Tuesday, May 31, 2011

Best practices re copyrighted material and fair use per music scholarship

Dear Colleagues:

For some time now I have been trying to find something like a statement of "Best Practices in the Fair Use of Copyrighted Materials in Music Scholarship," and I have finally, quite accidentally, stumbled upon it, thanks to a comment on an article in today's Chronicle of Higher Education.

The document comes form the American Musicological Society and so, like other documents similarly designed to serve specific academic use communities, it comes with a fairly decent pedigree. That said, you know that there will still be publishers who will try to use scare tactics to prevent music scholars from exercising their fair use rights. However, this document may represent the beginning of winning for musicologists the kind of rights recently secured by documentary film makers and media literacy educators, thanks largely to the scholars mentioned in the Chronicle article.

Below is a link to the "Best Practices" document:


And below here is a link to the Chronicle article where I found the comment that included this link as well as a link to a journal article on popular music that includes quotations.


I once discussed this matter with Peter Jaszi who opined that the situation regarding the fair use of copyrighted music is no different from any other copyrighted material except that the publishers are more aggressive about trying to extract money for any and every use of a copyrighted item, regardless of whether its unlicensed use might be perfectly fair.

Tim McGee

p.s. The AMS Statement of Best Practices ends with a warning about additional prohibitions under DMCA and asserts that "this question has not been addressed by the courts to date." I think that assertion is inaccurate. I believe the courts (or maybe it was the Library of Congress) have since ruled in our favor, i.e., we educators who need to circumvent copy protection technologies for educational purposes are free to do so.

Timothy C. McGee, Ph.D.
Associate Director for Faculty Development
Rider University
2083 Lawrenceville Road
Lawrenceville, NJ 08648-3099
T 609.896.7015
F 609.896.5334

AAUP criticizes Idaho Board for axing Faculty Senate

A new AAUP report finds that the action in February by the state board of education to suspend the faculty senate at Idaho State University not only violated fundamental principles of academic governance but poorly served the teaching and research mission of the university.

On February 17, the Idaho State Board of Education (which governs public higher education in the state) voted unanimously to suspend the faculty senate, as recommended by ISU president Arthur C. Vailas, and directed him to “implement an interim faculty advisory structure.” In justifying its decision, the board referred to an “impasse” between the administration and the senate following several years of conflict over issues of academic governance that culminated in a faculty vote of no confidence in President Vailas one week before the board meeting. When the president failed to provide the Association with an adequate explanation for the decision to suspend the operation and bylaws of the faculty senate, the AAUP general secretary authorized preparation of a staff report on the matter.

The report, approved by the AAUP’s Committee on College and University Governance, concludes that, “in severely restricting the faculty’s decision-making role in academic governance over the last several years, in suppressing faculty dissent, and, finally, in abolishing the faculty senate and with it the last vestiges of shared governance on the ISU campus, the administration of Idaho State University and the Idaho State Board of Education acted in direct violation of widely accepted principles and standards of shared governance, as set forth in the AAUP’s Statement on Government of Colleges and Universities.”

When the administration held elections for a “provisional senate” in April, as directed by the state board of education, the ISU faculty voted to restore most of its former senate representatives, and the provisional senate at its first meeting elected almost all the members of the suspended senate’s executive committee. While assuring the AAUP that “ISU is set to move forward” with an “approach to faculty governance” that will accord with AAUP-supported standards, the Vailas administration has declined to recognize the initial actions of the provisional senate and has refused to provide its officers with the keys to the senate office, to permit the senate to communicate by e-mail with the faculty, and to restore access to the senate website. In the meantime, what the administration has characterized as faculty governance is being undertaken by a number of administratively appointed and administratively dominated task forces, committees, and ad hoc bodies that report to the administration, not to the faculty.

—Gregory Scholtz
Director, AAUP Department of Academic Freedom, Tenure, and Governance

Anti-tenure: a new book (and my old article)

Untenuring Tenure

May 27, 2011, 11:12 am

By Peter Wood

Should tenure be abolished? Naomi Schaefer Riley argues that it should. Her new book, The Faculty Lounges and Other Reasons Why You Won’t Get the College Education You Paid For, is a Navy Seal Team Six-style assault on Fortress Tenure: quick, precise, and conducted with air of finality.

More: http://chronicle.com/blogs/innovations/untenuring-tenure/29530?sid=at&utm_source=at&utm_medium=en

The Last Good Job in America?
By Jim Castagnera
Special to the Greentree Gazette

When CUNY Graduate College Professor Stanley Aronowitz published The Last Good Job in America: Work and Education in the New Global Technoculture in 2001, reviewer John Marsh observed that the radical-left author was referring “to Stanley Aronowitz, tenured sociology professor. His is a job that pays relatively well, not only affords but rewards time off for reflection, ensures job security, guarantees intellectual and political independence, and, while by no means uncluttered, nevertheless remains largely self-directed.”
By contrast, continues Marsh, paraphrasing Aronowitz, “For… most workers, the weekend is more endangered than some California condors. We check our email six times a day. We own enormous homes that need to be repaired and remodeled. We commute hours to work and hours back home…. We live in an age… that has subsumed the human spirit --- and all its social spaces and work and leisure time --- to the imperatives of alienated work without end.”
Aronowitz/Marsh seem to be describing millennial American lawyers. When, as a young attorney, I joined the Philadelphia mega-firm Saul Ewing in 1983, the managing partner boasted at a new-associate orientation that hourly billing was “the best thing that ever happened in our profession.” In one respect, he was absolutely right. Hourly rates have soared, surpassing inflation by a country lawyer’s mile. According to the August 22nd Wall Street Journal, “The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma. A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point. On Sept. 1, New York's Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm's thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York's Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.”
What has hourly billing meant to lawyer’s clients? In the words of one maverick law firm, Traverse Legal, PLC, “Lawyers who bill by the hour typically spend their time thinking about hours rather than results. Few hourly billing attorneys tell their client what they will be delivering and the costs upfront. Once deliverables are defined, a value billing attorney simply asks himself/herself the same question each moment of each day: ‘How do I deliver the deliverables I have promised the client?’ Instead of cases just meandering forward, each day the lawyer’s required to think strategically…. The lawyer has tremendous incentive to achieve that result sooner, rather than later. This is because hours of time now count against him/her in contrast to the hourly billing approach where hours count against the client.”
An analogy might be drawn to the classroom, where one might argue the tenured professor worries about delivering the best possible educational product, while the contingent faculty member focuses on getting in, getting out, and getting on to the next gig.
What has hourly billing meant for law firm partners and associate attorneys? Indiana-Bloomfield law professor Bill Henderson reported last May that “many firms are actively thinning the ranks of equity partners.” This perception was confirmed for me by Eric Gouvin, associate dean for academic affairs and a full professor of law at Western New England College’s law school.
“Sometimes it’s pretty unceremonious,” he says. In many firms “partners have given away almost all their rights. Running the firm is delegated to a committee, which runs the firm like a business. Underperforming partners are given a warning and then shown the door.” He adds that “the EEOC has been watching this. The agency’s position often is that so-called partners have ceded so many rights that they are really employees. They are no longer partners, the way they actually work on the ground.”
If many law firm partners are in this difficulty, what of the associate attorneys? University Professor David Luban of Georgetown recently drew an analogy between big-firm associates and classic “exploited workers,” as Karl Marx might have called them. “With overhead, an associate costs a law firm double her salary…. Thus an associate must bill 1,500 hours simply to pay for herself. Because not every hour can be billed, that is about 1,800 hours of work… six hours a day, six days a week…. The rest of the day is the ‘unpaid labor’ generating the surplus value --- value that the partners appropriate.”
Lest this sounds too onerous, let us remind ourselves that we are talking about 26-year-olds earning upwards of $150,000 per year and billed out at $200 or more per hour. Little wonder that big firms have no trouble recruiting top law school graduates.
Perhaps the same may be said of higher education. The American Association of University Professors bemoans the decline of tenured and tenure track faculty as a percentage of the total professorate. In December 2006 the AAUP reported that since the seventies the representation of tenured and tenure track teachers at some 2600 institutions tracked had declined from 57 percent to 35 percent, while the comparable figures for full- and part-time contract faculty reflected an increase from 43 percent to 65 percent during the same period.
However, caution knowledgeable observers, it would be a mistake to assume that these contingent faculty are all “exploited workers.” To the contrary, comments Eric Gouvin, “I’ve been at my law school for 16 years. For faculty of my generation, this is unusual. There has been a generational shift about how much loyalty is owed to a place. Many young faculty feel, ‘I’ll do what I contract to do, but don’t expect a long-term commitment.’ Some also feel, ‘I’d rather get paid at market value, then get tenure. I’ll trade some security for salary.’” Others, he adds, may stick around until they attain tenure, then transport that job security to a better-paying or more prestigious venue.
Dr. Anthony Liuzzo, a JD/PhD who runs the MBA program at Pennsylvania’s Wilkes University and who at 60 is a generation ahead of Gouvin, agrees. “In some ways this is reflective of the larger economy,” he contends. “I’m not even sure junior faculty want tenure.”
He continues, “Older faculty appreciate loyalty and longevity. Our parents worked for the same companies all their lives. I ask my MBA students would they be interested in working for a company for 30 years and they laugh at me. This may be true of newly minted Ph.D.s as well.”
Furthermore, the professorate has its counterparts to law’s $1,000/hour mega-partners. Some law professors at top schools now earn upwards of a quarter-million dollars per academic year, while top medical professors, such as at NYU, have long been earning in excess of a million dollars annually.
Predicting that the tenure system “will be dented on a number of fronts” in the coming decades, he demurs that “exploited is an over-statement” when it comes to considering the roles of contingent faculty. Describing himself as a “free-marketer,” he speculates, “The decline of tenured faculty and the tenure system may not be such a bad thing. There will be more mobility. If tenure somehow went away, there’d be a lot of openings… 20-25 percent might be forced out. This would drive up wages. It might be good for both individual institutions and for (competent) faculty.”
On the other hand, he wonders if it might be “bad for the industry. The benefits of tenure include shared governance. Without tenure, all power would be transferred to the administration, which is primarily interested in the short term, while the tenured faculty tend to take the long view. Higher education would wind up with the same problems that plague corporations which quest only for short-term profits.” His comments echo the concerns expressed by Traverse Legal about hourly billing.
Western New England’s Gouvin takes a different tack on these points: “The broadest trend I see is how philanthropy is administered. It’s all about accountability. Administrators turn to the for-profit playbook. An institution’s biggest cost is people. Lots of institutions are aggressively paring down their people costs by cutting tenured faculty to the bare minimum. The problem for administrators is that there’s no comparable private-sector playbook for managing tenured faculty. Tenure protects dead wood. That’s the terrible side of it. Administrators have to turn to the ‘soft side’ in order to try to make these folks more productive.” Thus, he says, the trend toward trimming down the tenured ranks.
In the last analysis, it seems that while both life-time law partners and tenured faculty are declining as percentages of their respective professions, neither category is likely to vanish in any reader’s lifetime. And while both associate attorneys and contingent faculty are working harder than ever, the monetary rewards are often commensurate with the demands and the insecurity… at least so far.
However, if the parallel paths being pursued by these two professions are destined to converge a bit farther down the 21st century road, the point of convergence might not bode well for either contract faculty --- or even tenured professors below the level of the well-endowed mega profs --- or for the lower ranks of law partners and associate attorneys. Outsourced legal work, primarily to Indian lawyers and paralegals, has been estimated at $163 billion --- yes, that’s billion --- for calendar 2006. The higher education analogy would seem to be distance learning, which some disgruntled faculty have labeled “prof in a box.” In other words, the majority of practitioners in both professions may be destined to endure the hard side of globalization, and as a result of much the same technological advances.
But that’s for tomorrow. What of “the last good job in America” today? Here Eric Gouvin probably should get the last word. “I certainly think I do have the best job in the legal world. Every day I wake up and thank God.”

