, focuses on the prior reluctance of