No. 10-545
`
`IN THE
`
`Supreme Court of the United States
`
`d
`
`LAWRENCE GOLAN, et al.,
`
`—v.—
`
`ERIC H. HOLDER, JR., et al.,
`
`Petitioners,
`
`Respondents.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE TENTH CIRCUIT
`
`BRIEF AMICUS CURIAE OF THE INTERNATIONAL
`COALITION FOR COPYRIGHT PROTECTION
`IN SUPPORT OF RESPONDENTS
`
`ERIC M. LIEBERMAN
`Counsel of Record
`DAVID B. GOLDSTEIN
`CHRISTOPHER J. KLATELL
`RABINOWITZ, BOUDIN, STANDARD,
`KRINSKY & LIEBERMAN, P.C.
`45 Broadway, Suite 1700
`New York, New York 10006
`(212) 254-1111
`elieberman@rbskl.com
`
`Attorneys for Amicus Curiae
`
`
`
`IN THE
`
`Supreme Court of the United States
`
`d
`
`LAWRENCE GOLAN, et al.,
`
`—v.—
`
`ERIC H. HOLDER, JR., et al.,
`
`Petitioners,
`
`Respondents.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE TENTH CIRCUIT
`
`BRIEF AMICUS CURIAE OF THE INTERNATIONAL
`COALITION FOR COPYRIGHT PROTECTION
`IN SUPPORT OF RESPONDENTS
`
`ERIC M. LIEBERMAN
`Counsel of Record
`DAVID B. GOLDSTEIN
`CHRISTOPHER J. KLATELL
`RABINOWITZ, BOUDIN, STANDARD,
`KRINSKY & LIEBERMAN, P.C.
`45 Broadway, Suite 1700
`New York, New York 10006
`(212) 254-1111
`elieberman@rbskl.com
`
`Attorneys for Amicus Curiae
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`
`
`
`
`
`
`Page
`TABLE OF AUTHORITIES ………………………… iii
`STATEMENT OF INTEREST ……………………….. 1
`SUMMARY OF ARGUMENT ………………… ……... 3
`ARGUMENT ……………………………….........……... 6
`I. SECTION 514 IS A VALID
` EXERCISE OF THE FOREIGN
`COMMERCE CLAUSE AND
`TREATY POWER ………………………….. 6
`A. The URAA Is Trade
`Legislation Enacted Under
`Congress’ Foreign Commerce
`Clause Powers ………………………. 6
`B. Section 514 of the URAA,
`Which Implements Treaty
`Obligations, Is an Exercise
`of the Treaty Power ………………... 9
`The URAA Is a Valid
`Exercise of Congress’ Power
`to Regulate Commerce with
`Foreign Nations, Especially
`Where Congress Acts To
`Carry Out Foreign
`Commerce Obligations
`Created by a Treaty of the
`United States ……………………… 14
`
`C.
`
`
`
`
`
`ii
`
`II. THE URAA DOES NOT VIOLATE
` THE FIRST AMENDMENT …………….. 21
`A. The URAA Does Not Raise
`First Amendment Concerns
`Unresolved in Eldred ……………. 21
`B. To the Extent the First
`Amendment Requires
`Additional Balancing of
`the Government’s Interest in
`Enacting Section 514, the
`Court Must Defer to the
`Political Branches’
`Identification of the
`Foreign Policy Interests
`of the United States ………………. 27
`1. The Political Branches,
`Not the Judiciary,
`Determine the Nature
`and Extent of the
`Government’s “Interest”
`on Questions of
`Foreign Policy ……………... 27
`C. Section 514 Expands the
`Incentives and Opportunity
`for Speech and Public Debate ....... 32
`Conclusion ……………………………………... 35
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`
`
`
`
`
`
` Page
`
`
`
`
`
`Cases:
`
`Authors League of Am., Inc. v. Oman,
`790 F.2d 220 (2d Cir. 1986) ………….…. 16, 19
`
`
`Bd. of Trustees of Univ. of Illinois v.
