Briefs filed in the Supreme Court in Eldred v. Ashcroft


Opening Brief of Petitioners (Challengers) filed May 20, 2002 (pdf format)

Amicus Briefs filed on behalf of Petitioners

Brief of College Art Association, Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers and National Initiative for a Networked Cultural Heritage, filed May 20, 2002 (pdf format).  Many examples of derivative works that do NOT get created because of the heavy transaction costs resulting from the extended terms of Sonny Bono.

Brief of Eagle Forum Education and Legal Defense Fund and The American Association of Physicians and Surgeons, Inc., filed May 20, 2002 (pdf format).  Recent patterns of extensions for existing works violates the Constitution's "limited times" requirement.  Retroactive extension also violates the First Amendment.

Brief of Seventeen Economists, filed May 20, 2002 (pdf format).  Economic analysis of CTEA.  Retroactive extension supplies zero creation incentive, and prospective extension very little.  It extends the period of inefficient above-cost pricing and the period in which the copyright owner determines the production of derivative works.

Brief of Free Software Foundation, filed May 20, 2002 (pdf format).

Brief of Hal Roach Industries and Michael Agee, filed May 20, 2002 (pdf format).  Congressional goal of film preservation insufficient to justify the CTEA.  Moreover, the CTEA will have an adverse, not a beneficial, effect, on film preservation.  

Brief of Tyler T. Ochoa, Mark Rose, Edward W. Walterscheid, the Organization of American Historians, and H-Law: Humanities and Social Sciences Online, filed May 20, 2002 (pdfd format).  Supplies a careful study and analysis of the British antecedents leading to the adoption of the U.S. Constitution's Copyright and Patent Clause and its meaning in the early years of the Republic.

Brief of Intel Corporation, filed May 20, 2002 (pdf format)

Brief of The Internet Archive, Prelinger Archives, and Project Gutenberg Literary Archive Foundation, filed May 20, 2002.

Brief on Intellectual Property Law Professors, filed May 20, 2002.  Click here for list of signatories to the brief (pdf format).

Brief of Library Associations, filed May 20, 2002 (pdf format).

Brief of National Writers Union and others, filed May 20, 2002 (pdf format).

Brief of Professor Malla Pollack, filed May 20, 2002

Brief of Progressive Intellectual Property Law Association and the Union for the Public Domain, filed May 20, 2002 (pdf format)

See also artist Daryl W. Hanson's Open Letter to the Supreme Court, which is not a formal brief but a personal appeal to the Court by an artist who is offended by the CTEA.

Government's Response Brief, filed August 5, 2002 (pdf format)

American Intellectual Property Law Association, August 2002 (pdf format)
        This brief argues that finding the CTEA unconstitutional would have a destabilizing effect on the investments in and transfers of copyright-protected works that have occurred in reliance on the CTEA.  But its argument is premised on the Court's taking the broadest view of petitioners' arguments, namely, that "limited times" prohibits any retroactive extension of any IP right.  As I have pointed out, there is no need for the Court to go so far.  See Judicial Review of Copyright Term Extension Legislation.  Moreover, this argument would justify any statute to the extent people could make investments in reliance on it before it came before the Supreme Court.  And this brief, like all the others in support of the CTEA, offers no rationale or theory whatsoever for the "limited times" restriction on congressional power in the IP Clause.  It simply looks to the dictionary and concludes, apparently, that any finite number of years, even though resulting from extension of an existing mathematically finite term, is within Congress's authority.  The brief also argues that there is no constitutional basis between creating new federal rights and extending existing ones (p.8).  I agree with that claim, but this brief does not point out the logical implication, namely, that if extending existing terms in constitutional, so is reviving expired terms.  Thus, Congress could, if it chose to do so, give a copyright in Huckleberry Finn to the heirs of Mark Twain.  Can this possibly have been the intent and expectations of the drafters of the "limited times" provisions?  I say "no," which means that both extensions and revivals must be given the SAME STRICT SCRUTINY

Amsong, Inc. (pdf format)

AOL Time Warner Inc. (pdf format)

