2005 | Cited 0 times | D. Colorado | April 19, 2005


This case on motions for summary judgment comes to the issuewhether a provision of the Uruguay Round Agreements Act, Pub.L.No. 103-465 (amending, inter alia, 17 U.S.C. §§ 104A, 109(a))("URAA") accords with the United States Constitution. Thedefendants (collectively, the "Government") have filed a motionfor summary judgment. The plaintiffs, Lawrence Golan, RichardKapp, S.A. Publishing Co. Ind. d/b/a ESS. A.Y. Recordings,Symphony of the Canyons, Ron Hall d/b/a Festival Films, and JohnMcDonough d/b/a Timeless Video Alternatives International, move for partial summaryjudgment on the question whether Congress exceeded its authorityin enacting Section 514 of the URAA. The motions are adequatelybriefed and oral argument would not materially aid theirresolution. For the reasons stated below, I GRANT theGovernment's motion and DENY the plaintiffs' motion.

At issue is Section 514 of the URAA, codified in17 U.S.C. § 104A, which restores copyright protection to works of foreignauthors that are not in the public domain in the source countriesbut passed into the public domain in the United States due(primarily) to noncompliance with formalities imposed by UnitedStates copyright law. Pub.L. 103-465, H.R. 5110, § 514.17 U.S.C. § 104A now provides, inter alia, (a) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration. Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States. . . . (h)(5) The term "restored copyright" means copyright in a restored work under this section. (h)(6) The term "restored work" means an original work of authorship that — (A) is protected under subsection (a); (B) is not in the public domain in its source country through expiration of term of protection; (C) is in the public domain in the United States due to — (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility; (D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and (E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording.17 U.S.C. § 104A(a) and (h) (5&6).

The questions presented, in their broadest terms, are three.First, I must determine whether the Constitution grants Congressthe authority to enact Section 514 of the URAA into law. Second,I must examine the Government's proffered basis for URAA Section514 and resolve whether it is rationally related to a legitimateGovernment interest. Third, even if Congress' authority isestablished and Congress has exercised that authority properly,the parties dispute whether Section 514 of the URAA infringesupon the plaintiffs' constitutionally-protected rights.

The parties do not dispute that the plaintiffs are eachpurveyors and exploiters of intellectual property that was, priorto Congress' passage of the URAA, in the public domain and forwhich copyright protection has now been restored to the foreigncreators.

The purpose of a summary judgment motion is to assess whethertrial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360(10th Cir. 1995). I shall grant summary judgment if thepleadings, depositions, answers to interrogatories, admissions,or affidavits show there is no genuine issue of material fact andthe moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c). Because the parties do not dispute issues ofmaterial fact, this case is singularly well-suited to summarydisposition; the questions of constitutional and statutoryconstruction raised here present legal questions properlyresolved by summary judgment. Oklahoma ex rel. Department ofHuman Services v. Weinberger, 741 F.2d 290, 291 (10th Cir.1983), cert. denied sub nom., Farrah v. United States,466 U.S. 971, 104 S. Ct. 2343, 80 L. Ed. 2d 817 (1984); Higganbotham v. Okla. ex rel. Okla. Transp.Comm'n, 328 F.3d 638, 646 (10th Cir. 2003); Santana v. City ofTulsa, 359 F.3d 1241, 1246 (10th Cir. 2004).

I am deferential to Congress. Eldred v. Ashcroft,537 U.S. 186, 213, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003); Oklahoma exrel. Okla. Dep't of Pub. Safety v. United States, 161 F.3d 1266,1269 (10th Cir. 1998), cert. denied, 528 U.S. 1114,120 S. Ct. 930, 145 L. Ed. 2d 810 (2000). Statutes are presumedconstitutional. United States v. Dorris, 236 F.3d 582, 585(10th Cir. 2000), cert. denied 532 U.S. 986, 121 S. Ct. 1635,149 L. Ed. 2d 495 (2001). It is generally for Congress, not thecourts, to decide how best to pursue the Constitution'sobjectives. Eldred, 537 U.S. at 212.

I. Congressional authority

The plaintiffs doubt that URAA Section 514 is within the powergranted to Congress because, they argue, it impermissibly removesworks from the public domain. The Constitution provides, "TheCongress shall have Power . . . To promote the Progress ofScience and useful Arts, by securing for limited Times to Authorsand Inventors the exclusive Right to their respective Writingsand Discoveries;. . . ." U.S. Constitution, art. I, § 8, cl. 8.This Intellectual Property Clause ("IP Clause") "is both a grantof power and a limitation." Graham v. John Deere Co.,383 U.S. 1, 5, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966).

The primary purpose of the IP Clause is not to reward the laborof authors, but to promote the progress of science and the usefularts. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,499 U.S. 340, 349, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). The economicphilosophy behind the IP Clause "is the conviction thatencouragement of individual effort by personal gain is the bestway to advance public welfare through the talents of authors andinventors in `Science and useful Arts.'" Mazer v. Stein, 347 U.S. 201, 219,74 S. Ct. 460, 98 L. Ed. 630 (1954). Progress could not be encouraged ifcreative works were never subjects of public exploitation anddevelopment. For that reason, the IP Clause imposes importantlimitations upon Congress' authority to grant monopolies.Congress may grant exclusive rights to authors and inventors onlyfor limited times, U.S. Constitution, art. I, § 8, cl. 8, andonly for original intellectual conceptions of the author, FeistPublications, Inc., 499 U.S. at 346-347.

The plaintiffs suggest that the IP Clause imposes an additionallimitation — copyrights cannot be restored to works that havepassed into the public domain. The plaintiffs perceive thisabsolute bar in the text's commitment to the progress of scienceand useful arts; the exploitation of works aids the developmentof ideas and so the public domain must be inviolate. I recognizethat the IP Clause implicitly guards the public domain in orderto encourage intellectual progress and the free exchange ofideas.

Save for the limited protection accorded the creator of literary and intellectual works under the Copyright Act or its exceptions . . . anyone may freely and with impunity avail himself of such works to any extent he may desire and for any purpose whatever subject only to the qualification that he does not steal good will, or, perhaps more accurately stated, deceive others in thinking the creations represent his own work.Cable Vision, Inc. v. KUTV, Inc., 335 F.2d 348, 351 (9th Cir.1964), cert. denied sub nom., KLIX Corp. v. Cable Vision, Inc.,379 U.S. 989, 85 S. Ct. 700, 13 L. Ed. 2d 609 (1965).