`United States, 289 U.S. 48 (193….... 14, 15, 16
`
`
`California Bankers Ass’n v. Shultz,
`416 U.S. 21 (1974) ……………………….…… 14
`
`
`City of Renton v. Playtime Theatres, Inc.,
`475 U.S. 41 (1986) ………………….…………. 25
`
`
`Container Corp. of Am. v. Franchise Tax Bd.,
`463 U.S. 159 (1983) ……………………..……. 31
`
`
`Crosby v. Nat’l Foreign Trade Council,
`530 U.S. 363 (2000) …………………………… 28
`
`
`Dames & Moore v. Regan,
`453 U.S. 654 (1981) …………………….… 22, 30
`
`
`Dastar Corp. v. Twentieth Century Fox
`Film Corp., 539 U.S. 23 (2003) ………….….. 26
`
`
`El Al Israel Airlines, Ltd. v. Tseng,
`525 U.S. 155 (1999) ………………………..…. 28
`
`
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) ………………..……. passim
`
`
`
`iv
`
`
`
`First Nat’l Bank of Boston v. Bellotti,
`435 U.S. 765 (1978) …………………….… 24, 25
`
`
`Friedman v. Rogers,
`440 U.S. 1 (1979) ……………………………… 25
`
`
`Frisby v. Schultz,
`487 U.S. 474 (1988) …………………………… 26
`
`
`Gibbons v. Ogden,
`22 U.S. (9 Wheat.) 1 (1824) ……………... 15, 17
`
`
`Golan v. Holder,
`609 F.3d 1076 (10th Cir. 2010) .… 9, 10, 28, 30
`
`
`Hamdi v. Rumsfeld,
`542 U.S. 507 (2004) …………………………… 30
`
`
`Harisiades v. Shaughnessy,
`342 U.S. 580 (1952) ……………………….….. 29
`
`
`Hill v. Colorado,
`530 U.S. 703 (2000) …………………………... 26
`
`Holder v. Humanitarian Law Project,
`130 S.Ct. 2705 (2010) ……………………...…. 30
`
`
`Japan Line, Ltd. v. County of Los Angeles,
`441 U.S. 434 (1979) …………………………... 14
`
`
`
`
`
`
`
`v
`
`KISS Catalog v. Passport Int’l Products,
`350 F. Supp. 2d 823 (C.D. Cal. 2004),
`vacated in part on reconsideration,
`405 F. Supp. 2d 1169 (C.D. Cal. 2005) …..… 20
`
`
`Kolovrat v. Oregon,
`366 U.S. 187 (1961) …………………………... 29
`
`
`Luck’s Music Library, Inc. v. Ashcroft,
`321 F. Supp. 2d 107 (D.D.C. 2004),
`aff’d, 407 F.3d 1262 (D.C. Cir. 2005) ……. 9, 10
`
`
`Luck’s Music Library, Inc. v. Gonzales,
`407 F.3d 1262 (D.C. Cir. 2005) ……………… 10
`
`
`Missouri v. Holland,
`252 U.S. 416 (1920) ………………………. 12, 13
`
`
`O’Connor v. United States,
`479 U.S. 27 (1986) …………………………….. 29
`
`
`Oetjen v. Central Leather Co.,
`246 U.S. 297 (1918) ………………………..…. 28
`
`
`Outdoor Media Group, Inc. v. City of Beaumont,
`506 F.3d 895 (9th Cir. 2007) ……………..…. 25
`
`
`Railway Labor Executives’ Ass’n v. Gibbons,
`455 U.S. 457 (1982) …………………………… 17
`
`
`Regan v. Wald,
`468 U.S. 222 (1984) …………………………... 29
`
`
`
`
`
`
`
`vi
`
`Rutan v. Republican Party of Ill.,
`497 U.S. 62 (1990) …………………………….. 25
`
`
`Sumitomo Shoji America, Inc. v. Avagliano,
`457 U.S. 176 (1982) ………………………..…. 28
`
`
`The Trade-Mark Cases,
`100 U.S. 82 (1879) ………………………... 15, 18
`
`
`Turner Broad. Sys., Inc. v. FCC,
`520 U.S. 180 (1997) ………………………. 25, 26
`
`
`United States v. Lara,
`541 U.S. 193 (2004) ………………………. 12, 13
`
`
`United States v. Lopez,
`
`514 U.S. 549 (1995) ………………………….…. 8
`
`United States v. Martignon,
`492 F.3d 140 (2d Cir. 2007) ………………..... 20
`
`
`United States v. Moghadam,
`175 F.3d 1269 (11th Cir. 1999) …..… 15, 17, 20
`
`
`Ward v. Rock Against Racism,
`491 U.S. 781 (1989) …………………………… 26
`
`
`Woods v. Cloyd W. Miller Co.,
`333 U.S. 138 (1948) ………………………….…. 9
`
`Young v. Am. Mini Theatres, Inc.,
`427 U.S. 50 (1976) ………………………..…… 25
`
`
`
`
`
`
`
`vii
`
`Constitution, international agreements, statutes and
`regulations:
`
`U.S. Const., art. I, § 8 ……………………..…………. 13
`
`U.S. Const., art. I, § 8, cl. 3 ………………….…… 3, 14
`
`U.S. Const., art. I, § 8, cl. 4 ………………………….. 17
`
`U.S. Const., art. I, § 8, cl. 8 ………………………. 3, 18
`
`U.S. Const., art. II, § 2, cl. 2 …………………….. 3, 10
`
`U.S. Const., art. VI, cl. 2 ………………………….…. 12
`
`Agreement on Trade-Related Aspects of
`
`Intellectual Property Rights,
`
`33 I.L.M. 81 (1994) …………………….... passim
`
`Berne Convention for the Protection of
`Literary and Artistic Works,
`Sept. 9, 1886, as revised at Paris on
`July 24, 1971 and amended in 1979,
`S. Treaty Doc. No. 27, 99th Cong.,
`2d Sess. (1986) ……….........................… passim
`
`
`Uruguay Round Agreements Act, Pub. L.
