November 18th, 2013
With CMJ now finished in New York and bands starting to plan for SXSW and spring tours, I’ve been receiving a number of questions about what visas are required for touring in the US. To answer these questions, it’s always best to consult with an experienced immigration attorney, who can help you work through the complications of getting a visa.
In this article, I interview immigration attorney Elizaveta (Lisa) Eisenberg about immigration basics as they apply to musicians and performing artists.
JNS: Hi Lisa! Thank you so much for being a part of this article. Let’s jump right in! When does an international artist (band, musician, etc) need a work visa (i.e., non-tourist visa) to enter the US?
LE: Basically any time a professional musician or band plans to perform in the U.S., even if they perform for free or receive payment outside the U.S, they will need a work visa. Performing in the U.S. on a tourist visa or a visa waiver program will be considered an unauthorized employment and may bring about dire consequences, including removal and subsequent bars to re-entry to the U.S. Past violations may also come back to haunt when a musician later applies for a proper work visa or a green card.
There are a few very narrow and very rare exceptions to this general rule. Artists can use so-called “tourist” visas (B-1/B-2) or the visa waiver program to perform in certain free cultural programs sponsored by a sending country’s government, to participate in competitions, or to use recording facilities in the U.S. (provided that the records will be distributed only outside the U.S. and that no public performances will be given). They will be considered “Visitors for Business” (B-1). In addition, amateur performers, i.e., those who normally perform without remuneration and who come to the U.S. to perform without remuneration in a social event, a charitable program or a talent show, do not need work visas. They are treated as “Visitors for Pleasure” (B-2). If these narrow exceptions do not apply, a musician will need a work visa to perform in the U.S.
JNS: What types of visas are available for international artists looking to work, tour, record, etc., in the United States?
LE: Work visas for artists usually fall within two broad categories: O visas and P visas.
O visas are for individual artists of extraordinary ability. These visas require very careful preparation. Most artists have to collect extensive evidence, including past awards, performances in prestigious venues, publications in media and other evidence of critical acclaim, proof of recordings, and testimonials from experts in their field of endeavor. O visas are initially issued for up to three years, and further extensions may be available. Unfortunately, individual artists coming for a brief tour may still face the hassle and expense of proving their extraordinary ability and obtaining an O visa, unless they fit into one of the P visa categories described below.
P-1B visas are for internationally recognized entertainment groups. This visa is not available for individual performers and is most frequently used for foreign groups touring in the U.S. However, based on a policy memorandum issued by USCIS in December of 2011, it is now available to individual foreign artists coming to join U.S.-based entertainment groups. Both U.S. and foreign groups have to satisfy all P-1B requirements: they have to provide extensive evidence of international recognition under the specific regulatory criteria, and also prove that the group has been performing for at least one year and that 75 per cent of current members have been performing with it for at least one year.
P-3 classification is for individual artists and groups whose performance or presentation is culturally unique. People who come to teach or coach a culturally unique form of art may also be eligible.
P visa petitions also require extensive documentation of international recognition or cultural uniqueness, but they tend to be less document-heavy in comparison to O visas. Other less common types of visas include P-2 “reciprocal exchange” visas for Canadian musicians and Q visas for participants of international cultural exchange programs.
O-1, P-1B and P-3 classifications also allow for bringing from abroad essential support personnel whose functions are integral to the performance and cannot be performed by U.S. workers. These may include other performers (e.g., an accompanist for an O-1 singer) or non-performers (e.g., technical crew members, a voice coach, etc.) O and P visa holders can also bring to the U.S. their spouses and children under 21 years of age.
JNS: What is the process of obtaining those visas? How much time should the artist allow to acquire it?