However, that the public domain is indeed public does notmandate that the threshold across which works pass into it cannotbe traversed in both directions. That is a very differentquestion. Indeed, neither the Supreme Court nor any Circuit Courthas adopted the rule that the plaintiffs suggest.

The plaintiffs analogize to cases that have arisen underCongress' patent power. The Government relies upon the history of congressionalinterpretation of the IP Clause, which, it argues, is suffusedwith removals of works from the public domain. The District Courtfor the District of Columbia, in Luck's Music Library, Inc. v.Ashcroft, 321 F. Supp. 2d 107 (D.D.C. 2004), has concluded thatURAA Section 514 is consistent with that precedent.

I look first to the patent cases and then to the history ofcongressional interpretation of its copyright power.

A. The patent cases

The plaintiffs refer me to the Graham decision, in which theSupreme Court stated that "Congress may not authorize theissuance of patents whose effects are to remove existentknowledge from the public domain, or to restrict free access tomaterials already available." Graham, 383 U.S. at 6."Innovation, advancement, and things which add to the sum ofuseful knowledge are inherent requisites in a patent system whichby constitutional command must `promote the Progress of . . .useful Arts.'" Id. Extrapolating from Graham, at least onecircuit court has indicated in dicta that Congress is precludedfrom issuing a copyright to a work after it enters the publicdomain. Eldred v. Reno, 239 F.3d 372, 377 (D.C. Cir. 2001),aff'd sub nom., Eldred v. Ashcroft, 537 U.S. 186,123 S. Ct. 769, 154 L. Ed. 2d 683 (2003).

The plaintiffs place greater weight upon the Eldred court'sdicta than it was intended to bear. The court there explicitlydisclaimed any attempt to resolve this question, which did nottouch upon its holding. Ibid.

The plaintiffs also find support for their reading of Grahamin various decisions standing for the unremarkable rule thatmaterials in the public domain cannot be copyrighted. See, e.g.,Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S. Ct. 1002,41 L. Ed. 118 (1896); Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34,123 S. Ct. 2041, 156 L. Ed. 2d 18 (2003); Country Kids 'N CitySlicks v. Sheen, 77 F.3d 1280, 1287 (10th Cir. 1996); BridgePubls. v. F.A.C.T.Net., 183 F.R.D. 254, 262 (D. Colo. 1998);Kepner-Tregoe, Inc. v. Executive Dev., Inc.,79 F. Supp. 2d 474, 492 (D.N.J. 1999), aff'd, 276 F.3d 577 (3d Cir. 2001);Jacobs v. Robitaille, 406 F. Supp. 1145, 1149 (D.N.H. 1976).Those courts concerned themselves with the boundaries of authors'statutory rights, not of congressional authority, and theirdecisions are neither helpful nor applicable here.

Even assuming that the principles enunciated in Graham governcopyright cases — a doubtful proposition, as shown below — theholding of that case is not sufficiently expansive to govern thiscase. The Graham Court determined the constitutionality of acongressional prohibition against the issuance of patents forobvious technological advances. Graham, 383 U.S. at 3. This isa distinction with a difference, for I am confronted here withthe question whether Congress may properly restore to creators ofintellectual property their copyrights; the Court in Grahamconcerned itself with the more foundational question under whatcircumstances those claiming entitlement to patent protectionmight constitutionally be denied such protection in the firstplace.

The Supreme Court has held that Congress may permissibly grantretroactive patent protection to an inventor who has failed tosecure such protection at the time of the invention. McClurg v.Kingsland, 42 U.S. 202, 206, 1 How. 202, 11 L. Ed. 102 (1843);Eldred, 537 U.S. at 202-203. The Government argues thatMcClurg controls this case. The McClurg plaintiff, however,was not granted protection against the defendant, his employer,who had exploited the technology during the time between itscreation and vestment of the patent. Though the plaintiff did not lose his rights vis-á-vis third parties by virtue of thedefendant's exploitation, the defendant was properly shieldedfrom liability to the plaintiff as a result of its reliance uponthe plaintiff's delay in acquiring the patent and the plaintiff'sutilization of the defendant's own resources in developing thetechnology. Id at 208-209. See also, Gill v. United States,160 U.S. 426, 431, 16 S. Ct. 322, 40 L. Ed. 480 (1896); UnitedStates v. Dubilier Condenser Corp., 289 U.S. 178, 188,53 S. Ct. 554, 77 L. Ed. 1114 (1933), amended by, 289 U.S. 706,53 S. Ct. 687, 77 L. Ed. 1462 (1933). It is "inescapably plain thatMcClurg upheld the expanded patent application to an existingpatent," not to the restoration of a patent right at the expenseof the public domain. Eldred, 537 U.S. at 203 n. 9.

In all events, Graham and McClurg are of little assistancehere. The considerations guiding those decisions are largelypeculiar to the patent context because, "[w]hile a copyrightconfers on its owner an exclusive right to reproduce the originalwork, a patent provides its owner with the far broader right toexclusive use of the novel invention or design for atime-specific period." Demetriades v. Kaufmann,680 F. Supp. 658, 662 (S.D.N.Y. 1988). "From their inception, the federalpatent laws have embodied a careful balance between the need topromote innovation and the recognition that imitation andrefinement through imitation are both necessary to inventionitself and the very lifeblood of a competitive economy." BonitoBoats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146,109 S. Ct. 971, 103 L. Ed. 2d 118 (1989).

Removal of existent knowledge from the public domain is apersistent danger in the expansion of patent monopolies and, forthat reason, informs courts' understanding of Congress' patentpower to a considerable degree. See Forbro Design Corp. v.Raytheon Co., 532 F.2d 758, 761 (1st Cir. 1976). Thatdanger, however, is not lurking within the retroactive expansionof copyrights; copyrights restrict the use of expressions but not ofideas themselves. Feist Publications, Inc., 499 U.S. at 349-350("[C]opyright assures authors the right to their originalexpression, but encourages others to build freely upon the ideasand information conveyed by a work."). For that reason, asdemonstrated below, the history of patent regulation provides anouter limit for my analysis. It is unlikely that the public has agreater interest in copyrightable works than it does inpatentable ones. However, the patent cases do not resolve thequestion before me.

