author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
The Court holds today that a pretrial display of photographs to the witnesses of a crime for the purpose of identifying the accused, unlike a lineup, does not constitute a "critical stage" of the prosecution at which the accused is constitutionally entitled to the presence of counsel. In my view, today's decision is wholly unsupportable in terms of such considerations as logic, consistency, and, indeed, fairness. As a result, I must reluctantly conclude that today's decision marks simply another[1] step towards the complete evisceration of the fundamental constitutional principles established by this Court, only six years ago, in United ; ; and I dissent. I On the morning of August 26, 165, two men wearing stocking masks robbed the American Security and Trust Co. in Washington, D. C. The robbery lasted only about three or four minutes and, on the day of the crime, none of the four witnesses was able to give the police a description of the robbers' facial characteristics. Some five months later, on February 3, 166, an FBI agent showed each of the four witnesses a group of black and white mug shots of the faces of five black males, including respondent, all of generally the same age, height, and weight. Respondent's photograph was included because of information received from a Government informant charged with other crimes.[2] None of the witnesses *327 was able to make a "positive" identification of respondent.[3] On April 1, 166, an indictment was returned charging respondent and a codefendant in five counts relating to the robbery of the American Security and Trust Co. Trial was finally set for May 8, 168, almost three years after the crime and more than two years after the return of the indictment. During the entire two-year period between indictment and trial, although one of the witnesses expressly sought an opportunity to see respondent in person, the Government never attempted to arrange a corporeal lineup for the purposes of identification. Rather, less than 24 hours before trial, the FBI agent, accompanied by the prosecutor, showed five color photographs to the witnesses, three of whom identified the picture of respondent. At trial, all four witnesses made in-court identifications of respondent, but only one of these witnesses was "positive" of her identification. The fact that three of the witnesses had previously identified respondent from the color photographs, and the photographs themselves, were also admitted into evidence. The only other evidence *328 implicating respondent in the crime was the testimony of the Government informant.[4] On the basis of this evidence, respondent was convicted on all counts of the indictment.
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
evidence, respondent was convicted on all counts of the indictment. On appeal, the United Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed respondent's conviction. 14 U. S. App. D. C. 1, Noting that "the dangers of mistaken identification from uncounseled lineup identifications are applicable in large measure to photographic as well as corporeal identifications,"[5] the Court of Appeals reasoned that this Court's decisions in Gilbert, and Stovall, compelled the conclusion that a pretrial photographic identification, like a lineup, is a "critical" stage of the prosecution at which the accused is constitutionally entitled to the attendance of counsel. Accordingly, the Court of Appeals held that respondent was denied his Sixth Amendment right to "the Assistance of Counsel for his defence" when his attorney was not given an opportunity to attend the display of the color photographs on the very eve of trial.[6] In my view, both the reasoning and conclusion of the Court of Appeals were unimpeachably correct, and I would therefore affirm. II In June 167, this Court decided a trilogy of "lineup" cases which brought into sharp focus the problems of *32 pretrial identification. See United In essence, those decisions held (1) that a pretrial lineup is a "critical stage" in the criminal process at which the accused is constitutionally entitled to the presence of counsel; (2) that evidence of an identification of the accused at such an uncounseled lineup is per se inadmissible; and (3) that evidence of a subsequent in-court identification of the accused is likewise inadmissible unless the Government can demonstrate by clear and convincing evidence that the in-court identification was based upon observations of the accused independent of the prior uncounseled lineup identification. The considerations relied upon by the Court in reaching these conclusions are clearly applicable to photographic as well as corporeal identifications. Those considerations bear repeating here in some detail, for they touch upon the very heart of our criminal justice systemthe right of an accused to a fair trial, including the effective "Assistance of Counsel for his defence." At the outset, the Court noted that "identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." United Indeed, "[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." Apart from "the dangers inherent in eyewitness identification," such as unreliable memory or perception, the Court pointed out that "[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." The Court recognized that the dangers of suggestion are not necessarily due to "police *330 procedures intentionally designed to prejudice an accused." On the contrary, "[s]uggestion can be created intentionally or unintentionally in many subtle ways." And the "`fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way'" quoting Williams & Identification Parades-I, [163] Crim. L. Rev. 47, 483. The Court also expressed concern over the possibility that a mistaken identification at a pretrial lineup might itself be conclusive on the question of identity, thereby resulting in the conviction of an innocent man. The Court observed that "`once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.'" United quoting Williams & Moreover, "the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial." United For "as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups" Although the accused is present at such corporeal identifications, he is hardly in a position to detect many of the more subtle "improper influences" that might infect the identification.[7] In addition, the Court emphasized *331 that "neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And, if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences." As a result, "even though cross-examination is a precious safeguard to a fair trial, it cannot [in this context] be viewed as an absolute assurance of accuracy and reliability." With these considerations in mind, the Court reasoned that "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." And "[i]nsofar as the accused's conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him." Thus, noting that "presence of counsel [at the lineup] can often avert prejudice and assure a meaningful confrontation at trial," the Court concluded that a pretrial corporeal identification is "a critical stage of the prosecution at which [the accused is] `as much entitled to such aid [of counsel] as at the trial itself.'" quoting *332 III As the Court of Appeals recognized, "the dangers of mistaken identification set forth in are applicable in large measure to photographic as well as corporeal identifications." 14 U. S. App. D. C., at To the extent that misidentification may be attributable to a witness' faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup.[8] But "[b]ecause of the inherent limitations of photography, which presents its subject in two dimensions rather than the three dimensions of reality, a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification." P. Wall, Eye-Witness Identification in Criminal Cases 70 (165). Indeed, noting "the hazards of initial identification by photograph," we have expressly recognized that "a corporeal identification. is normally more accurate" than a photographic identification. 30 U.S. 377, (168).[] Thus, in this sense at *333 least, the dangers of misidentification are even greater at a photographic display than at a lineup. Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold. See Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photographs all might have the effect of singling out the accused.[10] Second, impermissible suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, "increased if the police display to the witness the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized." And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, "any
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
time sequence that tends to emphasize a particular photograph, "any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone." P. Wall, Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain *334 witness to select the "correct" photograph. For example, the prosecutor might "indicate to the witness that [he has] other evidence that one of the persons pictured committed the crime,"[11] and might even point to a particular photograph and ask whether the person pictured "looks familiar." More subtly, the prosecutor's inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness' objectivity. Thus, as is the case with lineups, "[i]mproper photographic identification procedures,. by exerting a suggestive influence upon the witnesses, can often lead to an erroneous identification." P. Wall, at 8.[12] And "[r]egardless of how the initial misidentification comes about, the witness *335 thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen" -.[13] As a result, "`the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.'" United quoting Williams & Moreover, as with lineups, the defense can "seldom reconstruct" at trial the mode and manner of photographic identification. It is true, of course, that the photographs used at the pretrial display might be preserved for examination at trial. But "it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel." 14 U. S. App. D. C., at -10, -101. Cf. United at 23 and n. 30. Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not "apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect" since the witnesses are hardly "likely to be schooled in the detection of suggestive influences." *336 Finally,
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
be schooled in the detection of suggestive influences." *336 Finally, and unlike the lineup situation, the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedures will ever come to light. Indeed, in the Government itself observed:[14] "When the defendant is presentas he is during a lineuphe may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. [I]n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in `sloppy or biased or fraudulent' conduct, it would be far more likely to do so when the accused is absent than when he himself is being `used.'" Thus, the difficulties of reconstructing at trial an uncounseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup.[15] And, as the Government argued *337 in in terms of the need for counsel, "[t]here is no meaningful difference between a witness' pretrial identification from photographs and a similar identification made at a lineup."[16] For, in both situations "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." United As *338 a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification. This being so, considerations of logic, consistency, and, indeed, fairness compel the conclusion that a pretrial photographic identification, like a pretrial corporeal identification, is a "critical stage of the prosecution at which [the accused is] `as much entitled to such aid [of counsel] as at the trial itself.'" quoting 287 U. S., at IV Ironically, the Court does not seriously challenge the proposition that presence of counsel at a pretrial photographic display is essential to preserve the accused's right to a fair trial on the issue of identification. Rather, in what I can only characterize a triumph of form over substance, the Court seeks to justify its result by engrafting a wholly unprecedentedand wholly unsupportablelimitation on the Sixth Amendment right of "the accused to have the Assistance of Counsel for his defence." Although apparently conceding that the right to counsel attaches, not only at the trial itself, but at all "critical stages" of the prosecution, see ante, at 30-311, the Court
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
stages" of the prosecution, see ante, at 30-311, the Court holds today that, in order to be deemed "critical," the particular "stage of the prosecution" under consideration must, at the very least, involve the physical "presence of the accused," at a "trial-like confrontation" with the Government, at which the accused requires the "guiding hand of counsel." According to the Court a pretrial photographic identification does not, of course, meet these criteria. In support of this rather crabbed view of the Sixth Amendment, the Court cites our decisions in Coleman v. 3 U.S. 1 (170), Massiah v. United (164), 373 U.S. 5 *33 (163), and Hamilton v. (161). Admittedly, each of these decisions guaranteed the assistance of counsel in pretrial proceedings at least arguably involving the physical "presence of the accused," at a "trial-like confrontation" with the Government, at which the accused required the "guiding hand of counsel."[17] Moreover, as the Court points out, these decisions are consistent with the view that the Sixth Amendment "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." (138). But, contrary to the Court's assumption, this is merely one facet of the Sixth Amendment guarantee, and the decisions relied upon by the Court represent, not the boundaries of the right to counsel, but mere applications of a far broader and more reasoned understanding of the Sixth Amendment than that espoused today. The fundamental premise underlying all of this Court's decisions holding the right to counsel applicable at "critical" pretrial proceedings, is that a "stage" of the prosecution must be deemed "critical" for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary "to protect the fairness of the trial itself." 23 (173) Thus, in Hamilton v. *340 for example, we made clear that an arraignment under law is a "critical stage" of the prosecution, not only because the accused at such an arraignment requires "the guiding hand of counsel," but, more broadly, because "[w]hat happens there may affect the whole trial." Indeed, to exclude counsel from a pretrial proceeding at which his presence might be necessary to assure the fairness of the subsequent trial would, in practical effect, render the Sixth Amendment guarantee virtually meaningless, for it would "deny a defendant `effective representation by counsel at the only stage when legal aid and advice would help him.'" Massiah v. United quoting
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
aid and advice would help him.'" Massiah v. United quoting (15) ; see (164). This established conception of the Sixth Amendment guarantee is, of course, in no sense dependent upon the physical "presence of the accused," at a "trial-like confrontation" with the Government, at which the accused requires the "guiding hand of counsel." On the contrary, in the seminal decision in this area, we explicitly held the right to counsel applicable at a stage of the pretrial proceedings involving none of the three criteria set forth by the Court today. In Powell, the defendants in a state felony prosecution were not appointed counsel until the very eve of trial. This Court held, in no uncertain terms, that such an appointment could not satisfy the demands of the Sixth Amendment, for "`[i]t is vain to guarantee [the accused] counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case.'" at 5. In other words, Powell made clear that, in order to preserve the accused's right to a fair trial and to "effective and substantial"[18] assistance *341 of counsel at that trial, the Sixth Amendment guarantee necessarily encompasses a reasonable period of time before trial during which counsel might prepare the defense. Yet it can hardly be said that this preparatory period of research and investigation involves the physical "presence of the accused," at a "trial-like confrontation" with the Government, at which the accused requires the "guiding hand of counsel." Moreover, despite the Court's efforts to rewrite so as to suggest a precedential basis for its own analysis,[1] the rationale of lends no support whatever to today's decision. In after concluding that compelled participation in a lineup does not violate the accused's right against self-incrimination,[20] the Court addressed the argument "that the assistance of counsel at the lineup was indispensable to protect 's most basic right as a criminal defendanthis right to a fair trial at which the witnesses against him might be meaningfully cross-examined." -224. The Court then surveyed the history of the Sixth Amendment, and specifically concluded that that Amendment guarantees "counsel's assistance whenever necessary to assure a meaningful `defence.'" *342 Then, after examining this Court's prior decisions concerning the applicability of the counsel guarantee,[21] the Court stressed once again that a pretrial proceeding is a "critical stage" of the prosecution if "the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself." The
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
have effective assistance of counsel at the trial itself." The Court next addressed the Government's contention that a lineup is "a mere preparatory step in the gathering of the prosecution's evidence, not differentfor Sixth Amendment purposesfrom various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like." If the Court in had even the remotest intention of embracing the wooden interpretation of the Sixth Amendment ascribed to it today, it could have rejected the Government's contention simply by pointing out the obvious fact that such "systematized or scientific analyzing" does not in any sense involve the physical "presence of the accused," at a "trial-like confrontation" with the Government, at which the accused requires the "guiding hand of counsel." But the Court offered not even the slightest hint of such *343 an approach. Instead, the Court reasoned that, in light of the scientific nature of such analyses, "the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." -228 Finally, after discussing the dangers of misidentification arising out of lineup procedures and the difficulty of reconstructing the lineup at trial, the Court noted that "[i]nsofar as the accused's conviction may rest on a court-room identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him." The Court therefore concluded that "[s]ince it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for the post-indictment lineup was a critical stage of the prosecution at which he was `as much entitled to such aid [of counsel] as at the trial itself.'" Thus, contrary to the suggestion of the Court, the conclusion in that a pretrial lineup is a "critical stage" of the prosecution did not in any sense turn on
|
Justice Brennan
| 1,973 | 13 |
dissenting
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
of the prosecution did not in any sense turn on *344 the fact that a lineup involves the physical "presence of the accused" at a "trial-like confrontation" with the Government. And that conclusion most certainly did not turn on the notion that presence of counsel was necessary so that counsel could offer legal advice or "guidance" to the accused at the lineup. On the contrary, envisioned counsel's function at the lineup to be primarily that of a trained observer, able to detect the existence of any suggestive influences and capable of understanding the legal implications of the events that transpire. Having witnessed the proceedings, counsel would then be in a position effectively to reconstruct at trial any unfairness that occurred at the lineup, thereby preserving the accused's fundamental right to a fair trial on the issue of identification. There is something ironic about the Court's conclusion today that a pretrial lineup identification is a "critical stage" of the prosecution because counsel's presence can help to compensate for the accused's deficiencies as an observer, but that a pretrial photographic identification is not a "critical stage" of the prosecution because the accused is not able to observe at all. In my view, there simply is no meaningful difference, in terms of the need for attendance of counsel, between corporeal and photographic identifications. And applying established and well-reasoned Sixth Amendment principles, I can only conclude that a pretrial photographic display, like a pretrial lineup, is a "critical stage" of the prosecution at which the accused is constitutionally entitled to the presence of counsel.
|
Justice Powell
| 1,979 | 17 |
concurring
|
Scott v. Illinois
|
https://www.courtlistener.com/opinion/110032/scott-v-illinois/
|
For the reasons stated in my opinion in I do not think the rule adopted by the Court in that case is required by the Constitution. Moreover, the drawing of a line based on whether there is imprisonment (even for overnight) can have the practical effect of precluding provision of counsel in other types of cases in which conviction can have more serious consequences. The Argersinger rule also tends to impair the proper functioning of the criminal justice system in that trial judges, in advance of hearing any evidence and before knowing anything about the case except the charge, all too often will be compelled to forgo the legislatively granted option to impose a sentence of imprisonment upon conviction. Preserving this option by providing counsel often will be impossible or impracticableparticularly in congested urban courts where scores of cases are heard in a single sitting, and in small and rural communities where lawyers may not be available. Despite my continuing reservations about the Argersinger rule, it was approved by the Court in the 1972 opinion and four Justices have reaffirmed it today. It is important that this Court provide clear guidance to the hundreds of courts across the country that confront this problem daily. Accordingly, and mindful of stare decisis, I join the opinion of the *375 Court. I do so, however, with the hope that in due time a majority will recognize that a more flexible rule is consistent with due process and will better serve the cause of justice. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
|
Justice Breyer
| 2,000 | 2 |
majority
|
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.
|
https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/
|
A State may tax a proportionate share of the income of a nondomiciliary corporation that carries out a particular business both inside and outside that State. The State, however, may not tax income received by a corporation from an "` "unrelated business activity"` which constitutes a ` "discrete business enterprise."` " in turn quoting Mobil Oil ). California's rules for taxing its share of a multistate corporation's income authorize a deduction for interest expense. But they permit (with one adjustment) use of that deduction only to the extent that the amount exceeds certain out-of-state income arising from the unrelated business activity of a discrete business enterprise, i. e., income that the State could not otherwise tax. We must decide whether those rules violate the Constitution's Due Process and Commerce Clauses. We conclude that they do. I The legal issue is less complicated than may first appear, as examples will help to show. California, like many other States, uses what is called a "unitary business" incomecalculation system for determining its taxable share of a multistate corporation's business income. In effect, that system first determines the corporation's total income from its nationwide business. During the years at issue, it then averaged three ratiosthose of the firm's California property, payroll, and sales to total property, payroll, and sales to make a combined ratio. Cal. Rev. & Tax Code Ann. *461 25128, 25129, 25132, 25134 (West 1979). Finally, it multiplies total income by the combined ratio. The result is "California's share," to which California then applies its corporate income tax. If, for example, an Illinois tin can manufacturer, doing business in California and elsewhere, earns $10 million from its total nationwide tin can sales, and if California's formula determines that the manufacturer does 10% of its business in California, then California will impose its income tax upon 10% of the corporation's tin can income, $1 million. The income of which California taxes a percentage is constitutionally limited to a corporation's "unitary" income. Unitary income normally includes all income from a corporation's business activities, but excludes income that "derive[s] from unrelated business activity which constitutes a discrete business enterprise," 504 U. S., As we have said, this latter "nonunitary" income normally is not taxable by any State except the corporation's State of domicile (and the States in which the "discrete enterprise" carries out its business). Any income tax system must have rules for determining the amount of net income to be taxed. California's system, like others, basically does so by asking the corporation to add up its gross income and then deduct costs. One of
|
Justice Breyer
| 2,000 | 2 |
majority
|
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.
