Act Providing Copyright Protection for Foreign Works Challenged

"focuses on the source of the evils the [government] seeks to eliminate . . . to the intermediate scrutiny analysis, the existence of less-speech-restrictive country of that work becomes an eligible country, which would have berne convention while providing significantly stronger protection for the first substantial evidence. the testimony before congress indicated that the united novo, or to replace congress' factual predictions with our own. rather, property rights (trips). the trips agreement required, in part, that its we cannot say that one approach is clearly more protective of speech 33 constitution," id. at 1187, and concluded that plaintiffs had "shown sufficient free the conventional wisdom within the u.s. copyright community picture version, sound recording, art reproduction, abridgment, condensation, or 798. "content-neutral regulations do not pose the same inherent dangers to free protection] are dramatically in favor of us industries.").7 capacity as attorney general of the interests. it is not our role to opine on the best method of striking this balance. a only transitional protections for reliance parties. russia, the former soviet republics, the former eastern bloc countries, south prematurely out of copyright in that country."). they can decide what protection they will grant to their reliance country that they consider us in violation of our obligations under article 18."). joint hearings at 231; see also id. at 224 ("[t]here is absolutely no guarantee that derivative work as long as they pay "reasonable compensation" to the copyright alleviate. "this is the essence of narrow tailoring." ward, 491 u.s. at 799 n.7. court and remand with instructions to grant summary judgment in favor of the the parties' arguments about what the berne convention requires and therefore, the government's interest is genuinely advanced by restoring foreign (emphasis omitted). facial challenges to statutes are generally disfavored as relations with that country, or, for other reasons, these works have fallen u.s. at 217 (quotations and citation omitted). a statute must be "narrowly when it legislates under the copyright clause, and this court may not expansive protection that we need. plaintiffs cross-appeal, contending that the statute is facially invalid and that they appeal from the united states district court 38 something: either buy out the reliance party (united kingdom model) or file 560. neutral regulations with our own, so long as its policy is grounded on reasonable in making that determination, we are not to reweigh the evidence de symphony of the canyons; of the uraa is not violative of the first amendment. courts to impose on the legislative branch." turner ii, 520 u.s. at 213 mohr pllc, washington, d.c.; thomas kanan and jonathan decker, of mcelroy, itself or informed by any other provision of the constitution--draws such (quoting ward, 491 u.s. at 800). the united states' ability to protect american billions of dollars were being lost each year because foreign countries were not with the burden that section 514 imposes on reliance parties. the burdens on carolyn j. fairless, of wheeler trigg o'donnell llp, denver, colorado; and record regarding the potential effect of the united states' position on copyright and citation omitted)). rather, we merely acknowledge that in undertaking our a "reliance party" is defined as a person who: in 1989, the united states joined the berne convention for the protection is immaterial whether, as plaintiffs contend, the government could have complied american copyright holders. appellees' br. at 48. however, the supreme court use expressions contained in a copyrighted work under certain circumstances, recognize the reality that the existence of an obvious and substantially less in her official capacity as register of substantially less speech." id. (quoting 44 liqourmart, inc. v. rhode island, 517 expression.'" citizens for peace in space v. city of colorado springs, 477 f.3d 7 sess., 262 (1994) [hereinafter "joint hearings"] (statement of jason s. berman, but that is not what the constitution requires; as long as the government has not alleviate these harms. eric m. lieberman, david b. goldstein, and christopher j. klatell, of conductors, educators, performers, publishers, film archivists, and motion picture curiae brief for the american society of composers, authors and publishers, the the [supreme] court sparingly and only as a last resort." nat'l endowment for 514 does not disturb these traditional, built-in protections, and thus, such but their reliance on bolling is without merit. in bolling, the supreme court copyrights with limited protections for reliance parties such as plaintiffs. signatories comply with article 18 of the berne convention, and thus, extend no. 09-1234, the government appeals the district court's order granting plaintiffs' promotes a substantial governmental interest that would be achieved less b. section 514 does not burden substantially more speech than necessary. in the case at bar, the burdens imposed on the reliance parties are congruent although no country has section 514, "a reliance party may continue to exploit that derivative work for the 5 had substantial evidence for making the judgment that it did." id. at 208. in order to enforce a restored copyright against a reliance party, a foreign copyright 520 u.s. at 213 (quotations and citation omitted). accordingly, "the although congress was presented with evidence that its position on is narrowly tailored to further the government's interests. see ward, 491 u.s. at legal protections for american copyright holders' interests abroad, and (3) alternatives may be relevant to determining whether section 514 is narrowly the largest exporter of copyrighted material in the world takes the including the commonwealth countries, already grant us retroactivity. a. governmental interest establishing by virtue of what we do the ground rule for retroactivity."); id. at 256 2 abroad, is so irrational or so unrelated to the aims of the copyright announced that "[s]egregation in public education [wa]s not reasonably related to school, stanford, california, (julie a. ahrens, attorney, center for internet and addressed by this ordinance�the visual assault . . . presented by an accumulation government interests." id. at 218 (quotations and citation omitted). plaintiffs is too speculative to satisfy intermediate scrutiny. although we require section 514, a reliance party can continue to exploit a derivative work as long as reliance users a sufficient opportunity to recoup their investment. works, although they cannot continue to make copies of the restored work. id. � 2827�28 (1998), and section 514 of the uraa, seeking declaratory and violates plaintiffs' freedom of expression under the first amendment. in case to advance that interest. accordingly, we reverse the judgment of the district measures adopted for that end, lest we infringe on traditional legislative amici curiae. photographers; the power of the senate to advise and consent on the making of treaties"). as such, congress heard testimony addressing the interests of american copyright holders. [that harm] in a material way." see turner ii, 520 u.s. at 195. in undertaking correct to determine" that limited protections for reliance parties were works abroad would be achieved less effectively absent section 514, and 199. thus, we must determine "whether, given conflicting views . . ., congress section 514 was "designed to address a real harm, and whether [it] will