Similarly, I need not consider the implications of theinstances, cited by the Government, in which Congress hasrestored to individual inventors patent protection that had, forvarious reasons, lapsed. Though those statutes certainly make theGovernment's view more plausible, that they had only specificapplication renders them unhelpful in this case.

B. Historical analysis

1. The 1790 Copyright Act

The first occasion on which Congress purportedly removedownership of copyrightable materials from the public domain waswith passage of the Copyright Act of 1790, 1 Stat. 124 ("1790Act"). By the 1790 Act, Congress established the terms by whichauthors would hold copyrights in their works, both previouslywritten and to be created in the future. The 1790 Act stated,inter alia, Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passing of this act, the author and authors of any map, chart, book, or books already printed within these United States, being a citizen or citizens thereof, or resident within the same, his or their executors, administrators or assigns, who hath or have not transferred to any other person the copyright . . .; and any other person . . . who hath or have purchase or legally acquired the copyright . . ., in order to print, reprint, publish or vend the same, shall have the sole right and liberty of printing, reprinting, publishing and vending such [works] for the term of fourteen years from the recording the title thereof . . .: And that the author and authors of any [works] already made and composed, and not printed or published, or that shall hereafter be made and composed, . . . shall have the sole right of printing, reprinting, publishing and vending such [works] for the like term of fourteen years from the time of recording the title thereof. . . . And if, at the expiration of the said term, the author or authors, or any of them, be living, and a citizen or citizens of these United States, or resident therein, the same exclusive right shall be continued to him or them . . . for the further term of fourteen years: Provided, he or they shall cause the title thereof to be a second time recorded and published . . . and that within six months before the expiration of the first term of fourteen years aforesaid.Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124. Sections 2 and 6of the 1790 Act provided a cause of action and penalties forinfringement. Sections 3 and 4 set forth the proceduralrequirements for securing a copyright.

Two interpretations of the 1790 Act are plausible. One mightconclude either 1) that Congress in 1790 established uniformstandards for pre-existing copyright protection within theseveral states or 2) that Congress was, by vesting copyright inauthors, creating a right that had no parallel at common law. Bythe former interpretation, which is commended by Congress'acknowledgment in the 1790 Act that copyrights might previouslyhave been transferred, the Act may be distinguished from URAASection 514. By the latter interpretation, which the Luck'sMusic court adopted and the Government presses here, one mightfurther conclude that Congress was in 1790 removing exclusive useof works from the public domain.

The Government points out that only ten of the thirteen stateshad effective copyright statutes in 1790. Thus, it argues, unlessa common-law copyright existed at that time, I must conclude thatCongress in 1790 deliberately removed works from the publicdomain in at least three states — Delaware, Maryland, andPennsylvania. The Luck's Music court adopted this reasoning.Luck's Music, 321 F. Supp. 2d at 113-114. The question of the common-law copyright's extent for centuriesoccupied many capable jurists, including the great WilliamBlackstone. I cannot identify the boundaries of that right withcertainty. However, because a slight expansion of then-existingcopyright law in 1790 would be sufficient to support theGovernment's argument on this point, I need not probe the fulldepths of the uncertain history.

i. Wheaton v. Peters

In support of its holding, the Luck's Music court invokedWheaton v. Peters, 33 U.S. 591, 8 Peters 591, 8 L. Ed. 1055(1834), which it deemed dispositive. A close reading ofWheaton, however, reveals that the Court did not there decidethe question whether the common law of Pennsylvania provided acopyright before passage of the 1790 Act but rather whether thecopyright was before that time perpetual. After considering thehistory of common-law copyright in Great Britain and itsabrogation by the Statute of 8 Anne, the Court stated, From the above authorities, and others which might be referred to if time permitted, the law appears to be well settled in England, that, since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. And that, notwithstanding the opinion of a majority of the judges in the great case of Miller v. Taylor was in favour of the common law right before the statute, it is still considered, in England, as a question by no means free from doubt. That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication, cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.Id. at 657.

So, the Wheaton Court did not doubt that an author had anexclusive common law property right in his creation. Rather, thequestion there was whether the exclusivity of right had been perpetual. In other words, the Court was faced withascertaining the boundaries of the common-law copyright inPennsylvania prior to passage of the 1790 Act. This understandingis confirmed by the Court's phrasing and rephrasing of thequestion then before it: does an author, by the common law ofPennsylvania, have a perpetual property in the copyright of hisworks. See id. at 657, 659.

The Luck's Music court, and the Government here, have bothinvoked the Wheaton Court's reasoning from the language of theIP clause. The Wheaton Court read the phrase "by securing,"which is found both in the IP Clause and in the 1790 Act, to meanthat the Constitution authorized Congress to create a new right,not to protect one already in existence under the common law.Ibid at 661. The Wheaton Court found support for its readingfrom the fact that the IP Clause refers to inventors as well asauthors and that "it has never been pretended, by any one, eitherin this country or in England, that an inventor has a perpetualright, at common law, to sell the thing invented." Id. TheCourt also reasoned that Congress' provision in the 1790 Act thatthe author of a work "shall have the sole right and liberty ofprinting" would have been mere surplusage had the right for whichthe complainant was advocating existed at common law. Id. Fromthese surveys the Wheaton Court concluded, "Congress, then, bythis act, instead of sanctioning an existing right, as contendedfor, created it." Id.