Association of American Publishers, et al (pdf format)

Bureau of National Affairs, CCH, & Other Publishers (pdf format)

Directors Guild of America et. al (pdf format)

Dr. Seuss Enterprises, L.P. et. al (pdf format)
       This brief argues that it often takes a long time before a work is sufficiently popular that someone is willing to invest in a movie based on it (although none of its examples are anywhere close to the 75 years such works already had prior to the CTEA).  On this shaky premise, it argues that an extended underlying copyright is necessary to encourage the creation of derivative works (like movies).  But look at the example of Disney itself:  It has based MANY successful films on public domain works (Snow White, Pocahontas, Beauty and the Beast, Mulan, and many more).  Moreover, when was the last major derivative work involving Mickey Mouse?  If subsistence of an underlying copyright was in incentive for derivative works, we should have seen many Mickey Mouse films in recent decades, but I personally cannot remember ANY.  

Senator Orrin G. Hatch, filed August 5, 2002 (pdf format)

House Judiciary Committee Members (Sensenbrenner, Conyers, Coble, Berman)(pdf)

Intellectual Property Owners Association (pdf format)

International Coalition for Copyright Protection (pdf format)

Motion Picture Association of America, August 2002 (pdf format)
        This brief argues that restoration and distribution incentives also "promote the progress of science," not just incentives to create works.  It uses the example of film preservation, however, to justify the across-the-board extension of term for all existing works, whether or not they are in danger of loss or decay.  In fact, only old films fall into this category.  That is why the Court must focus on what Congress was really doing with the CTEA.  If film preservation were the justification for the CTEA, why does the statute not focus on that?  Film preservation is thus just a smokescreen for the preservation, not of works in danger of decay, but of royalty streams in danger of ending.  This brief also asserts that switching to a life + 70 systems effected "substantial harmonization," without recognizing that the same degree of harmonization would have been achieved by prospective (or post-1977) extension alone (and even then there would be no "harmony" for "works made for hire").  

National Songwriters Association International (pdf format)

New York Intellectual Property Law Association (pdf format)
        This brief makes the limited point that finding the CTEA unconstitutional would call into question the various extensions of existing patent terms that have occurred, and continue to occur (for drugs whose approval is delayed by administrative processes, e.g.).  It fails to distinguish between extending an existing single patent (which as Tyler Ochoa has demonstrated, has occurred primarily when the patent owner has been deprived of his original expected term due to bureaucratic delays or errors) and an across-the-board extension of ALL copyrights.  Extending an existing patent, on appropriate facts, might indeed be seem to promote the progress of science, and if "limited time" is interpreted with that constitutional goal in mind, such an extension may be held constitutional.  See my article Judicial Review of Copyright Term Extension Legislation.  So, the same test for judicial review may result in upholding some (or perhaps all) of these patent extensions without justifying the CTEA.

Recording Artists Coalition (pdf format)

Recording Industry Association of America (pdf format)

Professor Edward Samuels, August 2002 (pdf format)
        This brief argues that "promote the progress of science" means more than simply enlarging the public domain.  Because the statute is a complex balance of rights and limitations on those rights, the CTEA is constitutional.  It argues that ongoing incentives to distribute works also promote the progress of science (implicitly denying the antimonopoly origins of the IP Clause).  It argues that previous retroactive extensions must also have been unconstitutional if the CTEA is so held (contrary to the approach to judicial review I have propounded in the article linked below, in which the Court would look in each case to determine whether congressional action comported with the goals and limitations of the Clause).  It also argues that retroactive expansions of copyright scope (such as adding a display right) will also be unconstitutional, without distinguishing between express constitutional limitations on congressional action in the IP Clause (e.g, "limited times" and "authors") and the mere scope of the "exclusive rights" the Clause authorizes Congress to recognize.  See my article Judicial Review of Copyright Term Extension Legislation, at note 170.

Songwriters Guild of America (First Amendment issues)(pdf format)

Symphonic and Concert Composers (pdf format)

Reply Brief of Petitioners, filed September 4, 2002