`
`No. 103-465, 108 Stat. 4809 (1994) …... passim
`
`17 U.S.C. § 101 ………………………………………... 11
`
`17 U.S.C. § 104A …………………………………… 3, 12
`
`17 U.S.C. § 108 ………………………………………... 32
`
`
`
`viii
`
`
`
`17 U.S.C. § 109(a) ………………………………………. 3
`
`17 U.S.C. § 601 (1985) ……………………………….. 16
`
`18 U.S.C. § 2319A …………………………………….. 20
`
`19 U.S.C. § 2903 ………………………………….…….. 8
`
`19 U.S.C. § 3511(a) ………………………………….. 7, 8
`
`19 U.S.C. § 3511(d)(15) ……………………………...… 7
`
`Presidential Proclamation 6780,
`60 Fed. Reg. 15,845, 15,846
`(March 23, 1995) ……………………………… 11
`
`
`Other Authorities:
`
`134 Cong. Rec. S16939 (Oct. 20, 1988) …………….. 10
`
`24 Weekly Comp. Pres. Doc. 1405 (Nov. 5, 1988) ... 10
`
`H.R. Doc. No. 103-316 (1994) ………….………..……. 7
`
`H.R. Rep. No. 103-826(I) (1994) …………………….... 8
`
`L. Henkin, Foreign Affairs and the United
`States Constitution 191 (2d ed. 1996) …...... 13
`
` Melville B. Nimmer & David Nimmer,
`Nimmer on Copyright § 9A.07 ………..…. 9, 10
`
` 3
`
`
`
`ix
`
` 4
`
`
`Nimmer, § 18.06 ….……………...…………….... 8, 10
`
`
`S. Rep. No. 103-412 (1994) …………………………. 7, 9
`
`L. Tribe, American Constitutional Law
`(2d ed. 1988) ……………………...……………. 12
`
`
`
`
`
`1
`
`STATEMENT OF INTEREST
`With the written consent of all parties,
`reflected in letters on file with the Clerk, the
`International Coalition for Copyright Protection
`(ICCP) submits this brief as amicus curiae, pursuant
`to Rule 37 of the Rules of this Court.1
`The ICCP is an unincorporated association
`formed by authors, illustrators, artists, songwriters,
`film distributors and publishers to advocate for
`protection of copyrights. ICCP’s members depend
`upon copyright protection to exercise some legal
`control over the use of their creative work and to
`ensure that they receive adequate compensation
`when that work is published or performed.
`ICCP’s members own copyrights that have
`been restored in the United States pursuant to
`Section 514 of the Uruguay Round Agreements Act,
`Pub. L. No. 103-465, 108 Stat. 4809 (1994). ICCP
`members also depend upon copyright protection in
`the European Union and other foreign countries, the
`extent of which depends upon the degree of
`protection afforded under United States law.
`Members of the ICCP include Independent-
`International Picture Corporation, Dam Things
`Holding APS, Action Publishing, and Author
`Services Inc.
`
`
`1
`No counsel for a party authored the brief in whole or in
`part, and no person or entity, other than the amicus curiae or
`its members, made a monetary contribution to the preparation
`or submission of the brief.
`
`
`
`
`
`2
`
`The ICCP has filed amicus briefs in the two
`appeals in this case before the United States Court of
`Appeals for the Tenth Circuit. The ICCP also filed
`an amicus curiae brief in this Court in Eldred v.
`Ashcroft, 537 U.S. 186 (2003).