As is clear from the Wheaton Court's reasoning, the "right"that Congress created was a copyright of a particular length —fourteen years renewable once — not a general property right inone's own work. So, Wheaton does not stand for the propositionthat the Government suggests; the Wheaton Court doubted theextent and duration of an author's exclusive rights in hisintellectual property at common law but not the existence ofthose rights. This reading of Wheaton is bolstered by additionalconsiderations. The Supreme Court has since stated that, prior to1790, the common law recognized that authors had a protectableproprietary interest in their own handiwork. Mazer,347 U.S. at 214-215. See also Wright v. Warner Books, Inc., 953 F.2d 731,742 (2d Cir. 1991) (Van Graafeiland, J., concurring). ThoughCongress did not in 1790 describe the contours of pre-existingcopyrights, it acknowledged that some of those copyrights mightpreviously have been transferred between parties. Act of May 31,1790, ch. 15, § 1, 1 Stat. 124. Furthermore, in 1909, Congressexplicitly recognized the persistence at that time of authors'common-law rights in their unpublished works. Shoptalk, Ltd. v.Concorde-New Horizons Corp., 168 F.3d 586, 590 (2d Cir. 1999),cert. denied, 527 U.S. 1038, 119 S. Ct. 2399, 144 L. Ed. 2d 798(1999). So, the question is not whether a common-law of copyrightexisted prior to 1790 but rather the extent to which the 1790 Actabrogated that common law right.

ii. Abrogation of the common law right

As the Supreme Court has repeatedly stated, "In this countrythe right of an author to multiply copies of books, maps, etc.,after publication, is the creation of the Federal statutes. Thesestatutes did not provide for the continuation of the common-lawright, but, under constitutional authority, created a new right."Globe Newspaper Co. v. Walker, 210 U.S. 356, 362,28 S. Ct. 726, 52 L. Ed. 1096 (1908). See also Caliga v. Inter OceanNewspaper Co., 215 U.S. 182, 188, 30 S. Ct. 38, 54 L. Ed. 150(1909); Fox Film Corp. v. Doyal, 286 U.S. 123, 127,52 S. Ct. 546, 76 L. Ed. 1010 (1932). The common-law right that Congress in1790 abrogated was not contiguous with what Congress thencreated. Mazer, 347 U.S. at 214-215.

As suggested above, the common law of copyright in England wasa matter of some uncertainty at the time of the American founding. AmericanTobacco Co. v. Werckmeister, 207 U.S. 284, 291, 28 S. Ct. 72,52 L. Ed. 208 (1907). Disputes concerning whether copyrights wereperpetual at English common law survived passage of the Statuteof 8 Anne in 1710. The landmark case of Millar v. Taylor, 4Burr. 2303, in 1769, a mere seven years before the signing of theDeclaration of Independence, did little to resolve thosedisputes. While a majority of judges took the view that aperpetual right had existed at common law, a different majoritythought that the common-law remedy was no longer available afterthe Statute of 8 Anne. Not until 1774, in Donaldson v. Becket,4 Burr. 2408, did the House of Lords rule definitively thatcopyrights were limited in their terms because the Statute of 8Anne had extinguished the perpetual common-law right.

Blackstone in his famous treatise set out the arguments bothfor and against the existence of a perpetual common lawcopyright. On one hand, it was argued by many, "When a man by theexertion of his rational powers has produced an original work, heseems to have clearly a right to dispose of that identical workas he pleases, and any attempt to vary the disposition he hasmade of it, appears to be an invasion of that right." 2 WilliamBlackstone, Commentaries on the Laws of England, 405-406(1771). Blackstone continued, On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtle and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.Id. at 406.

Meanwhile, in the nascent United States tied together by theArticles of Confederation, the Founders generally expressed antipathy to the establishment ofmonopolies by law. See generally, Graham, 383 U.S. at 7-10.This led some to doubt the legal protection afforded to creatorsof intellectual property in the United States. At therecommendation of Congress, and the urging of Noah Webster andother men of learning, twelve states followed England's exampleand enacted copyright legislation. Ten of those statutes tookeffect.

Each state legislature that enacted a copyright statute between1783 and 1786 stated the ends to which it acted. Connecticutpassed its "Act for the encouragement of literature and genius"so "that every author should be secured in receiving the profitsthat may arise from the sale of his works, and such security mayencourage men of learning and genius to publish theirwritings. . . ." Acts and Laws of the State of Connecticut, InAmerica [Compiled by Roger Sherman and Richard Law], 133-134 (NewLondon, Timothy Green 1784). Massachusetts adopted "An Act forthe purpose of securing to authors the exclusive right andbenefit of publishing their literary productions, for twenty-oneyears," in order "to encourage learned and ingenious persons towrite useful books for the benefit of mankind." Acts and Laws ofthe Commonwealth of Massachusetts, 236 (Boston, B. Edes & Sons1781-1783). The consideration of the Maryland legislature wasstated, "Whereas printers, booksellers, and other persons maytake the liberty of printing, reprinting, and publishing, orcausing to be printed, reprinted, and published, books and otherwritings, without the consent of the authors or proprietors ofsuch books and writings, to their great injury: For preventingtherefore such practices, and for the encouragement of learnedmen." Laws of Maryland, made and passed, at a session ofassembly, begun and held at the City of Annapolis on Monday the21st of April, 1783, chapter 34 § I (Annapolis, F. Green, 1783).New Jersey adopted "An Act for the promotion and encouragement of literature," so "that men of learning who devote their timeand talents to the preparing treatises for publication, shouldhave the profits that may arise from the sale of their workssecured them." Acts of the seventh general assembly of the Stateof New Jersey, at a session begun at Trenton, on the 22d day ofOctober, 1782, and continued by adjournments, being the secondsitting, 47 (Trenton, Isaac Collins, 1783). New Hampshire enactedits statute "for the encouragement of literature and genius, andfor securing to authors the exclusive right and benefit ofpublishing their literary productions, for twenty years. ThePerpetual Laws of the State of New-Hampshire, from July, 1776, tothe session in December, 1788, continued into 1789, 161-162(Portsmouth, J. Melcher, 1789). The Rhode Island legislatureacted "for the purpose of securing to authors the exclusive rightand benefit of publishing their literary productions, fortwenty-on years." December, 1783, At the general assembly of thegovernor and company of the State of Rhode-Island andProvidence-Plantations, begun and holden at East-Greenwich on the4th Monday of December, 1783, 6-7 (Providence, J. Carter, 1783).Pennsylvania created a fourteen-year copyright, at Congress'recommendation, because "printers, booksellers, and other personshave heretofore frequently taken the liberty of printing,reprinting, and publishing, or causing to be reprinted andpublished, books and other writings without the consent of theauthor or proprietors of such books and writings, to their verygreat detriment and the damage of their families." Laws enactedin the second sitting of the eighth general assembly of theCommonwealth of Pennsylvania, which commenced the 13th day ofJan., 1784, 306-308 § II (Philadelphia, T. Bradford, 1784). SouthCarolina adopted "An Act for the encouragement of arts andsciences." Acts, Ordinances, and Resolves of the General Assemblyof the State of South Carolina, passed in the year 1784, 49-51(Charleston, J. Miller, 1984). Virginia's purpose was to securefor "authors of literary works and exclusive property therein for a limitedtime." Acts passed at a General Assembly of the Commonwealth ofVirginia, Begun and held in Richmond, on the 17th day of October,1785, 8-9 (Richmond, J. Dunlap & James Hayes, 1785). NorthCarolina announced its consideration, "Whereas nothing is morestrictly a man's own than the fruit of his study, and it isproper that men should be encouraged to pursue useful knowledgeby the hope of reward; and as the security of literary propertymust greatly tend to encourage genius, to promote usefuldiscoveries, and to the general extension of arts and commerce."Laws of the State of North-Carolina, Published, according to Actof Assembly, by James Iredell, 563-564 (Edenton, Hodge & Wills,1791). Georgia appealed to "the principles of natural equity andjustice," which "require that every author should be secured inreceiving the profits that may arise from the sale of his works."A Digest of the Laws of the State of Georgia, From its firstestablishment as a British province down to the year 1798,inclusive, By Robert and George Watkins, 323-325 (Philadelphia,R. Aitken, 1800). The New York legislature likewise believed that"principles of natural equity and justice" demand "that everyauthor should be secured in receiving the profits that may arisefrom the sale of his or her works." Laws of the State ofNew-York, passed by the legislature of said State at their ninthsession, 99-100 (New York, Samuel and John Loudon, 1786).