|
https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/
|
up its gross income and then deduct costs. One of the costs that California permits the corporation to deduct is interest expense. The statutory language that authorizes that deductionthe language here at issuecontains an important limitation. It says that the amount of "interest deductible" shall be the amount by which "interest expense exceeds interest and dividend income not subject to allocation by formula," i. e., the amount by which the interest expense exceeds the interest and dividends that the nondomiciliary corporation has received from nonunitary business or investment. Cal. Rev. & Tax Code Ann. 24344 (West 1979) (emphasis added); Appendix, infra. Suppose the Illinois *462 tin can manufacturer has interest expense of $150,000; and suppose it receives $100,000 in dividend income from a nonunitary New Zealand sheep-farming subsidiary. California's rule authorizes an interest deduction, not of $150,000, but of $50,000, for the deduction is allowed only insofar as the interest expense "exceeds" this other unrelated income. Other language in the statute makes the matter a little more complex. One part makes clear that, irrespective of nonunitary income, the corporation may use the deduction against unitary interest income that it earns. 24344. This means that if the Illinois tin can manufacturer has earned $100,000 from tin can related interest, say, interest paid on its tin can receipt bank accounts, the manufacturer can use $100,000 of its interest expense deduction to offset that interest income (though it would still lose the remaining $50,000 of deduction because of income from the New Zealand sheep farm). Another part provides an exception to the extent that the subsidiary paying the dividend has paid taxes to California. 24344, 24402. If the sheep farm were in California, not New Zealand (or at least to the extent it were taxable in California), the tin can manufacturer would not lose the deduction. We need not consider either of these complications here. One final complication involves a dispute between the parties over the amount of interest expense that the California statute at issue covers. Hunt-Wesson, Inc., claims that California (at least during the years at issue here) required interstate corporations first to determine what part of their interest expense was for interest related to the unitary business and what part was for interest related to other, nonunitary matters. It says that the statute then required it to put the latter to the side, so that only interest related to the unitary business was at issue. California agrees that the form it provided to corporations during the years at issue did work this way, but states that the form did not
|
Justice Breyer
| 2,000 | 2 |
majority
|
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.
|
https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/
|
work this way, but states that the form did not interpret the statute correctly. In its view, the statute takes all interest expense *463 into account. Apparently California now believes that, if the tin can manufacturer had $100,000 interest expense related to its tin can business, and another $50,000 interest expense related to the New Zealand sheep farm (say, money borrowed to buy shares in the farm), then California's statute would count a total interest expense of $150,000, all of which California would permit it to deduct from its unitary tin can business income if, for example, it had no nonunitary New Zealand sheep farm income in that particular year. This matter, arguably irrelevant to the tax years here in question (Hunt-Wesson reported no nonunitary interest expense), is also irrelevant to our legal result. Therefore, we need not consider this particular dispute further. The question before us then is reasonably straightforward: Does the Constitution permit California to carve out an exception to its interest expense deduction, which it measures by the amount of nonunitary dividend and interest income that the nondomiciliary corporation has received? Petitioner, Hunt-Wesson, Inc., is successor in interest to a nondomiciliary corporation. That corporation incurred interest expense during the years at issue. California disallowed the deduction for that expense insofar as the corporation had received relevant nonunitary dividend and interest income. Hunt-Wesson challenged the constitutional validity of the disallowance. The California Court of Appeal found it constitutional, No. A079969 (Dec. 11, 1998), App. 54; see also Pacific Tel. & Tel. and the California Supreme Court denied review, App. 67. We granted certiorari to consider the question. II Relevant precedent makes clear that California's rule violates the Due Process and Commerce Clauses of the Federal Constitution. In Container of this Court wrote that the "Due *464 Process and Commerce Clauses do not allow a State to tax income arising out of interstate activitieseven on a proportional basisunless there is a ` "minimal connection" or "nexus" between the interstate activities and the taxing State, and "a rational relationship between the income attributed to the State and the intrastate values of the enterprise."` " (quoting Exxon -220, in turn quoting Mobil Oil 437). Cf. International Harvester ("If there is a want of due process to sustain" a tax, "by that fact alone any burden the tax imposes on the commerce among the states becomes `undue' "). The parties concede that the relevant income herethat which falls within the scope of the statutory phrase "not allocable by formula"is income that, like the New Zealand sheep farm in our example, by itself
|
Justice Breyer
| 2,000 | 2 |
majority
|
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.
|
https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/
|
the New Zealand sheep farm in our example, by itself bears no "rational relationship" or "nexus" to California. Under our precedent, this "nonunitary" income may not constitutionally be taxed by a State other than the corporation's domicile, unless there is some other connection between the taxing State and the income. 504 U. S., at -773. California's statute does not directly impose a tax on nonunitary income. Rather, it simply denies the taxpayer use of a portion of a deduction from unitary income (income like that from tin can manufacture in our example), income which does bear a "rational relationship" or "nexus" to California. But, as this Court once put the matter, a "`tax on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes.' " Trinova v. Michigan Dept. of Treasury, California's rule measures the amount of additional unitary income that becomes subject to its taxation (through reducing the deduction) by precisely the amount of nonunitary income that the taxpayer has received. And for that *465 reason, that which California calls a deduction limitation would seem, in fact, to amount to an impermissible tax. National Life Ins. However, this principle does not end the matter. California offers a justification for its rule that seeks to relate the deduction limit to collection of California's tax on unitary income. If California could show that its deduction limit actually reflected the portion of the expense properly related to nonunitary income, the limit would not, in fact, be a tax on nonunitary income. Rather, it would merely be a proper allocation of the deduction. See California points out that money is fungible, and that consequently it is often difficult to say whether a particular borrowing is "really" for the purpose of generating unitary income or for the purpose of generating nonunitary income. California's rule prevents a firm from claiming that it paid interest on borrowing for the first purpose (say, to build a tin can plant) when the borrowing is "really" for the second (say, to buy shares in the New Zealand sheep farm). Without some such rule, firms might borrow up to the hilt to support their (more highly taxed) unitary business needs, and use the freed unitary business resources to purchase (less highly taxed) nonunitary business assets. This "tax arbitrage" problem, California argues, is why this Court upheld the precursor of 26 U.S. C. 265(a)(2), which denies the taxpayer an interest deduction insofar as the interest expense was "incurred or continued to purchase or carry" tax-exempt obligations or securities. *466 This Court has
|
Justice Breyer
| 2,000 | 2 |
majority
|
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.
|
https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/
|
or carry" tax-exempt obligations or securities. *466 This Court has consistently upheld deduction denials that represent reasonable efforts properly to allocate a deduction between taxable and tax-exempt income, even though such denials mean that the taxpayer owes more than he would without the denial. E. g., First Nat. Bank of The California statute, however, pushes this concept past reasonable bounds. In effect, it assumes that a corporation that borrows any money at all has really borrowed that money to "purchase or carry," cf. 26 U.S. C. 265(a)(2), its nonunitary investments (as long as the corporation has such investments), even if the corporation has put no money at all into nonunitary business that year. Presumably California believes that, in such a case, the unitary borrowing supports the nonunitary business to the extent that the corporation has any nonunitary investment because the corporation might have, for example, sold the sheep farm and used the proceeds to help its tin can operation instead of borrowing. At the very least, this last assumption is unrealistic. And that lack of practical realism helps explain why California's rule goes too far. A state tax code that unrealistically assumes that every tin can borrowing first helps the sheep farm (or the contrary view that every sheep farm borrowing first helps the tin can business) simply because of the theoretical possibility of a hypothetical sale of either business is a code that fails to "actually reflect a reasonable sense of how income is generated," Container and in doing so assesses a tax upon constitutionally protected nonunitary income. That is so even if, as California claims, its rule attributes all interest expense both to unitary and to nonunitary income. And it is even more obviously so if, as Hunt-Wesson claims, California attributes all sheep-farmrelated borrowing to the sheep farm while attributing all tin-can-related borrowing first to the sheep farm as well. *467 No other taxing jurisdiction, whether federal or state, has taken so absolute an approach to the tax arbitrage problem that California presents. Federal law in comparable circumstances (allocating interest expense between domestic and foreign source income) uses a ratio of assets and gross income to allocate a corporation's total interest expense. See 26 CFR 1.861-9T(f), (g) (1999). In a similar, but much more limited, set of circumstances, the federal rules use a kind of modified tracing approachrequiring that a certain amount of interest expense be allocated to foreign income in situations where a United States business group's loans to foreign subsidiaries and the group's total borrowing have increased relative to recent years (subject to a number of
|
Justice Breyer
| 2,000 | 2 |
majority
|
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal.
|
https://www.courtlistener.com/opinion/118338/hunt-wesson-inc-v-franchise-tax-bd-of-cal/
|
increased relative to recent years (subject to a number of adjustments), and both loans and borrowing exceed certain amounts relative to total assets. See 1.861-10. Some States other than California follow a tracing approach. See, e. g., D. C. Mun. Regs., Tit. 9, 123.4 (1998); Ga. Rules and Regs. 560-77.03(3) (1999). Some use a set of ratio-based formulas to allocate borrowing between the generation of unitary and nonunitary income. See, e. g., Ala. Code 40-18-35(a)(2) (1998); La. Reg. 1130(B)(1) (1988). And some use a combination of the two approaches. See, e. g., N. M. Admin. Code, Tit. 3, 5.5.8 (1999); Utah Code Ann. 59-7101 (19) (1999). No other jurisdiction uses a rule like California's. Ratio-based rules like the one used by the Federal Government and those used by many States recognize that borrowing, even if supposedly undertaken for the unitary business, may also (as California argues) support the generation of nonunitary income. However, unlike the California rule, ratio-based rules do not assume that all borrowing first supports nonunitary investment. Rather, they allocate each borrowing between the two types of income. Although they may not reflect every firm's specific actions in any given year, it is reasonable to expect that, over some period of *468 time, the ratios used will reflect approximately the amount of borrowing that firms have actually devoted to generating each type of income. Conversely, it is simply not reasonable to expect that a rule that attributes all borrowing first to nonunitary investment will accurately reflect the amount of borrowing that has actually been devoted to generating each type of income. Because California's offset provision is not a reasonable allocation of expense deductions to the income that the expense generates, it constitutes impermissible taxation of income outside its jurisdictional reach. The provision therefore violates the Due Process and Commerce Clauses of the Constitution. The judgment of the California Court of Appeal is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Cal. Rev. & Tax Code Ann. 24344 (West 1979). "Interest; restrictions "(a) Except as limited by subsection (b), there shall be allowed as a deduction all interest paid or accrued during the income year on indebtedness of the taxpayer. "(b) [T]he interest deductible shall be an amount equal to interest income subject to allocation by formula, plus the amount, if any, by which the balance of interest expense exceeds interest and dividend income (except dividends deductible under the provisions of Section 24402) not subject to allocation by formula. Interest expense not included in
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
This copyright case concerns the rights of freelance authors and a presumptive privilege of their publishers. The litigation was initiated by six freelance authors and relates to articles they contributed to three print periodicals (two newspapers and one magazine). Under agreements with the periodicals' publishers, but without the freelancers' consent, two computer database companies placed copies of the freelancers' articlesÔÇöalong with all other articles from the periodicals in which the freelancers' work appearedÔÇöinto three databases. Whether written by a freelancer or staff member, each article is presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented. The freelance authors' complaint alleged that their copyrights had been infringed by the inclusion of their articles in the databases. The publishers, in response, relied on the *488 privilege of reproduction and distribution accorded them by 201(c) of the Copyright Act, which provides: "Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." 17 U.S. C. 201(c). Specifically, the publishers maintained that, as copyright owners of collective works, i. e., the original print publications, they had merely exercised "the privilege" 201(c) accords them to "reproduc[e] and distribut[e]" the author's discretely copyrighted contribution. In agreement with the Second Circuit, we hold that 201(c) does not authorize the copying at issue here. The publishers are not sheltered by 201(c), we conclude, because the databases reproduce and distribute articles standing alone and not in context, not "as part of that particular collective work" to which the author contributed, "as part of any revision" thereof, or "as part of any later collective work in the same series." Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors. I A Respondents Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford are authors (Authors). Between 1990 and 1993, they wrote the 21 articles (Articles) on which this dispute centers. Tasini, Mifflin, and Blakely contributed 12 Articles to The New York Times, the daily newspaper published by *489 petitioner The New York Times Company
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
newspaper published by *489 petitioner The New York Times Company (Times). Tasini, Garson, Robbins, and Whitford wrote eight Articles for Newsday, another New York daily paper, published by petitioner Newsday, Inc. (Newsday). Whitford also contributed one Article to Sports Illustrated, a weekly magazine published by petitioner Time, Inc. (Time). The Authors registered copyrights in each of the Articles. The Times, Newsday, and Time (Print Publishers) registered collective work copyrights in each periodical edition in which an Article originally appeared. The Print Publishers engaged the Authors as independent contractors (freelancers) under contracts that in no instance secured consent from an Author to placement of an Article in an electronic database.[1] At the time the Articles were published, all three Print Publishers had agreements with petitioner LEXIS/NEXIS (formerly Mead Data Central Corp.), owner and operator of NEXIS, a computerized database that stores information in a text-only format. NEXIS contains articles from hundreds of journals (newspapers and periodicals) spanning many years. The Print Publishers have licensed to LEXIS/ NEXIS the text of articles appearing in the three periodicals. The licenses authorize LEXIS/NEXIS to copy and sell any portion of those texts. Pursuant to the licensing agreements, the Print Publishers regularly provide LEXIS/NEXIS with a batch of all the articles published in each periodical edition. The Print Publisher codes each article to facilitate computerized retrieval, then transmits it in a separate file. After further coding, LEXIS/NEXIS places the article in the central discs of its database. *490 Subscribers to NEXIS, accessing the system through a computer, may search for articles by author, subject, date, publication, headline, key term, words in text, or other criteria. Responding to a search command, NEXIS scans the database and informs the user of the number of articles meeting the user's search criteria. The user then may view, print, or download each of the articles yielded by the search. The display of each article includes the print publication (e. g., The New York Times), date section (Magazine), initial page number (26), headline or title ("Remembering Jane"), and author (Mary Kay Blakely). Each article appears as a separate, isolated "story"ÔÇöwithout any visible link to the other stories originally published in the same newspaper or magazine edition. NEXIS does not contain pictures or advertisements, and it does not reproduce the original print publication's formatting features such as headline size, page placement (e. g., above or below the fold for newspapers), or location of continuation pages. The Times (but not Newsday or Time) also has licensing agreements with petitioner University Microfilms International (UMI). The agreements authorize reproduction of Times materials on two CDÔÇöROM
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
The agreements authorize reproduction of Times materials on two CDÔÇöROM products, the New York Times OnDisc (NYTO) and General Periodicals OnDisc (GPO). Like NEXIS, NYTO is a text-only system. Unlike NEXIS, NYTO, as its name suggests, contains only the Times. Pursuant to a three-way agreement, LEXIS/ NEXIS provides UMI with computer files containing each article as transmitted by the Times to LEXIS/NEXIS. Like LEXIS/NEXIS, UMI marks each article with special codes. UMI also provides an index of all the articles in NYTO. Articles appear in NYTO in essentially the same way they appear in NEXIS, i. e., with identifying information (author, title, etc.), but without original formatting or accompanying images. *491 GPO contains articles from approximately 200 publications or sections of publications. Unlike NEXIS and NYTO, GPO is an image-based, rather than a text-based, system. The Times has licensed GPO to provide a facsimile of the Times' Sunday Book Review and Magazine. UMI "burns" images of each page of these sections onto CDÔÇöROMs. The CDÔÇö ROMs show each article exactly as it appeared on printed pages, complete with photographs, captions, advertisements, and other surrounding materials. UMI provides an index and abstracts of all the articles in GPO. Articles are accessed through NYTO and GPO much as they are accessed through NEXIS. The user enters a search query using similar criteria (e. g., author, headline, date). The computer program searches available indexes and abstracts, and retrieves a list of results matching the query. The user then may view each article within the search result, and may print the article or download it to a disc. The display of each article provides no links to articles appearing on other pages of the original print publications.[2] B On December 16, 1993, the Authors filed this civil action in the United States District Court for the Southern District of New York. The Authors alleged that their copyrights were infringed when, as permitted and facilitated by the Print Publishers, LEXIS/NEXIS and UMI (Electronic Publishers) placed the Articles in the NEXIS, NYTO, and GPO databases (Databases). The Authors sought declaratory *492 and injunctive relief, and damages. In response to the Authors' complaint, the Print and Electronic Publishers raised the reproduction and distribution privilege accorded collective work copyright owners by 17 U.S. C. 201(c). After discovery, both sides moved for summary judgment. The District Court granted summary judgment for the Publishers, holding that 201(c) shielded the Database reproductions. The privilege conferred by 201(c) is transferable, the court first concluded, and therefore could be conveyed from the original Print Publishers to the Electronic Publishers. Next,
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
from the original Print Publishers to the Electronic Publishers. Next, the court determined, the Databases reproduced and distributed the Authors' works, in 201(c)'s words, "as part of [a] revision of that collective work" to which the Authors had first contributed. To qualify as "revisions," according to the court, works need only "preserve some significant original aspect of [collective works]ÔÇöwhether an original selection or an original arrangement." This criterion was met, in the District Court's view, because the Databases preserved the Print Publishers' "selection of articles" by copying all of the articles originally assembled in the periodicals' daily or weekly issues. The Databases "highlight[ed]" the connection between the articles and the print periodicals, the court observed, by showing for each article not only the author and periodical, but also the print publication's particular issue and page numbers. The Authors appealed, and the Second Circuit reversed. The Court of Appeals granted summary judgment for the Authors on the ground that the Databases were not among the collective works covered by 201(c), and specifically, were not "revisions" of the periodicals in which the Articles first appeared. Just as 201(c) does not "permit a Publisher to sell a hard *493 copy of an Author's article directly to the public even if the Publisher also offered for individual sale all of the other articles from the particular edition," the court reasoned, so 201(c) does not allow a Publisher to "achieve the same goal indirectly" through computer databases. In the Second Circuit's view, the Databases effectively achieved this result by providing multitudes of "individually retrievable" articles. As stated by the Court of Appeals, the Databases might fairly be described as containing "new antholog[ies] of innumerable" editions or publications, but they do not qualify as "revisions" of particular editions of periodicals in the Databases. Having concluded that 201(c) "does not permit the Publishers," acting without the author's consent, "to license individually copyrighted works for inclusion in the electronic databases," the court did not reach the question whether the 201(c) privilege is transferable. and n. 2. We granted certiorari to determine whether the copying of the Authors' Articles in the Databases is privileged by 17 U.S. C. 201(c). Like the Court of Appeals, we conclude that the 201(c) privilege does not override the Authors' copyrights, for the Databases do not reproduce and distribute the Articles as part of a collective work privileged by 201(c). Accordingly, and again like the Court of Appeals, we find it unnecessary to determine whether the privilege is transferable. II Under the Copyright Act, as