`
`
`
`
`
`
`
`3
`
`SUMMARY OF ARGUMENT
`Congress enacted Section 514 of the Uruguay
`
`Round Agreements Act (“URAA”), Pub. L. No. 103-
`465, 108 Stat. 4809 (1994) (codified at 17 U.S.C. §§
`104A, 109(a)), as part of a broad and complex statute
`addressed to the foreign trade and commerce of the
`United States. In doing so, Congress acted pursuant
`to its enumerated power under Article I, Section 8,
`Clause 3 of the Constitution to regulate foreign
`commerce, and to implement an international treaty
`ratified by the Senate under the treaty power, Article
`II, Section 2, Clause 2.
`
`Section 514 is a small component of a massive
`piece of international trade legislation, the vast
`majority of which has nothing to do with copyrights.
`Thus, even though Section 514 of the statute
`pertains to copyrights, Congress had the power to
`enact it independent of its authority under the
`Copyright Clause of the Constitution, Article I,
`Section 8, Clause 8. While amicus agrees with the
`United States and the Tenth Circuit that Congress’
`power to enact Section 514 is also supported by the
`Copyright Clause, petitioners incorrectly pose that
`question as necessarily determinative of this case.
`Treating Section 514 exclusively as copyright
`legislation ignores the historical context in which
`Congress enacted the entire URAA in furtherance of
`broad foreign policy and foreign economic goals.
`
`To be sure, Congress cannot act under its
`foreign commerce or treaty powers in derogation of
`other specific constitutional restrictions on its power.
`Nothing in the Copyright Clause or any other
`provision of the Constitution, however, prohibited
`
`
`
`
`
`4
`
`Congress from enacting Section 514. Petitioners’
`strained effort to invoke the “limited times” language
`contained in the Copyright Clause is facially without
`merit. Section 514 only provides copyright protection
`to works for “limited times.” Indeed, the duration of
`the copyright term provided for by Section 514 is
`precisely the same as the duration of copyrights in
`the United States generally, a “limited time” that the
`Court upheld as constitutional in Eldred. None of
`the copyright terms “restored” by Section 514 are
`longer, broader, or more onerous than those at issue
`in Eldred.
`
`Eldred also mandates rejection of petitioners’
`argument that the “progress” preamble to the
`Copyright Clause prohibited enactment of Section
`514. The preamble is hortatory in nature and
`contains no language limiting Congress’ power to act
`under the Copyright Clause, despite petitioners’
`repeated efforts to interject into the language of the
`preamble the restrictive word “only” where it does
`not exist. In Eldred, the Court held that the
`preamble did not prohibit Congress from extending
`the term of copyright protection to already existing
`works, rejecting the argument that such an extension
`did not promote “progress” in a meaningful manner.
`In so holding, the Court affirmed that determination
`of whether copyright legislation is likely to promote
`“progress” in the arts or sciences is committed to the
`discretion of Congress, not the judiciary. A fortiorari,
`the Preamble to the Copyright Clause does not
`restrict Congress’ power to act under the Foreign
`Commerce and Treaty Clauses.
`
`Nor does the First Amendment prohibit
`Congress from enacting Section 514 as part of a
`
`
`
`
`
`5
`
`sweeping piece of international economic regulation.
`The copyrights encompassed by Section 514, whether
`authorized by the Copyright Clause or the Foreign
`Commerce Clause, are subject
`to
`the same
`traditional, historical, and statutory limitations as
`those that apply to all copyrights, including the fair
`use doctrine and the idea/expression dichotomy.
`Accordingly, as in Eldred, there is no reason for the
`Court to undertake further scrutiny under the First
`Amendment. Petitioners assert that their “reliance”
`and property interests in works that have been in the
`public domain require a heightened standard of First
`Amendment protection, but those concepts have no
`place in First Amendment jurisprudence, nor is there
`such a thing as “vested” First Amendment rights or a
`category of “vested” rights holders who possess
`greater First Amendment rights than other actual or
`potential speakers.
`
`Even under intermediate First Amendment
`scrutiny, there can be no question that Section 514 is
`constitutionally valid legislation. Because Section
`514 addresses issues of foreign affairs and foreign
`commerce, the government’s explication of its foreign
`policy interest in implementing the statute must be
`granted significant deference under
`the well-
`established case law applicable to such matters. The
`identification and nature of the foreign policy
`interest of the United States at issue should be left to
`the discretion of
`the political branches of
`government.
`Finally, petitioners and the amici supporting
`
`them fail to recognize the substantial ways in which
`Section 514 expands the incentives and opportunity
`for speech and public debate. Their assertion that
`
`
`
`
`
`6
`
`I.