From this review it is apparent that the twelve states thatenacted copyright legislation viewed the then-existent common lawcopyright protection as either inadequate or insufficientlydefined to provide authors with the desired protection frominfringement; each sought further to protect authors frominfringement and to establish incentives for creation. Thiscommends the conclusion that the states adopted the latter viewarticulated by Blackstone — the common-law copyright was extinguished at first publication and thereaftermust have been preserved by statute, if at all.

Several courts in states that existed before 1790 havesubsequently confirmed that common-law copyrights vested inauthors at the creation of works but were extinguished at thetime of first publication. Hughes Tool Co. v. FawcettPublications, Inc., 315 A.2d 577, 580 (Del. Supr. 1974),aff'd, 350 A.2d 341 (Del. 1975); Wright v. Tidmore,430 S.E.2d 72, 73 (Ga.App. 1993); Edgar H. Wood Associates, Inc. v.Skene, 197 N.E.2d 886, 889 (Mass. 1964), quoting Tompkins v.Halleck, 133 Mass. 32, 35 (1882); Haskins v. Ryan, 64 A. 436,437 (N.J. Ch. 1906), aff'd, 73 A. 1118 (N.J. Err. & App. 1909);Pushman v. New York Graphic Soc., 39 N.E.2d 249, 250-251 (N.Y.1942); and Waring v. WDAS Broadcasting Station, Inc., 27 Pa. D.& C. 297, 307-308 (Pa. Com. Pl. 1936), aff'd, 194 A. 631 (Pa.1937).

The Supreme Court has also summarized the distinction betweenthe common-law right and the federal statutory right thatfollowed.

At common law, the exclusive right to copy existed in the author until he permitted a general publication. Thus, when a book was published in print, the owner's common-law right was lost. At common law an author had a property in his manuscript, and might have an action against anyone who undertook to publish it without authority. The statute created a new property right, giving to the author, after publication, the exclusive right to multiply copies for a limited period. This statutory right is obtained in a certain way and by the performance of certain acts which the statute points out. That is, the author, having complied with the statute, and given up his common-law right of exclusive duplication prior to general publication, obtained by the method pointed out in the statute an exclusive right to multiply copies and publish the same for the term of years named in the statute.Caliga, 215 U.S. at 188.

As the Caliga Court recognized, the common law of copyrightsprotected an author's interest prior to publication. See also,Shoptalk, Ltd., 168 F.3d at 590. "The common law recognize[d] three ways of exposing a work to the public:exhibition or performance, limited publication, and generalpublication. Of these, only general publication result[ed] inloss of the common-law copyright by the creator." Burke v.National Broadcasting Co., 598 F.2d 688, 691 (1st Cir.1979), cert. denied, 444 U.S. 869, 100 S. Ct. 144,62 L. Ed. 2d 93 (1979). A general publication is "such a dissemination of thework of art itself among the public as to justify the belief thatit took place with the intention of rendering such work commonproperty." American Tobacco Co., 207 U.S. at 299-300. It"occurs when a work is made available to members of the public atlarge without regard to who they are or what they propose to dowith it." Burke, 598 F.2d at 691.

It might be speculated that the boundaries of the common-lawright developed in response to the 1790 Act; protection betweencreation and general publication was omitted from the 1790 Actand was thus singularly within the purview of the states becauseit was not then preempted. However, nothing indicates that thecommon-law copyright was trimmed to accommodate the 1790 Act and,as set forth above, the more reasonable inference is thatCongress and the legislatures of twelve states thought thecommon-law protections insufficient.

From all of the available authorities, it is reasonable toconclude that Congress in 1790 anticipated the removal of someworks from the public domain; those authors who had lostexclusive rights in their creations by general publication atcommon law might have obtained copyrights pursuant to the 1790Act. The First Congress evidently determined that such a practicewas constitutionally permissible. As the Government points out,that Congress' understanding of the IP Clause is entitled toconsiderable deference. See Myers v. United States,272 U.S. 52, 175, 47 S. Ct. 21, 71 L. Ed. 160 (1926). "The constructionplaced upon the constitution by the first act of 1790 . . . by the men who werecontemporary with its formation, many of whom were members of theconvention which framed it, is . . . entitled to very greatweight." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,57, 4 S. Ct. 279, 28 L. Ed. 349 (1884).

2. The 1832 Patent Act

In 1832, Congress extended patent protection to works that hadpassed into the public domain as a result of inventors'inadvertent failures to comply with legal formalities. An Actconcerning patents for useful inventions, 4 Stat. 559 (July 3,1832) ("1832 Patent Act"). The 1832 Patent Act provided, interalia, And be it further enacted, That wherever any patent which has been heretofore, or shall be hereafter, granted to any inventor . . . shall be invalid or inoperative by reason that any of the terms or conditions prescribed in the third section of the [Patent Act of February 21, 1793], have not, by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, been complied with on the part of the said inventor, it shall be lawful for the Secretary of State, upon the surrender to him of such patent, to cause a new patent to be granted to the said inventor for the same invention for the residue of the period then unexpired, for which the original patent was granted, upon his compliance with the terms and conditions prescribed in the said third section of the said act.4 Stat. at 559, § 3.

