Circuit Split: An Efficient Rule to Govern the Sampling of Sound Recordings

CIRCUIT SPLIT: AN EFFICIENT RULE TO GOVERN THE SAMPLING OF SOUND RECORDINGS

Article | 106 KY. L. J. ONLINE | January 26, 2018

Spencer K. Gray[1]

On June 2, 2016, the Ninth Circuit Court of Appeals held that a horn hit lasting less than a quarter of a second, which had been physically copied from a copyrighted sound recording and subsequently modified, did not constitute actionable copyright infringement.[2] The Ninth Circuit opinion stands in direct opposition to the Sixth Circuit rule that any physical copying and use of a copyrighted sound recording constitutes actionable infringement, regardless of how small or whether the sample is modified. [3] No other circuit has addressed the issue of whether a de minimis copying constitutes infringement of a copyrighted sound recording.[4] In order to encourage the creative development of music in America and to protect individual property rights, an efficient and equitable rule for the sampling of sound recordings is necessary.

I. Introduction

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson [5]

The purpose of federal copyright law is “[t]o promote the Progress of Science and useful Arts.”[6] Intellectual property law is operating efficiently when it protects individual property rights and leaves room for creative growth. Musical creations that are truly original are exceedingly rare; a natural consequence of the reality that there exists a finite amount of musical notes and orders in which to organize them. Yet musicians continue to expand the public domain of music and create new works of art through a variety of methods, including “sampling.”Sampling is defined as “the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.” [7] Sampling may be advantageous to a musician for a number of reasons, including lowering production costs. For example, a burgeoning musician who wishes to utilize a drum break in their song may not be able to afford to hire a studio drummer to participate in a recording session, but may be able to copy a drum break that was previously recorded and copyrighted by someone else. This hypothetical also illuminates the argument for protecting the original musician from un-compensated sampling: the musician has invested time and money into the original production of the drum break, and allowing others to benefit financially from their investment would deter future investments in the creation of music. Although the veracity of this “tragedy of the commons” justification for the protection of sound recordings or intellectual property generally is worthy of debate, it is necessary for the purposes of this Note to assume that the protection of sound recordings is justified. But the question remains: how and to what extent should the recordings be protected?While the horn hits at issue in VMG Salsoul, LLC v. Ciccone may have been quite small, they have resulted in substantial litigation and have illuminated an important legal issue that American courts are faced with today: should the physical copying and use of a copyrighted sound recording constitute infringement as a bright line per se rule, or, alternatively, should courts consider the de minimis, fair use, or substantial similarity defenses which have traditionally been applied in sound recording infringement cases? [8]The Sixth Circuit has chosen to adopt a bright line rule that any and all copying and use of even small or relatively insignificant portions of a sound recording is copyright infringement. [9] This rule reflects a policy decision that prioritizes individual property rights and independent creation, perhaps to the detriment of “collaboration and the custom of borrowing in the performance of music.” [10] In its opinion, the Sixth Circuit Court reasoned that the “music industry, as well as the courts, are best served if something approximating a bright-line test can be established.” [11] In order to reach its conclusion that any and all copying of a protected sound recording was copyright infringement regardless of the size or intensity of the duplication, the court’s analysis was largely dependent on a “literal reading” approach to the interpretation of federal statutes governing copyright infringement. [12]The Ninth Circuit, on the other hand, has opted to extend the de minimis requirement of copyright law to the sampling of sound recordings. A use of a sound recording is de minimis “only if the average audience would not recognize the appropriation.” [13]According to the Ninth Circuit Court of Appeals, “[w]hen considering a claimed infringement of a copyrighted sound recording, what matters is how the musicians “played” the notes, that is, how their rendition distinguishes the recording from a generic rendition of the same composition.” [14]Section I of this Note provides an introduction to the issue of sampling as it pertains to copyright infringement. Section II of this Note sets forth the scope of the Note and further explains what sampling is and how the copyright protection of sound recordings differs from that of musical compositions. Section III of this Note explains the importance of developing a rule to efficiently govern the sampling of sound recordings, especially due to the increased prevalence of sampling in the modern music industry. Section IV of this Note explains the de minimis exception to copyright infringement. Section V of this Note provides an in-depth analysis of Ciccone and Bridgeport Music in order to evaluate the merits of the courts’ respective opinions. Section VI of this Note provides an analysis of the proper statutory interpretation, considers public policy concerns, and recommends what action the Supreme Court should take to resolve this issue.. As noted infra, the Supreme Court may be unable to reach an appropriate solution and Congressional action may be necessary. Therefore, this Note will end by suggesting Congressional action that may result in an efficient rule for the sampling of sound recordings.