`
`Section 514 will create “instability” in the public
`domain and therefore lead to a parade of horribles
`makes no sense. Section 514 has been in effect for
`almost 15 years. Google (and its book project),
`Wikipedia, and various of the other projects and
`industries that supposedly will be devastated by
`Section 514 were all created after January 1, 1996,
`the effective date of the statute restoring copyrights.
`The rules created by Section 514 have been in place
`for the last 15 years – the period in which the
`Internet took root, the digital revolution occurred,
`and the public gained access to an unprecedented
`amount of information and speech.
`ARGUMENT
`SECTION 514 IS A VALID EXERCISE OF
`THE FOREIGN COMMERCE CLAUSE AND
`TREATY POWER.
`A.
`The URAA Is Trade Legislation Enacted
`Under Congress’ Foreign Commerce
`Clause Powers.
`The 1994 URAA is as pure a piece of foreign
`trade legislation as could be imagined. The URAA
`required thousands of changes to United States
`statutes and tariffs to implement the Uruguay
`Round Agreements that created the World Trade
`Organization (“WTO”) and the modern global trade
`regime. Section 514 (along with the handful of other
`copyright provisions of the URAA) is but one small
`part of this massive international trade legislation.
`In the URAA, Congress approved not only the WTO
`Agreement, but also eighteen (18) separate trade-
`related economic agreements, covering such topics as
`agriculture,
`textiles, government procurement,
`
`
`
`
`
`7
`
`investments, subsidies, trade in services, and tariffs.
`19 U.S.C. § 3511(a), (d).
` Only one of those
`agreements,
`the Agreement on Trade-Related
`Aspects of Intellectual Property Rights (TRIPs),
`concerns intellectual property. Copyright was only
`one small part of TRIPs, which also deals extensively
`with patents, trademarks, geographical indications,
`industrial designs, and trade secrets. See id. §
`3511(d)(15); TRIPs, 33 I.L.M. 81 (1994). The title
`itself explains that TRIPs is concerned with “trade-
`related aspects of intellectual property.” Thus, the
`fact that the URAA included provisions addressing
`copyrights did not mean that Congress was acting
`pursuant to its Copyright Clause powers in enacting
`such provisions, let alone pursuant exclusively to
`such powers.
`Statements accompanying the passage of the
`URAA demonstrate the obvious, that Congress was
`acting pursuant to its powers over foreign commerce.
`In the President’s letter to Congress transmitting the
`proposed URAA and related documents, he stated,
`“The Uruguay Round Agreements are the broadest,
`most comprehensive trade agreements in history.
`They are vital to our national interest and to
`economic growth, job creation, and an improved
`standard of living for all Americans.”2 See S. Rep.
`No. 103-412, at 3 (1994) (“The Uruguay Round of
`multilateral trade negotiations is by far the most
`
`2
`Message from the President of the United States
`Transmitting the Uruguay Round Trade Agreements, Texts of
`Agreements Implementing Bill, Statement of Administrative
`Action and Required Supporting Statements, H.R. Doc. No. 103-
`316, at 1 (1994).
`
`
`
`
`
`8
`
`ambitious and comprehensive round of multilateral
`trade negotiations in the history of the GATT….
`tackl[ing] new areas, such as services, intellectual
`property rights, and
`investment, reflecting the
`growing complexity of the world trading system.”);
`see id. at 2-5; H.R. Rep. No. 103-826(I), at 16 (1994)
`(“These agreements … will lead to increased levels of
`world and U.S. output, trade, real income, savings,
`investment, and consumption.”).3
`The leading copyright commentator recognized
`that the URAA was enacted pursuant to and fell well
`within Congress’ Foreign Commerce Clause powers.
`Evidently, Congress
`felt
`that
`its
`authority
`to
`regulate
`international
`commerce authorized it to enact the bill
`and obviated the need to be explicit
`about the matter. Given how broadly
`Congress’ commerce power historically
`has been construed, that assumption is
`safe…. [United States v. Lopez, 514 U.S.
`549 (1995)] does not remotely threaten
`the viability of this trade law, given how
`close to the core of economic activity the
`Uruguay Round Agreements lie.
`4 Melville B. Nimmer & David Nimmer, Nimmer on
`Copyright, § 18.06[C][3][a], at 18-81 (2004) (foot-
`notes omitted) (hereinafter “Nimmer”); see also 3
`
`
`3
`The URAA was enacted under “fast-track” trade
`legislation pursuant to section 1103 of the Omnibus Trade and
`Competitiveness Act of 1988, 19 U.S.C. § 2903. See 19 U.S.C. §
`3511(a).