The Government asserts that the mechanics and effects of the1832 Patent Act are indistinguishable from those of URAA Section514. The Government unnecessarily overstates its case; thedistinctions between patent and copyright analyses under the IPClause actually give the 1832 Act stronger precedential effecthere than it would have if the concerns were identical.

The Supreme Court has explained the two fundamental differencesin the means by which patents and copyrights respectively furtherthe objectives of the IP Clause.

[P]atents and copyrights do not entail the same exchange, and . . . our references to a quid pro quo typically appear in the patent context. This is understandable, given that immediate disclosure is not the objective of, but is exacted from, the patentee. It is the price paid for the exclusivity secured. For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright. Indeed, since the 1976 Act, copyright has run from creation, not publication. Further distinguishing the two kinds of intellectual property, copyright gives the holder no monopoly on any knowledge. A reader of an author's writing may make full use of any fact or idea she acquires from her reading. The grant of a patent, on the other hand, does prevent full use by others of the inventor's knowledge.Eldred, 537 U.S. at 216-217 (citations omitted). In both ofthose distinctions it can be observed that copyright protectionaids the dissemination of knowledge — the objective of the IPClause — in ways that patent monopolies do not; while copyrightsprotect the expressions of ideas and facts, patents protect theideas and facts themselves. For that reason, expansion of thecopyright does not impede the progress of science and the usefularts to the extent that expansion of the patent might. Congressdid not in 1832 perceive a danger in expanding patent rightsretroactively. It presumably would have seen no cause for alarmat enforcement of URAA, which will have a comparativelynegligible deleterious effect upon the progress of science andthe useful arts.

The plaintiffs dispute that Congress by the 1832 Patent Actrestored protection to works that were in the public domain. Theyargue that the effect of the Act was merely to provide proceduralredress for inventors who submitted patent applications withdeficient specifications and that the integrity of the resultingpatents would not, in those cases, have been suspect. Thatcreative interpretation of the 1832 Patent Act ignores thephrase, "shall be invalid or inoperative," from which it is clearthat Congress intended to restore patent protection in caseswhere the invention had passed into the public domain. 3. The 1919 and 1941 Copyright Acts

In 1919, and again in 1941, Congress authorized the Presidentto restore copyright protection to foreign authors of certainworks published during World Wars I and II, respectively. An Actto amend sections 8 and 21 of the Copyright Act of 1909, 41 Stat.368-369 (December 18, 1919) ("1919 Act"); An Act to amend section8 of the Copyright Act of 1909, 55 Stat. 732 (September 25, 1941)("1941 Act"). Both the 1919 and 1941 Acts amended Section 8 ofthe Copyright Act of 1909, which dealt with copyrights forforeign authors. See An Act To amend and consolidate the Actsrespecting copyright, 35 Stat. 1077, § 8 (1909) ("1909 Act").

The 1919 Act added, inter alia, . . . that all works made the subject of copyright by the laws of the United States first produced or published abroad after August 1, 1914, and before the date of the President's proclamation of peace, of which the authors or proprietors are citizens or subjects of any foreign State or nation granting similar protection for works by citizens of the United States, the existence of which shall be determined by a copyright proclamation issued by the President of the United States, shall be entitled to the protection conferred by the copyright laws of the United States from and after the accomplishment, before the expiration of fifteen months after the date of the President's proclamation of peace, of the conditions and formalities prescribed with respect to such works by the copyright laws of the United States: Provided further, that nothing herein contained shall be construed to deprive any person of any right which he may have acquired by the republication of such foreign work in the United States prior to the approval of this Act.41 Stat. at 369, § 8. The 1941 Act added, inter alia,

Provided, That whenever the President shall find that the authors, copyright owners, or proprietors of works first published or produced abroad and subject to copyright or to renewal of copyright under the laws of the United State, including works subject to ad interim copyright [under Section 21 of the 1909 Act], are or may have been temporarily unable to comply with the conditions and formalities prescribed with respect to such works by the copyright laws of the United States, because of the disruption or suspension of facilities essential for such compliance, he may by proclamation grant such extension of time as he may deem appropriate for the fulfillment of such conditions or formalities by authors, copyright owners, or proprietors who are citizens of the United States or who are nationals of countries which accord substantially equal treatment in this respect to authors, copyright owners, or proprietors who are citizens of the United States: Provided further, That no liability shall attach under the Copyright Act for lawful uses made or acts done prior to the effective date of such proclamation in connection with such works, or in respect to the continuance for one year subsequent to such date of any business undertaking or enterprise lawfully undertaken prior to such date involving expenditure or contractual obligation in connection with the exploitation, production, reproduction, circulation, or performance of any such work.55 Stat. at 732, § 8.

Exercising their authority under the 1919 and 1941 Acts,Presidents Wilson, Harding, F. Roosevelt, Truman, Eisenhower, andL. Johnson each issued proclamations restoring copyrightprotection to works that had passed into the public domain. 41Stat. 1790 (1920); 42 Stat. 2271-2278 (1922); 3 C.F.R. § 2608(1944); 3 C.F.R. § 2722 (1947); 2 C.F.R. § 2729 (1947);3 C.F.R. § 2683 (1949); 3 C.F.R. § 2953 (1951); 3 C.F.R. § 3353;3 C.F.R. § 3792 (1967).

The plaintiffs argue that Congress did not in 1919 or 1941express an intention to amend the prohibition, found in Section 7of the 1909 Act, against copyrighting materials in the publicdomain. They argue that the Government's interpretation of the1919 and 1941 Acts runs up against Section 7 of the 1909 Act,which they read as a prohibition against retroactive restorationof copyright. They remind me that I must regard Section 7 of the1909 Act as persistent absent a clear indication of amendment inthe 1919 and 1941 Acts. See J.E.M. Ag Supply, Inc. v. PioneerHi-Bred Int'l, Inc., 534 U.S. 124, 143-144, 122 S. Ct. 593,151 L. Ed. 2d 508 (2001).