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
the privilege is transferable. II Under the Copyright Act, as amended in 1976, "[c]opyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated." 17 U.S. C. 102(a). When, as in this case, a freelance author has contributed an article to a "collective work" such as a newspaper or magazine, see 101 (defining "collective work"), the statute recognizes two distinct copyrighted works: "Copyright in each separate contribution to a collec- *494 tive work is distinct from copyright in the collective work as a whole" 201(c) (emphasis added). Copyright in the separate contribution "vests initially in the author of the contribution" (here, the freelancer). Copyright in the collective work vests in the collective author (here, the newspaper or magazine publisher) and extends only to the creative material contributed by that author, not to "the preexisting material employed in the work," 103(b). See also Feist Publications, Prior to the 1976 revision, as the courts below recognized, see 206 F.3d, ; authors risked losing their rights when they placed an article in a collective work. Pre-1976 copyright law recognized a freelance author's copyright in a published article only when the article was printed with a copyright notice in the author's name. See Copyright Act of 1909, 18, When publishers, exercising their superior bargaining power over authors, declined to print notices in each contributor's name, the author's copyright was put in jeopardy. See Kaminstein, Divisibility of Copyrights, Study No. 11, in Copyright Law Revision Studies Nos. 11-13, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 18 (1960). The author did not have the option to assign only the right of publication in the periodical; such a partial assignment was blocked by the doctrine of copyright "indivisibility." See Thus, when a copyright notice appeared only in the publisher's name, the author's work would fall into the public domain, unless the author's copyright, in its entirety, had passed to the publisher. See Such complete transfer might be accomplished by a contract, perhaps one with a provision, not easily enforced, for later retransfer of rights back to the author. See Or, absent a specific contract, a court might find that an author had tacitly *495 transferred the entire copyright to a publisher, in turn deemed to hold the copyright in "trust" for the author's benefit. See -19; see generally 3 M. Nimmer & D. Nimmer, Copyright 10.01[C][2], pp. 10-12 to 10-14 In the 1976 revision, Congress acted to "clarify and improve [this] confused
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
1976 revision, Congress acted to "clarify and improve [this] confused and frequently unfair legal situation with respect to rights in contributions." H. R. Rep. No. 94ÔÇö 1476, p. 122 (1976) (hereinafter H. R. Rep.).[3] The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete "exclusive rights," 17 U.S. C. 106 (1994 ed. and Supp. V),[4] each of which "may be transferred *496 and owned separately," 201(d)(2).[5] Congress also provided, in 404(a), that "a single notice applicable to the collective work as a whole is sufficient" to protect the rights of freelance contributors. And in 201(c), Congress codified the discrete domains of "[c]opyright in each separate contribution to a collective work" and "copyright in the collective work as a whole." Together, 404(a) and 201(c) "preserve the author's copyright in a contribution even if the contribution does not bear a separate notice in the author's name, and without requiring any unqualified transfer of rights to the owner of the collective work." H. R. Rep. 122. Section 201(c) both describes and circumscribes the "privilege" a publisher acquires regarding an author's contribution to a collective work: "In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." (Emphasis added.) A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only "as part of" any (or all) of three categories of collective works: (a) "that collective work" to which the author contributed her work, (b) "any revision of that collective work," or (c) "any later collective work in the same series." In accord with Congress' prescription, a "publishing company could reprint *497 a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work." H. R. Rep. 122-123. Essentially, 201(c) adjusts a publisher's copyright in its collective work to accommodate a freelancer's copyright in her contribution. If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others. Cf. ("[w]hen an author produces a work which later commands a higher price in the market than the original bargain provided, the copyright statute [i. e., the separate renewal term of former 17 U.S. C. 24] is designed to provide the author the power to negotiate for the realized value of the work"); (noting author's "inalienable termination right" under current 17 U.S. C. 203, 302 (1994 ed. and Supp. V)). It would scarcely "preserve the author's copyright in a contribution" as contemplated by Congress, H. R. Rep. 122, if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author's contribution in isolation or within new collective works. See Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 Brooklyn L. Rev. 473, 484[6] *498 III In the instant case, the Authors wrote several Articles and gave the Print Publishers permission to publish the Articles in certain newspapers and magazines. It is undisputed that the Authors hold copyrights and, therefore, exclusive rights in the Articles.[7] It is clear, moreover, that the Print and Electronic Publishers have exercised at least some rights that 106 initially assigns exclusively to the Authors: LEXIS/NEXIS' central discs and UMI's CDÔÇöROMs "reproduce copies" of the Articles, 106(1); UMI, by selling those CDÔÇöROMs, and LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, "distribute copies" of the Articles "to the public by sale," 106(3); and the Print Publishers, through contracts licensing the production of copies in the Databases, "authorize" reproduction and distribution of the Articles, 106.[8] *499 Against the Authors' charge of infringement, the Publishers do not here contend the Authors entered into an agreement authorizing reproduction of the Articles in the Databases. See Nor do they assert that the copies in the Databases represent "fair use" of the Authors' Articles. See 17 U.S. C. 107 ("fair use of a copyrighted work is not an infringement"; four factors identified among those relevant to fair use determination). Instead, the Publishers rest entirely on the privilege described in 201(c). Each discrete edition of the periodicals in which the Articles appeared is a "collective work," the Publishers agree. They contend, however, that reproduction and distribution of each Article by the Databases lie within the "privilege of reproducing and distributing the [Articles] as part of [a] revision of that collective work," 201(c). The Publishers' encompassing construction of the
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
collective work," 201(c). The Publishers' encompassing construction of the 201(c) privilege is unacceptable, we conclude, for it would diminish the Authors' exclusive rights in the Articles. In determining whether the Articles have been reproduced and distributed "as part of" a "revision" of the collective works in issue, we focus on the Articles as presented to, and perceptible by, the user of the Databases. See 102 (copyright protection subsists in original works fixed in any medium "from which they can be perceived, reproduced, or otherwise communicated"); see also 101 (1994 ed., Supp. V) (definitions of "copies" and "fixed"); Haemmerli, Commentary: Tasini v. New York Times Co., 22 Colum.-VLA. J. L. & Arts 129, 142-143 In this case, the three Databases present articles to users clear of the context provided either by the original periodical editions or by any revision of those editions. The Databases first prompt users to search the universe of their contents: thousands or millions of files containing *500 individual articles from thousands of collective works (i. e., editions), either in one series (the Times, in NYTO) or in scores of series (the sundry titles in NEXIS and GPO). When the user conducts a search, each article appears as a separate item within the search result. In NEXIS and NYTO, an article appears to a user without the graphics, formatting, or other articles with which the article was initially published. In GPO, the article appears with the other materials published on the same page or pages, but without any material published on other pages of the original periodical. In either circumstance, we cannot see how the Database perceptibly reproduces and distributes the article "as part of" either the original edition or a "revision" of that edition. One might view the articles as parts of a new compendiumÔÇönamely, the entirety of works in the Database. In that compendium, each edition of each periodical represents only a miniscule fraction of the ever-expanding Database. The Database no more constitutes a "revision" of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a "revision" of that poem. "Revision" denotes a new "version," and a version is, in this setting, a "distinct form of something regarded by its creator or others as one work." Webster's Third New International Dictionary 1944, 2545 (1976). The massive whole of the Database is not recognizable as a new version of its every small part. Alternatively, one could view the Articles in the Databases "as part of" no larger work at all, but simply as individual articles presented individually. That
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
at all, but simply as individual articles presented individually. That each article bears marks of its origin in a particular periodical (less vivid marks in NEXIS and NYTO, more vivid marks in GPO) suggests the article was previously part of that periodical. But the markings do not mean the article is currently reproduced or distributed as part of the periodical. The Databases' reproduction and distribution of individual ArticlesÔÇösimply as *501 individual Articles ÔÇöwould invade the core of the Authors' exclusive rights under 106.[9] The Publishers press an analogy between the Databases, on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting. Microforms typically contain continuous photographic reproductions of a periodical in the medium of miniaturized film. Accordingly, articles appear on the microforms, writ very small, in precisely the position in which the articles appeared in the newspaper. The Times, for example, printed the beginning of Blakely's "Remembering Jane" Article on page 26 of the Magazine in the September 23, 1990, edition; the microfilm version of the Times reproduces that same Article on film in the very same position, within a film reproduction of the entire Magazine, in turn within a reproduction of the entire September 23, 1990, edition. True, the microfilm roll contains multiple editions, and the microfilm user can adjust the machine lens to focus only on the Article, to the exclusion of surrounding material. Nonetheless, the user first encounters the Article in context. In the Databases, by contrast, the Articles appear disconnected from their original context. In NEXIS and NYTO, the user sees the "Jane" Article apart even from the remainder of page 26. In GPO, the user sees the Article within the context of page 26, but clear of the context of page 25 or page 27, the rest of the Magazine, or the remainder of the day's newspaper. In short, unlike microforms, the Databases do not perceptibly reproduce articles as part of the *502 collective work to which the author contributed or as part of any "revision" thereof.[10] Invoking the concept of "media neutrality," the Publishers urge that the "transfer of a work between media" does not "alte[r] the character of" that work for copyright purposes. Brief for Petitioners 23. That is indeed true. See 17 U.S. C. 102(a) (copyright protection subsists in original works "fixed in any tangible medium of expression"). But unlike the conversion of newsprint to microfilm, the transfer of articles to the Databases does not represent a mere conversion of intact periodicals (or revisions of periodicals) from one medium to another. The Databases offer
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
of periodicals) from one medium to another. The Databases offer users individual articles, not intact periodicals. In this case, media neutrality should protect the Authors' rights in the individual Articles to the extent those Articles are now presented individually, outside the collective work context, within the Databases' new media.[11] For the purpose at handÔÇödetermining whether the Authors' copyrights have been infringedÔÇöan analogy to an *503 imaginary library may be instructive.[12] Rather than maintaining intact editions of periodicals, the library would contain separate copies of each article. Perhaps these copies would exactly reproduce the periodical pages from which the articles derive (if the model is GPO); perhaps the copies would contain only typescript characters, but still indicate the original periodical's name and date, as well as the article's headline and page number (if the model is NEXIS or NYTO). The library would store the folders containing the articles in a file room, indexed based on diverse criteria, and containing articles from vast numbers of editions. In response to patron requests, an inhumanly speedy librarian would search the room and provide copies of the articles matching patron-specified criteria. Viewing this strange library, one could not, consistent with ordinary English usage, characterize the articles "as part of" a "revision" of the editions in which the articles first appeared. In substance, however, the Databases differ from the file room only to the extent they aggregate articles in electronic packages (the LEXIS/NEXIS central discs or UMI CDÔÇöROMs), while the file room stores articles in spatially separate files. The crucial fact is that the Databases, like the hypothetical library, store and retrieve articles separately within a vast domain of diverse texts. Such a storage and retrieval system effectively overrides the Authors' exclusive *504 right to control the individual reproduction and distribution of each Article, 17 U.S. C. 106(1), (3). Cf. The Publishers claim the protection of 201(c) because users can manipulate the Databases to generate search results consisting entirely of articles from a particular periodical edition. By this logic, 201(c) would cover the hypothetical library if, in response to a request, that library's expert staff assembled all of the articles from a particular periodical edition. However, the fact that a third party can manipulate a database to produce a noninfringing document does not mean the database is not infringing. Under 201(c), the question is not whether a user can generate a revision of a collective work from a database, but whether the database itself perceptibly presents the author's contribution as part of a revision of the collective work. That result is not
|
Justice Ginsburg
| 2,001 | 5 |
majority
|
New York Times Co. v. Tasini
|
https://www.courtlistener.com/opinion/118457/new-york-times-co-v-tasini/
|
a revision of the collective work. That result is not accomplished by these Databases. The Publishers finally invoke Sony Corp. of That decision, however, does not genuinely aid their argument. Sony held that the "sale of copying equipment" does not constitute contributory infringement if the equipment is "capable of substantial noninfringing uses." The Publishers suggest that their Databases could be liable only under a theory of contributory infringement, based on enduser conduct, which the Authors did not plead. The Electronic Publishers, however, are not merely selling "equipment"; they are selling copies of the Articles. And, as we have explained, it is the copies themselves, without any manipulation by users, that fall outside the scope of the 201(c) privilege. IV The Publishers warn that a ruling for the Authors will have "devastating" consequences. Brief for Petitioners 49. The Databases, the Publishers note, provide easy access to *505 complete newspaper texts going back decades. A ruling for the Authors, the Publishers suggest, will punch gaping holes in the electronic record of history. The Publishers' concerns are echoed by several historians, see Brief for Ken Burns et al. as Amici Curiae, but discounted by several other historians, see Brief for Ellen Schrecker et al. as Amici Curiae; Brief for Authors' Guild, Inc., Jacques Barzun et al. as Amici Curiae. Notwithstanding the dire predictions from some quarters, see also post, at 520 (Stevens, J., dissenting), it hardly follows from today's decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. See 17 U.S. C. 502(a) (court "may" enjoin infringement); The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors' works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution. See, e. g., 17 U.S. C. 118(b); Broadcast Music,[13] In any event, speculation about *506 future harms is no basis for this Court to shrink authorial rights Congress established in 201(c). Agreeing with the Court of Appeals that the Publishers are liable for infringement, we leave remedial issues open for initial airing and decision in the District Court. * * * We conclude that the Electronic Publishers infringed the Authors' copyrights by reproducing and distributing the Articles in a manner not authorized by the Authors and not privileged by 201(c). We further conclude that the Print Publishers infringed the Authors' copyrights by authorizing the Electronic Publishers to place the Articles in the Databases and by aiding
|
Justice Blackmun
| 1,974 | 11 |
second_dissenting
|
Kelley v. Southern Pacific Co.
|
https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/
|
The Court in its decided cases has traveled far in order to accord Federal Employers' Liability Act coverage to a variety of employment situations. See, e. g., and North Carolina R. Its many decisions are now a well-chalked slate that should not be significantly erased without good reasons. Neither should the Court change a mature and highly developed legal standard, long accepted by Congress, without explaining those reasons or even saying what the effect will be. For me, the Court's per curiam opinion in 39 U.S. 227 (199), controls this case. There the injured workman had been hired by a corporation engaged in work along the railroad's main-line right-of-way. The work consisted of pumping sand and cement into the roadbed in order to strengthen and stabilize it. The workman was struck by a train while engaged at this job. The petitioners contended that he was killed while he was "employed" by the railroad, within the meaning of the Act. Evidence on the question was introduced, but the trial judge declined to submit the issue to the jury, holding as a matter of law that the workman was not in such a relationship to the railroad at the time of his death as to entitle him to the Act's protection. The state courts refused to disturb the judgment for the railroad. This Court, however, held that the Act does not use the terms "employee" and "employed" in any special *342 sense, and that the familiar general legal problems as to whose employee or servant a worker is at a given time present themselves as matters of federal law under the Act. Each case, the Court said, must be decided on its peculiar facts and " `ordinarily no one feature of the relationship is determinative.' " The Court concluded that it was "perfectly plain" that the question "contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law." It pointed out that the petitioners introduced evidence tending to prove that the work "was part of the maintenance task of the railroad"; that the road "furnished the material to be pumped into the roadbed"; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job. The railroad introduced evidence tending to controvert this. The Court then held that an issue for determination by the jury was presented. So it is here. Kelley was injured at the railroad's loading-and-unloading ramp in San Francisco. He and others
|
Justice Blackmun
| 1,974 | 11 |
second_dissenting
|
Kelley v. Southern Pacific Co.
|
https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/
|
the railroad's loading-and-unloading ramp in San Francisco. He and others were unchaining new automobiles for unloading when he fell from the third level of the railroad car. He was hired, paid by, and could be discharged by the railroad's wholly owned subsidiary. All the officers and directors of that subsidiary were officers or directors of the railroad. The subsidiary was the only company then having a contract with the railroad to unload cars at that ramp. Kelley had been employed at this particular job and at this site for eight years and was paid on an hourly basis. The unloading was the railroad's responsibility pursuant to its contractual obligation to its shipper. The railroad supplied the necessary working area. The work performed by Kelley was unskilled. Railroad employees had the responsibility daily to check the safety of the cars and to make necessary repairs. There was evidence *343 that the railroad exercised a degree of control over the unloading operation and that PMT employees performing this work frequently felt they had to heed the railroad supervisor's command.[*] All this, it seems to me, is enough to create an issue for the trier of fact, just as the Baker case illustrates and as it teaches. The trier could find that Kelley was doing work of a kind and in a way and under such supervision of the Southern Pacific as made him an employee of that railroad for purposes of the FELA. I feel the Court, ante, at 32 n. 6, gives undue emphasis to the District Court's treatment of findings of fact proposed by the petitioner. Every actively practicing trial attorney knows that some judges readily adopt findings presented by counsel; that other judges almost always reject proposed findings and prefer to draft their own or have their clerks prepare them; and that still others adopt a middle course. In this case the District Court produced a judgment for the injured workman. I doubt whether there can be much significance in the adjustment-of-proposed-findings route by which that judgment was reached. While the Court disclaims any modification of the standards for allowing questions of fact in FELA cases to go to the jury, its decision here suggests otherwise. The Court implies that supervision must be "day-to-day" in order to constitute "supervision" for purposes of creating "employee" status under the FELA. Ante, at 331. Does this mean that orders must be issued with a certain frequency (e. g., every day, or most days) or merely in a certain manner (e. g., the "daily" normal "course of the work," Baker, 39 U. S.,
|
Justice Douglas
| 1,971 | 10 |
majority
|
United States v. Greater Buffalo Press, Inc.