LE: The process is multi-step. First, a U.S. petitioner must prepare and file a petition with U.S.C.I.S. The petitioner could be a direct employer (e.g., an orchestra or an ensemble) or an agent (e.g., a manager, booking agent presenter, or another person with a legitimate interest in the project). There are special evidentiary rules for petitions filed by agents that are outside the scope of this interview. Collecting extensive evidence in support of an O and P visa and obtaining testimonials from experts usually takes a while. All documentation not in English has to be translated. In my experience, preparing a solid submission may take about one month or more. When the petition is ready, it has to be submitted to an appropriate labor or peer organization for an advisory opinion (e.g., American Federation of Musicians). This usually takes about a week to process and often requires an additional fee. After that, the petition can be submitted to the U.S.C.I.S. The official processing time for O and P visas is 14 days but in my experience, four to six weeks processing is not unusual. For urgent cases, it is advisable to use premium processing which guarantees that the case be reviewed within 15 days. The review may result in an approval or in a Request for Evidence (RFE) if USCIS finds the submission deficient. After receiving and reviewing the response to the RFE, USCIS will either approve or deny the petition.
After the petition is approved by USCIS, the musician or the group can make an appointment at the U.S. consulate abroad and receive their visas. Wait times for the appointments and visa issuance procedures vary from one consulate to another. It is recommended to check the consulate’s website and place necessary inquiries in advance, and to schedule an appointment as early as possible, to allow for possible delays and complications at the consulate. It is important to understand that the approval by USCIS does not guarantee that the visa will be issued. Prior immigration violations (such as a performance on a tourist visa), minor criminal convictions and other issues may result in a visa denial. Also, a person may be denied entry at the border even if he or she is in possession of a valid visa. It is not very common but possible, especially if the person says something that contradicts the intended purpose of the visa (e.g., a P-1B visa holder saying that she will perform solo). Foreigners who are in the U.S. in another valid status can in most cases change their status to O or P without leaving the country.
In general, it is recommended to start the preparation about six months before the intended start date of the engagement. This allows enough time to carefully prepare a voluminous submission and avoid paying a premium processing fee to USCIS.
JNS: Is an attorney required to get the visa? If not required, how can an attorney help with the visa process?
LE: Technically, hiring an immigration attorney is not required. However, the visa process in general, and especially getting O and P visas, is complex, counterintuitive and filled with traps for the unwary. Clearly qualified foreign artists are sometimes denied visas because their petitions are not prepared with proper level of care, or simply because the preparer is not familiar with USCIS and consular practices. Sometimes a small inconsistency, or even a simple typo, may result in a delay or a denial.
An experienced attorney will help you gather and select the evidence that the USCIS will consider the most convincing. The attorney will also do additional research about the musician’s background and collect extensive supporting evidence demonstrating the significance of his or her awards, publications, recordings, prestigious nature of venues where the client performed, etc. These background materials are essential because we can never presume that a USCIS adjudicator has any knowledge of the petition’s subject matter, such as classical music. Each element of the petition, including achievements and accolades that seem self-evident, such as a Grammy award or a performance at Carnegie Hall, has to be well documented and correlated to a specific regulatory criterion. In addition, adjudicators have very limited time to review each petition and, therefore, the submissions have to be very well organized. If an adjudicator gets confused, he will simply issue an RFE, which will cause a significant delay and may ultimately derail the process. In addition, the attorney will work with experts and ensure that their testimonials serve the purpose in the best possible way.
Most importantly, there are certain aspects of the visa process that have been affected by changing policies. Knowledge of these nuances is absolutely essential in ensuring the smooth processing of your petition.
In a P or O visa context, the success of a performance, or an entire tour, often hinges on the timely receipt of a visa by a foreign musician or a group. In such circumstance, it is only wise to engage a knowledgeable attorney who will help avoid many pitfalls involved in the USCIS and consular processing.
JNS: What are the average costs of a visa?
LE: USCIS filing fee is currently $325 and a discretionary premium processing fee is $1,225. Other expenses include a fee for an advisory opinion, which varies depending on an organization, consular visa fees, legal fees for attorney services, and some ancillary expenses including translations, courier shipping, etc.
Thank you again for the interview, Lisa!