The plaintiffs perceive a conflict where none exists. "[W]hentwo statutes are capable of coexistence, it is the duty of thecourts, absent a clearly expressed congressional intention to thecontrary, to regard each as effective." Ibid. Section 7 of the1909 Act did not prohibit Congress from restoring copyrightprotection after it had been lost. It provided: [t]hat no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof. . . .35 Stat. at 1077. This was merely a codification of the generalconstitutionally-mandated rule of originality — no author couldobtain a monopoly over expressions that already were in thepublic domain or had previously been published without beingcopyrighted. Nothing in this provision prohibited Congress fromrestoring copyright protection to an author who once hadenjoyed it.

The plaintiffs' reading of the 1909 Act is untenable foranother reason. In both the 1919 and 1941 Acts Congress includedprotections from liability for those persons who had exploitedforeign works during the periods in which those works had beenunprotected. 41 Stat. at 369; 55 Stat. at 732. The plaintiffs'reading would render those provisions mere surplusage.

Thus conflict with the 1919 and 1941 Acts is avoided. Congresswell understood what it was doing in 1919 and 1941; it intendedto restore copyright where it had previously lapsed. Nothing inSection 7 of the 1909 Act is inconsistent with that expresspurpose.

4. Conclusion

On the whole, Congress has historically demonstrated littlecompunction about removing copyrightable materials from thepublic domain. That practice, though no doubt in some casesworking a hardship upon parties who have exploited public domainmaterials, does no violence to the principle that the IP Clauseis designed to protect. The courts have agreed that the progressof science and the useful arts is impeded slightly, if at all,because ideas remain public property, even while expressions ofthose ideas are restored to their authors. In light of thisunbroken string of authority, I find the dicta on which theplaintiffs rely inapplicable to this case and conclude that Congress acted within its authority.

II. Rational basis

I turn next to the question whether a rational basis underliesURAA Section 514. See Eldred, 537 U.S. at 204. "Under therational basis test, the challenged legislation is presumptivelyconstitutional, and the [plaintiff] bears the `very difficultburden' of establishing `that the statute is irrational orarbitrary and that it cannot conceivably further a legitimategovernmental interest.'" Grigsby v. Barnhart, 294 F.3d 1215,1220 (10th Cir. 2002), quoting United States v. Phelps,17 F.3d 1334, 1345 (10th Cir. 1994), cert. denied, 513 U.S. 844,115 S. Ct. 135, 130 L. Ed. 2d 77 (1994). Congress' choice "is notsubject to courtroom fact-finding and may be based on rationalspeculation unsupported by evidence or empirical data." Cordobav. Massanari, 256 F.3d 1044, 1049 (10th Cir. 2001), cert.denied, 534 U.S. 1131, 122 S. Ct. 1071, 151 L. Ed. 2d 974(2002).

The Government suggests that the United States' compliance withtreaties governing intellectual property protection, accomplishedthrough enforcement of URAA Section 514, is in the best interestof American authors; by enforcing the treaties' uniform standardshere, the Government can be justified in expecting similarenforcement within other signatory nations. That, it argues,constitutes a rational basis for the provision. Eldred,537 U.S. at 213. The Government's proffered justification need not beCongress' actual rationale. Powers v. Harris, 379 F.3d 1208,1223 (10th Cir. 2004). Nevertheless, Congress' stated reasoningcan provide a compelling rational basis for upholding a statute.That is the case here. As the relevant House Reports demonstrate,Congress passed the URAA in order to bring federal copyright andother laws into conformance with treaties to which Congress hadalready agreed. H.R. Rep. 103-826(I), 1994 U.S.C.C.A.N. 3773; H.R. Rep. 103-826(II), 1994 U.S.C.C.A.N.4013; S. Rep. 103-412 (1994). That basis is rationally related toCongress' mandate to promote the progress of science and usefularts.

The House Committee on Ways and Means ("HW&MC") described theURAA as a bill "to implement the Uruguay Round Agreements in U.S.domestic law." H.R. Rep. 103-826(I) at 4. The Uruguay RoundAgreements ("URA") were, in the HW&MC's estimation, "vital to ournational interest and to economic growth, job creation, and animproved standard of living for all Americans." Id. at 16. TheHW&MC anticipated that the URA, "by lowering tariff and otherbarriers to international trade and investment, will lead toincreased levels of world and U.S. output, trade, real income,savings, investment, and consumption." Id. Most relevant here,the HW&MC stated, "The agreement on intellectual property willdramatically improve protection and enforcement of U.S.intellectual property rights abroad." Id. As the HouseCommittee on Energy and Commerce noted, intellectual property had"never before been made subject to a multilateral discipline."H.R. Rep. 103-826(II) at 2.

Adoption and implementation of the URA was not withoutconsequence for United States domestic law. Title V of the URAA,which concerned intellectual property, was but one of manyprovisions that amended federal law on a wide variety ofsubjects, and Section 514 was but one of several changes proposedwithin Title V. Section 514 appears to have generated littlecontroversy during congressional investigation of the URAA'simplications; both of the reporting House committees and three ofthe four reporting Senate committees declined to discuss Title Vat all. The Senate Committee on the Judiciary ("SJC") gave TitleV only cursory treatment. S. Rep. 103-412 at 224-230. The SJC's proffered justification for Title V consisted of onesentence. The SJC first explained that the intellectual propertyportion of the URA "establishes comprehensive standards for theprotection of intellectual property and the enforcement ofintellectual property rights in WTO member countries." Ibid at224. It identified two "outstanding flaws" in the agreement,neither of which are significant here. Id. "Nonetheless," itconcluded, "once in force, worldwide intellectual propertyprotection should be significantly improved." Id.

The SJC then explained the history behind Section 514.

The legislation includes language to restore copyright protection to certain foreign works from countries that are members of the Berne Convention or WTO that have fallen into the public domain for reasons other than the normal expiration of their term of protection. The 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. Article 18 requires that the terms of the convention apply to all works that have fallen into the public domain by reasons other than the expiration of its term of protection. (Examples include failure to file a timely renewal application and failure to affix a copyright notice).Ibid at 225.

Taken together, the reports of the various congressionalcommittees concerning the URAA lend credence to the Government'sview that Congress was here attempting to promote protection ofAmerican authors by ensuring compliance with the Berne Conventionwithin our own borders. That constitutionally-permissible end isrationally related to, and constitutes a rational basis for, URAASection 514.