alleviate without at the same time banning or significantly restricting a substantial quantity the united states; the strong if we have this tool behind us."). considerable discretion that allows the government to provide greater protections appealed, arguing that the district court failed to provide all of the relief that they warrant special deference from the courts. see citizens for peace in space, 477 other member countries that it provides to its own authors. pursuant to article administration of the h. comm. on the judiciary and the subcomm. on patents, york, have filed an amicus curiae brief for the international coalition for 512 u.s. at 665 (plurality opinion). past conduct may be the best--and in other words, the united states needed to impose the same burden on american 25 further, the united states' trading partners had represented that they would of america, inc.; (...continued) 2. alternatives do not undermine the narrow tailoring of section 514. with the minimal obligations of the berne convention and granted stronger dispute resolution before the world trade organization. see patry on copyright the constitution provides congress with the power "to promote the in particular, congress heard testimony that the united states could set an and commentators have recognized that copyright . . . serve[s] this countervailing difficulty in concluding that the government's interest in securing protections in order to comply with these international agreements, congress enacted holders. to the contrary, the evidence before congress suggested that other states, inc., 466 u.s. 485, 499 (1984)). section 514 that it imposes on all other content-neutral regulations of speech. parties, testified as follows: works are restored in the u.s. with the domestic users that may have rabinowitz, boudin, standard, krinsky & lieberman, p.c., new york, new united states court of appeals 19 protections for american reliance parties. if congress had provided stronger benefit that the government sought to provide to american authors is congruent 11 works which were created prior to the date the u.s. established copyright alan c. friedberg of pendleton, friedberg, wilson & hennessey, p.c., denver, we recognized that "legislation promulgated pursuant to contradicted the view that other countries would follow the united states' american works in foreign countries. further, congress heard testimony that the the city's power to prohibit."). accordingly, section 514 advances an important heard testimony that by refusing to restore copyrights in foreign works in the including "criticism, comment, news reporting, teaching . . . scholarship, or id. is especially true in areas that involve predictions of foreign relations and here, we do not believe that the decision to comply with the berne (analyzing government restriction on commercial speech under intermediate restore american copyrights only if the united states restored foreign copyrights. was previously granted, a work has fallen into the public domain some less-speech-restrictive alternative." id. at 800. restrictive means for advancing the desired government objective [may] indicate[] publishers; the american moreover, the united states had an opportunity to set an example for copyright considering the deference that congress is owed, particularly in areas of determination." id. at 224. 3 we apply considerable deference to congress and the executive in making advancing three important governmental interests: (1) attaining indisputable difference is that under the united kingdom model, the reliance party receives enforcing the statute, and order the register of copyrights marybeth peters to parties. nor will the few important countries who presently do not accessions to the union . . . . domain . . . ." appellees' reply br. at 6�7. but in golan i, we rejected plaintiffs' plaintiff kapp created a derivative work--a sound recording based on several of its coming into force, have not yet fallen into the public research . . . and even for parody." id. (quotations and citation omitted). section point. i think the chances of us obtaining good retroactive protection is quite 14 34 gaouette, acting united states attorney; william kanter, attorney, with him on provisions contained in special conventions to that effect existing copyrights, and trademarks of the s. comm. on the judiciary, 103d cong., 2d in sum, congress acted within its authority under the copyright clause in approach to copyright restoration. more specifically, irwin karp stated: scrutiny). "`the availability of less burdensome alternatives to reach the stated implementing legislation � will feel free to simply mirror our views. if american copyright holders "in a direct and effective way." see id. at 213 publishers because of the failure of many of our trading partners to protect u.s. i. statutory background regulation of speech, and thus, is subject to intermediate scrutiny. although their 6 there is "no support for the conclusion that enacting more stringent measures smith, who testified that the bills under consideration would and trade (gatt): intellectual property provisions: joint hearing on h.r. 4894 retroactive protection abroad. i almost entirely disagree with mr. karp on this that previously fell into their public domains."). thus, if the united states 3 on appeal are largely foreclosed by our conclusion that section 514 does not the berne convention, specifically, the united kingdom model. however, we are american reliance parties and obtained strong protections for american copyright testimony that the united states' chosen method and scope of copyright even in the realm of first amendment questions where congress must 18 necessarily invalidate a regulation under intermediate scrutiny). "we merely interest, the first amendment does not permit us to second guess congress's expression. 32 turner i, 512 u.s. at 664 (plurality opinion). thus, we must examine whether restoration. congress also heard testimony that if it wanted foreign countries to copyright; and thus, there is no `grace period'" similar to section 514. u.s. 484, 529 (1996) (o'connor, j., concurring)). we do not suggest that the protection will be provided there when we protect their works in the same manner injunctive relief. preexisting foreign works even when those works were previously in the public purposes of this appeal that the united states could have provided stronger of america) ("if the u.s. `retroactively' protects works from, for example, defendant. retroactively protect u.s. works[.] when they do grant retroactivity iii. government's appeal (no. 09-1234) obligations and to protect american authors' rights abroad. therefore, we agree witnesses further testified that many countries would provide no greater 6 our public domain may induce other countries with whom we recently established 3. substantial evidence supported the conclusion that section 514 would protected speech remains unburdened. compositions by dmitri shostakovich. section 514 of the uraa provided by plaintiffs and the district court is the united kingdom model. see golan, 611 owner of the restored copyright." irwin karp, final report, berne article 18 of restoration, id. � 104a(d)(2)(a)(ii)(i), (d)(2)(b)(ii)(i). reliance parties may plaintiffs contend that "the government could have complied with the evidence that section 514 would advance the government's interest in protecting burdened substantially more speech than necessary to further an important with whom we are just starting copyright relations to give us the i, which we are not free to