Elizaveta (Lisa) Eisenberg, Esq. practices immigration law exclusively. The main focus of her practice is on “extraordinary ability” matters for artists and on immigration options for startups, entrepreneurs, investors and small businesses. Lisa’s areas of expertise include various work visas and “green cards” based on employment in the U.S. She is also an Assistant Adjunct Professor at the City University of New York, where she teaches a course on Business Immigration as part of the Immigration Law Certificate program. In addition, Lisa has presented Continuing Legal Education courses on immigration-related topics. She is a member of the American Immigration Lawyers Association (AILA). Before law school, Lisa worked as an architect and interior designer and participated in projects which received prestigious awards and were published in Architectural Record. www.LisaESQ.com
May 2nd, 2013
On June 1, I’ll be speaking at the first SheTek Conference. The conference is in New York City at 151 w. 26th street between 6th and 7th aves from 11 am to 6 pm.
Panel topics are:
- Wendy Day Keynote Address
- The Business of Music**
- Music Streams - Distribution and Synchronization
- Marketing, Branding & Social Media
- Music Videos, Independent Films & Multi-Media
** I’m a panelist on “The Business of Music” panel
Tickets are available here. Each panel is $25 or pay $100 for the entire conference.
March 1st, 2013
Lindsay Lohan lost her lawsuit against hip hop artist Pit Bull, which claimed that the line “.. I got it locked up, like Lindsay Lohan” in Pit Bull’s song “Give Me Everything” was a violation of her rights of publicity and caused emotional distress. The court dismissed the lawsuit, ruling that NY Civil Rights law didn’t apply here because the song is a work of art and also is protected under the First Amendment. Additionally, the court held that her name wasn’t used for purposes of trade or advertising, which could trigger infringement of Lohan’s right of publicity, and the fact that her name was only in one line would also give cause for her losing.
Songwriter Jay Livingston (“Silver Bells,” “Mona Lisa,” “Whatever Will Be, Will Be”) is suing Warner Music for breaching their publishing administration contract by wrongfully withholding royalties and not complying with audit requirements under the contract.
Another royalty dispute… RZA, front man of the Wu Tang Clan, is seeking a court declaration that the 2010 Kanye West song he produced, “Dark Fantasy,” does not infringe the recording copyrights held by JVC Kenwood Holdings. RZA’s label, Island Def Jam, was withheld more than $50,000 in royalties based on the accusations by JVC Kenwood that “Dark Fantasy” contains a sample from one of their works.
December 1st, 2012
Pandora is suing ASCAP, one of the largest performance rights organizations, to implement lower statutory rates for songwriters. Pandora has called the current rates as “ill suited and not reasonable”. The major problem with this suit is that publishers, on the other hand, are trying to drive statutory rates up, not down. This is because Pandora currently pays record labels over ten times more on a song play than they do to publishers and songwriters. Furthermore, Sony/ATV isn’t making the suit easier for Pandora, since after recently acquiring EMI’s publishing catalog, Sony/ATV is pushing for their own independent royalty rates. This move by Sony/ATV is yet another reason why Pandora is pushing so hard to lower the rates.
A 2006 divorce between Tory Burch and Chris Burch has turned into a legal battle between the two, totally unrelated to any actual marital issues. In October 2011, Chris had opened up his own store, C Store, that is more affordable than the Tory Burch company line. However, the C Store’s appearance and inventory look a little too similar to the Tory Burch company’s merchandise and stores. Meanwhile, both Tory and Chris still own stake in the popular clothing line company. Mr. Burch filed a complaint earlier this month accusing Tory of delaying the sale of his shares of the Tory Burch company, along with other accusations regarding inappropriate board behavior (a breach of fiduciary duties). Tory answered the complaint with various counterclaims, including accusations that he is stealing the company’s trade secrets. The bottom line issue is whether the existence of C Wonder will negatively effect the value of the Tory Burch company. We will have to wait and see.