`
`
`
`
`
`9
`
`Nimmer § 9A.07[B], at 9A–80-81; see Golan v.
`Holder, 609 F.3d 1076, 1081 (10th Cir. 2010).4
`B.
`Section 514 of the URAA, Which
`Implements Treaty Obligations, Is an
`Exercise of the Treaty Power.
`With respect to Section 514 itself, Congress
`clearly stated that it was acting to implement the
`United States’ treaty obligations under the Berne
`Convention for the Protection of Literary and Artistic
`Works, Sept. 9, 1886, as revised at Paris on July 24,
`1971 and amended in 1979, S. Treaty Doc. No. 27,
`99th Cong., 2d Sess. (1986) – a quintessential
`exercise of the Treaty Power – whereas there is no
`mention or indication that Congress considered itself
`to be acting pursuant to the Copyright Clause.5 See
`
`4
`Because the Tenth Circuit upheld Section 514 as a valid
`exercise of Congress’ Copyright Clause authority, the United
`States does not address the Foreign Commerce Clause in its
`brief, while reserving the right to do so if necessary in the
`future, see Brief for the Respondents (“Resp. Br.”) at 33-34 n.15,
`and describing the URAA as “foreign trade” legislation, id. at 5.
`The statute at issue is constitutional if authorized under any
`enumerated constitutional power. See, e.g., Woods v. Cloyd W.
`Miller Co., 333 U.S. 138, 144 (1948).
`international
`5
`The Berne “Convention governs the
`enforcement of copyright law. Since its entry into force in 1886,
`the Convention requires member countries to afford the same
`copyright protections to foreign copyright holders that they
`provide to their own citizens. Convention, Art. 5. The United
`States ratified the Convention in 1988.” Luck’s Music Library,
`Inc. v. Ashcroft, 321 F. Supp. 2d 107, 109 (D.D.C. 2004)
`(internal citations omitted), aff’d, 407 F.3d 1262 (D.C. Cir.
`2005). There are now 164 Contracting Parties to the Berne
`Convention. See http://www.wipo.int/treaties/ (last viewed July
`31, 2011).
`
`
`
`
`
`10
`
`S. Rep. No. 103-412, at 225 (“The [TRIPs] 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.”); Luck’s
`Music Library, Inc. v. Gonzales, 407 F.3d 1262, 1262-
`63 (D.C. Cir. 2005) (Ҥ 514 of the [URAA] implements
`Article 18 of the Berne Convention for the Protection
`of Literary and Artistic Works.”); Luck’s Music, 321
`F. Supp. 2d at 109 n.1 (describing implementation of
`Berne Convention obligations, including Article 18,
`through Title V of URAA, which implemented
`TRIPs); TRIPs, art. 9(1), 33 I.L.M. at 87;6 3 Nimmer,
`§ 9A.07[B], at 9A–80 (acknowledging Treaty Power
`rationale for Section 514); Golan, 609 F.3d at 1081
`(Congress enacted URAA “in order to comply with
`these international agreements”); Resp. Br. at 5
`(“Section 514 . . . implements Article 18 of Berne”).
`The Berne Convention is a “Treaty” within the
`meaning of the Treaty Clause. U.S. Const. art. II, §
`2, cl. 2. The President presented the Convention to
`the Senate, which ratified it by a two-thirds vote, the
`President signed the treaty, and it was deposited
`with WIPO. See 134 Cong. Rec. S16939 (Oct. 20,
`1988); 24 Weekly Comp. Pres. Doc. 1405 (Nov. 5,
`1988); http://www.wipo.int/treaties/. Congress ex-
`pressly declared the Berne Convention not to be
`self-executing, however, and
`it
`thus required
`
`6
`The GATT Secretariat characterized TRIPs as “the most
`important multilateral agreement on intellectual property
`rights negotiated in this century.” (quoted in 4 Nimmer §
`18.06[A], at 18-49).
`
`
`
`
`
`11
`
`implementing legislation in order for the United
`States to carry out its international obligations.
`See 17 U.S.C. § 101 note (Berne Convention;
`Congressional Declarations, Pub. L. 100-568, § 2(1))
`(“The Convention for the Protection of Literary and
`Artistic Works, signed at Berne, Switzerland, on
`September 9, 1886, and all acts, protocols, and
`revisions thereto (hereafter in this Act referred to as
`the ‘Berne Convention’) are not self-executing under
`the Constitution and laws of the United States.”)
`GATT Members, including the United States,
`were obligated to comply with TRIPs by January 1,
`1996.