revisit, as law of the case, see mcilravy v. kerr- (a) with respect to a particular work, engages in acts, before the source 2 amendment makes the public domain of copyright absolutely inviolable. instead, publishing co.; professor requires each signatory to provide the same copyright protections to authors in substantial as other interests that the supreme court has found to be sufficiently amicus curiae brief for the motion picture association of america, inc. were previously in the public domain in the united states. the district court parties are unable to agree on reasonable compensation, a federal court will publishing co., inc., doing 37 8 ii. factual and procedural background this review, we "must accord substantial deference to the predictive judgments of 24 important or substantial to satisfy intermediate scrutiny. see, e.g., members of speech] conveys."' see turner broad. sys., inc. v. fcc, 512 u.s. 622, 642 appellants, in matters relating to foreign affairs, international relations, and national security; position is "not controlling given our special standard of de novo review," id. at interests. there is nothing to stop them from adopting the british et al 222, 242 (1984) (noting the "classical deference to the political branches in plaintiffs have cross-appealed, arguing that section 514 is unconstitutional to be clear, we do not suggest that congress's decisions regarding foreign shapiro) ("[a]s the world leader, it is critically important that we implement fully abstract--the statute must be directed at a real, and not merely conjectural, harm. protection for failing to comply with various formalities, the parties refer to this appellant's app., vol. i at 159. securing protections for american copyright owners in foreign countries, which protections for foreign authors. korea, china, then we have every reason to expect those countries to protect 18, when a country joins the convention, it must provide copyright protection to 30 wilmer cutler pickering hale and dorr llp, washington, d.c., have filed an u.s. at 798. as long as the government does not burden substantially more united states' approach. for example, ira shapiro, general counsel of the office on remand, the parties filed cross-motions for summary judgment. the section 514 is unconstitutional. "the constitution gives to congress the role of on its face. more specifically, "[p]laintiffs contend that removing works from the kingdom, an author of a derivative work can continue to exploit the new work further, the united kingdom model is not far more protective of speech pending legislation or otherwise clarify that foreign preexisting works must be accorded to its findings as to the harm to be avoided and to the remedial (4) the preceding provisions shall also apply in the case of new clause that it exceeds the reach of congressional power. supported by substantial evidence in the record before congress." id. application of this principle. briscoe, chief judge. here in the united states. clearly, providing for such protection for existing restrictive means of restoring foreign copyrights.10 dollars have been and will be lost every year by u.s. authors, producers and injunctive relief. initially, the district court granted summary judgment to the congress. our sole obligation is to assure that, in formulating its judgments, the content of expression it is considered neutral, even if it has an incidental cross-appellees. months of restoration, id. � 104a(d)(2)(a)(i), or serve actual notice on the foreign countries." appellees' br. at 46. to the contrary, congress heard _______________________________ their obligations on retroactivity in exactly the same manner that the united 8 before its copyright is restored. but the reliance party can be `bought out' by the restrictive alternative of advancing the government's interest. id. at 217�18. public domain, the united states was not in compliance with its obligations under district court erred in ruling that section 514 violates plaintiffs' freedom of (continued...) in the legislative context as it is constitutionally unwarranted. congress is not of signs posted on public property�constitutes a significant substantive evil within copyright serves to advance both the economic and expressive interests of previously produced american creative works."). thus, congress heard 217�18 (reaffirming that the presence of a less-restrictive alternative will not lawrence lessig, harvard law school, cambridge, massachusetts, with him on such as a translation, musical arrangement, dramatization, fictionalization, motion we have urged others to provide protection for our industries' repertoire of some alternative solution is marginally less intrusive on a speaker's advance that interest, it is consistent with the first amendment. accordingly, the 4 plaintiff kapp. section 514 allows these reliance parties to continue to use a to the district court to "assess whether [section] 514 is content-based or content- provided no legal support for their claim that the first amendment--either by but they cannot make additional copies during this time, id. moreover, there is no indication that the government adopted section 514 in "indisputable compliance" with the berne convention, appellant's br. at 30, or permits are beside the point. as discussed above, the government's interest is not (...continued) copyrights, copyright office of the (statement of jack valenti, president and ceo of the motion picture association office or serves notice on a reliance party. 17 u.s.c. � 104a(d)(2). moreover, and tacha, circuit judges. term extension act was foreclosed by the supreme court's decision in eldred v. such, plaintiffs bear a "heavy burden" in raising a facial constitutional challenge. u.s. 759, 765 (1972) (discussing the "judicial deference to the exclusive power of interests of reliance parties who have created derivative works, such as the late article i powers, and therefore, congress had the authority to extend copyright to than is necessary to further that interest." id. at 213�14 (internal quotations, in reviewing the constitutionality of a content-neutral regulation of speech, notice (section 514). ultimately, both approaches provide the copyright owner 23 determine, each in so far as it is concerned, the conditions of using these works or are required to pay licensing fees to the copyright protections to american authors than the united states gave to their foreign a foreign nation can confer power on the congress, or on any other branch of until the owner pays compensation to the reliance party. that was based on a restored work. under diplomacy, where empirical data will rarely be available, and to which 17 by some estimates, ron hall, doing business as "necessary" to garner similar protections from foreign countries. see id. at 211. "`because of agreement or disagreement with the message [that the regulated signatories confirm what the text of berne makes clear: permanent protection of tailored to serve the government's legitimate, content-neutral interests," but it limited to compliance with the berne convention. rather, its interest includes interests, by themselves, are sufficient to withstand intermediate scrutiny. the government timely appealed the district court's order, arguing that houghton mifflin harcourt that the ongoing harms to american authors were real and not merely conjectural. publishers, broadcast music, inc., houghton mifflin harcourt publishing co., the however, the reliance party's interests are immediately terminated upon buy-out. described in subparagraph (a) or (b), is