The Talent Agencies Act (TAA) in California is under attack by former personal managers of various stars. The TAA states that only licensed agents can procure employment for their clients. It was further decided that this restriction applies not only to talent agents, but personal managers, as well. In mid-November, The National Conference of Personal Managers (NCOPM) sued the CA governor, attorney general, and labor commissioner, claiming that the TAA is entirely unconstitutional and that is violates “due process, equal protection, involuntary servitude, and interferes with interstate commerce and free speech”. Essentially, clients can fire their managers and refuse to pay any commission to them because they weren’t licensed and technically not legally employable under the TAA.
Hurricane Sandy left quite a path of destruction, not only physically, but now also legally. New York resident, Irwin Bard, and his son are suing Cablevision for $250 million for non-existent cable, Internet, and phone services during the time of the power outages. Bard demands a rebate to all customers who were affected by this unfair charge. Cablevison assured their customers, however, that anyone who was overcharged can visit the Cablevision website and ask for a credit back. However, the issue is whether this should be automatic versus an “opt-in” action. The case is still undecided as of now.
October 10th, 2012
The Leahy-Smith America Invents Act (AIA) was enacted into law on September 16, 2011. The act modernized US patent law in an effort to harmonize our system with the rest of the world. A number of the AIA’s significant changes to patent law became effective last month on September 16, 2012, while the remainder of changes will take effect on March 16, 2013.
This article will review the basics of patent law and describe some of the AIA’s more significant provisions.
Patent Law Overview
Patent law gives the patent owner the right to exclude others from practicing their patented invention. This means means the holder of the patent can prevent others from manufacturing, using, selling, or importing the invention. However, a patent doesn’t automatically give the patentee the right to practice the invention himself since, it may still be restricted by other patents.
There are three types of patents one can be granted:
- Utility Patent (for the functional aspects)
- Design Patent (for the ornamental aspects)
- Plant Patent (for new or distinct varieties of plants).
The most common patent is a utility patent, which can be granted for a process, machine, manufacture, or a composition of matter.
Before being granted a patent, the invention must qualify as useful, novel, and non-obvious. In addition, your application must meet the detailed requirements for descriptions and drawings.
America Invents Act: The Changes
In total, there are about twenty changes that the America Invents Act (AIA) makes to US patent law. However, there are a few that are more important and warrant our closer attention:
Best Mode (Effective as of September 16, 2011)
The best mode is an application requirement, in which the inventor must disclose the best way to practice the invention. With the implementation of the AIA, failure to disclose best mode is no longer available to the USPTO (United States Patent and Trademark Office) as a ground for invalidity, unenforceability, or cancellation of a patent.
Prior Art Submission (Effective as of September 17, 2011)
Third parties have always been allowed to submit prior art in another’s patent application with the intent to block the grant of the patent. But now, those third parties remain anonymous and the USPTO also doesn’t have to inform the patent applicant that third party prior art has been submitted on their filed application.
First-inventor-to-file (Effective March 16, 2013)
One of the most important changes to patent law has to do with priority. Starting on March 16, 2012 priority will be given to first inventor to file an application, or to the first inventor to disclose the invention to the public, assuming that they then file within a year. The implication with this change is that an applicant will need to file early and file often. This new system will replace the “first to invent” regime. Also, the inventor now has a one-year grace period between public disclosure of an invention and the actual filing of the application.
Changes in the Definition of Prior Art (Effective March 16, 2013)
The new definition of prior art now provides for globalization, which means if an invention was in practice anywhere in the world, the applicant cannot obtain a patent for their supposed invention. Therefore, prior art has expanded and no matter whether it’s domestic or foreign prior art, the filing date of that prior art rules. Also, “known or used by others” is eliminated from the definition of prior art. Added to the definition is prior art that is in “public use”, “on sale”, or “otherwise available to the public” no matter where in the world. Also, the 1-year grace period for third party prior art is eliminated, unless the prior art was derived from the patentee or the patentee disclosed first.