III. The plaintiffs' constitutional rights

A. First Amendment protection

The plaintiffs argue that their First Amendment speech rightsare infringed by the burdens of complying with the copyrightprotections that the URAA Section 514 has restored to works that they once freely disseminated. They cannot, of course,sincerely argue that their participation in speech is prohibited;they are free to contract with copyright holders for permissionto disseminate the works. Instead, they argue that the barrier toexploitation of the works — the payment of royalties or fees — istoo onerous a constraint upon their free expression of ideas.

I see no need to expand upon the settled rule that privatecensorship via copyright enforcement does not implicate FirstAmendment concerns. Nihon Keizai Shimbun, Inc. v. Comline Bus.Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999); Los Angeles NewsService v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992); SunTrustBank v. Houghton Mifflin Co., 268 F.3d 1257, 1263-1264 (11thCir. 2001), reh'g denied, 275 F.3d 58 (11th Cir. 2001); Eldredv. Reno, 239 F.3d at 375.

B. Fifth Amendment due process

The plaintiffs argue that URAA Section 514 poses anunconstitutionally retroactive burden upon them for the purposesof substantive due process review because it restores protectionto works that have for varying periods of recent history beenunprotected. They cite Anker Energy Corp. v. Consolidation CoalCo., 177 F.3d 161 (3d Cir. 1999), cert. denied sub nom., AnkerEnergy Corp. v. UMW Combined Benefit Fund, 528 U.S. 1003,120 S. Ct. 496, 145 L. Ed. 2d 383 (1999), in which the Third Circuitstated that the "heart of retroactivity analysis is an evaluation of the extent of the burden imposed by a retroactive law in relation to the burdened parties' prior acts" and . . . that "where Congress acts reasonably to redress an injury caused or to enforce an expectation created by a party, it can do so retroactively."Id. at 173, quoting Unity Real Estate Co. v. Hudson,178 F.3d 649, 671 (3d Cir. 1999), cert. denied, 528 U.S. 963,120 S. Ct. 396, 145 L. Ed. 2d 309 (1999). 1. Retroactivity of Section 514

The Tenth Circuit has explained that my first job is to"determine whether [Section 514] would have retroactive effect,i.e., whether it would impair rights a party possessed when heacted, increase a party's liability for past conduct, or imposenew duties with respect to transactions already completed."Daniels v. United States, 254 F.3d 1180, 1187 (10th Cir. 2001).I conclude that none of those effects are present here.

The plaintiffs' argument is premised upon a confusion of twodistinct concepts. Though URAA Section 514 grants manyretroactive benefits to authors, it does not impose retroactiveburdens upon the plaintiffs. Contrast Eastern Enters. v. Apfel,524 U.S. 498, 118 S. Ct. 2131, 141 L. Ed. 2d 451, 528-529 (1998).This is because Section 514 does not impose upon the plaintiffsliability for, or new duties as a result of, their past conduct.Daniels, 254 F.3d at 1187. Nor does Section 514 impair rightsthat the plaintiffs possessed when they acted. Id. In short,Section 514 does not alter the legal consequences of theplaintiffs' completed acts. Eco Mfg. LLC v. Honeywell Int'l,Inc., 357 F.3d 649, 652 (7th Cir. 2003).

The plaintiffs point to the investments that they made in theexpectation that they could permissibly exploit the works atissue. The Government does not dispute that the plaintiffs haveso acted in reliance upon the works' availability to the public.However, "A statute does not operate `retrospectively' merelybecause it is applied in a case arising from conduct antedatingthe statute's enactment, or upsets expectations based in priorlaw." Landgraf v. USI Film Prods., 511 U.S. 244, 269,114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) (citations omitted).

Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates `retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.Id. at 269-270.

Though the plaintiffs reasonably relied upon the entry of theworks at issue into the public domain, any expectations they hadof perpetual rights of exploitation could not reasonably havebeen settled. Ibid at 269-270. As established above, Congresshas on several occasions throughout its history removed worksfrom the public domain. Any rights that the plaintiffs acquiredin these particular works by virtue of their exploitation of themwere thus anything but inviolate. It remained at all times withinCongress' authority to rectify the unfairness with which foreignauthors were afflicted. Compare United States v. Real Prop. inSection 9, 241 F.3d 796, 799 (6th Cir. 2001). As the SupremeCourt has noted, "If every time a man relied on existing law inarranging his affairs, he were made secure against any change inlegal rules, the whole body of our law would be ossifiedforever." Id. at 269 n. 24, quoting L. Fuller, The Moralityof Law 60 (1964).

2. Rational basis

Even if URAA Section 514 can be said to be retroactive ineffect, it does not offend the Fifth Amendment. Because nofundamental right is here implicated, rational-basis review isappropriate. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,15-16, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976); Powers,379 F.3d at 1214-1215. To satisfy the rational basis test, URAASection 514 need only be rationally related to a legitimategovernment purpose in both its prospective and retroactiveapplications. Pension Ben. Guaranty Corp. v. R.A. Gray & Co.,467 U.S. 717, 730, 104 S. Ct. 2709, 81 L. Ed. 2d 601 (1984). As set forth above, the Government has established a rationalbasis for the statute generally. In addition, the Government'sproffered interest justifies both prospective and retroactiveapplication of Section 514 to authors. See Landgraf,511 U.S. at 268 n. 21. Congress could rationally have concluded thatextension of such protection to foreign authors best served itsgoal of securing similar adequate protection for Americanauthors.

In any event, URAA Section 514 accords the plaintiffs somerelief. It excludes them from its general enforcement provisions,17 U.S.C. § 104A(d)(1), and grants to them notice rights and a12-month grace period, § 104A(d)(2), and continued rights ofexploitation of derivative works, subject to payment ofreasonable royalties, § 104A(d)(3). In these ways, Section 514strikes a careful balance between the plaintiffs' interests asreliance parties and Congress' express purpose. See GeneralMotors Corp. v. Romein, 503 U.S. 181, 112 S. Ct. 1105,117 L.Ed. 2d 328 (1992).

Accordingly, IT IS ORDERED that (1) the Government's Motion for Summary Judgment is GRANTED;

(2) the plaintiffs' motion for partial summary judgment isDENIED; and

(3) judgment shall enter for the Government on all claims withcosts.

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