a successor, assignee, or protection, and who, after the source country becomes an eligible us taking a strong and principled stand here in this country, we can leverage of speech, and thus should be subject to intermediate scrutiny. the district court as discussed see id. at 137 (statement of ira shapiro) ("some other countries, such as thailand duration of the restored copyright if the reliance party pays to the owner of the expression. protections to american reliance parties such as plaintiffs, many foreign countries regulations] pose a less substantial risk of excising certain ideas or viewpoints amendment interests. "[f]reedom of thought and expression `includes both the are insulated from meaningful judicial review altogether."); see also boos v. informed by the special deference that congress and the executive branch amendment interests of reliance parties like the plaintiffs here." appellees' br. international coalition for remarks, senator deconcini stated: 21 of speech that does not create the same evils." id. at 799 n.7. that is, when "the see id. at 224. congress sought to balance the interests between american berne convention, art. 18, sept. 9, 1886 (revised at paris on july 24, 1971). suppression of free expression. see turner i, 512 u.s. at 662. we have no need to restore copyrights generally, but that there was no evidence that congress above, the government has a substantial interest in securing protections for even when constitutional rights are invoked by a plaintiff."). the supreme court protections for foreign authors. see id. at 242 (testimony of eric smith) ("with at 30. according to plaintiffs, article 18 of the berne convention provides united states could expect foreign countries to provide only as much protection fully recaptured and protected." (emphases added)); id. at 131 (testimony of ira plaintiffs brought this action challenging the constitutionality of section consideration."' z.j. gifts d-2, l.l.c. v. city of aurora, 136 f.3d 683, 686 in order for a statute to survive intermediate scrutiny, the statute must be copyrights in the united states. we offer no opinion on whether these asserted american society of at its core, plaintiffs' challenge to section 514 "reflect[s] little more than this is only a theory, and an unlikely one. most foreign countries, additionally, eric smith, speaking on behalf of a consortium of trade associations would have been served less well, as is evidenced by the complaints about protections. eldred, 537 u.s. at 219�20. the idea/expression dichotomy ensures of course, while congress may have the authority under article i to enact reasons: failure to comply with formalities, lack of subject matter protection, or "far better equipped" as an institution "to amass and evaluate the vast amounts of iv. plaintiffs' cross-appeal (no. 09-1261) nuanced statute that offered some protections for both of these competing lack of national eligibility. see 17 u.s.c. � 104a(a), (h)(6)(c). section 514 does legislative choice. "we cannot displace congress' judgment respecting content- holders--fees that are often cost-prohibitive for plaintiffs. chairman and ceo of the recording industry association of america) ("[t]here daniel gervais, progress of science and useful arts, by securing for limited times to authors and of agreements was the agreement on trade related aspects of intellectual government. on appeal, we concluded that plaintiffs' challenge to the copyright that it remedies historic inequities of foreign authors who lost or never obtained society, stanford law school, stanford, california; hugh q. gottschalk and judgment, and denied the government's motion. is that through the restoration of copyright protection to foreign authors v. slater, 228 f.3d 1147, 1168 n.12 (10th cir. 2000). temporally permanent so long as certain conditions are met."); appellees' br. at those interests." turner broad. sys., inc. v. fcc, 520 u.s. 180, 189 (1997) . . . . in addition to restoring copyrights in preexisting foreign works, section congress may not traverse in both directions." golan i, 501 f.3d at 1187 enacting section 514. see id. at 1187. further, section 514 does not violate in determining whether a regulation is content-neutral or content-based, (1) this convention shall apply to all works which, at the moment restoration for other countries. see id. at 225 (statement of irwin karp, counsel, copyright relations to grant retroactive protection to contemporary u.s. works 1291, we reverse the judgment of the district court and conclude that section 514 (1989) (brackets omitted)). the primary inquiry "is whether the government has the government argues on appeal that section 514 is narrowly tailored to example regarding copyright restoration, and other countries might mirror the twelve month grace period to continue exploiting the work. interfere so long as congress has rationally exercised its authority. cf. ward, 491 u.s. at 800 ("absent [the regulation at issue], the city's interest around the globe, american works were being exploited without the copyright absence of such provisions, the respective countries shall 4 the same token, we must ensure that copyright restoration provides interest, and it does not burden substantially more speech than necessary to 8 than section 514 of the uraa. in the united kingdom, a copyright owner public domain of copyright (as distinct from patents) is an illegitimate means copyright holders and american reliance parties. in so doing, congress crafted a "substantial basis to support congress' conclusion that a real threat justified thus, under both systems, reliance parties receive qualified protection insofar as a v. maynard, 430 u.s. 705, 714 (1977)); see also eldred, 537 u.s. at 221. "courts has recognized that not all first amendment interests are equal. see eldred, 537 counsel of the international intellectual property alliance) ("literally billions of "substantial evidence" in order to satisfy intermediate scrutiny, see turner i, 512 reed elservier, inc.; judgment does not constitute a forbidden intrusion on the field of free too strict of an evidentiary requirement on congress is "an improper burden for (...continued) we will get more than we give because u.s. authors will be able to regardless of the end or the importance of the interest." appellee's br. at 56 when evaluating a content-neutral regulation which incidentally burdens copyright against a reliance party unless the owner files notice with the copyright requested. specifically, plaintiffs request that we adjudicate their facial challenge 1. section 514 addresses a substantial or important governmental interest. "a `derivative work' is a work based upon one or more preexisting works, "sound policymaking often requires legislators to forecast future events has "consistently acknowledged that the nuances of the foreign policy of the 35 514 of the uruguay round agreements act ("uraa"), pub. l. no. 103-465, not restore copyrights in foreign works that entered the public domain through the provided full, permanent exemptions for reliance parties, other countries have expression interests in works removed from the public domain to require first of the united states trade representative, testified that "the choices made in our the honorable richard d. cudahy, senior circuit judge, united states the arts v. finley, 524 u.s. 569, 580 (1998) (quotations and citation omitted). as 514 was unconstitutional. golan v. holder, 611 f. supp. 2d 1165, 1177 (d. colo. that it is a content-neutral regulation. and russia, have refused to protect u.s. works in the public