FILED

United States Court of Appeals

Tenth Circuit

June 21, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LAWRENCE GOLAN; ESTATE OF

RICHARD KAPP; S. A.

PUBLISHING CO., INC., doing

business as ESS.A.Y. Recordings;

SYMPHONY OF THE CANYONS;

RON HALL, doing business as

Festival Films; JOHN MCDONOUGH,

doing business as Timeless Video

Alternatives International, 

Plaintiffs-Appellees and CrossAppellants,

v. Nos. 09-1234 & 09-1261

ERIC H. HOLDER, JR., in his official

capacity as Attorney General of the

United States; MARYBETH PETERS,

in her official capacity as Register of

Copyrights, Copyright Office of the

United States,

 Defendants-Appellants and 

 Cross-Appellees.

ASSOCIATION OF AMERICAN

PUBLISHERS,

 Defendant.

_______________________________

MOTION PICTURE ASSOCIATION

OF AMERICA, INC.;

INTERNATIONAL COALITION FOR

COPYRIGHT PROTECTION; THE

AMERICAN SOCIETY OF

COMPOSERS, AUTHORS AND
2

PUBLISHERS; THE AMERICAN

SOCIETY OF MEDIA

PHOTOGRAPHERS; THE

ASSOCIATION OF AMERICAN

PUBLISHERS; BROADCAST

MUSIC, INC.; THE MUSIC

PUBLISHERS ASSOCIATION OF

THE UNITED STATES; THE

SOFTWARE AND INFORMATION

INDUSTRY ASSOCIATION; THE

RECORDING INDUSTRY

ASSOCIATION OF AMERICA;

REED ELSERVIER, INC.;

HOUGHTON MIFFLIN HARCOURT

PUBLISHING CO.; PROFESSOR

DANIEL GERVAIS,

 Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 1:01-CV-01854-LTB-BNB)

John S. Koppel, Attorney (Tony West, Assistant Attorney General; David M.

Gaouette, Acting United States Attorney; William Kanter, Attorney, with him on

the briefs), Appellate Staff, Civil Division, Department of Justice, Washington,

D.C., for Defendants-Appellants and Cross-Appellees.

Anthony T. Falzone, Attorney, Center for Internet and Society, Stanford Law

School, Stanford, California, (Julie A. Ahrens, Attorney, Center for Internet and

Society, Stanford Law School, Stanford, California; Hugh Q. Gottschalk and

Carolyn J. Fairless, of Wheeler Trigg O’Donnell LLP, Denver, Colorado; and

Lawrence Lessig, Harvard Law School, Cambridge, Massachusetts, with him on

the briefs), for Plaintiffs-Appellees and Cross-Appellants.

Paul Bender, Christopher A. Mohr, and Michael R. Klipper, of Meyer, Klipper &

Mohr PLLC, Washington, D.C.; Thomas Kanan and Jonathan Decker, of McElroy,

Deutsch, Mulvaney & Carpenter, Greenwood Village, Colorado, filed an amici
*

 The Honorable Richard D. Cudahy, Senior Circuit Judge, United States

Court of Appeals for the Seventh Circuit, sitting by designation.

3

curiae brief for the American Society of Composers, Authors and Publishers, the

American Society of Media Photographers, the Association of American

Publishers, Broadcast Music, Inc., Houghton Mifflin Harcourt Publishing Co., the

Music Publishers Association of the United States, the Software and Information

Industry Association, the Recording Industry Association of America, and Reed

Elsevier, Inc. 

Seth P. Waxman, Randolph D. Moss, D. Hien Tran, and Thomas Saunders, of

Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., have filed an

amicus curiae brief for the Motion Picture Association of America, Inc.

Eric M. Lieberman, David B. Goldstein, and Christopher J. Klatell, of

Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York, New

York, have filed an amicus curiae brief for the International Coalition for

Copyright Protection.

Alan C. Friedberg of Pendleton, Friedberg, Wilson & Hennessey, P.C., Denver,

Colorado, has filed an amicus curiae brief for Professor Daniel J. Gervais.

Before BRISCOE, Chief Judge, CUDAHY,* and TACHA, Circuit Judges.

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
1

 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

(continued...)

4

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.1

 However, when the United States joined the Berne
1

(...continued)

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).

5

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). 

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
2

 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. 

3

 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; 

(continued...)

6

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. 

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”2

 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).