February 28th, 2012
Paul Tarascio, former stage manager of “Late Night with Jimmy Fallon,” has sued Jimmy Fallon for gender discrimination, claiming that after he was fired in 2010 he replaced by a “totally incompetent woman.”
Sister Sledge is suing Warner Music Group in an attempt to re-categorize digital sales as licenses, a change that could mean millions in extra royalties.
Kenny Rogers is also suing his label, Capitol/EMI, over the issue of digital royalty calculations as well as false accounting. His suit additionally alleges that Rogers received no compensation following EMI’s successful settlements with Limewire, Grokster, and Napster. For a full description of Rogers’ claims against Capitol, check out this Digital Music News article.
An anti-merger lawsuit was filed against SAG and its officers, alleging that that proposal to merge the two unions omits “necessarily due diligence” and is “deceptive.” The merger would merge the unions, but not the pension and health plans, which are legally separate entities. Plaintiffs include Martin Sheen, Edward Asner, Ed Harris, Valerie Harper, Nancy Sinatra, former guild president Alan Rosenberg and current board members Anne-Marie Johnson and David Jolliffe.
A federal judge rejected a lawsuit brought by Michael Jordan against Jewel-Osco for a congratulatory ad the company ran when Jordan was inducted into the Basketball Hall of Fame three years ago. The court rejected Jordan’s argument that the ad infringed upon his trademark and instead determined that the advertisement was “noncommercial speech,” protected by the First Amendment, and that there was no indication of a “commercial transaction” in the ad.
Paramount Pictures has sued the estate of Mario Puzo, author of the book The Godfather on which the iconic films are based. The estate released sequels to the book in 2004 and 2006 and is set to release another one later this year. Paramount is seeking damages and preliminary and permanent injunctions to stop the sequel’s release, arguing that the sequels violate its trademark and copyright interests in the Godfather franchise and story.
February 8th, 2012
The Ninth Circuit Court of Appeals held yesterday that Proposition 8, California’s voter-enacted ban on gay marriage, is unconstitutional. The decision did not go as far as requiring that every state recognize gay marriage but held that Proposition 8 violated the 14th Amendment by stigmatizing a minority group without a legitimate reason. The 128 page decision may face an appeal where it would be reviewed by an expanded 9th Circuit court or the Supreme Court. By focusing on the California statute, rather than the broader constitutionality of restrictions on gay marriage, the holding will likely pass further scrutiny.
The majority opinion, penned by Judge Stephen Reinhardt, held that Propostion 8 “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
Six states currently permit gay marriage and the topic is likely to be a hot issue in upcoming elections.
The WSJ presents a detailed overview of the history of the fight for legalized gay marriage in California.
My favorite, poetic quote from the decision:
‘Marriage’ is the name that society gives to the relationships that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.
January 30th, 2012
EMI is suing MP3 reselling startup ReDigi.
More EMI lawsuits.. The company (via the Irish Music Rights Association) has now sued the entire country of Ireland in a High Court action for not doing enough to require ISPs to block websites that are engaging in piracy.
The Velvet Underground has sued the foundation that manages the legacy of Andy Warhol arguing that the artist of their iconic ‘banana’ album cover artwork has no copyright or trademark ownership over the image.
PacketVideo and Spotify have settled the lawsuit brought by PacketVideo, alleging that Spotify infringed its patent relating to streaming music from a central source. Details of the settlement have not been disclosed.
Former Disney executive VP Glen Lajeski filed a lawsuit against the studio alleging that his contract was breached when the company fired him last June. Lajeski was let go purportedly without any cause and without the opportunity to cure. His employment contract was not due to expire until January 1, 2013.