II. Scope of Argument

            Before determining what rule should govern the unauthorized sampling of music, it is necessary to first understand exactly what “sampling” is. In general, “sampling involves the use of a small segment of an existing sound recording in a new sound recording.”[15] When a musician writes down a song, including the lyrics and composition, the composition of that song immediately enjoys copyright protection. [16] However, musical compositions and sound recordings are considered to be two separate and unique pieces of intellectual property under copyright law. [17] The distinction between the composition and the recording may not be intuitive at first, but it is essential to understand for the purposes of developing an efficient rule for the copyright protection of music. In 1991 the Supreme Court of the United States outlined the elements of a copyright infringement claim as: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[18]This Note is not concerned with the copyright protection of musical composition. The musical composition consists of the “music” (the unique arrangement of musical notes creating the sound) and any words that are associated with the song.[19] While the protection of a musical composition presents its own unique issues, it is sufficient for the purposes of this Note to recognize that this is a separate and distinct component of intellectual property law, and that the duplication of a musical composition is only actionable if it is legally significant.[20] Instead, this Note is concerned with sound recordings. The term “sound recording” refers to “a specific performance of a composition, as affixed in a recording medium . . ., that serves as the ‘raw audio source used by the sampling musician.’”[21] In other words a sound recording is the actual physical (whether digital or otherwise) recording of the sounds that together comprise the musical work. The copyright of the musical composition and the copyright of the sound recording are two separate and distinct bundles of rights, and as such “the rights of a copyright in a sound recording do not extend to the song itself, and vice versa.”[22] A single recording company usually owns the sound recording, not the musician who created the composition.[23]To illustrate the difference between a musical composition and a sound recording, it may be helpful to analogize to the copyright protection enjoyed in by a novel. In this metaphor, musical composition copyright would protect the plot, setting, characters, and arrangement of words that comprise the novel. The sound recording copyright, on the other hand, would protect the physical book including the cover, bindings, and the pages themselves. Copyright law does not protect physical books in this manner, but does protect sound recordings.[24]This Note is only concerned with the literal copying of a physical sound recording, or the copying of a portion of a music file. The individual who copies the sound recording will often modify it in some way, possibly by slowing it down, speeding it up, or even changing the order of notes. [25] It is critical to point this potential for modification out because sampling does not include simulation or imitation but instead is limited to “the actual use of the copyright owner’s original work.”[26] Thus, while in some jurisdictions a musician is prohibited from directly copying a single “horn hit” from a sound recording, in every jurisdiction that same musician is free to pick up a horn and attempt to play the “horn hit” in the same way to produce the same sound. [27]

III. Importance

            The practice of sampling is used throughout the music industry. [28] The practice is especially widespread in genres such as hip hop and rap.[29] Additionally, sampling is regularly used in marketing campaigns. [30]In order to illustrate the degree to which the unauthorized sampling of sound recordings has permeated contemporary culture, it is helpful to consider the story of the “Amen Break.” The “Amen Break” is a six second drum-beat, or break-beat, that has been sampled from a 1969 song titled “Amen, Brother.” [31] While the original song was not particularly popular, the sample of the break-beat has seen an emergence in popularity since the late 80’s with the rise of hip hop. [32] The song was used in several hip hop and rap songs during this period, including NWAs “Straight Outta Compton.” [33]  Around the same time that NWA released “Straight Outta Compton,” a sub-genre of rave music called “Ragga Jungle” became popular in the United Kingdom.[34] Ragga Jungle centered its aesthetic almost entirely on sampling the Amen Break.[35] The Amen Break demonstrates the influence that music sampling can have on contemporary culture: A six second drum loop taken from the B-side of a 1969 funk and soul single has spawned hundreds of unique tracks, supported a number of clubs and the careers of dozens of Disc Jockeys, and has given rise to a subculture of the UK rave phenomenon in the late 1980s and early 1990s. [36] The band that created the single that the Amen Break was sampled from has never pursued any claim for copyright infringement. [37]Judicial economy is another important concern to consider when formulating a rule to govern the sampling of sound recordings without permission. Sampling was rarely litigated until recently; instead most parties chose to settle when there was a dispute. [38] However, as the law around sampling continues to develop, the use of digital sampling becomes more widely used; and considering the statutory guidance that is now available, it is likely that sampling cases will increase exponentially.[39] The lack of an efficient rule governing the unauthorized sampling of sound recordings threatens to flood courts with litigation.The strict liability standard set forth in Bridgeport may have a nation-wide effect on the creation of sound recordings because successful recordings are distributed across the United States.[40] The adoption of an efficient and uniform rule to govern the unauthorized sampling of sound recordings is important because money, the balance of personal property interests, the cultivation of creative development, collaboration, and the public domain of music are all at issue.

IV. The De Minimis Rule

            The rights associated with a copyright are generally not absolute. Over one hundred years ago, Judge Chatfield explained: “Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.”[41] The term “de minimis” is derived from the legal maxim “de minimis non curat lex” which roughly translates to “the law does not concern itself with trifles.”[42] In other words, the de minimis rule stands for the proposition that a court will not impose liability on an unauthorized appropriator of copyrighted property if the average audience would not recognize the appropriation.[43]Although those who duplicate sound recordings may modify the recordings in a number of ways, such as changing the speed, distorting the sounds contained in the recording, or even changing the order or arrangement of sounds, it does not necessarily follow that the modification will prevent copyright infringement.[44] Thus, there is a large and unpredictable grey area in the law about what copying will be de minimis, and what copying will be substantially similar. Unless an appropriation is legally substantial, a court applying the de minimis rule will not find that copyright infringement has occurred. Generally, a claim for copyright infringement will fail unless the copying is substantially similar.[45]

V. The Split

A. The Sixth Circuit

In March of 2005 the United States Sixth Circuit Court of Appeals attempted to resolve the issue of what rule should govern the unauthorized sampling of sound recordings.[46] The seminal case in the Sixth Circuit is Bridgeport Music, Inc. v. Dimension Films. The dispute in Bridgeport arose out of the use of a sample from “Get Off Your Ass and Jam” in the song “100 Miles and Runnin,’” which was then used in the soundtrack of I got the Hook Up, a movie released by defendant No Limit Films in 1998.[47] Particularly of interest to this Note are the claims of Westbound Records against No Limit Films.Westbound Records is a company in the business of recording and distributing sound recordings, and is the entity who possessed a copyright ownership interest in the sound recording which was sampled in “100 Miles and Runnin’.” [48]  The sample in controversy is a two second sample of a guitar solo that was “copied, the pitch was lowered, and the copied piece was ‘looped’ and extended to 16 beats.”[49] Westbound Records argued that the sound recording of the guitar solo from “Get Off Your Ass and Jam” had been literally copied and used in the song “100 Miles and Runnin’” which was in turn included in the Defendant’s movie soundtrack I Got the Hook Up.[50] In response to Westbound Records’ claims, No Limit Films presented two arguments: (1) That copyright law could not protect the sound recording that had been copied because it was not “original”; and (2) “that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law.”[51]While the District Court was not persuaded by No Limit Films’ argument that the sound recording was not “original,” the court concluded, based on a de minimis analysis or a “fragmented literal similarity” test, that no reasonable jury could find that the sampling rose “to the level of a legally cognizable appropriation.”[52] It is particularly noteworthy that on appeal Westbound Records did not challenge whether or not a jury could find a legally cognizable appropriation, but instead argued that it is immaterial whether or not the appropriation was de minimis because no such inquiry “should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.”[53] In other words, Westbound Records did not argue that the District Court had been negligent in its application of the de minimis test, but rather that the test should never have been applied in the first place.Although the Sixth Circuit Court of Appeals did ultimately agree with Westbound Records that the de minimis test should not have been applied, the court relied on an analysis that is separate and distinct from the arguments presented by the plaintiff.[54] The analysis of the court centered on a statutory interpretation of Sections 114 and 106 of Title 17 of the United States Code.[55] These statutes will be discussed in depth below, but for now it is sufficient to understand that together the statutes undoubtedly prohibit pirating or copying an entire sound recording.[56] The Sixth Circuit Court of Appeals noted in Bridgeport Music that it is clearly impermissible to pirate an entire sound recording, and then proceeded to address the issues of whether or not it is permissible to sample something less than the whole sound recording without violating the relevant statutes.[57]In order to answer whether or not it is permissible to sample something less than an entire sound recording, the Sixth Circuit Court focused on the language of the governing statutes.[58] Specifically, the court focused on the inclusion of the word “entirely” in Section 114(b) of Title 17 the United States Code. [59]The relevant portion of Section 114(b) places limitations on the rights the owner of a sound recording enjoys. According to the statute, the copyright owner of a sound recording does not have rights that “extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”[60] This clause of the statutes allows for a musician to listen to the sound recording, and attempt to imitate or simulate the notes that are played on the sound recording so long as the musician does so using her own instruments and recording equipment. The court interpreted the inclusion of the word “entirely” to stand for the proposition that an imitating musician may not literally (physically) copy any portion, no matter how small or insignificant it is to the overall recording. Put differently, the court interpreted the aforementioned clause to stand for the proposition that “a sound recording owner has the exclusive right to ‘sample’ his own recording.”[61] Thus, the Sixth Circuit adopted the rule that unauthorized sampling, regardless how small or seemingly insignificant, is copyright infringement as a matter of law.There is a legitimate question as to why sound recordings should be afforded more copyright protection than musical compositions. The Sixth Circuit Court of Appeals offered two justifications for this distinction.[62] First, a literal reading of the governing statute mandates a per se rule for sound recordings, but does not do so for musical compositions.[63] Second, “even when a small part of a sound recording is sampled, the part taken is something of value.”[64] In other words, sampling a sound recording constitutes a physical taking.[65]The Sixth Circuit offered several justifications for the adoption of a new rule. First, the court explained that there is support for a per se rule in several law review and other published texts.[66] Second, the court argued that the new rule will not have a substantial effect on the practices of the music industry because many artists and companies have already adopted the policy of seeking licensing as a matter of course, many artists who sample without seeking licenses will continue to do so, and because pre-1972 sound recordings are not afforded federal copyright protections.[67] Third, the music industry has the ability to develop its own licensing guidelines if it chooses. Finally, the court identifies that “[t]he legislative history [of federal copyright protection statutes] is of little help because digital sampling wasn’t being done in 1971” and therefore the best approach to this issue is a “literal reading” of the statue.[68]