|
https://www.courtlistener.com/opinion/108344/united-states-v-greater-buffalo-press-inc/
|
This is a civil antitrust case brought by the United States charging a violation of 7 of the Clayton Act,[1]*551 as amended, 15 U.S. C. 18. The main thrust of the case involves the acquisition by Greater Buffalo Press, Inc. (Greater Buffalo), of all the stock of International Color Printing Co. (International). The complaint, at the secondary level, charged that Greater Buffalo, Hearst Corp., through its unincorporated division King Features Syndicate (King), Newspaper Enterprise Association, Inc. (NEA), and others had conspired to restrain the sale to newspapers of the printing of comic supplements in violation of 1 of the Sherman Act, as amended, 15 U.S. C. 1. It also charged that Hearst and NEA were violators of certain tying arrangements involving the licensing of comic features and the sale of comic supplements.[2] Before trial a consent decree was entered against Hearst, enjoining King from entering into any agreement limiting competition in the printing of color comic supplements and barring any tying arrangement. After full trial the District Court dismissed the complaint.[3] The case came here under 2 of the Expediting Act, as amended, 15 U.S. C. 29. We noted probable jurisdiction, We reverse the judgment below. The case involves the comic supplement business used weekends by most newspapers. Some papers print their own comic supplements; others purchase them. Greater Buffalo prints color supplements for newspapers and sells them. International prints color comic supplements for King only. *552 Most color comic supplements are printed by companies like Greater Buffalo and sold to newspapers. But individual newspapers contract for the purchase of comic features and it is those comics that Greater Buffalo prints for the particular papers. The most popular comic features used by major metropolitan papers are controlled by King. Greater Buffalo has no control over the ownership of features and therefore does not license them. As noted, however, King is a licensor; and moreover, it prints "ready-print" supplements which are preprinted and supplied to many newspapers only with masthead change. The District Court declared that the acquisition of International by Greater Buffalo has not, and will not, result in a substantial lessening of competition in the color comic supplement industry, and therefore did not constitute a violation of 7 of the Clayton Act. The basic error of the District Court, in our view, was in its finding that the significant lines of commerce involved in this action should be divided into "two distinct and separate categories: (1) the printing of color comic supplements for newspapers which do not print their own, and (2) the printing of color comic supplements for
|
Justice Douglas
| 1,971 | 10 |
majority
|
United States v. Greater Buffalo Press, Inc.
|
https://www.courtlistener.com/opinion/108344/united-states-v-greater-buffalo-press-inc/
|
own, and (2) the printing of color comic supplements for syndicates engaged in the sale of copyrighted comic features to newspapers. These are the lines of commerceto treat them together as one line of commerce, i. e., the printing and sale of color comic supplements, would be to ignore the tremendous leverage of the syndicates which control the copyrighted features." As we read the record, the printing of color comic supplements and their sale are component parts of the color comic supplement printing business. One firm or company may both print and sell; another may print yet sell through a third organization, as does International through King. The "area of effective competition," *553 Standard Oil 299-300 n. 5, comprises the business of Greater Buffalo, International, and King. There may be submarkets within this broad market for antitrust purposes (Brown Shoe ), but, as we said in United "submarkets are not a basis for the disregard of a broader line of commerce that has economic significance." The District Court, proceeding from its premise as to the relevant market, analyzed the effects on the competition between Greater Buffalo and International resulting from the purchase of the stock of the latter. The true import would include not only that but also the effect on competition of the alliance with King, through the acquisition of King's client, International. The three of them were engaged in the single line of commerce consisting of the printing and distribution of color comic supplements. The printing of color comics is the same no matter for whom it is done or through whom they are distributed. The combination of those who print and sell comic supplements with those who sell comic supplements printed by others fastens more tightly the hold of the group on the side of supplement printing business. As a result of the acquisition, King has become dependent on Greater Buffalo for most of the printing which it sells in competition with Greater Buffalo. Greater Buffalo, it is said, had no long-term contract for King's business following the acquisition. Yet it had the almost certain right to print for King, its principal selling competitor, and a 10-year contract was entered into in the summer after the acquisition. There is evidence that Greater Buffalo has taken accounts from King since the acquisition. But existing competition between them is naturally restricted to sales at a price *554 higher than Greater Buffalo charges King for printing; and it is not that fuller competition that could exist if King had an independent printing source. King's executive officer proposed, after the stock
|
Justice Douglas
| 1,971 | 10 |
majority
|
United States v. Greater Buffalo Press, Inc.
|
https://www.courtlistener.com/opinion/108344/united-states-v-greater-buffalo-press-inc/
|
independent printing source. King's executive officer proposed, after the stock acquisition of International, that King acquire its own color supplement printing capacity. "Even if it cost money to do this and diminished profits, wouldn't that be better than the eventual loss of most, if not all, of our readyprint business? "The Syndicate which for more than a quarter of a century has been number one in the readyprint field is now at best number two, and quite helpless. Newspaper history clearly emphasizes the difficulty, in fact hopelessness of regaining a lost position. There is plenty of current evidence to substantiate this. "If Koessler [head of Greater Buffalo], because of what he has done the past few years, were to be attacked, in my opinion he would lose, but there is the danger, I suppose, of our becoming an accessory. Here is another reason why I think that if we were in the readyprint field with plants of our own it would restore a competitive aspect and certainly that wouldn't be discouraged in Washington." Prior to the acquisition, King put pressure on International to construct a southern plant to meet Greater Buffalo's proposed expansion there. Prior to the acquisition King also induced International to cut its price to meet competition and actually transferred a few contracts from International to Greater Buffalo because of prices. Those practices ceased after the acquisition. Greater Buffalo acquired control of about 75% of independent color comic supplement printing, leaving King no reliable alternative supply. Greater Buffalo and International *555 which had been competitors ceased to be such. The threat that newspaper customers will do their own printing is of course a factor in the competitive situation. But, according to the record, color comic supplement printing requires exacting mechanical techniques performed by specially trained personnel, and independent printers specializing in supplement printing and handling a high volume of business can produce a high quality product more economically than most newspapers. The test of 7 is whether the effect of an acquisition "may be substantially to lessen competition." The concentration of 75% of the independent color comic supplement printing business in one firm points firmly to the conclusion that the difficulties of new entrants becoming real competitors of Greater Buffalo are greatly increased. We also disagree with the District Court that the acquisition of International by Greater Buffalo was within the "failing company" exception to 7 of the Clayton Act. That test is met only if two requirements are satisfied: (1) that the resources of International were "so depleted and the prospect of rehabilitation so remote that it
|
Justice Douglas
| 1,971 | 10 |
majority
|
United States v. Greater Buffalo Press, Inc.
|
https://www.courtlistener.com/opinion/108344/united-states-v-greater-buffalo-press-inc/
|
depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure." International Shoe and (2) that there was no other prospective purchaser for it. Citizen Publishing It is true that its owners wished to sell rather than raise the capital needed for modernization and expansion, and that King, its sole customer, was threatening to place some of its business elsewhere. Yet King had not threatened to invoke, nor had it invoked, the six-month cancellation provision in the contract. Its expansion plans were being actively pursued and it continued to pay dividends to its owners. Indeed in the year of the sale it had shown a substantial increase in profits. *556 Moreover, only King and Greater Buffalo were considered as prospective purchasers; the numerous other smaller color comic supplement printers were never even approached. Since the District Court found no violation of 7, it naturally did not reach the question of remedy though it said that if there were a violation, it would not warrant "a court's exercising its discretion to order a divestiture fifteen years after the occurrence of the alleged illegal conduct." That is not the law; the passage of time per se is no barrier to divestiture of stock illegally acquired. United ; Divestiture performs several functions, the foremost being the liquidation of the illegally acquired market power. Schine Chain We do not, however, reach the question of divestiture. A majority of the Court is of the view that the nature of the decree to be fashioned should be initially considered by the District Court. In that connection two additional questions will need to be passed on by the District Court. First is the question of the consent decree entered with Hearst. As to it the District Court said: "King Features may continue to engage in the practice of combining the sale of features and printing until the court shall determine the antitrust issue as to Greater Buffalo. The decree also provided that Hearst shall obey the antitrust laws during the pendency of the action." We do not have enough information about the consent decree and its operation and the related facts to know how it should now be integrated into a decree. Second. In the fifties Greater Buffalo erected a printing plant at Lufkin, Texas, to improve its market in that area by saving transportation costs. There is some evidence that in 1950 Greater Buffalo made a moral commitment to certain newspapers to build a plant in the *557 Deep South. A plant was constructed at Sylacauga, Alabama, after the
|
Justice Marshall
| 1,980 | 15 |
majority
|
United States v. Clark
|
https://www.courtlistener.com/opinion/110210/united-states-v-clark/
|
This appeal presents the question whether illegitimate children of a federal civil service employee are entitled to survivors' benefits under the Civil Service Retirement Act when the children once lived with the employee in a familial relationship, but were not living with the employee at the time of his death. I George Isaacson and the appellee Patricia Clark lived together from 1965 through 1971 without benefit of matrimony. They had two children, Shawn and Tricia Clark, born in 1968 and 1971, respectively, and the four lived together as a family. After the appellee and Isaacson separated, the appellee filed a state-court action in Montana seeking a determination of the paternity of the children. In June 1972, the Montana court issued a decree determining that Isaacson was the natural father of the children and ordering him to contribute to their support. Isaacson provided monthly support payments up to the time of his death in 1974. At the time of death, Isaacson was a federal employee covered by the Civil Service Retirement Act, 5 U.S. C. 8331 et seq. The Act provides that each surviving child of a deceased federal employee is entitled to a survivors' annuity. 5 U.S. C. 8341 (e) (1). All legitimate and adopted children under 18 years of age qualify for these benefits, but stepchildren or "recognized natural" children under 18 may recover only if they "lived with the employee in a regular parent-child relationship." 5 U.S. C. 8341 (a) (3) (A). In September 1974, the Civil Service Commission's Bureau of Retirement, Insurance, and Occupational Health denied the appellee's application for such annuities for Shawn and Tricia. The Bureau held that 5 U.S. C. 8341 (a) (3) (A) bars recovery for otherwise qualified children born out of wedlock who, like Shawn and Tricia, were not living with the employee *25 at the time of his death. The Commission's Board of Appeals and Review affirmed.[1] The appellee then filed this action in the Court of Claims on behalf of her children. She argued that 5 U.S. C. 8341 (a) (3) (A) allows recovery where, as here, the recognized natural children had once lived with the employee in a parent-child relationship. Alternatively she contended that, if the Commission's interpretation of 5 U.S. C. 8341 (a) (3) (A) was correct, that provision violated the equal protection component of the Due Process Clause of the Fifth Amendment because it impermissibly discriminated against illegitimate children. The Court of Claims granted the appellee's motion for summary judgment. rehearing denied, which held that the "lived with" requirement of 5 U.S. C. 8341 (a) (3) (A)
|
Justice Marshall
| 1,980 | 15 |
majority
|
United States v. Clark
|
https://www.courtlistener.com/opinion/110210/united-states-v-clark/
|
with" requirement of 5 U.S. C. 8341 (a) (3) (A) unconstitutionally discriminated against illegitimate children. We postponed consideration of our jurisdiction pending hearing on the merits, and now affirm on the statutory ground presented to but not addressed by the Court of Claims.[2] *26 II The Civil Service Retirement Act provides survivors' annuities to all legitimate children, but grants the same benefits to *27 children born out of wedlock only if they "lived with the employee in a regular parent-child relationship." Such a classification based on illegitimacy is unconstitutional unless it bears "an evident and substantial relation to the particular. interests this statute is designed to serve." ; see See also[3] The Government's asserted justification for the classificationthat it is an administratively convenient means of identifying children who actually were deprived of support by the employee's deathis itself open to constitutional question, since the statute does not condition benefits to legitimate children on such a showing. It is well settled that this Court will not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided. E. g., ; New York City Transit ; ; Spector Motor Service, Where both a constitutional issue and an issue of statutory construction are raised, we are not, of course, foreclosed from considering the statutory question merely because the lower court failed to address it. at ; University of California *28 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.); ; Accordingly, we turn to the statute to determine whether resolution of the constitutional question is necessary to the disposition of this case. Shawn and Tricia Clark were denied annuities on the ground that they did not meet the statutory requirement that they "lived with the employee in a regular parent-child relationship." The appellee contended that her children did meet the requirement because they had lived with the decedent as a family from their birth through 1971. If the appellee's construction of the statutory language is correct, the children are entitled to survivors' annuities and decision of the constitutional question is unnecessary. The Civil Service Commission, however, has construed the "lived with" language to require that the children be living with the employee at the time of the employee's death. When the statutory language is considered on its face, the appellee's reading is at least as plausible as that of the Government. Shawn and Tricia had "lived with" their father, and we believe those words would not ordinarily imply a temporal limitation. Moreover, Congress has demonstrated in other social welfare legislation
|
Justice Marshall
| 1,980 | 15 |
majority
|
United States v. Clark
|
https://www.courtlistener.com/opinion/110210/united-states-v-clark/
|
limitation. Moreover, Congress has demonstrated in other social welfare legislation that it knows how to restrict the class of eligible beneficiaries to those living with an individual at a particular time.[4] *29 We can find nothing in the legislative history of the statute to indicate that appellee's construction of the statute is out of harmony with the congressional intent. The original enactment in 1948 made an annuity payable to "an unmarried child, including a dependent stepchild or an adopted child, under the age of eighteen years, or such unmarried child who because of physical or mental disability is incapable of self-support." Act of Feb. 28, 1948, 11, The amount of the annuity depended on whether another parent survived. Although children born out of wedlock were not expressly included, the provision was seemingly broad enough to cover them.[5] The Government argues that, in granting annuities to surviving children, Congress intended to provide funds to replace support lost by the wage earner's dependents. The Government views the statutory scheme as designed to pay benefits only to those children Congress thought most likely to have been dependent on the wage earner, and to take account of the likelihood of supplementary support from the other parent. We note, however, that only stepchildren were required to show dependency.[6] In 1956, Congress amended the definition of an entitled child to include "an unmarried child, including (1) an adopted child, and (2) a stepchild or recognized natural child who received more than one-half his support from and lived with the employee in a regular parent-child relationship." Act of July 31, 1956, Title IV, 1 (j),[7] For the *30 first time children born out of wedlock were explicitly included, but their eligibility was made subject both to the "lived with" requirement and to the dependency requirement originally applicable only to stepchildren. The legislative history is devoid of any indication whether Congress intended that annuities could be recovered by all recognized natural children who had once lived with the employee in a familial relationship, or only by such children who were living with the employee at the time of death. Nor do the congressional materials illuminate the purpose of the "lived with" requirement. The Government defends the provision as a rational indicator of both dependency and parentage. An illegitimate child who lived with the natural parent, according to this view, is both more likely to have received support from the parent and more likely to be the true issue of that parent than is any illegitimate child who lived apart from the natural parent. It seems unlikely that Congress
|
Justice Marshall
| 1,980 | 15 |
majority
|
United States v. Clark
|
https://www.courtlistener.com/opinion/110210/united-states-v-clark/
|
apart from the natural parent. It seems unlikely that Congress viewed the requirement as a means of ascertaining either dependency or parentage, however, since the statute also required the child to prove both that he had received more than one-half of his support from the deceased employee and that he was the employee's "recognized natural child." Those provisions speak directly to the concerns raised by the Government, and the additional requirement that the child must have lived with the parent would therefore be superfluous regardless of whether it mandated that the child must have lived with the parent at the time of the parent's death rather than at some other time. The Government also urges that Congress intended the "lived with" requirement to serve as a means of thwarting fraudulent claims of dependency or parentage, and to promote efficient administration by facilitating the prompt identification of eligible annuitants. It is evident from the facts *31 of this case, however, that the classification is not narrowly tailored as a means of furthering either goal. As we recognized in the prevention of fraud is a legitimate goal; but it does not necessarily follow "that the blanket and conclusive exclusion of [appellee's] subclass of illegitimates is reasonably related to the prevention of spurious claims." Thus, even if the "lived with" requirement is assumed to serve as a device to prevent fraud or to promote efficient administration, it raises serious equal protection problems that this Court must seek to avoid by adopting a saving statutory construction not at odds with fundamental legislative purposes. In sum, the legislative history of the 1956 amendments provides no direct guidance on the purpose of the "lived with" provision or on whether it was intended to be restricted to children living with the parent at a particular time. The less restrictive construction proposed by the appellee appears fair and reasonable in light of the language, purpose, and history of the enactment, and it avoids a serious constitutional question. Before we conclude our inquiry, however, we must consider whether a 1966 amendment to the statute affected the children's right to recovery. Congress enacted the 1966 amendments to the Act upon the request of the Executive Branch's Committee on Federal Staff Retirement Systems. One of these amendments removed the requirement that children must prove they received one-half of their support from the deceased employee in order to recover survivors' annuities. Act of July 18, 1966, Title V, 502, Congress deleted the dependency requirement in order to ensure recovery for the children of female civil servants, who typically earned less than their
|
Justice Marshall
| 1,980 | 15 |
majority
|
United States v. Clark
|
https://www.courtlistener.com/opinion/110210/united-states-v-clark/
|
of female civil servants, who typically earned less than their husbands and accordingly contributed less than half of the support of their children.[8] Congress also deleted the requirement *32 of proof of dependency for stepchildren and "recognized natural" children, but retained the "lived with" requirement for those claimants. The reason for retaining the requirement was not clearly explained in the Cabinet Committee report, which simply stated: "Stepchildren and natural children are eligible for benefits at present only when they have been dependent on the deceased parent and living with the parent in a regular parent-child relationship. The latter requirement should be retained; but, if it is fulfilled, the benefits should be paid as for any other child, without regard to the dependency requirement." H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966). The Government views the 1966 amendment as evidence that Congress intended the "lived with" requirement to serve as a convenient method of determining whether the child received support from the deceased employee. This proposition appears implausible, since in the same sentence the Committee recommended that if the "lived with" requirement were met benefits should be paid "as for any other child, without regard to the dependency requirement." The Committee's use of the word "retained" is a further indication that Congress did not intend the "lived with" provision to assume a new function previously performed by the dependency requirement. Moreover, the Government's position again unnecessarily raises the equal protection question, because legitimate children and adopted children were not required to demonstrate that they had received support from the decedent. In the absence of any persuasive evidence to the contrary, therefore, we assume that Congress' failure to alter the "lived *33 with" requirement likewise failed to modify the purpose of that provision as envisioned by the Congress that enacted it.[9] We conclude that the "lived with" requirement is satisfied when a recognized natural child has lived with the deceased employee in a "regular parent-child relationship," regardless of whether the child was living with the employee at the time of the employee's death. Our consideration of the language and purpose of the statute and of the available legislative history convinces us that this construction is a fair and reasonable reading of the congressional enactment.[10] Furthermore, *34 the construction is necessary to avoid a serious constitutional question. By so holding, we do not believe that we are creating undue administrative difficulties for the Civil Service Commission. In this case, for example, the Commission relied on the Montana court's paternity decree and affidavits concerning when the appellee's children lived with the
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
In petitioners were found guilty of engaging in a pattern and practice of discrimination against black and Hispanic individuals (nonwhites) in violation of Title I of the Civil Rights Act of U.S. C. 00e et seq., and ordered to end their discriminatory practices, and to admit a certain percentage of nonwhites to union membership by July In and again in 183, petitioners were found guilty of civil contempt for disobeying the District Court's earlier orders. They now challenge the District Court's contempt finding, and also the remedies the court ordered both for the Title I violation and for contempt. Principally, the issue presented is whether the remedial provision of Title I, see U.S. C. 00e-5(g), empowers a district court to order race-conscious relief that may benefit individuals who are not identified victims of unlawful discrimination. I Petitioner Local 28 of the Sheet Metal Workers' International Association (Local 28) represents sheet metal workers *7 employed by contractors in the New York City metropolitan area. Petitioner Local 28 Joint Apprenticeship Committee (JAC) is a management-labor committee which operates a 4-year apprenticeship training program designed to teach sheet metal skills. Apprentices enrolled in the program receive training both from classes and from on-the-job work experience. Upon completing the program, apprentices become journeyman members of Local 28. Successful completion of the program is the principal means of attaining union membership.[1] In the New York State Commission for Human Rights determined that petitioners had excluded blacks from the union and the apprenticeship program in violation of state law. The State Commission found, among other things, that Local 28 had never had any black members or apprentices, and that "admission to apprenticeship is conducted largely on a nepot[is]tic basis involving sponsorship by incumbent union members," App. JA-407, creating an impenetrable barrier for nonwhite applicants.[2] Petitioners were ordered to "cease and desist" their racially discriminatory practices. The New York State Supreme Court affirmed the State Commission's findings, and directed petitioners to implement objective standards for selecting apprentices. State Comm'n for Human *8 When the court's orders proved ineffective, the State Commission commenced other state-court proceedings in an effort to end petitioners' discriminatory practices. Petitioners had originally agreed to indenture two successive classes of apprentices using nondiscriminatory selection procedures, but stopped processing applications for the second apprentice class, thus requiring that the State Commission seek a court order requiring petitioners to indenture the apprentices. State Comm'n for Human The court subsequently denied the union's request to reduce the size of the second apprentice class, and chastised the union for refusing "except for token gestures, to further the integration
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
for refusing "except for token gestures, to further the integration process." State Comm'n for Human Petitioners proceeded to disregard the results of the selection test for a third apprentice class on the ground that nonwhites had received "unfair tutoring" and had passed in unreasonably high numbers. The state court ordered petitioners to indenture the apprentices based on the examination results. State Comm'n for Human 277 N. Y. S. 2d 287, aff'd, 278 N. Y. S. 2d 82 (1st Dept.), aff'd, In the United States initiated this action under Title I and Executive Order No. 11246, 3 CFR 33 (- Comp.) to enjoin petitioners from engaging in a pattern and practice of discrimination against black and Hispanic individuals (nonwhites).[3] The New York City Commission on Human Rights (City) intervened as plaintiff to press claims * that petitioners had violated municipal fair employment laws, and had frustrated the City's efforts to increase job opportunities for minorities in the construction industry. United States v. Local 638, Enterprise Assn. of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Compressed Air, Ice Machine, Air Conditioning, and General Pipefitters, In 170, the City had adopted a plan requiring contractors on its projects to employ one minority trainee for every four journeyman union members. Local 28 was the only construction local which refused to comply voluntarily with the plan. In early the City attempted to assign six minority trainees to sheet metal contractors working on municipal construction projects. After Local 28 members stopped work on the projects, the District Court directed the JAC to admit the six trainees into the apprenticeship program, and enjoined Local 28 from causing any work stoppage at the affected job sites. The parties subsequently agreed to a consent order that required the JAC to admit up to 40 minorities into the apprenticeship program by September The JAC stalled compliance with the consent order, and only completed the indenture process under threat of contempt. Following a trial in the District Court concluded that petitioners had violated both Title I and New York law by discriminating against nonwhite workers in recruitment, selection, training, and admission to the union. Noting that as of July 1, only 3.1% of the union's total membership, including apprentices and journeymen, was nonwhite, the court found that petitioners had denied qualified nonwhites access to union membership through a variety of discriminatory practices. First, the court found that petitioners had adopted discriminatory procedures and standards for admission into the apprenticeship program. The court examined some of the factors used to select apprentices, including the entrance examination and high-school diploma requirement, *430 and
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
including the entrance examination and high-school diploma requirement, *430 and determined that these criteria had an adverse discriminatory impact on nonwhites, and were not related to job performance. The court also observed that petitioners had used union funds to subsidize special training sessions for friends and relatives of union members taking the apprenticeship examination.[4] Second, the court determined that Local 28 had restricted the size of its membership in order to deny access to nonwhites. The court found that Local 28 had refused to administer yearly journeyman examinations despite a growing demand for members' services.[5] Rather, to meet this increase in demand, Local 28 recalled pensioners who obtained doctors' certificates that they were able to work, and issued hundreds of temporary work permits to nonmembers; only one of these permits was issued to a nonwhite. Moreover, the court found that "despite the fact that Local 28 saw fit to request [temporary workers] from sister locals all across the country, as well as from allied New York construction unions such as plumbers, carpenters, and iron workers, it never once sought them from Sheet Metal Local 400," a New York City union comprised almost entirely of nonwhites. The court concluded that by using the temporary permit system rather than continuing to administer journeyman *431 tests, Local 28 successfully restricted the size of its membership with the "illegal effect, if not the intention, of denying nonwhites access to employment opportunities in the industry." Third, the District Court determined that Local 28 had selectively organized nonunion sheet metal shops with few, if any, minority employees, and admitted to membership only white employees from those shops. The court found that "[p]rior to 173 no non-white ever became a member of Local 28 through the organization of a non-union shop." The court also found that, despite insistent pressure from both the International Union and local contractors, Local 28 had stubbornly refused to organize sheet metal workers in the local blowpipe industry because a large percentage of such workers were nonwhite. Finally, the court found that Local 28 had discriminated in favor of white applicants seeking to transfer from sister locals. The court noted that from through Local 28 had accepted 57 transfers from sister locals, all of them white, and that it was only after this litigation had commenced that Local 28 accepted its first nonwhite transfers, two journeymen from Local 400. The court also found that on one occasion, the union's president had incorrectly told nonwhite Local 400 members that they were not eligible for transfer. The District Court entered an order and judgment (O
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
transfer. The District Court entered an order and judgment (O & J) enjoining petitioners from discriminating against nonwhites, and enjoining the specific practices the court had found to be discriminatory. Recognizing that "the record in both state and federal court against these defendants is replete with instances of bad faith attempts to prevent or delay affirmative action,"[6] the court concluded that "the * imposition of a remedial racial goal in conjunction with an admission preference in favor of non-whites is essential to place the defendants in a position of compliance with [Title I]." The court established a 2% nonwhite membership goal, based on the percentage of nonwhites in the relevant labor pool in New York City, for the union to achieve by July 1, The parties were ordered to devise and to implement recruitment and admission procedures designed to achieve this goal under the supervision of a court-appointed administrator.[7] The administrator proposed, and the court adopted, an Affirmative Action Program which, among other things, required petitioners to offer annual, nondiscriminatory journeyman and apprentice examinations, select members according to a white-nonwhite ration to be negotiated by the parties, conduct extensive recruitment and publicity campaigns aimed at minorities,[8] secure the administrator's consent before issuing temporary work permits, and maintain *433 detailed membership records, including separate records for whites and nonwhites. Local 28 was permitted to extend any of the benefits of the program to whites and other minorities, provided that this did not interfere with the programs' operation. The Court of Appeals for the Second Circuit affirmed the District Court's determination of liability, finding that petitioners had "consistently and egregiously violated Title I." The court upheld the 2% nonwhite membership goal as a temporary remedy, justified by a "long and persistent pattern of discrimination," and concluded that the appointment of an administrator with broad powers was clearly appropriate, given petitioners' refusal to change their membership practices in the face of prior state and federal court orders. However, the court modified the District Court's order to permit the use of a white-nonwhite ratio for the apprenticeship program only pending implementation of valid, job-related entrance tests. Local 28 did not seek certiorari in this Court to review the Court of Appeals' judgment. On remand, the District Court adopted a Revised Affirmative Action Program and Order (RAAPO) to incorporate the Court of Appeals' mandate. RAAPO also modified the original Affirmative Action Program to accommodate petitioners' claim that economic problems facing the construction industry had made it difficult for them to comply with the court's orders. Petitioners were given an additional year to meet the 2%
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
Petitioners were given an additional year to meet the 2% membership goal. RAAPO also established interim membership goals designed to "afford the parties and the Administrator with some device to measure progress so that, if warranted, other provisions of the program could be modified to reflect change [sic] circumstances." App. JA-8. The JAC was directed to indenture at least 36 apprentices by February and to determine the size of future apprenticeship *434 classes subject to review by the administrator.[] A divided panel of the Court of Appeals affirmed RAAPO in its entirety, including the 2% nonwhite membership goal. Petitioners again chose not seek certiorari from this Court to review the Court of Appeals' judgment. In April the City and State moved in the District Court for an order holding petitioners in contempt.[10] They alleged that petitioners had not achieved RAAPO's 2% nonwhite membership goal, and that this failure was due to petitioners' numerous violations of the O & J, RAAPO, and orders of the administrator. The District Court, after receiving detailed evidence of how the O&J and RAAPO had operated over the previous six years, held petitioners in civil contempt. The court did not rest its contempt finding on petitioners' failure to meet the 2% membership goal, although nonwhite membership in Local 28 was only 10.8% at the time of the hearing. Instead, the court found that petitioners had "failed to comply with RAAPO almost from its date of entry," App. to Pet. for Cert. A-156, identifying six "separate actions or omissions on the part of the defendants [that] have impeded the entry of non-whites into Local 28 in contravention of the prior orders of this court." at A-150. Specifically, the court determined that petitioners had (1) adopted a policy of underutilizing the apprenticeship program in order to limit nonwhite membership and employment *435 opportunities;[11] (2) refused to conduct the general publicity campaign required by the O & J and RAAPO to inform nonwhites of membership opportunities; (3) added a job protection provision to the union's collective-bargaining agreement that favored older workers and discriminated against nonwhites (older workers provision); (4) issued unauthorized work permits to white workers from sister locals; and (5) failed to maintain and submit records and reports required by RAAPO, the O & J, and the administrator, thus making it difficult to monitor petitioners' compliance with the court's orders. To remedy petitioners' contempt, the court imposed a $150,000 fine to be placed in a fund designed to increase nonwhite membership in the apprenticeship program and the union. The administrator was directed to propose a plan for utilizing
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
The administrator was directed to propose a plan for utilizing the fund. The court deferred imposition of further coercive fines pending receipt of the administrator's recommendations for modifications to RAAPO.[12] In 183, the City brought a second contempt proceeding before the administrator, charging petitioners with additional violations of the O & J, RAAPO, and various administrative *436 orders. The administrator found that the JAC had violated RAAPO by failing to submit accurate reports of hours worked by apprentices, thus preventing the court from evaluating whether nonwhite apprentices had shared in available employment opportunities, and that Local 28 had: (1) failed, in a timely manner, to provide the racial and ethnic data required by the O & J and RAAPO with respect to new members entering the union as a result of its merger with five predominantly white sheet metal locals, (2) failed to serve copies of the O & J and RAAPO on contractors employing Local 28 members, as ordered by the administrator, and (3) submitted inaccurate racial membership records.[13] The District Court adopted the administrator's findings and once again adjudicated petitioners guilty of civil contempt. The court ordered petitioners to pay for a computerized recordkeeping system to be maintained by outside consultants, but deferred ruling on additional contempt fines pending submission of the administrator's fund proposal. The court subsequently adopted the administrator's proposed Employment, Training, Education, and Recruitment Fund (Fund) to "be used for the purpose of remedying discrimination." App. to Pet. for Cert. A-113 A-114. The Fund was used for a variety of purposes. In order to increase the pool of qualified nonwhite applicants for the apprenticeship * program, the Fund paid for nonwhite union members to serve as liaisons to vocational and technical schools with sheet metal programs, created part-time and summer sheet metal jobs for qualified nonwhite youths, and extended financial assistance to needy apprentices. The Fund also extended counseling and tutorial services to nonwhite apprentices, giving them the benefits that had traditionally been available to white apprentices from family and friends. Finally, in an effort to maximize employment opportunities for all apprentices, the Fund provided financial support to employers otherwise unable to hire a sufficient number of apprentices, as well as matching funds to attract additional funding for job training programs.[14] The District Court also entered an Amended Affirmative Action Plan and Order (AAAPO) which modified RAAPO in several respects. AAAPO established a 2.23% minority membership goal to be met by August 31, 187. The new goal was based on the labor pool in the area covered by the newly expanded union. The court
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
the area covered by the newly expanded union. The court abolished the apprenticeship examination, concluding that "the violations that have occurred in the past have been so egregious that a new approach must be taken to solve the apprentice selection problem." at A-112. Apprentices were to be selected by a three-member Board, which would select one minority apprentice for each white apprentice indentured. Finally, to prevent petitioners from underutilizing the apprenticeship program, the JAC was required to assign to Local 28 contractors one apprentice for every four journeymen, unless the contractor obtained a written waiver from respondents. *438 Petitioners appealed the District Court's contempt orders, the Fund order, and the order adopting AAAPO.[15] A divided panel of the Court of Appeals affirmed the District Court's contempt findings,[] except the finding based on adoption of the older workers' provision.[17], The court concluded that "[p]articularly in light of the determined resistance by Local 28 to all efforts to integrate its membership, the combination of violations found by [the District Court] amply demonstrates the union's foot-dragging egregious noncompliance. and adequately supports [its] findings of civil contempt against both Local 28 and the JAC." The *43 court also affirmed the District Court's contempt remedies, including the Fund order, and affirmed AAAPO with two modifications: it set aside the requirement that one minority apprentice be indentured for every white apprentice,[18] and clarified the District Court's orders to allow petitioners to implement objective, nondiscriminatory apprentice selection procedures.[1] The court found the 2.23% nonwhite membership goal to be proper in light of Local 28's "long continued and egregious racial discrimination," and because it "will not unnecessarily trammel the rights of any readily ascertainable group of non-minority individuals." The court rejected petitioners' argument that the goal violated Title I or the Constitution. The court also distinguished AAAPO from the race-conscious order invalidated by this Court in on three grounds: (1) unlike the order in Stotts, AAAPO did not conflict with a bona fide seniority plan; (2) the Stotts discussion of (g) of Title I, U.S. C. 00e-5(g), applied only to "make whole" relief and did not address the prospective relief contained in AAAPO and the Fund order; and (3) this case, unlike Stotts, involved intentional discrimination. Local 28 and the JAC filed a petition for a writ of certiorari. They present several claims for review: (1) that the District Court relied on incorrect statistical data; (2) that the *440 contempt remedies ordered by the District Court were criminal in nature and were imposed without due process; (3) that the appointment of an administrator to supervise membership practices interferes
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
the appointment of an administrator to supervise membership practices interferes with their right to self-governance; and (4) that the membership goal and Fund are unconstitutional. Principally, however, petitioners, supported by the Solicitor General, maintain that the membership goal and Fund exceed the scope of remedies available under Title I because they extend race-conscious preferences to individuals who are not the identified victims of petitioners' unlawful discrimination. We granted the petition, and now affirm the Court of Appeals. II Petitioners argue that the District Court relied on incorrect statistical evidence in violation of Title I and of petitioners' right to due process. A Under the O & J and RAAPO, petitioners were directed to attain a 2% nonwhite membership goal by July This goal was based on the percentage of minorities in the relevant labor pool within New York City. Petitioners argue that because members and applicants for Local 28 membership have always been drawn from areas outside of New York City, the nonwhite membership goal should have accounted for the percentage of minorities in the relevant labor pool in these areas. Although they concede that there is no evidence in the record from which the correct percentage could be derived, they insist that the District Court's figure is erroneous, and that this error was "significant."[] *441 The 2% nonwhite membership goal was established more than a decade ago and was twice affirmed by the Court of Appeals. Petitioners did not seek certiorari from this Court to review either of the Court of Appeals' judgments. Consequently, we do not have before us any issue as to the correctness of the 2% figure. See Pasadena City Bd. of Under AAAPO, petitioners are now obligated to attain a 2.23% nonwhite-membership goal by August 187. AAAPO adjusted the original 2% membership goal to account for the fact that Local 28's members were now drawn from areas outside of New York City. Thus, even assuming that the original 2% membership goal was erroneous, it would not affect petitioners' existing obligations under AAAPO, or any other issue now before us.[21] B Petitioners argue that the District Court also relied on incorrect data in finding that they had underutilized the apprenticeship program. The Court of Appeals recognized this error, see n. but affirmed the finding based on *4 other evidence presented to the District Court.[22] Petitioners do not explain whether, and if so, why, the Court of Appeals' evaluation of the evidence was incorrect. Based on our own review of the record, we cannot say that the District Court's resolution of the evidence presented on this issue
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
District Court's resolution of the evidence presented on this issue was clearly erroneous. Cf. National Collegiate Athletic ; Moreover, because petitioners do not challenge three of the findings on which the first contempt order was based, any alleged use of incorrect statistical evidence by the District Court provides no basis for disturbing the contempt citation. As the Court of Appeals observed, petitioners' "failure to have the apprentices employed is both an independent ground for contempt and a symptom of the effects of defendants' other kinds of contemptuous conduct." 753 F.2d, The District Court imposed a variety of contempt sanctions in this case, including fines to finance the Fund, a computerized recordkeeping requirement, and attorney's fees and expenses. Petitioners claim that these sanctions, while ostensibly imposed for civil contempt, are in fact punitive, and were issued without the procedures required for criminal contempt proceedings, see Fed. Rule Crim. Proc. (b); U.S. C. 00h. We reject this contention. *443 Criminal contempt sanctions are punitive in nature and are imposed to vindicate the authority of the court. United On the other hand, sanctions in civil contempt proceedings may be employed "for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." ; see also ; Penfield Co. of ; ; ; U.S. C. 00h. Under this standard, the sanctions issued by the District Court were clearly civil in nature. The District Court determined that petitioners had underutilized the apprenticeship program to the detriment of nonwhites, and that this was one of the factors that had prevented petitioners even from approaching the court-ordered 2% nonwhite membership goal. The Fund and the fines used to finance it sought to remedy petitioners' contemptuous conduct by increasing nonwhite membership in the apprenticeship program in a variety of ways. In an attempt to encourage nonwhite interest in the apprenticeship program, petitioners were required to finance recruiting efforts at vocational schools, and to create summer and part-time sheet metal jobs for qualified vocational students. Nonwhite apprentices were provided with tutorial, counseling, and financial support services. In an effort to stimulate employment opportunities for all apprentices, the Fund helped subsidize contractors who could not afford to hire one apprentice for every four journeymen, and helped the union secure matching training funds. The court carefully considered "the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired," Mine Workers, and concluded that the Fund was necessary to secure petitioners' compliance with
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
that the Fund was necessary to secure petitioners' compliance with its earlier orders. *444 Under the terms of the Fund order, petitioners could purge themselves of the contempt by ending their discriminatory practices and by achieving the court-ordered membership goal; they would then be entitled, with the court's approval, to recover any moneys remaining in the Fund. Thus, the sanctions levied by the District Court were clearly designed to coerce compliance with the Court's orders, rather than to punish petitioners for their contemptuous conduct.[23] IV Petitioners, joined by the EEOC, argue that the membership goal, the Fund order, and other orders which require petitioners to grant membership preferences to nonwhites are expressly prohibited by (g), U.S. C. 00e-5(g), which defines the remedies available under Title I. Petitioners and the EEOC maintain that (g) authorizes a district court to award preferential relief only to the actual victims of unlawful discrimination.[24] They maintain that the *445 membership goal and the Fund violate this provision, since they require petitioners to admit to membership, and otherwise to extend benefits to, black and Hispanic individuals who are not the identified victims of unlawful discrimination.[25] We reject this argument, and hold that (g) does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination. A Section (g) states: "If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful *446 employment practice the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay or any other equitable relief as the court deems appropriate No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination of account of race, color, religion, sex, or national origin in violation of this title." 78 Stat 261, as amended, and as set forth in U.S. C. 00e-5(g). The language of (g) plainly expresses Congress' intent to vest
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
The language of (g) plainly expresses Congress' intent to vest district courts with broad discretion to award "appropriate" equitable relief to remedy unlawful discrimination. 3 ; 4 U.S. 747, ; Albemarle 2 U.S. 405, 1[26] Nevertheless, petitioners and the EEOC argue *447 that the last sentence of (g) prohibits a court from ordering an employer or labor union to take affirmative steps to eliminate discrimination which might incidentally benefit individuals who are not the actual victims of discrimination. This reading twists the plain language of the statute. The last sentence of (g) prohibits a court from ordering a union to admit an individual who was "refused admission. for any reason other than discrimination." It does not, as petitioners and the EEOC suggest, say that a court may order relief only for the actual victims of past discrimination. The sentence on its face addresses only the situation where a plaintiff demonstrates that a union (or an employer) has engaged in unlawful discrimination, but the union can show that a particular individual would have been refused admission even in the absence of discrimination, for example, because that individual was unqualified. In these circumstances, (g) confirms that a court could not order the union to admit the unqualified individual. ; cert. denied, ; ; In this case, neither the membership goal nor the Fund order required petitioners to admit to membership individuals who had been refused admission for reasons unrelated to discrimination. Thus, we do not read (g) to prohibit a court from ordering the kind of affirmative relief the District Court awarded in this case. *448 B The availability of race-conscious affirmative relief under (g) as a remedy for a violation of Title I also furthers the broad purposes underlying the statute. Congress enacted Title I based on its determination that racial minorities were subject to pervasive and systematic discrimination in employment. "[I]t was clear to Congress that `[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them,'. and it was to this problem that Title I's prohibition against racial discrimination in employment was primarily addressed." 3 (remarks of Sen. Humphrey)). Title I was designed "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." 401 U.S. 4, -430 ; see at 3-365; at 763, ; Albemarle In order to foster equal employment opportunities, Congress gave the lower courts broad power under (g) to fashion "the most complete relief possible" to remedy past discrimination. ;
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
"the most complete relief possible" to remedy past discrimination. ; Albemarle In most cases, the court need only order the employer or union to cease engaging in discriminatory practices, and award make-whole relief to the individuals victimized by those practices. In some instances, however, it may be necessary to require the employer or union to take affirmative steps to end discrimination effectively to enforce Title I. Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title I's prohibition against discrimination will often prove useless and will only result in endless enforcement litigation. In such cases, requiring recalcitrant *44 employers or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the work force may be the only effective way to ensure the full enjoyment of the rights protected by Title I. See e. g., ; ; United ; United (CA7), cert. denied, modified, ; ; aff'd and remanded, (CA5), on remand sub nom. ; see also Edwards & Preferential Remedies for Employment Discrimination, Further, even where the employer or union formally ceases to engage in discrimination, informal mechanisms may obstruct equal employment opportunities. An employer's reputation for discrimination may discourage minorities from seeking available employment. See 41 F.2d 1053, (CA5) cert. denied, 41 U.S. 85 ; cert. denied, 406 U.S. 50 ; Spiegelman, Court-Ordered Hiring Quotas after Stotts: A Narrative on the Role of the Moralities of the Web and the Ladder in Employment Discrimination Doctrine, Harv. Civ. Rights-Civ. Lib. L. Rev. 33, 388 ; see also 653 F.2d 113, 13 ; Edwards & *450 In these circumstances, affirmative race-conscious relief may be the only means available "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas 411 U.S. 72, (173); see[27] Affirmative action "promptly operates to change the outward and visible signs of yesterday's racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices." 43 F. 2d, 21. Finally, a district court may find it necessary to order interim hiring or promotional goals pending the development of nondiscriminatory hiring or promotion procedures. In these cases, the use of numerical goals provides a compromise between two unacceptable alternatives: an outright ban on *451 hiring or promotions, or continued use of a discriminatory selection procedure. We have previously suggested that courts may utilize certain kinds of racial preferences to remedy past discrimination under Title
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
kinds of racial preferences to remedy past discrimination under Title I. See (180) ("Where federal anti-discrimination laws have been violated, an equitable remedy may in the appropriate case include a racial or ethnic factor"); ("The Courts of Appeals have approved temporary hiring remedies insuring that the percentage of minority group workers in a business or governmental agency will be reasonably related to the percentage of minority group members in the relevant population"); University of California ("[T]he Court has required that preferences be given by employers to members of racial minorities as a remedy for past violations of Title I"). The Courts of Appeals have unanimously agreed that racial preferences may be used, in appropriate cases, to remedy past discrimination under Title I.[28] *452 C Despite the fact that the plain language of (g) and the purposes of Title I suggest the opposite, petitioners and the EEOC maintain that the legislative history indicates that Congress intended that affirmative relief under (g) benefit only the identified victims of past discrimination. To support this contention, petitioners and the EEOC rely principally on statements made throughout the House and Senate debates to the effect that Title I would not require employers or labor unions to adopt quotas or preferences that would benefit racial minorities. *453 Our examination of the legislative history of Title I convinces us that, when examined in context, the statements relied upon by petitioners and the EEOC do not indicate that Congress intended to limit relief under (g) to that which benefits only the actual victims of unlawful discrimination. Rather, these statements were intended largely to reassure opponents of the bill that it would not require employers or labor unions to use racial quotas or to grant preferential treatment to racial minorities in order to avoid being charged with unlawful discrimination. See 443 U. S., at 5. The bill's supporters insisted that this would not be the intent and effect of the legislation, and eventually agreed to state this expressly in 703(j), U.S. C. 00e-2(j). Contrary to the arguments made by petitioners and the EEOC, these statements do not suggest that a court may not order preferential relief under (g) when appropriate to remedy past discrimination. Rather, it is clear that the bill's supporters only wished to emphasize that an employer would not violate the statute merely by having a racially imbalanced work force, and, consequently, that a court could not order an employer to adopt racial preferences merely to correct such an imbalance. 1 H. R. 7152, the bill that ultimately became the Civil Rights Act of was introduced in
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
ultimately became the Civil Rights Act of was introduced in the House by Representatives on June 3, and referred to the Committee on the Judiciary. The bill contained no provisions addressed to discrimination in employment, but the Judiciary Committee amended it by adding Title I. H. R. Rep. No. 14, 88th Cong., 1st Sess., pt. 1, pp. 26-32 (3). Title I as reported by the Judiciary Committee included a version of (g), which read, in relevant part: "No order of the court shall require the admission or reinstatement of an individual as a member of a union if such individual was refused admission, suspended, or expelled for cause." H. R. Rep. No. 14, The word "cause" *454 was deleted from the bill on the House floor and replaced by the language "any reason other than discrimination on account of race, color, religion, or national origin." 110 Cong. Rec. 2567-2571 Representative Celler, the Chairman of the House Judiciary Committee and the sponsor of this amendment, explained: "[T]he purpose of the amendment is to specify cause. Here the court, for example, cannot find any violation of the act which is based on facts other and I emphasize `other' than discrimination on the grounds of race, color, religion, or national origin. The discharge might be based, for example, on incompetence or a morals charge or theft, but the court can only consider charges based on race, color, religion, or national origin. That is the purpose of this amendment." See also ("[W]e would not interfere with discharges for ineptness, or drunkeness [sic]"). 2 Even before the Judiciary Committee's bill reached the House floor, opponents charged that Title I would require that an employer maintain a racially balanced work force. The Minority Report of the Judiciary Committee observed that "the word discrimination is nowhere defined in the bill," and charged that "the administration intends to rely upon its own construction of `discrimination' as including the lack of racial balance." H. R. Rep. No. 14, 8, 73.[2] To *455 demonstrate how the bill would operate in practice, the Report posited a number of hypothetical employment situations, concluding each time that Title I would compel employers "to `racially balance' those who work for him in every job classification or be in violation of Federal law."[30] In response, Republican proponents of the bill issued a statement emphasizing that the EEOC could not enforce the statute merely to achieve racial balance: "[T]he Commission must confine its activities to correcting abuse, not promoting equality with mathematical certainty. In this regard, nothing in the title permits a person to
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
this regard, nothing in the title permits a person to demand employment. Of greater importance, the Commission will only jeopardize its continued existence if it seeks to impose forced racial balance upon employers or labor unions." pt. 2, p. 2. *456 When H. R. 7152 actually reached the House floor, Representative Celler attempted to respond to charges that the existence of racial imbalance would constitute "discrimination" under Title I, or that the EEOC would be authorized to "order the hiring and promotion only of employees of certain races or religious groups." 110 Cong. Rec. 1518[31] Nevertheless, accusations similar to those made in the Judiciary Committee's Minority Report were repeatedly raised on the House floor. For example, Representative Alger charged that Title I would "demand by law, special privileges for Negroes": "The Negro represents about 10 percent of the population of the United States and it cannot be said he is being kept from opportunity if he is represented in 10 percent of the working force. Now we are asked to ignore population ratios and force the hiring of Negroes even when it will mean, as in Government, that they are given preferential hiring far beyond the 10 percent of the population they represent." at 15. Representative Abernathy raised the scenario of a "union [having] to send out a `racially' balanced staff of organizers to sign up a crew of `racially balanced' carpenters, a crew of `racially balanced' laborers, `racially balanced' plumbers, electricians, plasterers, roofers, and so forth, before a construction job could begin." at ; see also ; ; Supporters of the bill stridently denied any intent to require "racial balancing."[32]*457 Thus, in response to charges that an employer or labor union would be guilty of "discrimination" under Title I simply because of a racial imbalance in its work force or membership roster, supporters of the bill insisted repeatedly that Title I would not require employers or unions to implement hiring or promotional quotas in order to achieve racial balance. The question whether there should be any comparable restrictions with respect to a court's use of racial preferences as an appropriate remedy for past discrimination under (g) simply did not arise during the House debates. 3 After passing the House by a vote of 20 to 130, the bill ran into equally strong opposition in the Senate. Opponents initially sought to have it sent to the Senate Judiciary Committee, which was hostile to civil rights legislation. The debate on this motion focused on the merits of the bill; many Senators again raised the specter of "racial balancing." Senator Ervin charged
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
again raised the specter of "racial balancing." Senator Ervin charged that under the substantive provisions of Title I, "the Commission could tell an employer that he had too few employees and enter an order requiring him to hire more persons, not because the employer thought he needed more persons, but because the Commission wanted to *458 compel him to employ persons of a particular race." 110 Cong. Rec., at 47. Similarly, Senator Robertson stated: "This title suggests that hiring should be done on some percentage basis in order that racial imbalance will be overcome. It is contemplated by this title that the percentage of colored and white population in a community shall be in similar percentages in every business establishment that employs over 25 persons. Thus, if there were 10,000 colored persons in a city and 15,000 whites, an employer with 25 employees would, in order to overcome racial imbalance, be required to have 10 colored personnel and 15 white. And, if by chance that employer had colored employees he would have to fire 10 of them in order to rectify the situation." at 502. Senator Humphrey, one of the most vocal proponents of H. R. 7152, rose to the bill's defense. He introduced a newspaper article quoting the answers of a Justice Department expert to common objections to Title I. In response to the "objection" that "[w]hite people would be fired, to make room for Negroes," the article stated that "[t]he bill would not authorize anyone to order hiring or firing to achieve racial or religious balance." at 504. Later, responding to a political advertisement suggesting that federal agencies would interpret "discrimination" under Title I as synonymous with racial imbalance, Senator Humphrey stressed that Title I "does [not] in any way authorize the Federal Government to prescribe, as the advertisement charges, a `racial balance' of job classifications or office staffs or `preferential treatment of minorities' " to achieve such a balance. at 53. After 17 days of debate, the Senate voted to take up the bill directly without referring it to a committee. at 17. Senators Humphrey and Kuchel, who served as bipartisan floor managers for H. R. 7152, opened formal debate on the merits of the bill and addressed opponents' charges that Title *45 I would require employers to implement quotas to achieve a certain racial balance. Senator Humphrey stressed that "[c]ontrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
to require hiring, firing, or promotion of employees in order to meet a racial `quota' or to achieve a certain racial balance." 54. Senator Kuchel elaborated: "[Title I] is pictured by its opponents and detractors as an intrusion of numerous Federal inspectors into our economic life. These inspectors would presumably dictate to labor unions and their members with regard to. racial balance in job classifications, racial balance in membership, and preferential advancement for members of so called minority groups. Nothing could be further from the truth [T]he important point is that the court cannot order preferential hiring or promotion consideration for any particular race, religion, or other group." 563. These sentiments were echoed by Senators Case and Clark, who spoke as bipartisan team "captains" in support of Title I. The Senators submitted an interpretative memorandum which explained that "[t]here is no requirement in title I that an employer maintain a racial balance in his work force." Senator Clark also introduced a Justice Department memorandum which repeated what supporters of the bill had tried to make clear: "There is no provision, either in title I or in any other part of this bill, that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance. No employer is required to hire an individual because that individual is a Negro. No employer is required to maintain any ratio of Negroes *460 to whites, Jews to gentiles, Italians to English, or women to men." at 77. Opponents of the bill invoked a 2-month filibuster, again raising the charge that "discrimination" would be defined to include racial imbalance. Senator Robertson remarked: "What does discrimination mean? If it means what I think it does, and which it could mean, it means that a man could be required to have a quota or he would be discriminating." at 741 Senators Smathers and Sparkman conceded that Title I did not in so many words require the use of quotas, but feared that employers would adopt racial quotas or preferences to avoid being charged with discrimination. at 7, 8500, 8618-861. Even outsiders joined in the debate. Senator Javits referred to charges raised by Governor Wallace of Alabama that the bill "vested power in a federal inspector who, under an allegation of racial imbalance can establish a quota system whereby a certain percentage of a certain ethnic group must be employed." The bill's supporters insisted that employers would not be required to implement racial quotas to avoid being charged with liability.[33] Nonetheless, opponents remained
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
quotas to avoid being charged with liability.[33] Nonetheless, opponents remained skeptical. Recognizing that their own verbal assurances would not end the dispute over "racial balancing," supporters of the bill eventually agreed to insert an explicit disclaimer *461 into the language of the bill to assuage opponents' fears. Senator Dirksen introduced the comprehensive "DirksenMansfield" amendment as a substitute for the entire bill, which added several provisions defining and clarifying the scope of Title I's substantive provisions. One of those provisions, 703(j), specifically addressed the charges of "racial balancing": "Nothing contained in this subchapter shall be interpreted to require any labor organization, or joint labor-management committee to grant preferential treatment to any individual or to any group because of the race of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race [admitted to the labor organization, or to any apprenticeship program] in comparison with the total number or percentage of persons of such race in any community, State, section, or other area, or in the available work force in any community, State, section, or other area." U.S. C. 00e-2(j). As Senator Humphrey explained: "A new subsection 703(j) is added to deal with the problem of racial balance among employees. The proponents of this bill have carefully stated on numerous occasions that title I does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group. Since doubts have persisted, subsection (j) is added to state this point expressly. This subsection does not represent any change in the substance of the title. It does state clearly and accurately what we have maintained all along about the bill's intent and meaning." 110 Cong. Rec., 723. See also 618 ( 703(j) "limit[s] the term `unlawful employment practice' by spelling out *462 a number of situations that could not be considered unlawful").[34] Section 703(j) apparently calmed the fears of most opponents, for complaints of "racial balance" and "quotas" died down considerably after its adoption. In contrast to the heated debate over the substantive provisions of 703, the Senate paid scant attention to the remedial provisions of (g). Several Senators did emphasize, in reference to the last sentence of section (g), that "[t]he title does not provide for the reinstatement or employment of a person if he was fired or refused employment or promotion for any reason other than discrimination prohibited by the Title." 110 Cong. Rec., at 11848 (remarks of Sen. Humphrey).[35] While both petitioners and the
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
11848 (remarks of Sen. Humphrey).[35] While both petitioners and the EEOC liberally quote from these excerpts, we do not read these statements as supporting their argument that a district court may not order affirmative race-conscious relief which may incidentally benefit individuals who are not identified victims of unlawful discrimination. To the contrary, these statements confirm *463 our reading of the last sentence of (g): that a court has no power to award relief to an individual who was denied an employment opportunity for reasons other than discrimination. After 83 days of debate, the Senate adopted Title I by a vote of 73 to 27. 110 Cong. Rec., at 14511. Rather than setting up a Conference Committee, the House voted directly upon, and passed, the Senate version of the bill. at 1587. The bill's sponsors repeated, for the last time, that Title I "[did] not require quotas, racial balance, or any of the other things that the opponents have been saying about it." ; see also at 1583 ; To summarize, many opponents of Title I argued that an employer could be found guilty of discrimination under the statute simply because of a racial imbalance in his work force, and would be compelled to implement racial "quotas" to avoid being charged with liability. 443 U. S., at 5. At the same time, supporters of the bill insisted that employers would not violate Title I simply because of racial imbalance, and emphasized that neither the Commission nor the courts could compel employers to adopt quotas solely to facilitate racial balancing. at 7, n. 7. The debate concerning what Title I did and did not require culminated in the adoption of 703(j), which stated expressly that the statute did not require an employer or labor union to adopt quotas or preferences simply because of a racial imbalance. However, while Congress strongly opposed the use of quotas or preferences merely to maintain racial balance, it gave no intimation as to whether such measures would be acceptable as remedies for Title I violations.[36] *4 Congress' failure to consider this issue is not surprising, since there was relatively little civil rights litigation prior to the adoption of the Civil Rights Act. More importantly, the cases that had been litigated had not resulted in the sort of affirmative-action remedies that, as later became apparent, would sometimes be necessary to eliminate effectively the effects of past discrimination. Thus, the use of racial preferences as a remedy for past discrimination simply was not an issue at the time Title I was being considered. Our task then is to determine
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
I was being considered. Our task then is to determine whether Congress intended to preclude a district court from ordering affirmative action in appropriate circumstances as a remedy for past discrimination. See Brooklyn Savings 324 U.S. 67, (145); (133). Our examination of the legislative policy behind Title I leads us to conclude that Congress did not intend to prohibit a court from exercising its remedial authority in that way.[37]*465 Congress deliberately gave the district courts broad authority under Title I to fashion the most complete relief possible to eliminate "the last vestiges of an unfortunate and ignominious page in this country's history," Albemarle 2 U. S., As we noted above, affirmative race-conscious relief may in some instances be necessary to accomplish this task. In the absence of any indication that Congress intended to limit a district court's remedial authority in a way which would frustrate the court's ability to enforce Title I's mandate, we decline to fashion such a limitation ourselves. 4 Our reading of the scope of the district court's remedial powers under (g) is confirmed by the contemporaneous interpretations of the EEOC and the Justice Department.[38] Following the enactment of the Civil Rights Act of both the Justice Department and the EEOC, the two federal agencies *466 charged with enforcing Title I, steadfastly maintained that race-conscious remedies for unlawful discrimination are available under the statute. Both agencies have, in appropriate cases, sought court orders and consent decrees containing such provisions. See, e. g., United (CA5 180); United ; 56 F.2d 80 ; ; United 47 F.2d 871 ; United (CA6 173); United (CA2), cert. denied, 412 U.S. 3 (173); United (CA), cert. denied, 404 U.S. 84 ; see also Affirmative Action Appropriate Under Title I of the Civil Rights Act of 2 CFR 08 ; Uniform Guidelines on Employee Selection Procedures 07.17; Op. Atty. Gen. 405 (). The agencies' contemporaneous reading of the statute lends strong support to our interpretation. See ; E. I. du Pont de Nemours & U.S. 46, 5 Finally, our interpretation of (g) is confirmed by the legislative history of the Equal Employment Opportunity Act of which amended Title I in several respects. One such change modified the language of (g) to empower a court to order "such affirmative action as may be appropriate, which may include, but is not limited to reinstatement or hiring of employees or any other equitable relief as the court deems appropriate." U.S. C. 00e-5(g) This language was intended "to give the courts wide discretion exercising *467 their equitable powers to fashion the most complete relief possible." 118 Cong.