Suits against for-profits: an update

May 27, 2011
U. of Phoenix Hit With New Whistle-Blower Lawsuit Over Recruiting Practices

By Goldie Blumenstyk

Two former admissions recruiters at the University of Phoenix have filed a federal whistle-blower lawsuit that accuses the giant for-profit university of continuing to violate a ban on paying recruiters based on the number of students they enroll, even after the institution paid $78.5-million in December 2009 to settle a long-running lawsuit that made similar charges.


December 14, 2009
Whistle-Blowers Will Get $19-Million in U. of Phoenix Settlement

By Goldie Blumenstyk

Two former recruiters of students at the University of Phoenix who filed a False Claims Act lawsuit against the for-profit institution will receive $19-million, or nearly 30 percent, of the $67.5-million it is paying the government to settle the case. An additional $11-millon will go to the recruiters' lawyers, according to terms of the settlement, which were made public on Monday.


U.S. Government to Join in Whistle-Blower Lawsuit Against For-Profit College

May 2, 2011, 3:00 pm

In a rare move, the U.S. Department of Justice will join in a whistle-blower lawsuit brought by a former employee of a college owned by the Education Management Corporation, which is accused of illegally obtaining federal student aid by paying its admissions recruiters commissions based on the number of students they enrolled. The company, which operates Argosy University, South University, Brown Mackie Colleges, and the Art Institutes, also disclosed on Monday that it expected several states to join the lawsuit as well. According to Bloomberg News, the suit, which is still under court seal in Pittsburgh, is different from another whistle-blower suit filed against the company by a former South University employee.
More: http://chronicle.com/blogs/ticker/u-s-government-to-join-in-whistle-blower-lawsuit-against-for-profit-college/32652

More on copyright law: new book about fair use

Professor takes on US copyright laws in the Supreme Court

Lawrence Golan conducts musicians at the U. of Denver, performing Puccini's "Suor Angelica." His ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire.

By Marc Parry


When Lawrence Golan picks up his baton here at the University of Denver, the musicians in his student orchestra see a genial conductor who corrects their mistakes without raising his voice in frustration.

Yet Mr. Golan is frustrated, not with the musicians, but with a copyright law that does them harm. For 10 years, the music professor has been quietly waging a legal campaign to overturn the statute, which makes it impossibly expensive for smaller orchestras to play certain pieces of music.

Now the case is heading to the U.S. Supreme Court.

More: http://chronicle.com/article/A-Professors-Fight-Over/127700/?sid=at&utm_source=at&utm_medium=en

Here's the underlying court of appeals decision:

Golan v. Holder
609 F.3d 1076
C.A.10 (Colo.),2010.

BRISCOE, Chief Judge.

Plaintiffs brought this action challenging the constitutionality of Section 514 of the Uruguay Round Agreements Act (“URAA”), Pub.L. No. 103–465, § 514, 108 Stat. 4809, 4976–81 (1994) (codified as amended at 17 U.S.C. §§ 104A, 109), which granted copyright protection to various foreign works that were previously in the public domain in the United States. The district court granted plaintiffs' motion for summary judgment, concluding that Section 514 violates plaintiffs' freedom of expression under the First Amendment. In Case No. 09–1234, the government appeals the district court's order granting plaintiffs' motion for summary judgment and denying the government's motion, arguing that Section 514 is a valid, content-neutral regulation of speech. In Case No. 09–1261, plaintiffs cross-appeal, contending that the statute is facially invalid and that they are entitled to injunctive relief. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the judgment of the district court and conclude that Section 514 of the URAA is not violative of the First Amendment.

I. Statutory Background
In 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”). The Berne Convention requires each signatory to provide the same copyright protections to authors in other member countries that it provides to its own authors. Pursuant to Article 18, when a country joins the Convention, it must provide copyright protection to preexisting foreign works even when those works were previously in the public domain in that country.FN1 However, when the United States joined the Berne Convention, the implementing legislation did not extend copyrights to any foreign works that were already in the public domain in the United States. See Berne Convention Implementation Act of 1988, Pub.L. 100–568, § 12, 102 Stat. 2853, 2860 (“Title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States.”); see generally 7 William F. Patry, Patry on Copyright § 24:21 (2010).

FN1. Article 18 of the Berne Convention provides:
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle.
(4) The preceding provisions shall also apply in the case of new accessions to the Union....

Berne Convention, art. 18, Sept. 9, 1886 (revised at Paris on July 24, 1971).

In April 1994, the United States signed various trade agreements in the Uruguay Round General Agreement on Tariffs and Trade. Included in this round of agreements was the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs). The TRIPs agreement required, in part, that its signatories comply with Article 18 of the Berne Convention, and thus, extend copyright protection to all works of foreign origin whose term of protection had not expired. Unlike the Berne Convention, the TRIPs agreement provided for dispute resolution before the World Trade Organization. See Patry on Copyright at § 24:1.