` TRIPs, art. 65(1), 33 I.L.M. at 107;
`Presidential Proclamation 6780, 60 Fed. Reg. 15,845,
`15,846 (March 23, 1995), at 5(c). Therefore, in order
`to comply with the Uruguay Round Agreements and
`TRIPs, the United States was required to implement
`the Berne Convention, including Article 18. TRIPs,
`art. 9(1), 33 I.L.M. at 87. One of the primary goals of
`the WTO Agreement was to prevent GATT Members,
`including the United States, from picking and
`choosing among the provisions of TRIPs (and hence
`of the Berne Convention, arts. 1-21) with which they
`would comply. TRIPs art. 72, 33 I.L.M. at 110
`(reservations from TRIPs require consent of all other
`WTO Members). Section 514 goes no further than
`Article 18, providing protection only for otherwise
`copyrightable foreign works whose term of protection
`has not yet expired in the country of origin, and that
`
`
`
`
`
`12
`
`further meet the specified criteria set out in 17
`U.S.C. § 104A(h)(6)(C).7
`The Treaty Power is a distinct delegation of
`enumerated power to the Executive and the Senate.
`As Justice Holmes explained in Missouri v. Holland,
`252 U.S. 416 (1920):
`Acts of Congress are the supreme law of
`the land only when made in pursuance
`of the Constitution, while treaties are
`declared to be so when made under the
`authority of the United States…. It is
`obvious that there may be matters of
`the sharpest exigency for the national
`well being that an act of Congress could
`not deal with but that a treaty followed
`by such an act could, and it is not lightly
`to be assumed
`that,
`in matters
`requiring national action, a power
`which must belong to and somewhere
`reside in every civilized government is
`not to be found.
`Id. at 433 (internal quotations omitted); see id. at 432
`(citing U.S. Const. art. VI, cl. 2, which distinguishes
`“Laws of the United States which shall be made in
`Pursuance” of the Constitution, from “all Treaties
`made, or which shall be made, under the Authority of
`the United States”); United States v. Lara, 541 U.S.
`193, 201 (2004); see also L. Tribe, American
`Constitutional Law 227 (2d ed. 1988) (“Missouri v.
`
`7
`Section 514 also provides specific protections to reliance
`parties that are not required by the Convention or TRIPs. See
`17 U.S.C. § 104A(d)(2)-(4), (e)(2).
`
`
`
`
`
`13
`
`Holland thus views the treaty power as a delegation
`of authority to federal treaty-makers independent of
`the delegations embodied in the enumeration of
`Congress’ own powers.”); L. Henkin, Foreign Affairs
`and the United States Constitution 191 (2d ed. 1996)
`(“What
`[Holmes] said, simply, was
`that
`the
`Constitution delegated powers to various branches of
`the federal government, not only to Congress; the
`Treaty Power was delegated to the federal treaty-
`makers, a delegation additional to and independent
`of the delegations to Congress.”).
`“If [a] treaty is valid there can be no dispute
`about the validity of the [implementing] statute
`under Article I, Section 8, as a necessary and proper
`means to execute the powers of the Government.”
`Holland, 252 U.S. at 432; see Lara, 541 U.S. at 201
`(same). The Berne Convention is plainly a valid
`treaty, see, e.g., Eldred, 537 U.S. at 195, in that,
`first, the subject matter of the treaty is one
`“requiring national action” concerning United States
`relations with foreign powers, and concerns a power
`that “must belong to and [] reside” in the national
`government, Holland, 252 U.S. at 433 (internal
`quotations omitted), and second, the Constitution
`contains no “prohibitory words” barring the treaty’s
`terms. Id. Section 514, as a statute that implements
`a portion of the Berne Convention, is accordingly a
`valid exercise of congressional authority.8
`
`8
`Amicus the Cato Institute argues that Missouri v.
`Holland should be overruled and that Congress’ enumerated
`powers cannot be extended or added to by international treaty.
`That question is not raised by this case, however, because in
`acting to implement the Berne Convention – the treaty in this
`case – Congress also acted pursuant to its foreign commerce
`
`
`
`
`
`14
`
`C.
`
`The URAA Is a Valid Exercise of Congress’
`Power to Regulate Commerce with Foreign
`Nations, Especially Where Congress Acts To
`Carry Out Foreign Commerce Obligations
`Created by a Treaty of the United States.
`The URAA is international trade legislation,
`as shown above, and Section 514 of that Act is a valid
`exercise of Congress’ power “to regulate Commerce
`with foreign Nations.” U.S. Const. art. I, § 8, cl. 3.