January 20th, 2012
The Supreme Court of the United States published a decision yesterday regarding the constitutionality of section 104A of the US Copyright Act. In order to comply with the Berne Convention, 17 USC 104A was revised in 1994 to restore the copyrights in foreign works that were previously not protected in the United States because they did not meet the US formalities of copyright protection (such as copyright renewal or proper copyright notice) or because of a lack of an international treaty between the US and the work’s country of origin. As a general rule (with exceptions, of course), the works had to be protected in their country of origin as of Jan. 1, 1996, but if they were, they were automatically granted protection in the US, “restoring” them to a protected state and removing them from the public domain. Controversy arose because one year following the “restoration,” royalty payments and derivative work restrictions would be imposed on anyone using the works, even if their use originated before the restoration of copyright. In Golan v. Gonzales, the section was challenged as a violation of the Copyright and Patent clause (Article I, §8, Clause 8) as well as the First and Fifth Amendments of the Constitution. In a 6-2 vote, the majority opinion by Justice Ginsberg found that section 104A, as amended by section 514 of the Uruguay Round Agreement Act in 1994, is constitutional and did not exceed Congress’ authority under the Copyright Clause.
The Supreme Court syllabus (or read the full 69 page decision here):
OCTOBER TERM, 2011 1
SUPREME COURT OF THE UNITED STATES
GOLAN ET AL. v. HOLDER, ATTORNEY GENERAL, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 10–545. Argued October 5, 2011—Decided January 18, 2012
The Berne Convention for the Protection of Literary and Artistic Works (Berne), which took effect in 1886, is the principal accord governing international copyright relations. Berne’s 164 member states agree to provide a minimum level of copyright protection and to treat authors from other member countries as well as they treat their own. Of central importance in this case, Article 18 of Berne requires countries to protect the works of other member states unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. A different system of transnational copyright protection long prevailed in this country. Throughout most of the 20th century, the only foreign authors eligible for Copyright Act protection were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States. Despite Article 18, when the United States joined Berne in 1989, it did not protect any foreign works lodged in the U. S. public domain, many of them works never protected here. In 1994, howev- er, the Agreement on Trade-Related Aspects of Intellectual Property Rights mandated implementation of Berne’s first 21 articles, on pain of enforcement by the World Trade Organization.
In response, Congress applied the term of protection available to U. S. works to preexisting works from Berne member countries. Sec- tion 514 of the Uruguay Round Agreements Act (URAA) grants copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had not complied with certain U. S. statutory formalities. Works encompassed by §514 are granted the protection they would have enjoyed had the United States main- tained copyright relations with the author’s country or removed formalities incompatible with Berne. As a consequence of the barriers to U. S. copyright protection prior to §514’s enactment, foreign works “restored” to protection by the measure had entered the public do- main in this country. To cushion the impact of their placement in protected status, §514 provides ameliorating accommodations for parties who had exploited affected works before the URAA was enacted.
Petitioners are orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They maintain that Congress, in passing §514, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations. The District Court granted the Attorney General’s motion for summary judgment. Affirming in part, the Tenth Circuit agreed that Congress had not offended the Copyright Clause, but concluded that §514 required further First Amendment inspection in light of Eldred v. Ashcroft, 537 U. S. 186. On remand, the District Court granted summary judgment to petitioners on the First Amendment claim, holding that §514’s constriction of the public domain was not justified by any of the asserted federal interests. The Tenth Circuit reversed, ruling that §514 was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad.
1. Section 514 does not exceed Congress’ authority under the Copy- right Clause. Pp. 13–23.
(a) The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Eldred is largely dispositive of petitioners’ claim that the Clause’s confinement of a copyright’s lifespan to a “limited Tim[e]” prevents the removal of works from the public domain. In Eldred, the Court upheld the Cop- yright Term Extension Act (CTEA), which extended, by 20 years, the terms of existing copyrights. The text of the Copyright Clause, the Court observed, contains no “command that a time prescription, once set, becomes forever ‘fixed’ or ‘inalterable,’ ” and the Court declined to infer any such command. 537 U. S., at 199. The construction peti- tioners tender here is similarly infirm. The terms afforded works re- stored by §514 are no less “limited” than those the CTEA lengthened. Nor had the “limited Tim[e]” already passed for the works at issue here—many of them works formerly denied any U. S. copyright protection —for a period of exclusivity must begin before it may end. Pe- titioners also urge that the Government’s position would allow Congress to legislate perpetual copyright terms by instituting successive “limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case. In aligning the United States with other nations bound by Berne, Congress can hardly be charged with a design to move stealthily toward a perpetual copyright regime. Pp. 13–15.