B. The Ninth Circuit

In June of 2016, the Ninth Circuit Court of Appeals attempted to resolve the issue of what rule should govern the unauthorized sampling of sound recordings.[69] The seminal case in the Ninth Circuit is VMG Salsoul, LLC v. Ciccone. The dispute in VMG Salsoul arose out of the artist Madonna’s use of a 0.23 second “horn hit” in her hit song “Vogue.”[70] Madonna physically copied the horn hit from an early 1980s instrumental song titled “Ooh I Love It” without permission from the copyright owner.[71]The defendant in VMG Salsoul presented identical defenses as the defendant in Bridgeport Music, asserting that the sound recording of the sampled music was not “original” for copyright law purposes, and that even if the court determined the sampled sound recording to be “original” for the purposes of copyright law, that the sampling was “de minimis or trivial” and thus exempt from copyright protection.[72] While the defendant disputes whether the physical copying of the song actually occurred, the court finds that when taking the facts in the light most favorable to the plaintiff a genuine issue of material fact occurred and thus the court must proceed to the next step of the analysis: assuming that the sampling did occur, does it constitute copyright infringement?[73] In order to answer this question, the court must determine both whether the de minimis exception to copyright infringement applies to sound recordings, and if so, whether or not the infringement in this case is de minimis.In order to answer the question of whether or not the de minimis exception applies to sound recordings, the court begins by noting that courts in the Ninth Circuit have recognized “the response of the ordinary lay hearer” as an essential part of the copyright infringement test.[74] The court also explains that a copyright owner’s legally protected interest is the potential financial return for her creation.[75] Because any potential financial return linked to the copyright owner’s intellectual property is necessitated upon the approval or praise of the public or consumers, if the consumers are unable to recognize the appropriation then “the copier has not benefited from the original artist’s expressive content” and thus no infringement has occurred.[76] In other words, the court reasoned that harm to the creator of the sound recording is dependent upon public recognition of the origins of the recording.Next, the court engages in an exercise of statutory interpretation to determine what Congress’ intent was in creating federal copyright protection. The court begins its analysis of the relevant statutes by highlighting that the text of 17 U.S.C. §106 “Exclusive rights in copyrighted works” does not suggest any differential treatment between any mediums of intellectual property, including sound recordings.[77] Therefore, if the de minimis exception applies to any one medium then there is no occasion to believe Congress intended not to extend the exception to the others.[78] Second, the court addresses 17 U.S.C. §114(b), the provision on which Bridgeport Music relied most heavily in formulating a per se copyright infringement rule for sound recordings. The VMG Salsoul court is highly critical of the Bridgeport Music court’s interpretation of the statute, explaining that “[w]e ordinarily would hesitate to read an implicit expansion of rights into Congress’ statement of an express limitation on rights.”[79] Unlike the court in Bridgeport Music, the Ninth Circuit court considered the §114(b) legislative history in determining congressional intent.[80] Specifically, the legislative history states that copyright infringement occurs when all or “any substantial portion of the sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method.”[81] Further, the VMG Salsoul court asserts that the 6th circuit rule relies upon a logical fallacy: inferring the inverse of a conditional from the conditional.[82] In other words, the Sixth Circuit is interpreting the statute as an extension of property rights whenever a sampling is not comprised of only independent fixations of other sounds. The Sixth Circuit asserts that this portion of the statute does not operate to create any property rights for the creator of the sound recording but instead ensures that musicians who sample through the use of only independent fixations of other sounds (i.e. their own instruments) will be protected from copyright infringement law suits. This alleged fallacy is discussed in greater depth infra.[83] Even under the Sixth Circuit’s interpretation, there may remain a legally significant infringement claim based upon the appropriation of musical composition but that is outside the scope of this Note. The Ninth Circuit relies on statutory interpretation to determine that Congress intended for the de minimis exception to copyright infringement to be extended to sound recordings.[84]Once the court determined that the de minimis exception to copyright infringement applied to sound recordings, the court began its analysis of whether the sampling in controversy was de minimis.[85] Notably, expert musicians who listened to the two tracks were unable to determine what portions of the recording had been copied.[86] Thus, the court held that because an average audience would be unable to recognize what portions of the original sound recording had been copied, the sampling was de minimis and did not constitute copyright infringement.[87] The Ninth Circuit is not alone in imposing de minimis requirements to sound recordings.[88]

VI. Analysis

A. Statutory Interpretation

      Because both VMG Salsoul and Bridgeport Music based their decisions primarily on statutory interpretation, the United States Code is the best place to begin the search for a resolution to this circuit split. Title 17 of the United States Code is the federal statutory law governing copyright protection. [89]Section 102 of Title 17 announces what subject matter is afforded copyright protection under federal law; sound recordings are protected.[90] Next, section 106 of Title 17 sets forth the rights that are afforded to the owners of copyrighted works; subsection 6 pertains specifically to sound recordings and grants the exclusive right to “perform the copyrighted work publicly by means of a digital audio transmission” to the creator of the sound recording.[91] Finally, sections 107 through 122 place limitations on the exclusive rights that are granted under section 106, with section 114 specifically placing limitations on the rights enjoyed by sound recording owners.[92]Essentially all of the debate over whether or not a per se infringement rule is statutorily mandated derives from differences of interpretation of section 114(b) which states in relevant part:

The Exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. (emphasis added)[93]

The natural reading of this clause simply states that an individual is free to imitate or simulate a sound recording without incurring liability for copyright infringement. The Bridgeport Music court instead read this clause as an expansion of the copyright holder’s rights.[94] This result was reached through the use of a logical fallacy. To illustrate the fallacy, consider the proposition enumerated in section 114(b): If entirely independent fixation of other sounds, then copyright protection does not extend. The Bridgeport Music court then formulated the following as what is in fact a false contrapositive of the above proposition: If not an entirely independent fixation of other sounds, then protection does extend.[95] The correct contrapositive of the proposition, however, is the following: If protection does extend, then it is not an entirely independent fixation of other sounds. The statute itself does not offer any guidance on whether liability is incurred when a fixation is not entirely independent, as Bridgeport Music suggests it does, because reliance on this reasoning would be committing the fallacy of inferring the inverse of a conditional from the conditional.[96]Although Bridgeport’s interpretation of the §114(b) may be one-of-a-kind, the statutory language itself is not unique. A comparable provision limiting the rights of copyright holders against libraries may be found at 17. U.S.C. §108(e).[97] §108(e) states:

The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her requests or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord or the copyrighted work cannot be obtained at a fair price… . (emphasis added).[98]