`Section 514, as part of this trade legislation,
`regulates the economic terms pursuant to which
`certain
`foreign
`informational materials can be
`imported into and distributed within the United
`States.
`“The plenary authority of Congress to regulate
`foreign commerce . . . is well established.” California
`Bankers Ass’n v. Shultz, 416 U.S. 21, 59 (1974).
`“Although the Constitution, Art. I, § 8, cl. 3, grants
`Congress power to regulate commerce ‘with foreign
`Nations’ and ‘among the several States’ in parallel
`phrases, there
`is evidence that the Founders
`intended the scope of the foreign commerce power to
`be the greater.” Japan Line, Ltd. v. County of Los
`Angeles, 441 U.S. 434, 448 (1979). International
`traffic in copyrighted materials is no less subject to
`Congress’ Foreign Commerce Clause authority than
`international traffic in any other commodity. See Bd.
`
`
`and copyright powers. Accession to the Berne Convention and
`passage of Section 514 do not expand any area of congressional
`power, or alter the balance of powers between the federal
`government and the states. The treaty addresses two areas –
`copyright and foreign commerce – clearly entrusted by the
`Constitution to the national government.
`
`
`
`
`
`15
`
`of Trustees of Univ. of Illinois v. United States, 289
`U.S. 48, 56 (1933) (Foreign Commerce Clause
`“‘comprehend[s]
`every
`species
`of
`commercial
`intercourse between the United States and foreign
`nations. No sort of trade can be carried on between
`this country and any other, to which this power does
`not extend.’”) (quoting Gibbons v. Ogden, 22 U.S. (9
`Wheat.) 1 (1824)).
`The fact that the foreign commerce regulated
`by Section 514 involves copyrights does not diminish
`Congress’ Foreign Commerce Clause authority. A
`statute arguably within the ambit of two grants of
`congressional power may be authorized by one of
`those grants even if not authorized by the other.
`Thus, in The Trade-Mark Cases, 100 U.S. 82, 93-94
`(1879), the Court held that a nineteenth-century
`criminal trademark statute was not within Congress’
`Copyright Clause authority – the power, the Court
`inferred, that Congress had intended to exercise in
`enacting the statute. Id. at 94. The Court next
`considered whether regulation of trademarks was
`permissible under the Commerce Clause. Id. at 95.
`Although the Court invalidated the statute under the
`then-prevailing narrow interpretation of Congress’
`Commerce Clause power, modern
`trademark
`protection, though presumably still unsupported by
`the Copyright Clause, “is built entirely on the
`Commerce Clause [as it now is construed].” See
`United States v. Moghadam, 175 F.3d 1269, 1278
`(11th Cir. 1999).
`To similar effect is Board of Trustees of
`University of Illinois, supra. There, the Court
`rejected the University of Illinois’ contention that it
`should be exempt from paying customs duties on the
`
`
`
`
`
`16
`
`theory that they constituted taxes from which the
`University, as a state instrumentality, was immune.
`See id., 289 U.S. at 57-58. The Court explained: “It
`is true that the taxing power is a distinct power; that
`it is distinct from the power to regulate commerce. It
`is also true that the taxing power embraces the
`power to lay duties. But because the taxing power is
`a distinct power and embraces the power to lay
`duties, it does not follow that duties may not be
`imposed in the exercise of the power to regulate
`[foreign] commerce.” Id. at 58 (internal citations
`omitted).
`The lower courts also have recognized that in
`appropriate circumstances the Foreign Commerce
`Clause may authorize legislation where other Article
`I powers, particularly the Copyright Clause, would
`not suffice. In Authors League of Am., Inc. v. Oman,
`790 F.2d 220 (2d Cir. 1986), for example, the Second
`Circuit considered a constitutional challenge to the
`so-called “manufacturing clause,” a now defunct
`statute that denied full copyright protection to
`English-language non-dramatic literary materials
`manufactured outside of the United States or
`Canada. See id. at 221; 17 U.S.C. § 601 (1985).
`Congress’ objective in so limiting the scope of
`copyright protection, the court explained, was “to
`protect domestic labor and manufacturers in the
`printing and publishing industry. This legislation
`seeks to encourage the use of American printers[.]”
`Authors League of Am., 790 F.2d at 221. In rejecting
`the plaintiffs’ argument
`that
`the
`challenged
`provision was beyond Congress’ authority because
`the statute had only a tenuous connection to the
`promotion of progress in science, the court explained:
`
`
`
`
`
`17
`
`“the copyright clause is not the only constitutional
`source of congressional power that could justify the
`manufactu
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