domain in their * factual findings supported by evidence that is substantial for a legislative publishers, restoration would impact other nations that were similarly deciding how to restore governments decide on their own implementing legislation as well as influence making those uses of the work it had made, or incurred commitments to make, argument "that, in the context of copyright, the public domain is a threshold that whose members represented both american copyright industries and reliance first, the "less restrictive-alternative analysis has never been a part of the any other form in which a work may be recast, transformed, or adapted. a work not persuaded that the constitutionality of section 514 is undermined by the eric h. holder, jr., in his official economic incentives that further expression, copyright also serves authors' first round agreements and effective implementation of the obligations in those other words, "[t]he question is not whether congress, as an objective matter, was formerly in the public domain in the united states for one of three specified barry, 485 u.s. 312, 323 (1988) ("[i]t is well established that no agreement with or substantial governmental interest unrelated to the suppression of free business as ess.a.y. recordings; plaintiffs filed this action, challenging the constitutionality of the association of american scrutiny, a content-neutral statute "will be sustained under the first amendment if compliance with international treaties and multilateral agreements, (2) obtaining consisting of editorial revisions, annotations, elaborations, or other modifications elisabeth a. shumaker american copyright holders and american reliance parties.8 ashcroft, 537 u.s. 186 (2003). see golan v. gonzales, 501 f.3d 1179, 1182 countries had resisted such one-sided arrangements. reliance party, id. � 104a(d)(2)(b)(i). a reliance party is liable for infringing counterparts. there was also testimony that the chosen method of restoring any proper governmental objective" and held "that racial segregation in the public further, congress squarely faced the need to balance the interests of turner ii, 520 u.s. at 217�18 (internal citations, quotations, and ellipses which congress could conclude that section 514 would alleviate these harms to right to speak freely and the right to refrain from speaking at all.'" harper & works in our own law will improve our position in future negotiations."). ("turner ii"). copyright protection. id. additionally, the fair use defense allows individuals to requirements of the berne convention, section 514 does not burden substantially "need not be the least restrictive or least intrusive means of doing so." ward, 491 alternative that it undermines the validity of section 514. although not necessary motion for summary judgment and denying the government's motion, arguing that convention, which secures copyright protections for american works expiration of the term of protection. see id. � 104a(h)(6)(b). 514 provides some protections for reliance parties3 owners' consent and without providing compensation. thus, there was a (quotation omitted). an overly demanding "amount of detail is as unreasonable 17 u.s.c. � 104(a)(h)(4). securing foreign copyrights for american works preserves the authors' covered under subsection (d)(3), or significant assets of a person the protection that the united states was seeking for its own copyright owners. it advances important governmental interests unrelated to the suppression of free works, 20 colum.-vla j.l. & arts 157, 180 (1996). thus, copyright owners can 2009). consequently, the district court granted plaintiffs' motion for summary were willing to provide, at most, reciprocal copyright protections to american and s. 2368 before the subcomm. on intellectual property and judicial he pays compensation to the owner of the original copyright. in the united and to anticipate the likely impact of these events based on deductions and providing copyright protections to american works that were in the public domain judgment for [the government] is appropriate regardless of whether the a lack of narrow tailoring." u.s. west, 182 f.3d at 1238 n.11. exploited these works prior to their restoration. see id. � 104a(d)(2)�(4). in industry association; the u.s. at 221. "the first amendment securely protects the freedom to make--or foreign copyrights would have great weight in the international community and distributors who have relied on artistic works in the public domain for their heard some testimony that other countries would not necessarily follow the the testimony to congress was primarily concerned with reliance parties' that only particular expressions, and not ideas themselves, are subject to v. nos. 09-1234 & 09-1261 motion picture association such as plaintiffs who had united kingdom, australia, and new zealand--provide accommodations that are government and plaintiffs agreed that section 514 is a content-neutral regulation united states court of appeals scope, our trading partners � just now considering their own reliance interests is permissible."). however, the united kingdom model is not excessive volume generated by respondent's past concerts."). we think that this more speech than necessary to further the government's interest. publishers association of additionally, the other branches' judgments regarding foreign affairs not expired. unlike the berne convention, the trips agreement provided for when these countries grant retroactivity, the theory goes, they are vastly more us works currently unprotected in foreign markets than foreign 26 than of [the courts]." crosby v. nat'l foreign trade council, 530 u.s. 363, 386 even if the united kingdom model is marginally more protective of speech terms of "the first amendment, the contours of which may be informed by the from the public dialogue." id. (internal citation omitted). applying intermediate concluded that "to the extent section 514 suppresses the right of reliance parties provide a careful balance between the need, on the one hand, to position that we have no, or only limited, obligations, the united states against reliance parties--was critical to the united states' ability to obtain similar 2. section 514 addresses a real harm. . . . [i]f we set out to restore copyright protection to foreign see id. (quotations omitted). they have not met this burden, as their arguments 34 ("the provisions implemented by the united kingdom and a dozen other violate their freedom of expression, as well as by our previous decision in golan 11 1 providing less protection for american authors. thus, even assuming for because we conclude that section 514 does not violate plaintiffs' (b) before the source country of a particular work becomes an eligible copyright restoration might not guarantee reciprocation, it does not follow that buy-out provision. united states; marybeth peters, "[f]acial invalidation is, manifestly, strong medicine that has been employed by 9 we conclude that because section 514 advances a substantial government 5 see golan i, 501 f.3d at 1196. accomplish those ends may be too imprecise to withstand first amendment f. supp. 2d at 1174 ("several member nations--including germany, hungary, the russians simply said to the united states negotiators . . . that they will interpret in addition, the united states' refusal to restore foreign copyrights was harming omitted). second, we owe congress "an additional measure of deference out of evidence is in conflict. provide strong protections for american authors, congress needed to provide like 13 amendment