(b) Historical practice corroborates the Court’s reading of the Copy right Clause to permit the protection of previously unprotected works. In the Copyright Act of 1790, the First Congress protected works that had been freely reproducible under State copyright laws. Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection for existing works. Several private bills restored the copyrights and patents of works and inventions previously in the public domain. Congress has also passed generally applicable legislation granting copyrights and patents to works and inventions that had lost protection. Pp. 15–19.
(c) Petitioners also argue that §514 fails to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. Specifically, they claim that because §514 affects only works already created, it cannot meet the Clause’s objective. The creation of new works, however, is not the sole way Congress may promote “Science,” i.e., knowledge and learning. In Eldred, this Court rejected a nearly identical argument, concluding that the Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” 537 U. S., at 222. Nothing in the text or history of the Copyright Clause, moreover, confines the “Progress of Science” exclusively to “incentives for creation.” Historical evidence, congressional practice, and this Court’s decisions, in fact, suggest that inducing the dissemination of existing works is an appropriate means to promote science. Pp. 20–22.
(d) Considered against this backdrop, §514 falls comfortably within Congress’ Copyright Clause authority. Congress had reason to believe that a well-functioning international copyright system would encourage the dissemination of existing and future works. And tes- timony informed Congress that full compliance with Berne would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, thus benefitting copyright-intensive industries stateside and inducing greater investment in the creative process. This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause. Pp. 22–23.
2. The First Amendment does not inhibit the restoration authorized by §514. Pp. 23–32.
(a) The pathmarking Eldred decision is again instructive. There, the Court held that the CTEA’s enlargement of a copyright’s duration did not offend the First Amendment’s freedom of expression guaran- tee. Recognizing that some restriction on expression is the inherent and intended effect of every grant of copyright, the Court observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used, but also as an “engine of free expression.” 537 U. S., at 219. The “traditional contours” of copyright protection, i.e., the “idea/expression dichotomy” and the “fair use” defense, moreover, serve as “built-in First Amendment accommodations.” Ibid. Given the speech-protective purposes and safeguards embraced by copyright law, there was no call for the heightened review sought in Eldred. The Court reaches the same conclusion here. Section 514 leaves undisturbed the idea/expression distinction and the fair use defense. Moreover, Congress adopted measures to ease the transition from a national scheme to an international copyright regime. Pp. 23–26.
(b) Petitioners claim that First Amendment interests of a higher order are at stake because they—unlike their Eldred counterparts— enjoyed “vested rights” in works that had already entered the public domain. Their contentions depend on an argument already consid- ered and rejected, namely, that the Constitution renders the public domain largely untouchable by Congress. Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain. Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain. Section 514, moreover, does not impose a blanket prohibition on public access. The question is whether would-be users of certain foreign works must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works. By fully implementing Berne, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same legal regime. Section 514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published. Pp. 26–30.
609 F. 3d 1076, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion, in which ALITO, J., joined. KA- GAN, J., took no part in the consideration or decision of the case.
January 17th, 2012
The White House has released an official statement by Victoria Espinel, Aneesh Chopra, and Howard Schmid in response to petitions again SOPA and the E-Parasite Act.
Full text below:
Official White House Response to Stop the E-PARASITE Act. and 1 other petition
Combating Online Piracy while Protecting an Open and Innovative Internet
By Victoria Espinel, Aneesh Chopra, and Howard Schmidt
Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.
Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.
We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.
Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.
This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.
So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.
Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.
Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.
Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget
Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy
Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff