The government and its amici assert that petitioners lack a sufficient First Amendment interest to challenge CTEA. They support their claim by belittling petitioners’ speech interests. In the government’s view, petitioners are mere "public domain copyists," Resp. Br. 17, 36, engaging in nothing more than the "mechanical reproduction" (Brief of Amici BNA et al. at 30) of "others’ creative expression." Resp. Br. 46. And though some of the amici acknowledge that petitioners are more than mere "copyists," these amici fear that petitioners will use the cherished icons of American culture to "glorify drugs or to create pornography." Brief of Amici Dr. Seuss Enters. et al. at 19. In their view, CTEA’s function is to ensure that the right to use these icons remains with those who can best control them.
Yet plainly, petitioners and their amici are no mere Kinko’s.14 Petitioner Moviecraft is actively engaged in the preservation of early American film, as is Amicus Agee and the Prelinger Archives. Drawing upon the public domain films in the Prelinger Archive, documentary and independent filmmakers are able to create rich accounts of early 20th Century America. Using digital technology, Amicus Internet Archive has made vast amounts of American culture available free on the Internet, enabling others to build new creative work based upon these resources. Likewise, Amicus Michael Hart has converted public domain books into a form that enables computers to "read" those books to the blind. Petitioner Eldred, through the use of Web technology, creates searchable and linkable texts that enable educators to teach differently. The members of Amicus National Writers Union obviously produce new creative work, as does Amicus College Arts Association. Even petitioner Dover Books, which publishes many public domain works, typically includes within those publications critical analyses of classic texts, thereby enabling a broader understanding of those works.
The government’s arguments do demonstrate, however, just why First Amendment review is necessary in a case like this. For to the extent Congress was choosing between "favored" creators and mere "public domain copyists," its choice signals a favoritism that could even raise a colorable claim for strict scrutiny under the First Amendment. Turner Broadcasting v. FCC, 512 U.S. 622, 676 (1994) (O’Connor, J., dissenting).
When Congress grants copyrights prospectively, it cannot know who will benefit from its grant. It therefore cannot select from among the potential beneficiaries those it likes and those it does not. But whenever Congress extends copyright terms retroactively, it is necessarily choosing among classes of speakers. That choice raises fundamental First Amendment concerns. See, e.g., id. ("it is normally not within the government’s power to decide who may speak and who may not"); Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) ("the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment"). See generally Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. 1, 54- 69 (2001).
In this case, for example, Congress was lobbied by the current owners of some of America’s most famous creative works to give them a right to control work over which they otherwise would have had no claim. In granting these owners this new right, Congress necessarily chose between them and the creators and "copyists" who draw upon the public domain—authors such as petitioners, or their amici, or the next Walt Disney. See Brief of Amici National Writers Union et al. at 13; Brief of Amici Intellectual Property Law Professors at 20-21 (cataloging Disney’s use of the public domain). That choice may well have been motivated by an objective judgment about who, between these two classes of creators, could best fuel an "engine of free expression." Harper, 471 U.S. at 558. But it may also have been motivated by a preference for these "favored" speakers over others. [pp. 20-22 of the pdf file, footnotes and italicization have been omitted]