interests, see golan i, 501 f.3d at 1194, so too do american authors. restored copyright reasonable compensation . . . ." id. � 104a(d)(3)(a). if the we note that copyright includes several "built-in" first amendment publish filed [world trade organization] members would challenge the current u.s. uruguay round general agreement on tariffs and trade. included in this round have not brought such a claim in the case at bar. 15 accordingly, we do not reach the validity of the government's first or works. in a sense, the two models are mirror images of each other. under absolute, bright lines around the public domain, and we are aware of no such the uraa. in particular, section 514 of the uraa implements article 18 of the berne convention. section 514 "restores"2 at � 24:1. cancel the copyright registrations of restored works. protection. states' example of refusing to restore copyrights in works in the public domain. (2) if, however, through the expiry of the term of protection which judicial notice of the entirety of these hearings. see adarand constructors, inc. (continued...) deserve in matters of foreign affairs. "we review de novo challenges to the constitutionality of a statute." am. decisionmaker concerning the most appropriate method for promoting significant the reliance party. under section 514, a copyright owner cannot enforce the territory citing the u.s. interpretation of berne article 18 as justification."). work; or (d.c. no. 1:01-cv-01854-ltb-bnb) may have preferred a different method of restoring copyrights in foreign works, the united kingdom model is not substantially less restrictive of speech in this particular context, our review of congress's predictive judgments is further the government's asserted interest cannot be merely important in the domain in the united states. as a result, plaintiffs are either prevented from publishers; broadcast the berne convention. see joint hearings at 137 (statement of ira shapiro, united states, article 18 of the berne convention provides: congress had substantial evidence from which it could reasonably conclude states constitution. id.5 enactment of" section 514 of the uraa. see turner ii, 520 u.s. at 196. substantially more protective of reliance parties' expressive interests. moreover, violated section 106 if the restored work had been subject to copyright deferential than we accord to judgments of an administrative agency." id. this agreements is vital and will set the pattern for other countries to follow."). plaintiffs' only legal authority is bolling v. sharpe, 347 u.s. 497 (1954), third asserted interests, i.e., that section 514 advances the government's interest copyrights in foreign works that were united states' approach. consequently, congress was presented with substantial adopted a regulation of speech because of disagreement with the message it works that were in the public domain. see id. weighing conflicting evidence in the legislative process." turner ii, 520 u.s. at in april 1994, the united states signed various trade agreements in the in the `implementing' legislation will convey clearly the view of the u.s. that it the intellectual property provisions of the uruguay round agreements. we take wanted certain protections for american authors, it had to provide those 20 as copyright "restoration," and the statute likewise refers to "restored works," section 514 is a valid, content-neutral regulation of speech. in case no. 09-1261, amendment scrutiny of [section] 514," id. at 1182. we then remanded the case inferences for which complete empirical support may be unavailable." turner i, under intermediate scrutiny, we must also determine whether section 514 scrutiny.' this is particularly true when such alternatives are obvious and restrict in the retroactivity area."); id. at 291 (testimony of jason s. berman) ("[t]he work'." 17 u.s.c. � 101. id. at 252. festival films; john mcdonough, judgments are entitled to substantial deference does not mean, however, that they protections for american reliance parties while complying with the minimum and section 514 is narrowly tailored to advance that interest.6 before briscoe, chief judge, cudahy,* seth p. waxman, randolph d. moss, d. hien tran, and thomas saunders, of neutral," id. at 1196, and to apply the appropriate level of constitutional scrutiny. disagreement over the level of protection" that reliance parties should receive. american society of media photographers, the association of american city council v. taxpayers for vincent, 466 u.s. 789, 807 (1984) ("the problem the parties have cited to portions of the congressional hearings regarding alternatives international, joint hearings at 247 (emphases added); see also id. at 248 ("[t]aking this action states."); see generally 7 william f. patry, patry on copyright � 24:21 (2010). omitted). affairs are entirely immune from the requirements of the first amendment. see respect for its authority to exercise the legislative power." id. at 196. with the ability to terminate the reliance party's interests. the only significant recording industry independent examination of the whole record in order to make sure that the district court and plaintiffs relied on other countries' approaches to implementing (10th cir. 2007) ("golan i"). we also held that "[section] 514 of the uraa sell or otherwise dispose of restored works during this grace period, id. � 109(a), the parties agree that section 514 of the uraa is a content-neutral future disputes over the obligations of the agreement." joint hearings at 136; see reliance parties that it sought to impose on foreign reliance parties. thus, the id. (internal citation omitted). we held that section 514 was within congress's reciprocates with retroactive protection for russian works."). foreign countries testimony from a number of witnesses that the united states' position on the ("many of our trading partners, particularly in europe, have made it clear to this remedying past inequities of foreign authors who lost or never obtained plaintiffs contend that the government does not have an important interest directed at an important or substantial governmental interest unrelated to the owner must either file notice with the copyright office within twenty-four 3 a degree of latitude in choosing how to further its asserted interest. turner ii, clerk of court works, we must provide protection that is complete and meaningful. by row publishers, inc. v. nation enter., 471 u.s. 539, 559 (1985) (quoting wooley d.c., for defendants-appellants and cross-appellees. copyrights. process analysis in bolling does not inform plaintiffs' argument that the first states interprets its obligations. so what we are doing here, i believe, is the "[g]overnment may not regulate expression in such a manner that a ones here, and the economic consequences of [granting retroactive copyright 22 congress has drawn reasonable inferences based on substantial evidence." id. are entitled to injunctive relief. exercising jurisdiction pursuant to 28 u.s.c. � order to secure effective restoration of our copyrights abroad and the existing copyrighted works, we are often confronted with the position that such for reliance parties. the government responds that the berne convention requires (3) the application of this principle shall be subject to any constitutional review of a content-neutral statute, congress's predictive statute's "validity does not turn on a [court's] agreement with the responsible continue to govern the same issues in subsequent stages in the same case." cannot enforce the copyright against a reliance party unless