If a library copies a single sentence from the novel Blood Meridian, will Cormac McCarthy be successful in a copyright suit even though the library did not copy “the entire work, or . . . a substantial part of it?”[99] Under Bridgeport’s interpretation, even if the library were to copy the word “he” from page 141 of Blood Meridian, the library would be liable for copyright infringement.[100] Under the Ninth Circuit’s interpretation, copying the word “he” would not be infringement because no one reading the copy could identify the word as being derived from Blood Meridian.[101]While the Bridgeport Music court dismisses the statute’s legislative history because sampling was allegedly not in practice at the time of enactment, other forms of direct copying were available and therefore the legislative history should be considered. The legislative history of section 14(b) includes the following:

Infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. (emphasis added)[102]

This sentence from the legislative history is important for two reasons: (1) it enunciates that the drafters of section 14(b) did not intend an all or nothing application but instead intended the substantiality of literal copying to be considered; and (2) the drafters of section 14(b) recognized that literal copying was already possible and left room for the statute to apply to new technologies or other methods of copying that would come in the future[103]. Such an interpretation has found support in federal court.[104]Thus, when considering the plain language of section 114(b) in conjunction with the overall statutory scheme of Title 17 and the accompanying legislative history, it is apparent that the Bridgeport Music court’s statutory justification is misplaced. Accordingly, congressional intent in drafting federal copyright law was not to hold individuals who literally copy sound recordings liable for copyright infringement as a matter of law. Instead, it appears that congress intended the substantiality of the duplication and reuse to be a factor of consideration in a copyright infringement case.

B. Policy Concerns

            The most logical statutory interpretation may lead to the application of the de minimis rule, as suggested by the Ninth Circuit Court of Appeals in VMG Salsoul, but this does not necessarily solve the public policy need for an efficient rule. The concern of judicial economy still exists, and those who sample will be less likely to settle out of court with plaintiffs if they know that they have the de minimis defense  at their disposal. There is also a need for the music industry to have a rule that will lead to consistent results in litigation, because it will allow artists to price the risk of having a judgment against them ex ante and thereby decide if it is less expensive to go the route of licensing.Alternatively, it has been argued that the de minimis rule promotes judicial economy.[105] The argument is supported be the notion that plaintiff’s are less likely to seek legal recourse if they are afraid that the court will absolve the defendant of liability pursuant to the de minimis defense.[106] Likewise, the argument may be made that a per se rule actually creates more litigation because plaintiffs will sue much more often knowing that the defendant does not have access to the defense of the de minimis rule.[107]Whatever rule is adopted should not stifle creativity. The per se rule formulated by the Sixth Circuit appears to stifle creativity on its face, although the court in Bridgeport Music offered several arguments as to why this would not be the result. First, a bright line rule such as this one promotes ease of enforcement.[108] Second, the free market will necessarily ensure that license prices are efficient.[109] Finally, unlike the infringement of musical composition copyright, infringement through the sampling of a sound recording is never accidental.[110]There are also concerns of the de minimis rule’s effects on creativity. Allowing for nearly unchecked copying could act as a deterrent for the creation of truly new works of music. Some have argued, however, that no artwork can truly be “original” because all artists rely so heavily on the inspirations and influences they receive from other artists.[111]

C. Resolution – U.S. Supreme Court

            The United States Supreme Court should resolve this circuit split by adopting the Ninth Circuit’s interpretation of this issue. The correct interpretation of the relevant statutory scheme does not create a per se copyright infringement rule for the physical sampling of sound recordings, as the Sixth Circuit suggests. Instead, the statutes leave room for the application of the common law doctrine of the de minimis rule.While Congress has not created a special category of per se copyright infringement for sound recordings, the U.S. Supreme Court could deem the de minimis defense to not apply to sound recordings on public policy grounds. Unfortunately, neither the Ninth Circuit nor the Sixth Circuit has clearly established an efficient rule. It is unclear what effect a per se rule would have on the music industry if applied nation-wide. The U.S. Congress is in a much better position to investigate and analyze the needs of the music industry than is the U.S. Supreme Court and therefore the Court should avoid engaging in judicial activism in the resolution of this problem. Instead the Court should adopt the Ninth Circuit’s interpretation and treat sound recordings as it treats other categories of intellectual property. In its opinion, the Court should emphasize that there is a need for Congressional action to resolve the need for an efficient rule regarding the sampling of sound recordings.

