Eldritch Press v. Reno
(Constitutional challenge to the
Copyright Term Extension Act)

Eric Eldred and Eldritch Press v. Janet Reno, Case No. 99-CV-0065 JG.

Nature of the Case. This is a policy oriented action. The 105th Congress passed, and President Clinton signed into law, two copyright statutes which the Plaintiffs and their lawyers dislike. They seek to have the federal courts hold unconstitutional the Copyright Term Extension Act (CTEA), and enjoin enforcement of the No Electronic Theft Act (NET ACT) against violators of the CTEA.

Plaintiffs. The original Plaintiff of record is Eric Eldred, the proprietor of the unincorporated Eldritch Press, a website which republishes the works of others which are not protected by copyright. However, the suit is being brought by a group of activist law professors at Harvard University who disagree with certain Internet related intellectual property policies which have recently been enacted into law. These attorneys are Charles Nesson, Lawrence Lessig, and Jonathan Zittrain. At the time the lawsuit was filed, all worked at The Berkman Center for Internet & Society, Harvard University Law School, 1563 Massachusetts Ave., Cambridge, MA, 02138, (617) 495-7547. Local counsel is Geoffrey Stewart of Jones Day, 51 Louisiana Ave., NW, Washington, D.C. 20001-2113, 202-879-3939 - Fax: (202) 626-1700

Defendant. The Defendant is Janet Reno, Attorney General of the United States at the time the lawsuit was filed. She was sued solely because the Attorney General is ultimately responsible for the enforcement of all federal laws, including those challenged in this suit. The attorneys are Vincent Garvey and Joseph LoBue, U.S. Department of Justice, 901 E Street NW, Room 1060, Washington, DC 20004, 202-514-4640.

Amicus Curiae. Several copyright holders, and groups which represent copyright holders, filed a friend of the court brief, in support of the CTEA. They are represented by their own famous Harvard law professor, Arthur Miller.

Facts. Since this suit is essentially a request by a group of law professors that the Court substitute its policy preference for that of the Congress, there is not a particular set of facts giving rise to this case. Plaintiffs do not even allege that they have been prosecuted, or threatened with prosecution, under the challenged statutes. There is, however, a legislative history.

Legislative History. The 105th Congress passed the Copyright Term Extension Act (aka CTEA) to extend the maximum duration of copyrights from 75 to 95 years. The late Rep. Sonny Bono (R-CA) introduced HR 1621 for this purpose in 1997. However, it was the Senate version, S 505, which ultimately was passed by both the House and Senate on October 7, 1998. President Clinton signed this bill on October 21, 1998. The Act applies retroactively. (See, P.L. 105-298, 112 Stat. 2827. It amends 17 U.S.C. 304(b).)

The 105th Congress also passed the No Electronic Theft Act (aka NET ACT) to extend the protection of copyright law to the Internet. It amends federal copyright law to define "financial gain" to include the receipt of anything of value, including the receipt of other copyrighted works. It sets penalties for willfully infringing a copyright: (1) for purposes of commercial advantage or private financial gain; or (2) by reproducing or distributing, including by electronic means, during any 180-day period, one or more copies of one or more copyrighted works with a total retail value of more than $1,000. It also provides that evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement. The House passed HR 2265, sponsored by Rep. Bob Goodlatte (R-VA), on November 4, 1997. The Senate passed the bill on November 13, 1997. President Clinton signed the bill on December 16, 1998. (See, P.L. 105-147, 111 Stat. 2678. It amends 17 USC 506(a).)

Issues. The Second Amended Complaint contains three counts. The first alleges that the CTEA is unconsitutional because the term is too long. The second alleges the "public trust doctrine." The third asserts that the CTEA restricts plaintiffs' freedom of speech.

Count I asserts that the CTEA violates Article 1, Section 8, of the Constitution. This clause grants the Congress authority to pass copyright legislation.

It is alleged that a 95 year term of the CTEA is not a "limited Time[]" withing the meaning of the Constitution. The Complaint apparently asserts that the Supreme Court's "rational basis" test should be applied, and found wanting. The main argument for the lack of a rational basis is that purpose of copyright protection is to provide incentives to create works, but retroactivity extending the copyright term adds no incentive to create a works that have already been created. However, the plaintiffs argue that prospective application is unconstitutional also because the copyright duration exceeds the life expectancy or copyright holders.

Count II alleges that the CTEA violates the "public trust doctrine." This is an obscure legal principle covering the transfer of federally owned land. This is the argument. First, it is asserted that a copyright creates a present interest in the copyright holder, and a future interest in the public. Second, the public trust doctrine requires that the government may not transfer public property into private hands in the absence of a public benefit in exchange. Third, extending a copyright term, without compensation, diminishes the future interest in the copyright of the public. Hence, the CTEA is unconstitutional!