*1081 In order to comply with these international agreements, Congress enacted the URAA. In particular, Section 514 of the URAA implements Article 18 of the Berne Convention. Section 514 “restores” FN2 copyrights in foreign works that were formerly in the public domain in the United States for one of three specified reasons: failure to comply with formalities, lack of subject matter protection, or lack of national eligibility. See 17 U.S.C. § 104A(a), (h)(6)(C). Section 514 does not restore copyrights in foreign works that entered the public domain through the expiration of the term of protection. See id. § 104A(h)(6)(B).

FN2. Although Section 514 grants copyright protection to works that never obtained copyrights in the United States, as well as works that lost copyright protection for failing to comply with various formalities, the parties refer to this as copyright “restoration,” and the statute likewise refers to “restored works,” see 17 U.S.C. § 104A(h)(6). For clarity and consistency, we will as well.

In addition to restoring copyrights in preexisting foreign works, Section 514 provides some protections for reliance parties FN3 such as plaintiffs who had exploited these works prior to their restoration. See id. § 104A(d)(2)-(4). In order to enforce a restored copyright against a reliance party, a foreign copyright owner must either file notice with the Copyright Office within twenty-four months of restoration, id. § 104A(d)(2)(A)(i), or serve actual notice on the reliance party, id. § 104A(d)(2)(B)(i). A reliance party is liable for infringing acts that occur after the end of a twelve month grace period, starting from notice of restoration, id. § 104A(d)(2)(A)(ii)(I), (d)(2)(B)(ii)(I). Reliance parties may sell or otherwise dispose of restored works during this grace period, id. § 109(a), but they cannot make additional copies during this time, id. § 104A(d)(2)(A)(ii)(III), (d)(2)(B)(ii)(III).

FN3. A “reliance party” is defined as a person who:
(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts;

(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or

(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or significant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person.

17 U.S.C. § 104A(h)(4).

Section 514 provides further protections for reliance parties who, prior to restoration, created a derivative work FN4 that was based on a restored work. Under Section 514, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation....” Id. § 104A(d)(3)(A). If the parties are unable to agree on reasonable compensation, a federal court will determine the amount of compensation. See id. § 104A(d)(3)(B).

FN4. “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’.” 17 U.S.C. § 101.

II. Factual and Procedural Background
The factual background is not in dispute. Plaintiffs are orchestra conductors, educators,*1082 performers, publishers, film archivists, and motion picture distributors who have relied on artistic works in the public domain for their livelihoods. They perform, distribute, and sell public domain works. The late plaintiff Kapp created a derivative work—a sound recording based on several compositions by Dmitri Shostakovich. Section 514 of the URAA provided copyright protection to these foreign works, removing them from the public domain in the United States. As a result, plaintiffs are either prevented from using these works or are required to pay licensing fees to the copyright holders—fees that are often cost-prohibitive for plaintiffs.

Plaintiffs filed this action, challenging the constitutionality of the Copyright Term Extension Act, Pub.L. No 105–298, § 102(b), (d), 112 Stat. 2827, 2827–28 (1998), and Section 514 of the URAA, seeking declaratory and injunctive relief. Initially, the district court granted summary judgment to the government. On appeal, we concluded that plaintiffs' challenge to the Copyright Term Extension Act was foreclosed by the Supreme Court's decision in Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003). See Golan v. Gonzales, 501 F.3d 1179, 1182 (10th Cir.2007) (“ Golan I ”). We also held that “[Section] 514 of the URAA ha[d] not exceeded the limitations inherent in the Copyright Clause” of the United States Constitution. Id. FN5 We recognized that “legislation promulgated pursuant to the Copyright Clause must still comport with other express limitations of the Constitution,” id. at 1187, and concluded that plaintiffs had “shown sufficient free expression interests in works removed from the public domain to require First Amendment scrutiny of [Section] 514,” id. at 1182. We then remanded the case to the district court to “assess whether [Section] 514 is content-based or content-neutral,” id. at 1196, and to apply the appropriate level of constitutional scrutiny.

FN5. The Constitution provides Congress with the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8.

On remand, the parties filed cross-motions for summary judgment. The government and plaintiffs agreed that Section 514 is a content-neutral regulation of speech, and thus should be subject to intermediate scrutiny. The district court concluded that “to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain,” Section 514 was unconstitutional. Golan v. Holder, 611 F.Supp.2d 1165, 1177 (D.Colo.2009). Consequently, the district court granted plaintiffs' motion for summary judgment, and denied the government's motion.

The government timely appealed the district court's order, arguing that Section 514 of the URAA does not violate the First Amendment. Plaintiffs cross-appealed, arguing that the district court failed to provide all of the relief that they requested. Specifically, plaintiffs request that we adjudicate their facial challenge to Section 514, direct the district court to enjoin Attorney General Holder from enforcing the statute, and order the Register of Copyrights Marybeth Peters to cancel the copyright registrations of restored works.

III. Government's Appeal (No. 09–1234)
[1] Headnote Citing References[2] Headnote Citing References “We review de novo challenges to the constitutionality of a statute.” Am. Target Adver., Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir.2000). Because this case implicates the First Amendment, “we have ‘an obligation to make an independent examination of the whole record in order to make sure that the judgment does *1083 not constitute a forbidden intrusion on the field of free expression.’ ” Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 (10th Cir.2007) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

[3] Headnote Citing References The parties agree that Section 514 of the URAA is a content-neutral regulation of speech, and thus, is subject to intermediate scrutiny. Although their position is “not controlling given our special standard of de novo review,” id. at 1220, we agree that Section 514 is a content-neutral regulation of speech.

[4] Headnote Citing References[5] Headnote Citing References In determining whether a regulation is content-neutral or content-based, “ ‘the government's purpose in enacting the regulation is the controlling consideration.’ ” Z.J. Gifts D–2, L.L.C. v. City of Aurora, 136 F.3d 683, 686 (10th Cir.1998) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (brackets omitted)). The primary inquiry “is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. “If the regulation serves purposes unrelated to the content of expression it is considered neutral, even if it has an incidental effect on some speakers or messages but not others.” Z.J. Gifts, 136 F.3d at 686 (quotations and citation omitted). On its face, Section 514 is content-neutral. Moreover, there is no indication that the government adopted Section 514 “ ‘because of agreement or disagreement with the message [that the regulated speech] conveys.’ ” See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“ Turner I ”) (brackets omitted, quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746). Congress primarily enacted Section 514 to comply with the United States' international obligations and to protect American authors' rights abroad. Therefore, we agree that it is a content-neutral regulation.

[6] Headnote Citing References[7] Headnote Citing References In reviewing the constitutionality of a content-neutral regulation of speech, we apply “an intermediate level of scrutiny, because in most cases [such regulations] pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” Id. (internal citation omitted). Applying intermediate scrutiny, a content-neutral statute “will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (“ Turner II ”).

The government argues on appeal that Section 514 is narrowly tailored to advancing three important governmental interests: (1) attaining indisputable compliance with international treaties and multilateral agreements, (2) obtaining legal protections for American copyright holders' interests abroad, and (3) remedying past inequities of foreign authors who lost or never obtained copyrights in the United States. We hold that the government has demonstrated a substantial interest in protecting American copyright holders' interests abroad, and Section 514 is narrowly tailored to advance that interest. FN6 Consequently,*1084 the district court erred in concluding that Section 514 violates plaintiffs' First Amendment rights.

FN6. Accordingly, we do not reach the validity of the government's first or third asserted interests, i.e., that Section 514 advances the government's interest in “indisputable compliance” with the Berne Convention, Appellant's Br. at 30, or that it remedies historic inequities of foreign authors who lost or never obtained copyrights in the United States. We offer no opinion on whether these asserted interests, by themselves, are sufficient to withstand intermediate scrutiny.

A. Governmental Interest
1. Section 514 addresses a substantial or important governmental interest.
[8] Headnote Citing References In order for a statute to survive intermediate scrutiny, the statute must be directed at an important or substantial governmental interest unrelated to the suppression of free expression. See Turner I, 512 U.S. at 662, 114 S.Ct. 2445. We have no difficulty in concluding that the government's interest in securing protections abroad for American copyright holders satisfies this standard.

[9] Headnote Citing References[10] Headnote Citing References Copyright serves to advance both the economic and expressive interests of American authors. See Eldred, 537 U.S. at 211–13, 123 S.Ct. 769. In addition to creating economic incentives that further expression, copyright also serves authors' First Amendment interests. “[F]reedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.’ ” Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (quoting Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977)); see also Eldred, 537 U.S. at 221, 123 S.Ct. 769. “Courts and commentators have recognized that copyright ... serve[s] this countervailing First Amendment value” of the freedom not to speak. Harper & Row, 471 U.S. at 560, 105 S.Ct. 2218.

Plaintiffs contend that the government does not have an important interest in a “reallocation of speech interests” between American reliance parties and American copyright holders. Appellees' Br. at 48. However, the Supreme Court has recognized that not all First Amendment interests are equal. See Eldred, 537 U.S. at 221, 123 S.Ct. 769. “The First Amendment securely protects the freedom to make—or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches.” Id. Although plaintiffs have First Amendment interests, see Golan I, 501 F.3d at 1194, so too do American authors.

Securing foreign copyrights for American works preserves the authors' economic and expressive interests. These interests are at least as important or substantial as other interests that the Supreme Court has found to be sufficiently important or substantial to satisfy intermediate scrutiny. See, e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (“The problem addressed by this ordinance—the visual assault ... presented by an accumulation of signs posted on public property—constitutes a significant substantive evil within the City's power to prohibit.”). Accordingly, Section 514 advances an important or substantial governmental interest unrelated to the suppression of free expression.

2. Section 514 addresses a real harm.
[11] Headnote Citing References[12] Headnote Citing References The government's asserted interest cannot be merely important in the abstract—the statute must be directed at a real, and not merely conjectural, harm. Turner I, 512 U.S. at 664, 114 S.Ct. 2445 (plurality opinion). Thus, we must examine whether Section 514 was “designed to address a real harm, and whether [it] will alleviate [that harm] in a material way.” See Turner II, 520 U.S. at 195, 117 S.Ct. 1174. In undertaking this review, we “must accord substantial deference to the predictive judgments of Congress. Our sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial *1085 evidence.” Id. (quotations and citation omitted).

“[S]ubstantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency.” Id. This deferential standard is warranted for two important reasons. First, Congress is “far better equipped” as an institution “to amass and evaluate the vast amounts of data bearing upon the legislative questions.” Id. (quotations and citation omitted). Second, we owe Congress “an additional measure of deference out of respect for its authority to exercise the legislative power.” Id. at 196, 117 S.Ct. 1174.

Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments....


[13] Headnote Citing References Additionally, the other branches' judgments regarding foreign affairs warrant special deference from the courts. See Citizens for Peace in Space, 477 F.3d at 1221 (“Courts have historically given special deference to other branches in matters relating to foreign affairs, international relations, and national security; even when constitutional rights are invoked by a plaintiff.”). The Supreme Court has “consistently acknowledged that the nuances of the foreign policy of the United States are much more the province of the Executive Branch and Congress than of [the courts].” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 386, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (quotations and alterations omitted); see also Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984) (noting the “classical deference to the political branches in matters of foreign policy”); First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972) (discussing the “judicial deference to the exclusive power of the Executive over conduct of relations with other sovereign powers and the power of the Senate to advise and consent on the making of treaties”). As such, we apply considerable deference to Congress and the Executive in making decisions that require predictive judgments in the areas of foreign affairs.

To be clear, we do not suggest that Congress's decisions regarding foreign affairs are entirely immune from the requirements of the First Amendment. See Turner I, 512 U.S. at 666, 114 S.Ct. 2445 (plurality opinion) (“That Congress' predictive judgments are entitled to substantial deference does not mean, however, that they are insulated from meaningful judicial review altogether.”); see also Boos v. Barry, 485 U.S. 312, 323, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (“[I]t is well established that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” (quotations and citation omitted)). Rather, we merely acknowledge that in undertaking our constitutional review of a content-neutral statute, Congress's predictive judgments are entitled to “substantial deference,” Turner II, 520 U.S. at 195, 117 S.Ct. 1174, and in this particular context, our review of Congress's predictive judgments is further informed by the special deference that Congress and the Executive Branch deserve in matters of foreign affairs.

Turning to the issue at hand, prior to enacting Section 514 of the URAA, Congress heard testimony addressing the interests of American copyright holders. In particular, American works were unprotected in several foreign countries, to the *1086 detriment of the United States' interests. See General Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions: Joint Hearing on H.R. 4894 and S. 2368 Before the Subcomm. on Intellectual Property and Judicial Administration of the H. Comm. on the Judiciary and the Subcomm. on Patents, Copyrights, and Trademarks of the S. Comm. on the Judiciary, 103d Cong., 2d Sess., 262 (1994) [hereinafter “Joint Hearings ”] (statement of Jason S. Berman, Chairman and CEO of the Recording Industry Association of America) (“[T]here are vastly more U.S. works currently unprotected in foreign markets than foreign ones here, and the economic consequences of [granting retroactive copyright protection] are dramatically in favor of U.S. industries.”).FN7 By some estimates, billions of dollars were being lost each year because foreign countries were not providing copyright protections to American works that were in the public domain abroad. See id. at 246, 117 S.Ct. 1174 (statement of Eric Smith, Executive Director and General Counsel of the International Intellectual Property Alliance) (“Literally billions of dollars have been and will be lost every year by U.S. authors, producers and publishers because of the failure of many of our trading partners to protect U.S. works which were created prior to the date the U.S. established copyright relations with that country, or, for other reasons, these works have fallen prematurely out of copyright in that country.”).

FN7. The parties have cited to portions of the Congressional hearings regarding the intellectual property provisions of the Uruguay Round Agreements. We take judicial notice of the entirety of these hearings. See Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1168 n. 12 (10th Cir.2000).

Congress had substantial evidence from which it could reasonably conclude that the ongoing harms to American authors were real and not merely conjectural. Around the globe, American works were being exploited without the copyright owners' consent and without providing compensation. Thus, there was a “substantial basis to support Congress' conclusion that a real threat justified enactment of” Section 514 of the URAA. See Turner II, 520 U.S. at 196, 117 S.Ct. 1174.

3. Substantial evidence supported the conclusion that Section 514 would alleviate these harms.
Next, we must determine whether there was substantial evidence from which Congress could conclude that Section 514 would alleviate these harms to American copyright holders. See id. at 213, 117 S.Ct. 1174. At the Joint Hearings, Congress heard testimony that by refusing to restore copyrights in foreign works in the public domain, the United States was not in compliance with its obligations under the Berne Convention. See Joint Hearings at 137 (statement of Ira Shapiro, General Counsel, Office of the U.S. Trade Representative) (“It is likely that other [World Trade Organization] members would challenge the current U.S. implementation of Berne Article 18 ....”); id at 248 (statement of Eric Smith) (“Many of our trading partners, particularly in Europe, have made it clear to this country that they consider us in violation of our obligations under Article 18.”). In addition, the United States' refusal to restore foreign copyrights was harming American authors' interests abroad: foreign countries were following the United States' example of refusing to restore copyrights in works in the public domain. See id. at 137 (statement of Ira Shapiro) (“Some other countries, such as Thailand and Russia, have refused to protect U.S. works in the public domain in their territory citing the *1087 U.S. interpretation of Berne Article 18 as justification.”).

Further, the United States' trading partners had represented that they would restore American copyrights only if the United States restored foreign copyrights. See id. at 249 n. 2 (statement of Eric Smith) (“The Russian government has made clear that it will provide retroactive protection for ‘works' only if the U.S. reciprocates with retroactive protection for Russian works.”). Foreign countries were willing to provide, at most, reciprocal copyright protections to American works. See id. at 120 (Appendix to Statement of Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks) (“When we have urged others to provide protection for our industries' repertoire of existing copyrighted works, we are often confronted with the position that such protection will be provided there when we protect their works in the same manner here in the United States. Clearly, providing for such protection for existing works in our own law will improve our position in future negotiations.”). Moreover, the United States had an opportunity to set an example for copyright restoration for other countries. See id. at 225 (statement of Irwin Karp, Counsel, Committee for Literary Studies) (“U.S. retroactive protection for foreign works in our public domain may induce other countries with whom we recently established copyright relations to grant retroactive protection to contemporary U.S. works that previously fell into their public domains.”). Thus, if the United States wanted certain protections for American authors, it had to provide those protections for foreign authors.

Plaintiffs aver that Congress was presented with evidence regarding the need to restore copyrights generally, but that there was no evidence that Congress needed to provide limited protections for reliance parties. According to plaintiffs, there is “no support for the conclusion that enacting more stringent measures against reliance parties ... would have any impact whatsoever on the behavior of foreign countries.” Appellees' Br. at 46. To the contrary, Congress heard testimony that the United States' chosen method and scope of copyright restoration would impact other nations that were similarly deciding how to restore copyrights.

In particular, Congress heard testimony that the United States could set an example regarding copyright restoration, and other countries might mirror the United States' approach. For example, Ira Shapiro, General Counsel of the Office of the United States Trade Representative, testified that “the choices made in our implementation of the TRIPs agreement will set an example for other countries as governments decide on their own implementing legislation as well as influence future disputes over the obligations of the Agreement.” Joint Hearings at 136; see also id. at 134 (“U.S. leadership in achieving prompt approval of the Uruguay Round Agreements and effective implementation of the obligations in those agreements is vital and will set the pattern for other countries to follow.”). Additionally, Eric Smith, speaking on behalf of a consortium of trade associations whose members represented both American copyright industries and reliance parties, testified as follows:

The fact is that what the United States does in this area will carry great weight in the international community. If we interpret Article 18 and the TRIPS provisions to deny protection or significantly limit its scope, our trading partners—just now considering their own implementing legislation—will feel free to simply mirror our views. If the largest exporter of copyrighted material in the world takes the position that we have no, or only limited, obligations, the *1088 United States will have little credibility in convincing particularly the new nations with whom we are just starting copyright relations to give us the expansive protection that we need.

Joint Hearings at 247 (emphases added); see also id. at 248 (“[T]aking this action in the ‘implementing’ legislation will convey clearly the view of the U.S. that it believes that other countries are similarly required to adopt the same position in pending legislation or otherwise clarify that foreign preexisting works must be fully recaptured and protected.” (emphases added)); id. at 131 (testimony of Ira Shapiro) (“[A]s the world leader, it is critically important that we implement fully in the retroactivity area.”); id. at 291 (testimony of Jason S. Berman) (“[T]he Russians simply said to the United States negotiators ... that they will interpret their obligations on retroactivity in exactly the same manner that the United States interprets its obligations. So what we are doing here, I believe, is establishing by virtue of what we do the ground rule for retroactivity.”); id. at 256 (statement of Jack Valenti, President and CEO of the Motion Picture Association of America) (“If the U.S. ‘retroactively’ protects works from, for example, Russia, the former Soviet Republics, the former Eastern Bloc countries, South Korea, China, then we have every reason to expect those countries to protect previously produced American creative works.”). Thus, Congress heard testimony from a number of witnesses that the United States' position on the scope of copyright restoration—which necessarily includes the enforcement against reliance parties—was critical to the United States' ability to obtain similar protections for American copyright holders.

Further, Congress squarely faced the need to balance the interests of American copyright holders and American reliance parties.FN8 In his opening remarks, Senator DeConcini stated:

FN8. The testimony to Congress was primarily concerned with reliance parties' possible claims under the Takings Clause of the Fifth Amendment. Plaintiffs have not brought such a claim in the case at bar.

The conventional wisdom within the U.S. copyright community is that through the restoration of copyright protection to foreign authors we will get more than we give because U.S. authors will be able to retrieve far more works in foreign countries than foreign authors will retrieve here in the United States.

... [I]f we set out to restore copyright protection to foreign works, we must provide protection that is complete and meaningful. By the same token, we must ensure that copyright restoration provides reliance users a sufficient opportunity to recoup their investment.

Id. at 81–82 (Statement of Sen. DeConcini). Congress also heard from Eric Smith, who testified that the bills under consideration would
provide a careful balance between the need, on the one hand, to establish a “model” provision which other countries could follow in order to secure effective restoration of our copyrights abroad and the need, on the other hand, to balance the rights of foreign authors whose works are restored in the U.S. with the domestic users that may have relied on the public domain status of the work in making investments.

Id. at 252.
[14] Headnote Citing References In spite of this testimony, plaintiffs contend that the government's interest is too speculative to satisfy intermediate scrutiny. Although we require “substantial evidence” in order to satisfy *1089 intermediate scrutiny, see Turner I, 512 U.S. at 667, 114 S.Ct. 2445 (plurality opinion), the evidentiary requirement is not as onerous as plaintiffs would have us impose. The Supreme Court has cautioned that imposing too strict of an evidentiary requirement on Congress is “an improper burden for courts to impose on the Legislative Branch.” Turner II, 520 U.S. at 213, 117 S.Ct. 1174 (quotation omitted). An overly demanding “amount of detail is as unreasonable in the legislative context as it is constitutionally unwarranted. Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review.” Id.

“Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable.” Turner I, 512 U.S. at 665, 114 S.Ct. 2445 (plurality opinion). Past conduct may be the best—and sometimes only—evidence available to Congress in making predictive judgments. Cf. Ward, 491 U.S. at 800, 109 S.Ct. 2746 (“Absent [the regulation at issue], the city's interest would have been served less well, as is evidenced by the complaints about excessive volume generated by respondent's past concerts.”). We think that this is especially true in areas that involve predictions of foreign relations and diplomacy, where empirical data will rarely be available, and to which considerable deference is owed to Congress and the Executive.

Plaintiffs direct our attention to evidence in the Congressional record that contradicted the view that other countries would follow the United States' approach to copyright restoration. More specifically, Irwin Karp stated:

When these countries grant retroactivity, the theory goes, they will deny their reliance interests real protection-if we do so now. But this is only a theory, and an unlikely one. Most foreign countries, including the Commonwealth countries, already grant us retroactivity. They will not change their laws to restrict protection of their reliance parties. Nor will the few important countries who presently do not retroactively protect U.S. works [.] When they do grant retroactivity they can decide what protection they will grant to their reliance interests. There is nothing to stop them from adopting the British et al buy-out provision.

Joint Hearings at 231; see also id. at 224 (“[T]here is absolutely no guarantee that they are stupid enough to adopt the reliance-party provisions you are being asked to adopt.”). However, as detailed above, this was not the only evidence in the record regarding the potential effect of the United States' position on copyright restoration. Congress also heard testimony that if it wanted foreign countries to provide strong protections for American authors, Congress needed to provide like protections for foreign authors. See id. at 242 (testimony of Eric Smith) (“With us taking a strong and principled stand here in this country, we can leverage retroactive protection abroad. I almost entirely disagree with Mr. Karp on this point. I think the chances of us obtaining good retroactive protection is quite strong if we have this tool behind us.”).

Although Congress was presented with evidence that its position on copyright restoration might not guarantee reciprocation, it does not follow that Section 514 is unconstitutional. “The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process.” Turner II, 520 U.S. at 199, 117 S.Ct. 1174. Thus, we must determine “whether, given conflicting views ..., Congress had substantial evidence for making the judgment *1090 that it did.” Id. at 208, 117 S.Ct. 1174. In other words, “[t]he question is not whether Congress, as an objective matter, was correct to determine” that limited protections for reliance parties were “necessary” to garner similar protections from foreign countries. See id. at 211, 117 S.Ct. 1174. “Rather, the question is whether the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress.” Id.

In making that determination, we are not to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather, we are simply to determine if the standard is satisfied. If it is, summary judgment for [the government] is appropriate regardless of whether the evidence is in conflict.

Id. (internal quotations and citations omitted).

[15] Headnote Citing References Considering the deference that Congress is owed, particularly in areas of foreign relations, we conclude that Congress's judgments were supported by substantial evidence. The testimony before Congress indicated that the United States' historically lax position on copyright restoration had been an obstacle to the protection that the United States was seeking for its own copyright owners. Witnesses further testified that many countries would provide no greater protections to American authors than the United States gave to their foreign counterparts. There was also testimony that the chosen method of restoring foreign copyrights would have great weight in the international community and could induce other countries to follow the United States' lead, although Congress heard some testimony that other countries would not necessarily follow the United States' approach. Consequently, Congress was presented with substantial evidence that Section 514 would advance the government's interest in protecting American copyright holders “in a direct and effective way.” See id. at 213, 117 S.Ct. 1174 (quoting Ward, 491 U.S. at 800, 109 S.Ct. 2746). The United States' ability to protect American works abroad would be achieved less effectively absent Section 514, and therefore, the government's interest is genuinely advanced by restoring foreign copyrights with limited protections for reliance parties such as plaintiffs. See Ward, 491 U.S. at 799, 109 S.Ct. 2746.

B. Section 514 does not burden substantially more speech than necessary.
[16] Headnote Citing References[17] Headnote Citing References[18] Headnote Citing References Under intermediate scrutiny, we must also determine whether Section 514 is narrowly tailored to further the government's interests. See Ward, 491 U.S. at 798, 109 S.Ct. 2746. “Content-neutral regulations do not pose the same inherent dangers to free expression that content-based regulations do,” and therefore, the government has a degree of latitude in choosing how to further its asserted interest. Turner II, 520 U.S. at 213, 117 S.Ct. 1174 (quotations and citation omitted). Accordingly, “the [g]overnment may employ the means of its choosing so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation and does not burden substantially more speech than is necessary to further that interest.” Id. at 213–14, 117 S.Ct. 1174 (internal quotations, ellipses, and citation omitted). Further, the regulation need not be the least-restrictive alternative of advancing the government's interest. Id. at 217–18, 117 S.Ct. 1174.

1. Section 514 is narrowly tailored.
[19] Headnote Citing References[20] Headnote Citing References The “[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” *1091 Ward, 491 U.S. at 799, 109 S.Ct. 2746. “[T]he essence of narrow tailoring” is when a regulation “focuses on the source of the evils the [government] seeks to eliminate ... without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils.” Id. at 799 n. 7, 109 S.Ct. 2746. That is, when “the burden imposed by [a regulation] is congruent to the benefits it affords,” that regulation is narrowly tailored. Turner II, 520 U.S. at 215–16, 117 S.Ct. 1174.

In the case at bar, the burdens imposed on the reliance parties are congruent with the benefits Section 514 affords American copyright holders. FN9 As discussed above, the government has a substantial interest in securing protections for American works in foreign countries. Further, Congress heard testimony that the United States could expect foreign countries to provide only as much protection to American copyright holders as the United States would provide to foreign copyright holders, and other countries might follow the United States' example. In other words, the United States needed to impose the same burden on American reliance parties that it sought to impose on foreign reliance parties. Thus, the benefit that the government sought to provide to American authors is congruent with the burden that Section 514 imposes on reliance parties. The burdens on speech are therefore directly focused to the harms that the government sought to alleviate. “This is the essence of narrow tailoring.” Ward, 491 U.S. at 799 n. 7, 109 S.Ct. 2746.

FN9. We note that copyright includes several “built-in” First Amendment protections. Eldred, 537 U.S. at 219–20, 123 S.Ct. 769. The idea/expression dichotomy ensures that only particular expressions, and not ideas themselves, are subject to copyright protection. Id. Additionally, the fair use defense allows individuals to use expressions contained in a copyrighted work under certain circumstances, including “criticism, comment, news reporting, teaching ... scholarship, or research ... and even for parody.” Id. (quotations and citation omitted). Section 514 does not disturb these traditional, built-in protections, and thus, such protected speech remains unburdened.

2. Alternatives do not undermine the narrow tailoring of Section 514.
Plaintiffs contend that “the Government could have complied with the Berne Convention while providing significantly stronger protection for the First Amendment interests of reliance parties like the Plaintiffs here.” Appellees' Br. at 30. According to plaintiffs, Article 18 of the Berne Convention provides considerable discretion that allows the government to provide greater protections for reliance parties. The government responds that the Berne Convention requires only transitional protections for reliance parties.

The parties' arguments about what the Berne Convention requires and permits are beside the point. As discussed above, the government's interest is not limited to compliance with the Berne Convention. Rather, its interest includes securing protections for American copyright owners in foreign countries, which includes providing copyright protection against foreign reliance parties. Thus, it is immaterial whether, as plaintiffs contend, the government could have complied with the minimal obligations of the Berne Convention and granted stronger protections for American reliance parties. If Congress had provided stronger protections to American reliance parties such as plaintiffs, many foreign countries may have provided similar protections for their own reliance parties, thereby providing less protection for American authors. Thus, even assuming for purposes of this appeal that the United States could have provided stronger protections for American reliance *1092 parties while complying with the minimum requirements of the Berne Convention, Section 514 does not burden substantially more speech than necessary to further the government's interest.

Moreover, in concluding that Section 514 is not narrowly tailored, the district court and plaintiffs relied on other countries' approaches to implementing the Berne Convention, specifically, the United Kingdom model. However, we are not persuaded that the constitutionality of Section 514 is undermined by the availability of the United Kingdom model.

First, the “less restrictive-alternative analysis has never been a part of the inquiry into the validity of content-neutral regulations on speech.” Turner II, 520 U.S. at 217, 117 S.Ct. 1174 (quotations and citation omitted). A statute must be “narrowly tailored to serve the government's legitimate, content-neutral interests,” but it “need not be the least restrictive or least intrusive means of doing so.” Ward, 491 U.S. at 798, 109 S.Ct. 2746. As long as the government does not burden substantially more speech than necessary to advance an important interest, we will not invalidate a statute simply because “the government's interest could be adequately served by some less-speech-restrictive alternative.” Id. at 800, 109 S.Ct. 2746.

Second, to the extent that the United Kingdom model is relevant to our inquiry, it is not such an obvious and substantially less-speech-restrictive alternative that it undermines the validity of Section 514. Although not necessary to the intermediate scrutiny analysis, the existence of less-speech-restrictive alternatives may be relevant to determining whether Section 514 is narrowly tailored. See U.S. West, Inc. v. FCC, 182 F.3d 1224, 1238 (10th Cir.1999) (analyzing government restriction on commercial speech under intermediate scrutiny). “ ‘The availability of less burdensome alternatives to reach the stated goal signals that the fit between the legislature's ends and the means chosen to accomplish those ends may be too imprecise to withstand First Amendment scrutiny.’ This is particularly true when such alternatives are obvious and restrict substantially less speech.” Id. (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 529, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (O'Connor, J., concurring)). We do not suggest that the existence of a less restrictive alternative is dispositive. See Turner II, 520 U.S. at 217–18, 117 S.Ct. 1174 (reaffirming that the presence of a less-restrictive alternative will not necessarily invalidate a regulation under intermediate scrutiny). “We merely recognize the reality that the existence of an obvious and substantially less restrictive means for advancing the desired government objective [may] indicate[ ] a lack of narrow tailoring.” U.S. West, 182 F.3d at 1238 n. 11.

With this in mind, we turn to plaintiffs' suggestion that there were less restrictive means of restoring foreign copyrights.FN10 Although no country has provided full, permanent exemptions for reliance parties, other countries have provided limited protections for reliance parties. The chief alternative discussed by plaintiffs and the district court is the United Kingdom model. See Golan, 611 F.Supp.2d at 1174 (“Several member nations—including Germany, Hungary, the United Kingdom, Australia, and New Zealand—provide accommodations that are temporally permanent*1093 so long as certain conditions are met.”); Appellees' Br. at 34 (“The provisions implemented by the United Kingdom and a dozen other signatories confirm what the text of Berne makes clear: permanent protection of reliance interests is permissible.”). However, the United Kingdom model is not an obvious and substantially less restrictive alternative.

FN10. We note that plaintiffs do not argue—and there is no indication in the record—that the United States could have provided strong protections for American reliance parties and obtained strong protections for American copyright holders. To the contrary, the evidence before Congress suggested that other countries had resisted such one-sided arrangements.

Under the United Kingdom model, a “reliance party is allowed to continue making those uses of the work it had made, or incurred commitments to make, before its copyright is restored. But the reliance party can be ‘bought out’ by the owner of the restored copyright.” Irwin Karp, Final Report, Berne Article 18 Study on Retroactive United States Copyright Protection for Berne and Other Works, 20 Colum.-VLA J.L. & Arts 157, 180 (1996). Thus, copyright owners can “ ‘buy back’ their rights immediately after the entry into force of the law restoring copyright; and thus, there is no ‘grace period’ ” similar to Section 514. Appellant's App., Vol. I at 159.

The United Kingdom model is not substantially less restrictive of speech than Section 514 of the URAA. In the United Kingdom, a copyright owner cannot enforce the copyright against a reliance party unless the owner “buys out” the reliance party. Under Section 514, a copyright owner cannot enforce the copyright against a reliance party unless the owner files notice with the Copyright Office or serves notice on a reliance party. 17 U.S.C. § 104A(d)(2). Moreover, under Section 514, reliance parties have twelve months to continue exploiting the works, although they cannot continue to make copies of the restored work. Id. § 104A(d)(2)(A)(ii)(III), (d)(2)(B)(ii)(III). Under the United Kingdom model, however, the reliance party's interests are immediately terminated upon buy-out. Thus, under both systems, reliance parties receive qualified protection insofar as a reliance party can continue to exploit a work until the copyright owner does something: either buy out the reliance party (United Kingdom model) or file notice (Section 514). Ultimately, both approaches provide the copyright owner with the ability to terminate the reliance party's interests. The only significant difference is that under the United Kingdom model, the reliance party receives compensation from the owner, while under Section 514, the reliance party has a twelve month grace period to continue exploiting the work.

Further, the United Kingdom model is not far more protective of speech interests of reliance parties who have created derivative works, such as the late plaintiff Kapp. Section 514 allows these reliance parties to continue to use a derivative work as long as they pay “reasonable compensation” to the copyright owner. See 17 U.S.C. § 104A(d)(3)(A). The United Kingdom model, on the other hand, apparently provides no such protection for creators of derivative works. In a sense, the two models are mirror images of each other. Under Section 514, a reliance party can continue to exploit a derivative work as long as he pays compensation to the owner of the original copyright. In the United Kingdom, an author of a derivative work can continue to exploit the new work until the owner pays compensation to the reliance party.

We cannot say that one approach is clearly more protective of speech interests than the other. Although the United Kingdom model is arguably more protective of reliance parties' economic interests, we cannot say that it is substantially more protective of reliance parties' expressive interests. Moreover, even if the United Kingdom model is marginally more protective of speech interests,

*1094 when evaluating a content-neutral regulation which incidentally burdens speech, we will not invalidate the preferred remedial scheme because some alternative solution is marginally less intrusive on a speaker's First Amendment interests. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.

Turner II, 520 U.S. at 217–18, 117 S.Ct. 1174 (internal citations, quotations, and ellipses omitted).

At its core, plaintiffs' challenge to Section 514 “reflect[s] little more than disagreement over the level of protection” that reliance parties should receive. See id. at 224, 117 S.Ct. 1174. Congress sought to balance the interests between American copyright holders and American reliance parties. In so doing, Congress crafted a nuanced statute that offered some protections for both of these competing interests. It is not our role to opine on the best method of striking this balance. A statute's “validity does not turn on a [court's] agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests.” Id. at 218, 117 S.Ct. 1174 (quotations and citation omitted). Plaintiffs may have preferred a different method of restoring copyrights in foreign works, but that is not what the Constitution requires; as long as the government has not burdened substantially more speech than necessary to further an important interest, the First Amendment does not permit us to second guess Congress's legislative choice. “We cannot displace Congress' judgment respecting content-neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination.” Id. at 224, 117 S.Ct. 1174.

We conclude that because Section 514 advances a substantial government interest, and it does not burden substantially more speech than necessary to advance that interest, it is consistent with the First Amendment. Accordingly, the district court erred in ruling that Section 514 violates plaintiffs' freedom of expression.

IV. Plaintiffs' Cross–Appeal (No. 09–1261)
[21] Headnote Citing References[22] Headnote Citing References Plaintiffs have cross-appealed, arguing that Section 514 is unconstitutional on its face. More specifically, “[p]laintiffs contend that removing works from the public domain of copyright (as distinct from patents) is an illegitimate means regardless of the end or the importance of the interest.” Appellee's Br. at 56 (emphasis omitted). Facial challenges to statutes are generally disfavored as “[f]acial invalidation is, manifestly, strong medicine that has been employed by the [Supreme] Court sparingly and only as a last resort.” Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (quotations and citation omitted). As such, plaintiffs bear a “heavy burden” in raising a facial constitutional challenge. See id. (quotations omitted). They have not met this burden, as their arguments on appeal are largely foreclosed by our conclusion that Section 514 does not violate their freedom of expression, as well as by our previous decision in Golan I, which we are not free to revisit, as law of the case, see McIlravy v. Kerr–McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir.2000) (“The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (quotations, alterations, and citations omitted)).

*1095 Plaintiffs assert that “there must be a ‘bright line’ drawn around the public domain....” Appellees' Reply Br. at 6–7. But in Golan I, we rejected plaintiffs' argument “that, in the context of copyright, the public domain is a threshold that Congress may not traverse in both directions.” Golan I, 501 F.3d at 1187 (quotation omitted). We stated that

[t]he clear import of Eldred is that Congress has expansive powers when it legislates under the Copyright Clause, and this court may not interfere so long as Congress has rationally exercised its authority. Here, we do not believe that the decision to comply with the Berne Convention, which secures copyright protections for American works abroad, is so irrational or so unrelated to the aims of the Copyright Clause that it exceeds the reach of congressional power.

Id. (internal citation omitted). We held that Section 514 was within Congress's Article I powers, and therefore, Congress had the authority to extend copyright to works that were in the public domain. See id.

Of course, while Congress may have the authority under Article I to enact Section 514, it “must still comport with other express limitations of the Constitution.” Id. Plaintiffs have cast their facial challenge to Section 514 in terms of “the First Amendment, the contours of which may be informed by the Progress [or Copyright] Clause.” Appellees' Br. at 53. However, plaintiffs have provided no legal support for their claim that the First Amendment—either by itself or informed by any other provision of the Constitution—draws such absolute, bright lines around the public domain, and we are aware of no such authority.

Plaintiffs' only legal authority is Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), but their reliance on Bolling is without merit. In Bolling, the Supreme Court announced that “[s]egregation in public education [wa]s not reasonably related to any proper governmental objective” and held “that racial segregation in the public schools of the District of Columbia [wa]s a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.” Id. at 500. The Due Process analysis in Bolling does not inform plaintiffs' argument that the First Amendment makes the public domain of copyright absolutely inviolable. Instead, the First Amendment places the same restrictions on copyright restoration under Section 514 that it imposes on all other content-neutral regulations of speech. See Golan I, 501 F.3d at 1196.

In sum, Congress acted within its authority under the Copyright Clause in enacting Section 514. See id. at 1187. Further, Section 514 does not violate plaintiffs' freedom of speech under the First Amendment because it advances an important governmental interest, and it is not substantially broader than necessary to advance that interest. Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to grant summary judgment in favor of the government.FN11

FN11. Because we conclude that Section 514 does not violate plaintiffs' freedom of expression under the First Amendment, they are not entitled to injunctive relief.

C.A.10 (Colo.),2010.
Golan v. Holder
609 F.3d 1076, 32 ITRD 2011, 2010 Copr.L.Dec. P 29,942, 95 U.S.P.Q.2d 1466, 38 Media L. Rep. 1865

Monday, May 30, 2011

A good movie rental for Memorial Day

By Jim Castagnera
Special to The History Place

Clint Eastwood's new film Flags of Our Fathers depicts reporter-photographer Joe Rosenthal wading awkwardly ashore on Iwo Jima. A wave washes over his camera. All the same, his trusty Speed Graphic captures the iconic photograph that a few days later will grace some 200 front pages and win Rosenthal the Pulitzer Prize. Rosenthal worked for newspapers in his hometown, San Francisco, from 1932 until his 1981 retirement. Nothing else in that half-century of photojournalism came close to the single negative around which Eastwood's film is built. As recently as 1996, Rosenthal, who died just last August, was named an honorary Marine by the Corps's commandant in recognition of the famous photo.
Flags of Our Fathers is really two intertwined stories. The scene shifts throughout the film between the action on Iwo Jima and the experiences of the three surviving flag-raisers. Steven Spielberg is billed as a producer of Flags. No surprise, then, that not since Saving Private Ryan have we seen such a frank and brutal depiction of men at war. In fact, after Marines climbed Iwo's Mount Suribachi for the flag raising, the battle to secure the island raged for another 35 bloody days.

The film is based on the 2000 bestseller of the same name, the book having been co-authored by Bradley's son. His narration, done in voice-over and via interviews with aging vets, ties the two threads of Eastwood's tale together. As author and director tell it, the story of the Iwo Jima photograph and the three surviving men who planted it is a blend of irony and cynicism, on one hand, and hope and heroism on the other. Two of the photo's three survivors, Ira Hayes (Adam Beach) and John Bradley (Ryan Phillippe) resent being separated from their fighting comrades to accept a hero's welcome and sell war bonds back home.
The America of early 1945 is depicted as war-weary and broke. Three previous bond drives, a hard-nosed Treasury official tells the reluctant heroes, have fallen short of their goals. You want to go back to your buddies? He asks them. Fine, but you'd better take a bag of rocks to throw at the enemy, because that's all you'll have. The Treasury man's task is made all the tougher because the identities of the other men in the picture have become confused. No faces are visible. And it turns out that two flags were raised that day. The first flag became the subject of competing claims by the big brass. Outraged, the colonel in charge has it taken down, ordering it replaced by the one that Rosenthal photographs. Not only does this lead to the wrong grieving mother being invited to the fund raisers; it also spawns a rumor that the famed photo was staged.

Life after fame was hard on the three survivors, too. Rene Gagnon (Jesse Bradford), the one "hero of Iwo Jima" who actually seems to revel in the attention, finds fame fleeting. After the war, he winds up working as a janitor. Ira Hayes had it even harder. An American Indian, he became an alcoholic and died young under somewhat-mysterious circumstances.
Bradley, whose demise at a ripe old age opens the film and inspires his son to write the book, is the only one of the three to lead a relatively prosperous afterlife, becoming a mortician with his own funeral parlor, which some might say was a fitting, if ironic, career choice.
Eastwood's even-handed direction of Flags is highly commendable. Although he pulls no punches in depicting the discrimination suffered by Hayes, even as a hero, and the unashamed exploitation of the photo and the three survivors to sell bonds, Eastwood never lets us lose sight of the fact that those bonds helped bring the war to a successful conclusion later that same year. And while showing us the ugly face of war, including senseless death from friendly fire and horrific incidents of torture and mutilation, he has an interviewed vet with no arms remind us that thousands of American lives were saved by the Iwo airstrips that were captured.
Flags of Our Fathers is that rarest of war films--one that strives from the start, and maintains throughout, a delicate balance between glorifying war and condemning it. Clint Eastwood gives us real people struggling with real conflicts, both on the South Pacific battlefield and in their own hearts and minds.
Rated R - For graphic war violence and for language.

Latest press releases from the Department of Homeland Security

Message 1
From: U.S. Department of Homeland Security
Date: May, Sun 29 2011 12:19 -0400 (EDT)
Subject: Secretary Napolitano Announces "If You See Something, Say Something™" Campaign Partnership with the Indianapolis 500
You are subscribed to Press Releases for U.S. Department of Homeland Security. This information has recently been updated, and is now available.

Secretary Napolitano Announces "If You See Something, Say Something™" Campaign Partnership with the Indianapolis 500

05/29/2011 07:00 AM EDT

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

INDIANAPOLIS—Secretary of Homeland Security Janet Napolitano today joined Indianapolis Mayor Gregory Ballard, Indiana State Homeland Security Advisor and Emergency Manager Joe Wainscott, and Indianapolis Director of Public Safety Frank Straub to announce a new partnership to bring the Department of Homeland Security’s (DHS) “If You See Something, Say Something™” public awareness campaign to the Indianapolis 500—an effort that will help ensure the safety and security of fans, employees, and race crews by identifying and reporting suspicious activity.

“Security is a shared responsibility and every citizen plays a critical role in identifying and reporting suspicious activities and threats—particularly at large events such as the Indianapolis 500,” said Secretary Napolitano. “Bringing the ‘If You See Something, Say Something™’ campaign to the Indianapolis 500 is an important part of the Department’s ongoing efforts to engage the American public in our state, local and national security efforts.”

The “If You See Something, Say Something ™” campaign—originally implemented by New York City’s Metropolitan Transportation Authority and now licensed to DHS for a nationwide campaign—is a simple and effective program to engage the public and key frontline employees to identify and report indicators of terrorism, crime and other threats to the proper transportation and law enforcement authorities.

The Department of Homeland Security originally partnered with the state of Indiana on the campaign in January 2011. The “If You See Something, Say Something™” campaign partnership with the Indianapolis 500 will feature both print and video materials—including an “If You See Something, Say Something™” public service announcement with Indianapolis 500 Driver Graham Rahal.

Over the past year, DHS has worked with its federal, state, local and private sector partners, as well as the Department of Justice, to expand the “If You See Something, Say Something ™” campaign and the Nationwide Suspicious Activity Reporting (SAR) Initiative—an administration effort to train state and local law enforcement to recognize behaviors and indicators related to terrorism, crime and other threats; standardize how those observations are documented and analyzed; and expand and enhance the sharing of those reports with the Federal Bureau of Investigation and DHS—to communities throughout the country.

Partnerships with the “If You See Something, Say Something ™” campaign have recently been launched by the Washington State Ferries, The City of Los Angeles, AEG Worldwide, Massachusetts Bay Transportation Authority, the National Collegiate Athletic Association (NCAA), the National Basketball Association (NBA) and the National Football League (NFL), as well as in Colorado, Minnesota and New Jersey, more than 9,000 federal buildings nationwide, Walmart, Mall of America, the American Hotel & Lodging Association, Amtrak, the Washington Metropolitan Area Transit Authority, the general aviation industry, and state and local fusion centers across the country. Secretary Napolitano also previously released the “If You See Something, Say Something ™” public awareness video, available here.

In the coming months, DHS will continue to expand the “If You See Something, Say Something ™” campaign nationally to help America’s business, communities and citizens remain vigilant and play an active role in keeping the country safe.


Message 2
From: U.S. Department of Homeland Security
Date: May, Sun 29 2011 18:18 -0400 (EDT)
Subject: Readout of Secretary Napolitano's Visit to Hackleburg, Alabama
You are subscribed to Press Releases for U.S. Department of Homeland Security. This information has recently been updated, and is now available.

Readout of Secretary Napolitano's Visit to Hackleburg, Alabama

05/29/2011 07:00 AM EDT

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

HACKLEBURG, Ala.—As part of the Obama administration's ongoing commitment to assisting the long-term recovery efforts of communities affected by recent severe weather, Secretary of Homeland Security Janet Napolitano today joined Congressman Robert Aderholt (R-Ala.), Hackleburg Mayor Douglas Gunnin, Alabama Emergency Management Agency Director Art Faulkner, and Federal Emergency Management Agency (FEMA) Federal Coordinating Officer Mike Byrne in Hackleburg, Ala. to survey the progress made in response and recovery efforts in the month following the storms and tornadoes that struck the Southeast region this spring.

“We are proud to be part of a great team of state partners, local governments, faith based groups, survivors, long-term community recovery organizations and volunteers who have worked around the clock to help with response and recovery efforts—and we will not leave until the job is finished,” said Secretary Napolitano. “The Obama administration remains focused on helping Hackleburg and communities throughout Alabama continue their progress towards rebuilding and recovering to be stronger than before.”

“We are on the road to recovery and we are on it together,” said Congressman Aderholt. “I’m encouraged by the relief efforts that continue on the ground, as well as the coordination between all officials and organizations involved in the recovery process. I know Alabamians strength and resiliency will see us through and Alabama will come back, better than ever.”

In Hackleburg, Secretary Napolitano joined Congressman Aderholt, Mayor Gunnin, a member of the Red Cross of Central Alabama, and other Alabama officials to tour Hackleburg High School to survey damages, discuss recovery efforts, and meet with the Marion County School Superintendent, Hackleburg High School Principal and students who graduated with the high school’s senior class on Friday.

After surveying the damages, Secretary Napolitano visited the Northwest Alabama United Way Volunteer Center where she met with first responders, as well as the survivors and families who have assisted in the community’s recovery efforts over the past month.

Secretary Napolitano also met with community leaders at Hackleburg’s town hall to discuss the ongoing disaster relief efforts and the progress made within the community. On April 27, Alabama received a FEMA Emergency Declaration, and on April 28, President Obama issued a Major Disaster Declaration to help communities recover from the damage inflicted by severe storms, tornadoes, and flooding—qualifying residents for individual assistance and Federal assistance. As of May 27, 2011, FEMA has opened 28 Disaster Relief Centers across Alabama, including one in Franklin County to support the Hackleburg area.

The entire Obama administration has been deeply involved in response and recovery efforts since the storms first hit. On May 1, Secretary Napolitano joined Housing and Urban Development Secretary Shaun Donovan, Agriculture Secretary Tom Vilsack, FEMA Administrator Craig Fugate and Small Business Administration Administrator Karen Mills to survey the damage and the early response and recovery efforts underway in Alabama and Mississippi. On May 26, DHS Deputy Secretary Jane Holl Lute traveled to Joplin, Missouri to tour the damaged areas and meet with state and local officials and first responders on the ground. FEMA Administrator Craig Fugate, FEMA Deputy Administrator Richard Serino and other senior DHS officials traveled to the Joplin area early last week following the devastating tornadoes on May 22, 2011—working on behalf of President Obama to coordinate the ongoing federal disaster response. President Obama is also visiting Joplin today to personally survey the damage and discuss response and relief efforts with first responders on the ground.

Families and individuals that have been impacted by the tornadoes and storms, and need assistance have several options for getting help:

Registering online at http://www.disasterassistance.gov,
Registering through a web-enabled mobile device at m.fema.gov, or
Calling 1-800-621-FEMA (3362) or 1-800-462-7585 (TTY) for the hearing and speech impaired. The toll-free telephone numbers will operate from 7 a.m. to 10 p.m. (local time) seven days a week until further notice.
For more information, please visit www.fema.gov.