the owner "buys out" country, makes or acquires 1 or more copies or phonorecords of that against reliance parties . . . would have any impact whatsoever on the behavior of with this in mind, we turn to plaintiffs' suggestion that there were less which, as a whole, represent an original work of authorship, is a `derivative works that were already in the public domain in the united states. see berne protected anew. 1220, we agree that section 514 is a content-neutral regulation of speech. decline to make--one's own speech; it bears less heavily when speakers assert the acts that occur after the end of a twelve month grace period, starting from notice 4 first amendment value" of the freedom not to speak. harper & row, 471 u.s. at foreign relations, we conclude that congress's judgments were supported by paul bender, christopher a. mohr, and michael r. klipper, of meyer, klipper & john s. koppel, attorney (tony west, assistant attorney general; david m. restoration, created a derivative work4 f.3d at 1221 ("courts have historically given special deference to other branches in his opening guaranteed by the fifth amendment to the constitution." id. at 500. the due authority. american authors. see eldred, 537 u.s. at 211�13. in addition to creating ellipses, and citation omitted). further, the regulation need not be the least- plaintiffs direct our attention to evidence in the congressional record that society of media implementation of berne article 18 . . . ."); id at 248 (statement of eric smith) court of appeals for the seventh circuit, sitting by designation. "rather, the question is whether the legislative conclusion was reasonable and or to be concluded between countries of the union. in the 16 substantial portion of the burden on speech does not serve to advance its goals." � 104a(d)(2)(a)(ii)(iii), (d)(2)(b)(ii)(iii). burden imposed by [a regulation] is congruent to the benefits it affords," that interests than the other. although the united kingdom model is arguably more composers, authors and 27 implementation of the trips agreement will set an example for other countries as could induce other countries to follow the united states' lead, although congress 104a, 109), which granted copyright protection to various foreign works that richard kapp; s. a. target adver., inc. v. giani, 199 f.3d 1241, 1247 (10th cir. 2000). because this speech than necessary to advance an important interest, we will not invalidate a plaintiffs' freedom of speech under the first amendment because it advances an next, we must determine whether there was substantial evidence from the executive over conduct of relations with other sovereign powers and the interest, the regulation will not be invalid simply because a court section 514 provides further protections for reliance parties who, prior to [g]overnment may employ the means of its choosing so long as the regulation copyright protection to these foreign works, removing them from the public association of america; record--that the united states could have provided strong protections for 12 determine the amount of compensation. see id. � 104a(d)(3)(b). protections for american copyright holders. of the country where protection is claimed, that work shall not be in a "reallocation of speech interests" between american reliance parties and judgments are entitled to "substantial deference," turner ii, 520 u.s. at 195, and with the benefits section 514 affords american copyright holders.9 effectively absent the regulation and does not burden substantially more speech scope of copyright restoration--which necessarily includes the enforcement second, to the extent that the united kingdom model is relevant to our in spite of this testimony, plaintiffs contend that the government's interest freedom of expression under the first amendment, they are not entitled to association of american to adopt."). however, as detailed above, this was not the only evidence in the of literary and artistic works ("berne convention"). the berne convention speech, we will not invalidate the preferred remedial scheme because and the trips provisions to deny protection or significantly limit its (2000) (quotations and alterations omitted); see also regan v. wald, 468 u.s. provided limited protections for reliance parties. the chief alternative discussed general counsel, office of the u.s. trade representative) ("it is likely that other establish a "model" provision which other countries could follow in works. see id. at 120 (appendix to statement of bruce lehman, assistant important governmental interest, and it is not substantially broader than necessary 10 committee for literary studies) ("u.s. retroactive protection for foreign works in existence of a less restrictive alternative is dispositive. see turner ii, 520 u.s. at (continued...) elsevier, inc. 1. section 514 is narrowly tailored. sometimes only--evidence available to congress in making predictive judgments. software and information licensee of that person. id. (internal quotations and citations omitted). copyright protection for any work that is in the public domain in the united (c) as the result of the sale or other disposition of a derivative work abroad. see id. at 246 (statement of eric smith, executive director and general under the united kingdom model, a "reliance party is allowed to continue (quotations, alterations, and citations omitted)). 1 goal signals that the fit between the legislature's ends and the means chosen to moreover, in concluding that section 514 is not narrowly tailored, the statute simply because "the government's interest could be adequately served by see id. at 249 n.2 (statement of eric smith) ("the russian government has made livelihoods. they perform, distribute, and sell public domain works. the late domain in the country of origin through the expiry of the term of needed to provide limited protections for reliance parties. according to plaintiffs, we are simply to determine if the standard is satisfied. if it is, summary the briefs), appellate staff, civil division, department of justice, washington, they will not change their laws to restrict protection of their reliance substantially broader than necessary to achieve the government's matters of foreign policy"); first nat'l city bank v. banco nacional de cuba, 406 amendment rights. an obvious and substantially less restrictive alternative. copyright protection. granted plaintiffs' motion for summary judgment, concluding that section 514 turning to the issue at hand, prior to enacting section 514 of the uraa, industry association, the recording industry association of america, and reed schools of the district of columbia [wa]s a denial of the due process of law copyright protection; the the fact is that what the united states does in this area will carry tailored. see u.s. west, inc. v. fcc, 182 f.3d 1224, 1238 (10th cir. 1999) copyright holders, and other countries might follow the united states' example. june 21, 2010 (...continued) effect on some speakers or messages but not others." z.j. gifts, 136 f.3d at 686 ha[d] not exceeded the limitations inherent in the copyright clause" of the united economic and expressive interests. these interests are at least as important or ward, 491 u.s. at 799. "[t]he essence of narrow tailoring" is when a regulation 104a(d)(2)(a)(ii)(iii), (d)(2)(b)(ii)(iii). under the united kingdom model, convention implementation act of 1988, pub. l. 100-568, � 12 , 102 stat. 2853, owner. see 17 u.s.c. � 104a(d)(3)(a). the united kingdom model, on the believes that other countries are similarly required to adopt the same position in expression that content-based regulations do," and therefore, the government has "`buy back' their rights immediately after the entry into force of the law restoring authority to make predictive judgments . . . . music, inc.; the music 29 united states are much more the province of the executive branch and congress american authors' interests abroad: foreign countries were following the united (quotations and citation omitted). on its face, section 514 is content-neutral. 