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>>> NINCH-ANNOUNCE <[log in to unmask]> 02/20/01 10:27AM >>>
NINCH ANNOUNCEMENT
News on Networking Cultural Heritage Resources
from across the Community
February 20, 2001


    COURT OF APPEALS UPHOLDS COPYRIGHT INFRINGEMENT INJUNCTION AGAINST NAPSTER
                     http://www.artswire.org/current.html 

                                  *  *  *  *

               DC CIRCUIT COURT DECIDES AGAINST ELDRED v. RENO
   Rejects claim 2-1 that Copyright Term Extension Act is unconstitutional
    http://pacer.cadc.uscourts.gov/common/opinions/200102/99-5430a.txt 


Two court decisions from last week: one quite celebrated on the 
Napster case, here as reported by Arts Wire; the other less 
celebrated - the DC Circuit Court's rejection of the Eldred v. Reno 
case on the constitutionality of the Sonny Bono Term Extension Act.

David Green
===========




COURT OF APPEALS UPHOLDS COPYRIGHT INFRINGEMENT INJUNCTION AGAINST NAPSTER
                     http://www.artswire.org/current.html 

_______________________________________________________
Arts Wire CURRENT              February 20,  2001
Arts Wire CURRENT              Volume 10, No. 8
Arts Wire CURRENT
Arts Wire CURRENT              Judy Malloy, Editor
Arts Wire CURRENT              [log in to unmask] 
_______________________________________________________
_______________________________________________________
COURT OF APPEALS UPHOLDS COPYRIGHT INFRINGEMENT INJUNCTION
AGAINST NAPSTER

WASHINGTON, DC -- Last week, The Ninth Circuit Court of Appeals
ruled that Napster, an online business which facilitates music sharing,
was in violation of copyright law. The Court held that the
District Court correctly recognized that a preliminary injunction
against Napster's participation in copyright infringement was not
only warranted, but required.

"Napster by its conduct knowingly encourages and assists the
infringement of plaintiffs' copyrights," The Ninth Circuit's
opinion stated.

"The decision represents a clear victory for the creative content
community and the legitimate online marketplace," said Hilary
Rosen, Recording Industry Association of America (RIAA) President
and CEO. "We are gratified that the Ninth Circuit agreed with
Judge Patel [Chief U.S. District Judge Marilyn Hall Patel] that
Napster must take steps immediately to prevent further copyright
infringements."

The decision is likely to be applicable to future situations in
many arts disciplines, in that although many artists may choose to
make their work available as public art on the Internet, that is a
decision, the Court affirmed, to be made by the artists
themselves, and/or, if applicable, by their labels, publishers, or
agents -- not by a business which uses their work without
permission.

Sources/resources:

"Musicians, Execs Testify to Congress About Music Technologies"
Arts Wire CURRENT --
http://www.artswire.org/current/2000/cur071800.html 
July 18, 2000

"Judge Shuts Napster Down; Appeals Court Grants Stay"
Arts Wire CURRENT --
http://www.artswire.org/current/2000/cur080100.html 
August 1, 2000

"Napster Forms Alliance with Bertelsmann;  Will Move to
Subscription Model"
Arts Wire CURRENT --
http://www.artswire.org/current/2000/cur111400.html 
November 14, 2000
=========================================================
Arts Wire CURRENT is available at
http://www.artswire.org/current.html and an archive of past issues
can be found at http://www.artswire.org/current/archive.html 

_______________________________________________________

               DC CIRCUIT COURT DECIDES AGAINST ELDRED v. RENO
   Rejects claim 2-1 that Copyright Term Extension Act is unconstitutional
    http://pacer.cadc.uscourts.gov/common/opinions/200102/99-5430a.txt 


>From: "Copyright's Commons" <[log in to unmask]>
>To: <[log in to unmask]>
>Subject: [Copyright's_Commons] [Copyright's Commons] Newsletter: 
>Eldred v. Reno decision
>Date: Mon, 19 Feb 2001 23:43:47 -0500

COPYRIGHT'S COMMONS NEWSLETTER, 2/19/01

On February 16, the DC Circuit handed down its decision in Eldred v. Reno,
rejecting our claim that the Sonny Bono Copyright Term Extension Act is
unconstitutional. In a 2-1 decision, the court held that retroactive term
extensions are within Congress' authority under the Copyright Clause, and
that the 20-year term extensions did not violate the First Amendment. The
majority's opinion, written by Judge Ginsburg, is available in full at
<http://www.cadc.uscourts.gov>; a summary is available below. A spirited
dissent by Judge Sentelle recognized the merits of our argument, as well as
those of amicus curiae The Eagle Forum, concluding that retroactive
extensions are beyond the 'outer limits' of congressional authority under
the Copyright Clause. An appeal is underway, in which we will either seek a
rehearing en banc in the DC Circuit, or bypass that step and appeal directly
to the Supreme Court.