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
powers to fashion the most complete relief possible." 118 Cong. Rec. 78 While the section-by-section analysis undertaken in the Conference Committee Report stressed the need for "make-whole" relief for the "victims of unlawful discrimination," at 78, 7565, nowhere did Congress suggest that a court lacked the power to award preferential remedies that might benefit nonvictims. Indeed, the Senate's rejection of two other amendments supports a contrary conclusion. During the debates, Senator Ervin introduced an amendment to counteract the effects of the Department of Labor's so-called Philadelphia Plan. The Philadelphia Plan was established pursuant to Executive Order No. 11246, 3 CFR 33 (- Comp.), and required prospective federal contractors to submit affirmative-action programs including "specific goals of minority manpower utilization." Contractors Assn. of Eastern 4 F.2d 15, 3 (CA3), cert. denied, Attacking the Plan as "[t]he most notorious example of discrimination in reverse," 118 Cong. Rec., at 63, Senator Ervin proposed an amendment to Title I that read, in relevant part: "No department, agency, or officer of the United States shall require an employer to practice discrimination in reverse by employing persons of a particular race in either fixed or variable numbers, proportions, percentages, quotas, goals, or ranges." at 62. Senator Ervin complained that the amendment was needed because both the Department of Labor and the EEOC were ignoring 703(j)'s prohibition against requiring employers to engage in preferential hiring for racial minorities. at 63-. Senator Javits vigorously opposed Senator Ervin's proposal. First, he recognized that the amendment, while targeted at the Philadelphia Plan, would also jettison "the whole concept of `affirmative action' as it has been developed under Executive Order 11246 and as a remedial concept under *468 Title I." at He explained that the amendment would "deprive the courts of the opportunity to order affirmative action under title I of the type which they have sustained in order to correct a history of unjust and illegal discrimination in employment." at 65. To emphasize this point, Senator Javits had printed in the Congressional Record both the decision of the Court of Appeals for the Third Circuit sustaining the Philadelphia Plan, and a decision by the Court of Appeals for the Ninth Circuit affirming a District Court's Title I remedial order requiring a union to indenture a certain percentage of black apprentices and to offer special programs for certain black applicants. at 65-75[3] Senator Javits summarized his attack on the Ervin amendment as follows: "[I]t would torpedo orders of courts seeking to correct a history of unjust discrimination in employment on racial or color grounds, because it would prevent the court from
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
or color grounds, because it would prevent the court from ordering specific measures which could assign specific percentages of minorities that had to be hired, and that could apply to government as well as private employers." at 75. Senator Williams, referring to Senator Javits' examples of "the kind of situation that could be affected adversely" by Senator Ervin's amendment, argued that the "amendment would strip title I of all its basic fiber. It can be read to deprive even the courts of any power to remedy clearly proven cases of discrimination." at 76. The Ervin amendment was defeated by a margin of 2 to 1. *46 Senator Ervin proposed a second amendment that would have extended 703(j)'s prohibition against racial preferences to "Executive Order Numbered 11246, or any other law or Executive Order," at 417-418; this amendment was also defeated resoundingly.[40] Thus, the legislative history of the amendments to Title I confirms the availability of race-conscious affirmative action as a remedy under the statute. Congress was aware that both the Executive and Judicial Branches had used such measures to remedy past discrimination,[41] and rejected amendments that would have barred such remedies. Instead, Congress reaffirmed the breadth of the court's remedial powers under (g) by adding language authorizing courts to order "any *470 other equitable relief as the court deems appropriate." U.S. C. 00e-5(g). The section-by-section analysis undertaken by the Conference Committee Report confirms Congress' resolve to accept prevailing judicial interpretations regarding the scope of Title I: "[I]n any area where the new law does not address itself, or in any area where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title I." 118 Cong. Rec., at 76, 75. Thus, "[e]xecutive, judicial, and congressional action subsequent to the passage of Title I conclusively established that the Title did not bar the remedial use of race." 438 U. S., at n. 28 ; see also Boston Chapter, NAACP, cert. denied, 1 U.S. 10 ; United States v. Local No. 212 International Brotherhood of Electrical Workers, 472 F. 2d, 36; United 1017-10 ; cf. North Haven Board of ;[] *471 D Finally, petitioners and the EEOC find support for their reading of (g) in several of our decisions applying that provision. Petitioners refer to several cases for the proposition that court-ordered remedies under (g) are limited to make-whole relief benefiting actual victims of past discrimination. See Ford Motor 458 U.S. 21 ; ; ; 4 U.S. 747 ; Albemarle 2 U.S. 405
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
; ; 4 U.S. 747 ; Albemarle 2 U.S. 405 This reliance is misguided. The cases cited hold only that a court may order relief designed to make individual victims of racial discrimination whole. See ; at 77 ; Albemarle at 2 None of these decisions suggested that individual "make-whole" relief was the only kind of remedy available under the statute; on the contrary, several cases emphasized that the district court's remedial powers should be exercised both to eradicate the effects of unlawful discrimination as well as to make the victims of past discrimination whole. at 3; at ; Albemarle at 1. Neither do these cases suggest that (g) prohibits a court from ordering relief which might benefit nonvictims; indeed several cases acknowledged that the district court has broad authority to "devise prospective relief designed to assure that employers found to be in violation of [Title I] eliminate their discriminatory practices and the effects therefrom." ; see also ; Albemarle Petitioners claim to find their strongest support in In Stotts, the city of Memphis, Tennessee, had entered into a consent decree requiring *472 affirmative steps to increase the proportion of minority employees in its Fire Department. Budgetary cuts subsequently forced the city to lay off employees; under the city's last-hired, first-fired seniority system, many of the black employees who had been hired pursuant to the consent decree would have been laid off first. These employees sought relief, and the District Court, concluding that the proposed layoffs would have a racially discriminatory effect, enjoined the city from applying its seniority policy "insofar as it will decrease the percentage of black[s] that are presently employed." We held that the District Court exceeded its authority. First, we rejected the claim that the District Court was merely enforcing the terms of the consent decree since the parties had expressed no intention to depart from the existing seniority system in the event of layoffs. Second, we concluded that the District Court's order conflicted with 703(h) of Title I,[43] which "permits the routine application of a seniority system absent proof of an intention to discriminate." Since the District Court had found that the proposed layoffs were not motivated by a discriminatory purpose, we held that the court erred in enjoining the city from applying its seniority system in making the layoffs. We also rejected the Court of Appeals' suggestion that the District Court's order was justified by the fact that, had plaintiffs prevailed at trial, the court could have entered an order overriding the city's seniority system. Relying on we observed that a court may abridge
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
system. Relying on we observed that a court may abridge a bona fide seniority system in fashioning a Title I remedy only to make victims of intentional discrimination whole, that *473 is, a court may award competitive seniority to individuals who show that they had been discriminated against. However, because none of the firefighters protected by the court's order was a proven victim of illegal discrimination, we reasoned that at trial the District Court would have been without authority to override the city's seniority system, and therefore the court could not enter such an order merely to effectuate the purposes of the consent decree. While not strictly necessary to the result, we went on to comment that "[o]ur ruling in that a court can award competitive seniority only when the beneficiary of the award has actually been a victim of illegal discrimination is consistent with the policy behind (g)" which, we noted, "is to provide `make-whole' relief only to those who have been actual victims of illegal discrimination." 467 U.S., at 57-580. Relying on this language, petitioners, joined by the EEOC, argue that both the membership goal and the Fund order contravene the policy behind (g) since they extend preferential relief to individuals who were not the actual victims of illegal discrimination. We think this argument both reads Stotts too broadly and ignores the important differences between Stotts and this case. Stotts discussed the "policy" behind (g) in order to supplement the holding that the District Court could not have interfered with the city's seniority system in fashioning a Title I remedy. This "policy" was read to prohibit a court from awarding make-whole relief, such as competitive seniority, backpay, or promotion, to individuals who were denied employment opportunities for reasons unrelated to discrimination. The District Court's injunction was considered to be inconsistent with this "policy" because it was tantamount to an award of make-whole relief (in the form of competitive seniority) to individual black firefighters who had not shown that the proposed layoffs were motivated by racial discrimination. See Note, Race-Conscious Remedies Versus Seniority Systems: Firefighters Local Union No. 1784 v. *474 Stotts, 30 St. Louis U. L. J. 257, 26[44] However, this limitation on individual make-whole relief does not affect a court's authority to order race-conscious affirmative action. The purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future. Such relief is provided to the class as a whole rather than to individual members; no individual is entitled to relief, and beneficiaries
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
individual members; no individual is entitled to relief, and beneficiaries need not show that they were themselves victims of discrimination.[45] In this case, neither the membership goal nor the Fund order required petitioners to indenture or train particular individuals, and neither required them to admit to membership individuals who were refused admission for reasons unrelated to discrimination. We decline petitioners' invitation to read Stotts to prohibit a court from ordering any kind of race-conscious affirmative relief that might benefit nonvictims.[46] This reading would distort *475 the language of (g), and would deprive the courts of an important means of enforcing Title I's guarantee of equal employment opportunity.[47] E Although we conclude that (g) does not foreclose a district court from instituting some sorts of racial preferences where necessary to remedy past discrimination, we do not mean to suggest that such relief is always proper. While the fashioning of "appropriate" remedies for a particular Title I violation invokes the "equitable discretion of the district courts," 4 U. S., we emphasize that a court's judgment should be guided by sound legal principles. In particular, the court should exercise its discretion with an eye towards Congress' concern that race-conscious affirmative measures not be invoked simply to create a racially balanced work force. In the majority of Title I cases, the *476 court will not have to impose affirmative action as a remedy for past discrimination, but need only order the employer or union to cease engaging in discriminatory practices and award make-whole relief to the individuals victimized by those practices. However, in some cases, affirmative action may be necessary in order effectively to enforce Title I. As we noted before, a court may have to resort to raceconscious affirmative action when confronted with an employer or labor union that has engaged in persistent or egregious discrimination. Or such relief may be necessary to dissipate the lingering effects of pervasive discrimination. Whether there might be other circumstances that justify the use of court-ordered affirmative action is a matter that we need not decide here. We note only that a court should consider whether affirmative action is necessary to remedy past discrimination in a particular case before imposing such measures, and that the court should also take care to tailor its orders to fit the nature of the violation it seeks to correct.[48] In this case, several factors lead us to conclude that the relief ordered by the District Court was proper. First, both the District Court and the Court of Appeals agreed that the membership goal and Fund order were necessary to remedy petitioners'
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
membership goal and Fund order were necessary to remedy petitioners' pervasive and egregious discrimination. The District Court set the original 2% membership goal upon observing that "[t]he record in both state and federal courts against [petitioners] is replete with instances of their bad faith attempts to prevent or delay affirmative *477 action." 401 F. Supp., The court extended the goal after finding petitioners in contempt for refusing to end their discriminatory practices and failing to comply with various provision of RAAPO. In affirming the revised membership goal, the Court of Appeals observed that "[t]his court has twice recognized Local 28's long continued and egregious racial discrimination and Local 28 has presented no facts to indicate that our earlier observations are no longer apposite." 753 F.2d, In light of petitioners' long history of "foot-dragging resistance" to court orders, simply enjoining them from once again engaging in discriminatory practices would clearly have been futile. Rather, the District Court properly determined that affirmative raceconscious measures were necessary to put an end to petitioners' discriminatory ways. Both the membership goal and Fund order were similarly necessary to combat the lingering effects of past discrimination. In light of the District Court's determination that the union's reputation for discrimination operated to discourage nonwhites from even applying for membership, it is unlikely that an injunction would have been sufficient to extend to nonwhites equal opportunities for employment. Rather, because access to admission, membership, training, and employment in the industry had traditionally been obtained through informal contacts with union members, it was necessary for a substantial number of nonwhite workers to become members of the union in order for the effects of discrimination to cease. The Fund, in particular, was designed to insure that nonwhites would receive the kind of assistance that white apprentices and applicants had traditionally received through informal sources. On the facts of this case, the District Court properly determined that affirmative, race-conscious measures were necessary to assure the equal employment opportunities guaranteed by Title I. Second, the District Court's flexible application of the membership goal gives strong indication that it is not being *478 used simply to achieve and maintain racial balance, but rather as a benchmark against which the court could gauge petitioners' efforts to remedy past discrimination. The court has twice adjusted the deadline for achieving the goal, and has continually approved of changes in the size of the apprenticeship classes to account for the fact that economic conditions prevented petitioners from meeting their membership targets; there is every reason to believe that both the court and the administrator will continue to
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
that both the court and the administrator will continue to accommodate legitimate explanations for petitioners' failure to comply with the court's orders. Moreover, the District Court expressly disavowed any reliance on petitioners' failure to meet the goal as a basis for the contempt finding, but instead viewed this failure as symptomatic of petitioners' refusal to comply with various subsidiary provisions of RAAPO. In sum, the District Court has implemented the membership goal as a means by which it can measure petitioners' compliance with its orders, rather than as a strict racial quota.[4] *47 Third, both the membership goal and the Fund order are temporary measures. Under AAAPO "[p]referential selection of [union members] will end as soon as the percentage of [minority union members] approximates the percentage of [minorities] in the local labor force." 443 U. S., at 8-; see United 614 F. 2d, Similarly, the Fund is scheduled to terminate when petitioners achieve the membership goal, and the court determines that it is no longer needed to remedy past discrimination. The District Court's orders thus operate "as a temporary tool for remedying past discrimination without attempting to `maintain' a previously achieved balance." 443 U. S., at 2 Finally, we think it significant that neither the membership goal nor the Fund order "unnecessarily trammel[s] the interests of white employees." at 8; -. Petitioners concede that the District Court's orders did not require any member of the union to be laid off, and did not discriminate against existing union members. See at 8; see also 30 St. Louis U. L. J., at 2. While whites seeking admission into the union may be denied benefits extended to their nonwhite counterparts, the court's orders do not stand as an absolute bar to such individuals; indeed, a majority of new union members have been white. See City of Many provisions of the court's orders are race-neutral (for example, the requirement that the JAC assign one apprentice for every four journeyman workers), and petitioners remain free to adopt the provisions of AAAPO and the Fund order for the benefit of white members and applicants. V Petitioners also allege that the membership goal and Fund order contravene the equal protection component of the Due *480 Process Clause of the Fifth Amendment because they deny benefits to white individuals based on race. We have consistently recognized that government bodies constitutionally may adopt racial classifications as a remedy for past discrimination. See (186); (180); University of California ; We have not agreed, however, on the proper test to be applied in analyzing the constitutionality of race-conscious remedial measures. See
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
applied in analyzing the constitutionality of race-conscious remedial measures. See (means chosen must be "narrowly tailored" to achieve "compelling government interest"); ; at 301- ; (public interest served by racial classification and means pursued must justify adverse effects on the disadvantaged group); 448 U. S., at 41 (racial preferences subject to "a most searching examination"); at 51 (remedial use of race must be substantially related to achievement of important governmental objectives); (racial classification must be necessary to accomplishment of substantial state interest); at 35 (remedial use of race must be substantially related to achievement of important governmental objectives). We need not resolve this dispute here, since we conclude that the relief ordered in this case passes even the most rigorous test it is narrowly tailored to further the Government's compelling interest in remedying past discrimination. In this case, there is no problem, as there was in with a proper showing of prior discrimination that would justify the use of remedial racial classifications. Both the District Court and Court of Appeals have repeatedly found *481 petitioners guilty of egregious violations of Title I, and have determined that affirmative measures were necessary to remedy their racially discriminatory practices. More importantly, the District Court's orders were properly tailored to accomplish this objective. First, the District Court considered the efficacy of alternative remedies, and concluded that, in light of petitioners' long record of resistance to official efforts to end their discriminatory practices, stronger measures were necessary. See ; 712 F.2d 8, (CA2 183); 43 F. 2d, 21. The court devised the temporary membership goal and the Fund as tools for remedying past discrimination. More importantly, the District Court's orders will have only a marginal impact on the interests of white workers. See -283 ; ; at ; at 30-310 ; Again, petitioners concede that the District Court's orders did not disadvantage existing union members. While white applicants for union membership may be denied certain benefits available to their nonwhite counterparts, the court's orders do not stand as an absolute bar to the admission of such individuals; again, a majority of those entering the union after entry of the court's orders have been white. We therefore conclude that the District Court's orders do not violate the equal protection safeguards of the Constitution.[50] Finally, Local 28 challenges the District Court's appointment of an administrator with broad powers to supervise its *482 compliance with the court's orders as an unjustifiable interference with its statutory right to self-governance. See 2 U.S. C. 401(a). Preliminarily, we note that while AAAPO gives the administrator broad powers to oversee petitioners'
|
Justice Brennan
| 1,986 | 13 |
majority
|
Sheet Metal Workers v. EEOC
|
https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
|