1212, 1219 (10th cir. 2007) (quoting bose corp. v. consumers union of united substantial interest in protecting american copyright holders' interests abroad, const. art. i, � 8, cl. 8. deferential standard is warranted for two important reasons. first, congress is tenth circuit interests, doctrine posits that when a court decides upon a rule of law, that decision should (quotations and citation omitted). 7 convention, the implementing legislation did not extend copyrights to any foreign (continued...) retrieve far more works in foreign countries than foreign authors will first amendment interests. so long as the means chosen are not plaintiffs would have us impose. the supreme court has cautioned that imposing 28 in particular, american works were unprotected in several foreign countries, to to use works they exploited while the works were in the public domain," section the factual background is not in dispute. plaintiffs are orchestra government, which is free from the restraints of the constitution." (quotations (10th cir. 1998) (quoting ward v. rock against racism, 491 u.s. 781, 791 primarily enacted section 514 to comply with the united states' international consequently, the copyright protection to all works of foreign origin whose term of protection had states' historically lax position on copyright restoration had been an obstacle to � 514, 108 stat. 4809, 4976�81 (1994) (codified as amended at 17 u.s.c. �� concludes that the government's interest could be adequately served by turner i, 512 u.s. at 666 (plurality opinion) ("that congress' predictive the detriment of the united states' interests. see general agreement on tariffs domain in that country.1 government.11 for the district of colorado inquiry, it is not such an obvious and substantially less-speech-restrictive district court erred in concluding that section 514 violates plaintiffs' first great weight in the international community. if we interpret article 18 protective of reliance parties' economic interests, we cannot say that it is clear that it will provide retroactive protection for `works' only if the u.s. obtained copyrights in the united states, as well as works that lost copyright constitution." id. plaintiffs have cast their facial challenge to section 514 in regulation is narrowly tailored. turner ii, 520 u.s. at 215�16. speech are therefore directly focused to the harms that the government sought to retrieve here in the united states. compensation from the owner, while under section 514, the reliance party has a availability of the united kingdom model. tenth circuit abroad for american copyright holders satisfies this standard. secretary of commerce and commissioner of patents and trademarks) ("when doing business as timeless video some less-speech-restrictive alternative. study on retroactive united states copyright protection for berne and other colorado, has filed an amicus curiae brief for professor daniel j. gervais. 2860 ("title 17, united states code, as amended by this act, does not provide also id. at 134 ("u.s. leadership in achieving prompt approval of the uruguay 9 country, continues to engage in such acts; the copyright clause must still comport with other express limitations of the possible claims under the takings clause of the fifth amendment. plaintiffs inquiry into the validity of content-neutral regulations on speech." turner ii, 520 section 514 of the uraa does not violate the first amendment. plaintiffs cross- base its conclusions upon substantial evidence, deference must be copyright term extension act, pub. l. no 105-298, � 102(b), (d), 112 stat. 2827, to american copyright holders as the united states would provide to foreign decisions that require predictive judgments in the areas of foreign affairs. under section 514, reliance parties have twelve months to continue exploiting the may have provided similar protections for their own reliance parties, thereby data bearing upon the legislative questions." id. (quotations and citation need, on the other hand, to balance the rights of foreign authors whose see ward, 491 u.s. at 799. speech and does not burden substantially more speech than necessary to further obligated, when enacting its statutes, to make a record of the type that an we note that plaintiffs do not argue--and there is no indication in the 36 u.s. at 667 (plurality opinion), the evidentiary requirement is not as onerous as plaintiffs aver that congress was presented with evidence regarding the to section 514, direct the district court to enjoin attorney general holder from section 514, it "must still comport with other express limitations of the "[s]ubstantiality is to be measured in this context by a standard more relied on the public domain status of the work in making investments. other hand, apparently provides no such protection for creators of derivative includes providing copyright protection against foreign reliance parties. thus, it conveys." ward, 491 u.s. at 791. "if the regulation serves purposes unrelated to 31 mcgee coal corp., 204 f.3d 1031, 1034 (10th cir. 2000) ("the law of the case case implicates the first amendment, "we have `an obligation to make an considerable deference is owed to congress and the executive. we apply "an intermediate level of scrutiny, because in most cases [such [t]he clear import of eldred is that congress has expansive powers see 17 u.s.c. � 104a(h)(6). for clarity and consistency, we will as well. will have little credibility in convincing particularly the new nations american copyright holders. see id. at 213. at the joint hearings, congress (quotation omitted). we stated that copyrights in the united states. we hold that the government has demonstrated a plaintiffs assert that "there must be a `bright line' drawn around the public defendants-appellants and inventors the exclusive right to their respective writings and discoveries." u.s. deutsch, mulvaney & carpenter, greenwood village, colorado, filed an amici the briefs), for plaintiffs-appellees and cross-appellants. progress [or copyright] clause." appellees' br. at 53. however, plaintiffs have reliance party can continue to exploit a work until the copyright owner does right to make other people's speeches." id. although plaintiffs have first lawrence golan; estate of "`the government's purpose in enacting the regulation is the controlling the first amendment places the same restrictions on copyright restoration under they are stupid enough to adopt the reliance-party provisions you are being asked however, when the united states joined the berne will deny their reliance interests real protection � if we do so now. but anthony t. falzone, attorney, center for internet and society, stanford law id. at 81�82 (statement of sen. deconcini). congress also heard from eric (1994) ("turner i") (brackets omitted, quoting ward, 491 u.s. at 791). congress music publishers association of the united states, the software and information 10 plaintiffs-appellees and cross- although section 514 grants copyright protection to works that never administrative agency or court does to accommodate judicial review." id.