SUMMARY OF JUDGE GINSBURG'S MAJORITY OPINION

We argued that the CTEA is unconstitutional on three grounds: First, the CTEA fails the intermediate scrutiny test required to protect freedom of expression under the First Amendment. Second, the retrospective term extension violates the originality requirement of copyright. Third, congressional power to extend copyright protection is constrained both by the preamble of the Copyright Clause and by that clause's "limited Times" requirement. The majority rejected all three of our arguments.

FIRST AMENDMENT. The court held that the Supreme Court's decision in Harper & Row v. Nation Enterprises and the DC Circuit's decision in United Video, Inc. v. FCC stand as "insuperable bars" to our first amendment claims - the former holding that adequate first amendment protections are already embodied in copyright's idea/expression dichotomy and the fair use doctrine, and the latter that "copyrights are categorically immune from challenges under the First Amendment." We had distinguished these cases in that both were limited to the context of litigants seeking first amendment access to
the legitimately copyrighted works of others, while ours is a challenge to the legitimacy of the copyright in the first instance. The court, however, dismissed this distinction as "wholly illusory," writing instead that the only "relevant question under the First Amendment . . . is whether the party has a first amendment interest in a copyrighted work."

ORIGINALITY. The court refused to apply the reasoning of Feist Publications v. Rural Telephone Service Co. to the present case, limiting Feist to the question of the initial eligibility of certain subject matter for copyright, rather than applying it more broadly to congressional authority over that subject matter, once in the ambit of copyright. We had argued that the requirement of originality precludes statutory extension of pre-existing copyrights because any such extension grants new monopolies to what are now unoriginal works.  The court rejected this approach and declined to read Feist in anything but the narrowest of terms. The court also distinguished Graham v. John Deere Co. (holding that Congress could not grant a patent which would have the effect of restricting access to material already available) and the Trademark Cases (excluding trademarks from the Copyright
Clause because trademarks covered something "already in existence") as inapplicable in the context of copyright. Ultimately, the court concluded that "[o]riginality is what ma[kes] the work copyrightable in the first place. A work with a subsisting copyright has already satisfied the requirement of originality and need not do so anew for its copyright to persist."

LIMITED TIMES. We had argued that congressional authority was constrained both by the "promote progress" requirement in the preamble to the Copyright Clause and by the "limited times" restriction within it, an argument justified by the Supreme Court's interpretation of 'Authors' and 'Writings' in light of that preamble. But the court invoked its decision in Schnapper v. Foley as a bar to any argument "that the introductory language of the Copyright Clause constitutes a limit on congressional power." Having rejected any suggestion that congressional action in this area must be shown "to promote the progress of science and the useful arts," the court affirmed the CTEA as a rational exercise of what, given the court's understanding of  Schnapper, is a nearly unlimited congressional authority to define the terms of copyright.

SUMMARY OF JUDGE SENTELLE'S DISSENT

As a preliminary matter, Judge Sentelle's dissent emphasized the limited
nature of Congressional copyright authority. The Copyright Clause "is not an open grant of power to secure exclusive rights. It is a grant of power to promote progress. The means by which that power is to be exercised is certainly the granting of exclusive rights -- not an elastic and open-ended use of that means, but only a securing for limited times." With this understanding of the Copyright Clause as background, Sentelle based much of his dissenting opinion on the Supreme Court's decision in United States v. Lopez. In applying what he termed the "Lopez principle," Sentelle explained that limited congressional authority under the Copyright Clause, just as under the Commerce Clause, must have some "definable stopping point," an
articulable and predictable horizon. According to Sentelle, the CTEA lacks such a horizon because there is "no apparent substantive distinction between permanent protection and permanently available authority to extend originally limited protection." The required "stopping point" can only be found in the distinction between prospective and retrospective term extensions, the latter being beyond the outer limits of Congress' enumerated powers.

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Chris Babbitt and Claire Prestel

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