while AAAPO gives the administrator broad powers to oversee petitioners' membership practices, Local 28 retains complete control over its other affairs. Even with respect to membership, the administrator's job is to insure that petitioners comply with the court's orders and admit sufficient numbers of nonwhites; the administrator does not select the particular individuals that will be admitted, that task is left to union officials. In any event, in light of the difficulties inherent in monitoring compliance with the court's orders, and especially petitioners' established record of resistance to prior state and federal court orders designed to end their discriminatory membership practices, appointment of an administrator was well within the District Court's discretion. See Fed. Rule Civ. Proc. 53; 67 F.2d 1115, 10-13 cert. denied, 460 U.S. 10 (183); Gary While the administrator may substantially interfere with petitioners' membership operations, such "interference" is necessary to put an end to petitioners' discriminatory ways. I To summarize our holding today, six Members of the Court agree that a district court may, in appropriate circumstances, order preferential relief benefiting individuals who are not the actual victims of discrimination as a remedy for violations of Title I, see Parts IV-A through ; post, at (POWELL, J., concurring in part and concurring in judgment); post at (WHITE, J., dissenting), that the District Court did not use incorrect statistical evidence in establishing petitioners' nonwhite membership goal, see Part that the contempt fines and Fund order were proper remedies for civil contempt, see *A Part and that the District Court properly appointed an administrator to supervise petitioners' compliance with the court's orders, see Part Five Members of the Court agree that in this case, the District Court did not err in evaluating petitioners' utilization of the apprenticeship program, see Part and that the membership goal and the Fund order are not violative of either Title I or the Constitution, see Parts IV-E, V, ; post this page, 486-487, and n. 1 (POWELL, J., concurring in part and concurring in judgment). The judgment of the Court of Appeals is hereby Affirmed. *B JUSTICE POWELL, concurring in part and concurring in the judgment.
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 188, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, 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 failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to ’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, cl. 8, and First Amendment both decree the invalidity of Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that does not transgress constitutional
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
the Tenth Circuit, we conclude that does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 55 U. S. (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 188, as revised at Stockholm on July 14, 197, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 14 member states, thus enjoy copyright protection in nations across the globe. Art. 2(), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 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 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 conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, 13, 2 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 7502 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–09, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” Protection of future foreign works, the BCIA indicated, satisfied Article 18. See (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 22, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 55 U. S. (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
(1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 ); (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 188–198, p. 75 (1987) GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 18 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (USTR)); (statement of Profes- sor Shira ); (statement of Jason S. Berman, Recording Industry Association of America (RIAA)). —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, ; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–1. One year later, Con- gress replaced this provision with the version of 17 U.S. C. at issue here. See 3 M. Nimmer & D. Nimmer, Copyright 9A.04, pp. 9A–17, 9A–22 (hereinafter Nimmer). This tension between the United States and its new Berne counter Cite as: 55 U. S. (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 1, 172 (199). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 187 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See ; 7 W. Patry, Copyright pp. 24–8 to 24–9 The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, (codified at 17 U.S. C. 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); (statement of Berman, RIAA). 9 Title 17 U.S. C. is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. (h)()(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 55 U. S. (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See (h)()(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” (h)(3). As noted above, see at 3, 14 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 4 (19), reprinted in 1 Studies on Copyright 229, 272 (193). In 197, Congress eliminated the registration renewal requirement for future works. Copyright Act of 197, 408, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA 102 Stat. 28. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, –2. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
term—either in the United States or the country of origin—receive no further protec- tion under 12 Copyrights “restored”13 under URAA “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed if the work never entered the public domain.” (a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before ’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following ’s enact- ment. See 17 U.S. C. (h)(2)(A). Concerns about ’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. (h)()(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer A–2, and n. 29.4. Cite as: 55 U. S. (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See (h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright within two years of restoration, or by actually notifying the reliance party. (c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally,
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. (d)(3). B In 2001, petitioners filed this lawsuit challenging They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See (h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer A–45 to 9A–4. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, which added 20 years to the duration of existing and future copy After this Court rejected a similar challenge in the District Court dismissed this portion of petitioners’ suit on the plead- ings, The Tenth Circuit affirmed, and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” The Court of Appeals for the Tenth Circuit affirmed in part. The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” at 1187 (internal quotations marks omitted). But as the Court of Appeals read our decision in required further First Amend- ment The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. (quoting ). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” (quot- ing 791 (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that violates the substantive component of the Due Process Clause. Cite as: 55 U. S. (2012) 13 Opinion of the Court court concluded, because ’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 11 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. We granted certiorari to consider petitioners’ challenge to under both the Copyright Clause and the First Amendment, 52 U. S. and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact The Constitution states that “Congress shall have Power [t]o promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 2 Petitioners’ ry argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
copy- –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in and is similarly infirm. The terms afforded works restored by are no less “limited” than those the CTEA lengthened. In light of petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See 537 U.S., Indeed, as earlier noted, see the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 55 U. S. (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.1 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See –200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copy B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly,
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 1 Cf.3 Nimmer A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the work need not be resurrected.”). 1 GOLAN v. HOLDER Opinion of the Court guishes their suit from ’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term No comparable prac- tice, they maintain, supports On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (197) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 23; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 178 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 17; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 53; 178 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 23; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 55 U. S. (2012) 17 Opinion of the Court21 Subsequent actions confirm that Congress has not un- derstood the Copyright
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 9 Stat. 73; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 18; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 139. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver ’ flour mill. When sued for infringement, first Chief Justice Marshall in the Circuit Court, (No. 4,54) (Va. 1813), and then Justice Bushrod Washington for this Court, upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. 3. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Inc. v. Gonzales, 407 F.3d 122, 125 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. See also Blanchard v. Sprague, 3 F. Cas. 48, 50 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. at 20–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See and n. 11. Cite as: 55 U. S. (2012) 19 Opinion of the Court ; Act of Sept. 25, 1941, ch. 421,24 Pointing to dictum in petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” ; post, at 15. But as we explained in this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See at 7–8; cf. 24–25 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see at 13–14, is ever and always impermissible. Accord Luck’s Music –12 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by —“would necessarily have already entered the public domain”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, and n. 1; (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In we rejected an argument nearly identical to the one petitioners rehearse. The petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ because it does not stimulate the creation of new works.” –212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); 537 U.S., n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 55 U. S. (2012) 21 Opinion of the Court held that the Copyright Clause does not demand
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works. See at 205–20 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 3 Loyola (LA) L. Rev. 323, 332 )).2 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 197, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 2 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also27 Considered against this backdrop, falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor ). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp.
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); at 2, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 55 U. S. (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by To do so, we first recapitulate the relevant part of our pathmarking decision in The petitioners in like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 2 Colum. J. L. & Arts 17, 59 (cautioning against
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
2 Colum. J. L. & Arts 17, 59 (cautioning against “an isolationist reading of the Copyright Clause that is in tension with America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” (quoting Harper & (internal quotation marks omit- ted)); see (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” ; see Harper & 471 U.S., at 50 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. “In no case does copyright protec[t] any idea, procedure, process, system, method of operation, concept, principle, or discovery described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. ; see Harper & 471 U.S., at 55 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in to “traditional contours of copyright.” –119. That reading was incorrect, as we here clarify. Cite as: 55 U. S. (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. “[T]he fair use of a copyright- ed work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” ; see at 220 (“fair use defense affords considerable latitude for scholar- ship and comment, even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see we concluded in that there was no
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
copyright law, see we concluded in that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before took effect. See at 10–11 (describing 17 U.S. C. (c), (d), and (h)). See also 537 U.S., at 220 (describing supplemental allowances and exemp- —————— 30 See (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 2 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in — enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before ’s enactment. Nor, petitioners urge, does ’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 55 U. S. (2012) 27 Opinion
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
in the Cite as: 55 U. S. (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in who never “possessed unfettered access to any of the works at issue.” See also (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] ’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners –45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil 41 U.S. 470, and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 49, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. (“Copyright in a work protected vests initially in the author”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which have not yet fallen into the public do- main”).
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
which have not yet fallen into the public do- main”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, 2 Stat. 1110; to dramatic works in 185, Act of Aug. 18, ; to photographs and photographic negatives in 185, Act of Mar. 3, ; to mo- tion pictures in 1912, Act of Aug. 24, ; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 55 U. S. (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 4– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.”34 But Congress has not put petitioners in this bind. The question here, as in is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); at 121 (app. to statement of Lehman, Commerce Dept.); (state- ment of Shapiro, USTR); (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by see at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 40, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Report on Orphan Works 21–40 (200). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain.
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
why the material came to be lodged in that domain. Most of the works affected by got there after a term of zero or a term cut short by failure to observe U. S. formalities. See Cite as: 55 U. S. (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright at 41– (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 197 Copyright Act).3 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors 770 F. Supp. 2d 77–78 (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing )). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, 78 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Legal Issues in Mass Digitization 25–29 (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 3 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment expresses lies well within the ken of the political branches. It is
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 55 U. S. (2012) 33 Opinion of the Court Appendix to opinion of the Court APPENDIX Title 17 U.S. C. provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 55 U. S. (2012) 35 Opinion of the Court Appendix to opinion of the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A)
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “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 for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 3 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright may specifically require in
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
filing of the notice. The Copyright may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 55 U. S. (2012) 37 Opinion of the Court Appendix to opinion of the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information of the Copyright and shall be available for public and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 10 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 55 U. S. (2012) 39 Opinion of the Court Appendix to opinion of the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 199, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion of the Court Appendix to opinion of the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any 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 10 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “() The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States
|
Justice Ginsburg
| 2,012 | 5 |
majority
|
Golan v. Holder
|
https://www.courtlistener.com/opinion/621090/golan-v-holder/
|
noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 55 U. S. (2012) 41 Opinion of the Court Appendix to opinion of the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 55 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–545 LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.
|
Justice Brennan
| 1,975 | 13 |
majority
|
Cousins v. Wigoda
|
https://www.courtlistener.com/opinion/109131/cousins-v-wigoda/
|
At the March 972 Illinois primary election, Chicago's Democratic voters elected the 59 respondents (Wigoda * delegates) as delegates to the 972 Democratic National Convention to be held in July 972 in Miami Fla Some of the 59 petitioners (Cousins delegates) challenged the seating of the Wigoda delegates before the Credentials Committee of the National Democratic Party on the ground, among others, that the slate-making procedures under which the Wigoda delegates were selected violated Party guidelines incorporated in the Call of the Convention On June 30, 972, the Credentials Committee sustained the Findings and Report of a Hearing Officer that the Wigoda delegates had been chosen in violation of the guidelines,[] and also adopted the Hearing Officer's *80 recommendation that the Wigoda delegates be unseated and the Cousins delegates (who had been chosen in June at private caucuses in Chicago) be seated in their stead On July 8, 972, two days before the Convention opened, the Wigoda delegates obtained from the Circuit Court of Cook County, Ill, an injunction that enjoined each of the 59 petitioners "from acting or purporting to act as a delegate to the Democratic National Convention [and] from performing the functions of delegates [and] from receiving or accepting any credentials, badges or other indicia of delegate status "[2]*8 Nevertheless when the Convention on July 0 adopted the Credentials Committee's recommendation and seated the Cousins delegates, they took their seats and participated fully as delegates throughout the Convention In consequence, proceedings to adjudge petitioners in criminal contempt of the July 8 injunction are pending in the Circuit Court awaiting this Court's decision in this case The Illinois Appellate Court affirmed the injunction,[3] and the Supreme Court of Illinois, without opinion, on November 29, denied leave to appeal The Appellate Court held that "[t]he right to sit as a delegate representing Illinois at the national nominating convention is governed exclusively by the Illinois Election Code," *82 at and rejected the Cousins delegates' contention that the injunction attempting to enforce that Code, by preventing them from participating as delegates at the Convention, violated their right, and the right of the National Democratic Party, to freedom of political activity and association assured them under the First and Fourteenth Amendments The Appellate Court stated: "[T]he purposes and guidelines for reform adopted by the Democratic National Party in its Call for the 972 Democratic National Convention in no way take precedence in the State of Illinois over the Illinois Election Code (Ill Rev Stat 97, ch 6, 7- et seq) The opening section of Article 7 of the Election Code, which deals
|
Justice Brennan
| 1,975 | 13 |
majority
|
Cousins v. Wigoda
|
https://www.courtlistener.com/opinion/109131/cousins-v-wigoda/
|
section of Article 7 of the Election Code, which deals with the making of nominations by political parties ( 7-), is most clear when in discussing the selection of delegates to National nominating conventions, it states: " ` [D]elegates and alternate delegates to National nominating conventions by all political parties shall be made in the manner provided in this Article 7, and not otherwise' " "[T]he law of the state is supreme and party rules to the contrary are of no effect " "The interest of the state in protecting the effective right to participate in primaries is superior to whatever other interests the party itself might wish to protect " "Since [respondents] were admittedly elected to the position of delegates to the 972 Democratic National Convention by operation of the Election Code, an Illinois statute, this court finds the trial court's *83 injunctions did not abrogate [petitioners'] fundamental constitutional rights of free political association " We granted certiorari to decide the important question presented whether the Appellate Court was correct in according primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention [] We reverse *8 I There is a threshold question to be decided before we discuss the merits of the constitutional issue During June and July 972 the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit twice considered an action brought by one of the Wigoda delegates, Thomas E Keane, against the National Democratic Party That action challenged the constitutionality of the Party guidelines allegedly violated in the selection of the Wigoda delegates The Cousins delegates intervened and the Party counterclaimed for an injunction enjoining the Wigoda delegates from proceeding with the state-court action The case was initially dismissed on appeal because the Credentials Committee had not yet decided the petitioners' challenge, Keane v National Democratic Party, No 00-72 (DC June 9, 972); Keane v National Democratic Party, *85 No 72- (DC Cir June 20, 972) After the Credentials Committee announced its adoption of the Hearing Officer's Findings and Report, the suit proceeded The District Court sustained the constitutionality of Guideline C-6, see n and dismissed Keane's suit, while denying the counterclaim The Court of Appeals, on July 5, affirmed the dismissal but granted the counterclaim directing the entry of an order enjoining the Wigoda delegates from proceeding with the Circuit Court suit v O'Brien, 52 U S App D C 57, This Court, however, at a Special Term on July 7,
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.