In addition to restoring copyrights in preexisting foreign works, Section

514 provides some protections for reliance parties3

 such as plaintiffs who had
3

(...continued)

(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. § 104(A)(h)(4).

4

 “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

(continued...)

7

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).

Section 514 provides further protections for reliance parties who, prior to

restoration, created a derivative work4

 that was based on a restored work. Under
4

(...continued)

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.

8

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).

II. Factual and Procedural Background 

The factual background is not in dispute. Plaintiffs are orchestra

conductors, educators, 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,
5

 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.

9

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 (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.5

 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 contentneutral,” id. at 1196, and to apply the appropriate level of constitutional scrutiny. 

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
10

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 crossappealed, 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)

“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 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 (1984)). 

The parties agree that Section 514 of the URAA is a content-neutral
11

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. 

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

(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. “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

(1994) (“Turner I”) (brackets omitted, quoting Ward, 491 U.S. at 791). 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. 

In reviewing the constitutionality of a content-neutral regulation of speech,
6

 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.

12

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 (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.6

 Consequently, the

district court erred in concluding that Section 514 violates plaintiffs’ First
13

Amendment rights. 

A. Governmental Interest

1. Section 514 addresses a substantial or important governmental interest.

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. We have no

difficulty in concluding that the government’s interest in securing protections

abroad for American copyright holders satisfies this standard. 

Copyright serves to advance both the economic and expressive interests of

American authors. See Eldred, 537 U.S. at 211–13. 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 (1985) (quoting Wooley

v. Maynard, 430 U.S. 705, 714 (1977)); see also Eldred, 537 U.S. at 221. “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. 

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
14

has recognized that not all First Amendment interests are equal. See Eldred, 537

U.S. at 221. “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 (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.

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 (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. In undertaking
15

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 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. 

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 . . . . 

Id. 

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
16

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

(2000) (quotations and alterations omitted); see also Regan v. Wald, 468 U.S.

222, 242 (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 (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 (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 (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, and
7

 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).

17

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 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 US works currently unprotected in foreign markets than foreign

ones here, and the economic consequences of [granting retroactive copyright

protection] are dramatically in favor of US industries.”).7

 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
18

abroad. See id. at 246 (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.”).

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. 

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. 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,
19

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 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
20

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
21

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 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
8

 The testimony to Congress was primarily concerned with reliance parties’

possible claims under the Takings Clause of the Fifth Amendment. Plaintiffs

(continued...)

22

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.8

 In his opening
8

(...continued)

have not brought such a claim in the case at bar.

23

remarks, Senator DeConcini stated: 

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. 

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 intermediate scrutiny, see Turner I, 512

U.S. at 667 (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
24

courts to impose on the Legislative Branch.” Turner II, 520 U.S. at 213

(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 (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 (“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,
25

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. Thus, we must determine “whether, given conflicting views . . ., Congress

had substantial evidence for making the judgment that it did.” Id. at 208. In
26

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. 

“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). 

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
27

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

(quoting Ward, 491 U.S. at 800). 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. 

B. Section 514 does not burden substantially more speech than necessary.

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. “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 (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 (internal quotations,

ellipses, and citation omitted). Further, the regulation need not be the leastrestrictive alternative of advancing the government’s interest. Id. at 217–18.
9

 We note that copyright includes several “built-in” First Amendment

protections. Eldred, 537 U.S. at 219–20. 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. 

28

1. Section 514 is narrowly tailored.

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.” 

Ward, 491 U.S. at 799. “[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. 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. 

In the case at bar, the burdens imposed on the reliance parties are congruent

with the benefits Section 514 affords American copyright holders.9

 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. 
29

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. 

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
30

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 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 (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. 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
31

some less-speech-restrictive alternative.” Id. at 800. 

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 Liqourmart, Inc. v. Rhode Island, 517

U.S. 484, 529 (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 (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
10 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. 

32

restrictive means of restoring foreign copyrights.10 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 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. 

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
33

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
34

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, 

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. 
35

Turner II, 520 U.S. at 217–18 (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. 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 (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 contentneutral 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. 

We conclude that because Section 514 advances a substantial government

interest, and it does not burden substantially more speech than necessary to
36

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)

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 (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. KerrMcGee 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)). 
37

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. 
11 Because we conclude that Section 514 does not violate plaintiffs’

freedom of expression under the First Amendment, they are not entitled to

injunctive relief.

38

Plaintiffs’ only legal authority is Bolling v. Sharpe, 347 U.S. 497 (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.11