Count III alleges that the CTEA is unconstitutional because it violates the First Amendment protection of free speech.

Plaintiffs also allege that violation of their First Amendment "free speech" clause rights contributes to their standing to bring suit.

Status. The Complaint was filed on January 11, 1999 in federal court in Washington DC.  The case has been assigned to Judge June Green. Judge Green issued her opinion on October 27, 1999 that the CTEA is constitutional. Plaintiffs will appeal.

Chronology with Links to Pleadings and Related Materials.

• 12/16/97.  President Clinton signed into law the No Electronic Theft Act, HR 2265, P.L. 105-147, 111 Stat. 2678.
• 10/27/98. President Clinton signed into law the Copyright Term Extension Act, S 505, P.L. 105-298, 112 Stat. 2827.
• 1/11/99. Plaintiffs filed their original Complaint in U.S. District Court in Washington DC.  See also, Tech Law Journal Story.
• 5/10/99. Plaintiffs filed their First Amended Complaint. (Link to Berkman Center.)
• 6/25/99. Defendant filed her Motion for Judgment on the Pleadings. See, Memorandum in Support. (Link to Berkman Center.)
• 6/28/99. Plaintiffs filed their Second Amended Complaint. (Link to Berkman Center.)
• 7/23/99. Plaintiffs filed their Motion for Judgment (and Memorandum in Support of Plaintiffs' Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment and in Opposition to Defendant's Motion for Judgment on the Pleadings).
• 10/27/99. U.S. District Court ruled that the CTEA does not violate the Constitution. See:
  •  Memorandum of the Court.
  •  Tech Law Journal story.
• 2/16/01. The U.S. Court of Appeals issued its opinion affirming the District Court.

Dramatis Personae

Plaintiffs

• Eric Eldred, the lead plaintiff, is the proprietor of the Eldritch Press. The addresses for both is 50 E. Derry Rd #21, E. Derry, New Hampshire, 03041-0021, 603-434-7746.
• The Eldritch Press is a nonprofit unincorporated organization that republishes literary works in the public domain in its website.
• The other plaintiffs are Higginson Book Company, Jill Crandall, Tri-Horn International, Luck's Music Library, Inc., Edwin F. Kalmus & Co, Inc., American Film Heritage Association, Moviecraft, Inc., Dover Publications, Inc., and Copyright's Commons.

See, the Berkman Center's coverage of this case, including pleading, links to favorable press accounts, and information about the plaintiffs.

• The attorneys for the plaintiffs are Charles Nesson, Lawrence Lessig, and Jonathan Zittrain, all of The Berkman Center for Internet & Society, Harvard University Law School, 1563 Massachusetts Ave., Cambridge, MA, 02138, 617-495-7547.
  •  Lawrence Lessig: URL, lessig@POBOX.COM.
  •  Charles Nesson: URL, nesson@law.harvard.edu.
  •  Jonathan Zittrain: URL, zittrain@law.harvard.edu.
• Local counsel is Geoffrey Stewart of Jones Day, 51 Louisiana Ave., NW, Washington, D.C. 20001-2113, 202-879-3939, fax 202-626-1700

Defendant

• Janet Reno, Attorney General, U.S. Department of Justice, is the defendant.
• The attorneys of record for the defendant are Vincent Garvey and Joseph LoBue, U.S. Department of Justice, 901 E Street NW, Room 1060, Washington, DC 20004, 202-514-4640.

Amicus Parties

• Numerous copyright holders, and their representatives, have filed an amicus curiae brief in support of the CTEA. These include:
  • The Sherwood Anderson Literary Estate Trust.
  • The Sherwood Anderson Foundation.
  • The American Society of Composers, Authors, and Publishers.
  • Amsong Inc.
  • Association of American Publishers.
  • Broadcast Music, Inc.
  • Motion Picture Association of America.
  • National Music Publishers' Association.
  • Recording Industry Association of America.
  • Songwriters' Guild of America.
• These amicus parties are represented by Davis, Polk and Wardell, 450 Lexington Ave., New York, NY 10017. The attorneys of record are:
  • Guy Miller Struve, 212-450-4192, fax 212-450-5576, struve@dpw.com, bio.
  • Charles Duggan, 212-450-4785, fax 212-450-5578, cduggan@dpw.com, bio
  • Michael Epstein, 212-450-4588, fax 212-450-5585, mepstein@dpw.com, bio.
  • Michael Purpura, 212-450-6140, fax 212-450-5587, mpurpura@dpw.com, bio.
• In addition, the amicus parties are represented by Professor Arthur Miller, Areeda Hall, 1545 Massachusetts Ave, Cambridge, MA 02138, 617-495-4111.

U.S. District Court

• Senior Judge June Green is assigned to the case. 333 Constitution Avenue, NW,
  Washington, DC, 20001, 202-354-3250.
• See, U.S.D.C. for the District of Columbia web site.