D. Resolution – Congressional Action

            Neither the approach adopted by the Ninth Circuit in VMG Salsoul nor that adopted by the Sixth Circuit in Bridgeport Music adequately addresses the need for an efficient rule to govern music sampling. Bridgeport Music’s bright-line rule approach, however, is a step in the right direction. In order to reach a satisfactory solution to the problem at hand, it is necessary to maintain the spirit of the Bridgeport Music decision while reaching a more practical outcome. The de minimis defense is not the appropriate measuring stick for the sampling of sound recordings because “[w]herever [the line] is drawn [to mark where de minimis] will seem arbitrary”[112] and will result in an overwhelming grey area in which musicians and recording companies would be forced to operate. Instead, this Note proposes that the United States Congress should enact compulsory licensing for all sound recordings.The Sixth Circuit may have been inhibited by its enumerated powers, but the Congress is both well equipped and Constitutionally mandated to solve this problem. The Sixth Circuit created a bright line rule: “Get a license or do not sample.”[113] With Congress’ help, this bright line rule can provide an equitable solution for all parties involved.The United States Congress should enact compulsory licensing for all sound recordings. Congress has already created a compulsory licensing system for some activities, such as the performance and distribution of “cover songs.”[114] 17 U.S.C. § 115 “authorizes any person who complies with its provisions to obtain a license to make and distribute phonorecords of a nondramatic musical work if: (1) the work has ‘been distributed to the public in the United States under the authority of the copyright owner; and (2) the person’s ‘primary purpose in making phonorecords is to distribute them to the public for private use.’”[115] Put simply, a compulsory system would allow anyone who wants to sample a song to do so by paying a set fee, which is regulated by the federal government, and by giving notice in compliance with the regulations. The system of compulsory licensing should allow any artist to sample any other artist’s music, for a set fee.[116] The fee would be set by a regulatory body and would be based on the fair market value of sound recordings. The fee should depend on a number of factors, including the length of the sample and its importance to the source material. The system should feature a notice requirement by which all owners of sound recordings would be served with notice of (and compensated for) the sampling of their recordings.[117]Limitations on the use of sound recordings should include maximum limits of duration, and limits on how many samples may be taken from a single artist, album, or recording.[118] However there should be no limitation on the manipulation of the sample, in order to foster creativity.[119] There should also be a variety of alternative payment methods to allow musicians who are lacking capital to participate legally. For example a young musician may agree to a congressionally approved royalty contract to share proceeds from the use of the sample.The compulsory licensing system would ensure that the courts are not flooded with litigation because non-licensed sampling would become copyright infringement as a matter of law. The system would foster the creative growth of the music community. And the compulsory licensing system would drastically cut down on transactional costs, creating a more efficient music industry.[120] The way music is made is evolving alongside technology; federal copyright laws must adapt accordingly. Unfortunately, there appears to be little support for the creation of a compulsory licensing system in Congress and in fact it is plausible that Congress may repeal the existing compulsory licensing system under Section 115.[121] Among other concerns, Congress has communicated concerns that while compulsory licensing for an entire musical score to be recreated by the licensee requires substantial time and resources to be expended by the licensee, allowing a similar system for the use of physical sound recordings would allow the licensee to profit off of the resources and time of the licensor.[122] Essentially Congress has voiced its concern that implementing a compulsory licensing system for sound recordings would result in a “tragedy of the commons” scenario.

VII. Conclusion

            In conclusion, there is a very important divide in the law governing the sampling of sound recordings. The American music industry is already highly dependent on the sampling of sound recordings, and it appears that the dependence will continue to increase in the years to come. American law is not currently equipped to efficiently deal with the copyright protections of sound recordings.The Ninth and Sixth Circuit Courts of Appeals have attempted to reach an efficient solution to the issue of sound recordings. The Sixth Circuit’s per se rule provides a bright line rule, but may stifle creativity and is based upon a faulty interpretation of the relevant statutory scheme. The Ninth Circuit’s application of the de minimis rule is consistent with the relevant statutory scheme and copyright common law in general, but may not be an efficient solution to the larger problem. The United State Supreme Court should address this circuit split and adopt the Ninth Circuit’s interpretation of the rule. However, it does not appear that a solution to this problem can be completely derived from judicial action. Congress, on the other hand, is capable of creating an efficient solution to the sampling conundrum.Congress should pass a statute creating a compulsory licensing system, similar to the system already in existence under Section 115, but applicable to the sampling of sound recordings. Such a system would allow for the continuing artistic development of the musical industry, would protect the property interests of copyright holders of sound recordings, and would promote judicial economy through the creation of a bright line rule. Though the problem may be complex, the solution is simpler: If you want to sample get a license. In order for this axiom to be applicable in the real world, Congress must ensure that licenses are reasonably available to those seeking them. This is accomplished through compulsory licensing.

---

[1] University of Kentucky College of Law, J.D. Expected May 2018.

[2]  VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).

[3] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800–02 (6th Cir. 2005).

[4] Lesley Grossberg, A Circuit Split at Last: Ninth Circuit Recognizes De Minimis Exception to Copyright Infringement of Sound Recordings, Baker Hostetler: Copyright, Content, and Platforms (June 21, 2016), https://www.copyrightcontentplatforms.com/2016/06/a-circuit-split-at-last-ninth-circuit-recognizes-de-minimis-exception-to-copyright-infringement-of-sound-recordings/; but see id. (“almost every district court not bound by that decision has declined to apply Bridgeport’s rule.”) (quoting Ciccone, 824 F.3d at 886).

[5] Thomas Jefferson, Thomas Jefferson to Isaac McPherson, The Founders’ Constitution (Aug. 13, 1813), http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html.

[6] U.S. Const. art. I, § 8, cl. 8.

[7] Ciccone, 824 F.3d at 875 (citing Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004)).

[8] See, e.g., id. at 874.

[9] Tonya M. Evans, Sampling, Looping, and Mashing… Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law, 21 Fordham Intell. Prop. Media & Ent. L.J. 843, 847 (2011).

[10] Id.

[11] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799 (6th Cir. 2005).

[12] Id. at 805.

[13] Ciccone, 824 F.3d at 878 (quoting Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004)).

[14] Id. at 879.

[15] See 1 Lawrence A. Waks & Brad L. Whitlock, Texas Practice Guide Business Transactions § 4:274 (June 2017).

[16] See Gregory T. Victoroff, Music Sampling: Legal Overview, Practical Guidelines, 26 Beverly Hills B. Ass’n J. 134, 134 (1992).

[17] Id.

[18] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[19] See Astride Howell, SAMPLE THIS! A Ninth Circuit Decision to be in Harmony with the Sixth Circuit’s Bright-Line Rule on What Constitutes Infringement in Digital Sampling, L.A. L., Sept. 2005, at 24, 24; see also U.S. Copyright Office, Circular 56A, 1 (2017) https://www.copyright.gov/circs/circ73.pdf (“[there are two separate components of a musical work: the musical composition and the sound recording.] A musical composition consists of music, including any accompanying words. . . . A musical composition can be in the form of a notated copy (for example, sheet music); a phonorecord (for example, cassette tape, L.P., or CD); or a DPD. A sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds.”).

[20] See Newton v. Diamond, 388 F.3d 1189, 1192–93 (9th Cir. 2004).

[21] Thomas P. Wolf, Toward a “New School” Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through, 2011 Stan. Tech. L. Rev. N1, N6-N7.

[22] Conway v. Licata, 104 F. Supp. 3d. 104, 120 (D. Mass. 2015) (quoting Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002).

[23] See James A. Johnson, Thou Shalt Not Steal: A Primer on Music Licensing, N.Y. St. B. Ass’n J., June 2008, at 23, 23; see also U.S. Copyright Office, Circular 73, 2 (2017), https://www.copyright.gov/circs/circ73.pdf  (“The author of a musical composition is generally the composer and any lyricist. . . . The author of a sound recording is generally the performer(s) who captures and processes the performance to make the final recording.”).

[24] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[25] See Robert M. Vrana, The Remix Artist’s Catch-22: A Proposal for Compulsory Licensing for Transformative, Sampling-Based Music, 68 Wash. & Lee L. Rev. 811, at n. 64 (2011).

[26] See Tracy L. Reilly, Debunking the Top Three Myths of Digital Sampling: An Endorsement of the Bridgeport Music Court’s Attempt to Afford “Sound” Copyright Protection to Sound Recordings, 31 Colum. J. L. & Arts 355, 366 (2008).

[27] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[28] See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L. J. 515, 516 (2006).

[29] Id. at n. 5, 516–17.

[30] See, e.g., Butler v. Target Corp., 323 F. Supp. 2d. 1052, 1054 (C.D. Cal. 2004).

[31] Nate Harrison, Can I Get an Amen?, YouTube (March 4, 2015), https://www.youtube.com/watch?v=B27ehDHTCmc.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] See Ponte, supra note 28, at 518.

[39] Id. at 518–19.

[40] Robert J. Bernstein & Robert W. Clarida, Circuit Split Creates Uncertainty in Sampling of Sound Recordings; Copyright Law, N.Y. L. J. Online (June 15, 2016).

[41] See W. Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861–62 (E.D.N.Y. 1909) (emphasis added).

[42] See Ringold v. Black Entm’t Television, Inc., 126 F.3d 70, 74 (2d. Cir. 1997).

[43] See Fisher v. Dees, 794 F.2d 432, 434–35 n. 2 (9th Cir. 1986) (“a taking is considered de minimis only if it is so meager and fragmentary that the average audience would not recognize the appropriation.”).

[44] See United States v. Taxe, 540 F.2d 961, 964 (9th Cir. 1976).

[45] See generally Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir. 2000); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821 (11th Cir. 1982); Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J. 1993); Williams v. Broadus, 2001 WL 984714 (S.D.N.Y. Aug. 27, 2001); Tuff ‘N’ Rumble, Inc. v. Profile Records, Inc., 1997 WL 158364 (S.D.N.Y. Apr. 2, 1997); (This list is far from exhaustive, but is illustrative of the popularity of the de minimis or substantial similarity rule outside of the Sixth Circuit).

[46] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[47] Id. at 794–96.

[48] Id. at 795.

[49] Id. at 796.

[50] Id.

[51] Id. at 796–97.

[52] Id. at 797.

[53] Id. at 798.

[54] Id. at 799.

[55] Id.

[56] Id. at 799–801.

[57] Id. at 800.

[58] Id. at 800–01.

[59] Id. at 800.

[60] Id. at 800.

[61] Id. at 800–01.

[62] Id. at 801–02.

[63] Id.

[64] Id.

[65] Id. at 802.

[66] Id. at 803.

[67] Id. at 804.

[68] Id. at 805.

[69] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).

[70] Id. at 874.

[71] Id. at 875.

[72] Id. at 876.

[73] Id. at 877.

[74] Id. at 881 (quoting Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)).

[75] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 881 (9th Cir. 2016).

[76] Id.

[77] Id. at 882.

[78] Id.

[79] Id. at 883.

[80] Id. at 883–84.

[81] Id. at 883.

[82] Id. at 884.

[83] See infra Section (VI)(A).

[84] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 882 (9th Cir. 2016).

[85] Id. at 880.

[86] Id.

[87] Id.

[88] See, e.g., Saregama India Ltd. v. Mosely, 687 F.Supp.2d 1325, 1338 (S.D. Fla. 2009).

[89] See 17 U.S.C. § 101–1301 (2004).

[90] 17 U.S.C. § 102(a)(7) (1990).

[91] 17 U.S.C. § 106(6) (2002).

[92] See generally 17 U.S.C. § 107–122 (1992); 17 U.S.C. § 114 (2010).

[93] 17 U.S.C. § 114(b) (2010).

[94] 4 Nimmer on Copyright §13.03[A][2][b] (2017).

[95] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800–01 (6th Cir. 2005).

[96] See Joseph G. Brennan, A Handbook of Logic 79–81 (2nd ed. 1961).

[97] 17 U.S.C. § 108(e) (2012).

[98] Id.

[99] 4 Nimmer on Copyright § 13.03 n. 114.14 (quoting 17 U.S.C. § 108(e)); Of course, this hypothetical assumes that the library is unable to obtain a copy of the novel for a fair price.

[100] See supra Section (V)(A) (Under Bridgeport, it would be of no consequence that no one reading the word “he” in the copy would be able to identify it as being derived from page 141 of Blood Meridian.).

[101] See supra Section (V)(B).

[102] H.R. Rep. No. 94-1476, at 106 (1976).

[103] See id.

[104] Saregama India Ltd. v. Mosely, 687 F. Supp.2d 1325, 1341 (S.D. Fla. 2009) (“There is no indication, however, that [Section 114(b)] relates to works which are not similar-sounding or that Congress otherwise sought to abandon the substantial similarity inquiry. Section 114(b)’s legislative history supports this view”).

[105] Jennifer R.R. Mueller, All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling, 81 Ind. L.J. 435, 454 (Winter 2006) (citing On Davis v. The Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001)).

[106] See id.

[107] Id. at 456–57.

[108] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[109] Id.

[110] Id.

[111] See David M. Morrison, Bridgeport Redux: Digital Sampling and Audience Recoding, 19 Fordham Intell. Prop. Media & Ent. L.J. 75, 86 (Autumn 2008).

[112] Nichols v. Universal Pictures Co., 45 F.2d 119, 122 (2d. Cir. 1930).

[113] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[114] See 17 U.S.C. § 115 (2010).

[115] Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 526 (9th Cir. 2008) (quoting 17 U.S.C. § 115(a)(1) (2010)).

[116] See Michael L. Baroni, A Pirate’s Palatte: The Dilemmas of Digital Sound Sampling and a Proposed Compulsory License Solution, 11 U. Miami Ent. & Sports L. Rev. 65, 94 (1993).

[117] Id. at 96; See also Circular 73 at 2 (“Section 115 does not cover sound recordings. Rather, it covers the reproduction and distribution of musical compositions.”)

[118] Baroni, supra note 117 at 95.

[119] Id.

[120] See Richard A. Epstein & F. Scott Kieff, Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents, 78 U. Chi. L. Rev. 71, 85–86, (2011) (“[Compulsory licensing] thus functions as a transaction cost–saving device that permits the rapid dissemination of copyrighted material. . . . This approach has resulted in transaction costs for the scientists that are lower than those of purchasing a can of soda from a vending machine.”).

[121] See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L.J. 515, 549 (2006).

[122] Id. at 550.

Eldred & the New Rationality

This Online Original is available for download (PDF) here.

Article | 104 KY. L. J. ONLINE 1 | July 17, 2015

Brian L. Frye[1]

Abstract

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public.But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by animosity, and in Obergefell v. Hodges, it held that states must license marriages between two people of the same sex, because there is no legitimate basis to refuse.This essay argues that Lawrence, Windsor, and Obergefell may reflect the emergence of a “new rationality” that authorizes courts to consider legislative intent when evaluating the constitutionality of legislation. If so, perhaps the Court should reconsider Eldred and Golan.

Introduction

Rational basis review is famously forgiving. It provides that most legislation is constitutional, so long as it is conceivably related to any legitimate government interest, even if that interest did not actually motivate the legislation.[2] Accordingly, in Eldred v. Ashcroft (2003), the Court applied rational basis review and held that Congress could constitutionally extend the copyright term of existing works of authorship, because it could have believed that doing so would promote their creation and dissemination.[3]But rational basis review seems to have changed since Eldred. In Lawrence v. Texas (2003), the Court seemingly applied rational basis review and held that a Texas law prohibiting homosexual conduct was unconstitutional because it was motivated by animosity toward homosexuals.[4] In United States v. Windsor (2013), it held that a federal law prohibiting the recognition of same-sex marriages was unconstitutional for the same reason.[5] And, most recently, in Obergefell v. Hodges (2015), it held that the Fourteenth Amendment requires states to license marriages between two people of the same sex, apparently because there is no legitimate basis to refuse.[6] So, this “new rationality” apparently provides that legislation cannot be motivated by animosity, even if it is conceivably related to a legitimate government interest.This change in rational basis review presents an obvious question: Can Eldred survive Lawrence, Windsor, Obergefell and the new rationality? In practice, of course, the answer is obviously “yes.” The Court has long adhered to the maxim that “foolish consistency is the hobgoblin of little minds.”[7] Or rather, as Justice Holmes more gently observed, “The life of the law has not been logic; it has been experience.”[8]In fact, it already has. In Golan v. Holder (2012), the Supreme Court relied on Eldred to hold that Congress could constitutionally restore the copyright in certain works that had fallen into the public domain, because it could rationally believe that doing so could “encourage the dissemination of existing and future works” and induce “greater investment in the creative process.”[9]But the more interesting question is whether Eldred, Golan, and other cases decided under the rational basis test should survive the new rationality. If the standard of review has changed, why has it changed, why is that change legitimate, and how should it affect the way the court reviews cases under the rational basis test, if at all?

A Potted History of Constitutional Review

The Court has always assumed its authority to review the constitutionality of federal and state legislation.[10] Most famously, in Marbury v. Madison (1803), it held that a federal law was unconstitutional.[11] But the antebellum Court was reluctant to exercise the power of judicial review.[12] While it occasionally held that state laws were unconstitutional, it did not hold another federal law unconstitutional until Dred Scott v. Sandford (1857).[13]Notably, the antebellum Court held that its authority to review the constitutionality of state legislation was limited, especially in the case of legislation affecting individual rights. In Barron v. Baltimore (1833), it held that the Bill of Rights did not apply to the states.[14] And it assumed that it lacked the authority to review the constitutionality of state legislation based on the state “police power” to promote health, safety, morals, and general welfare.The ratification of the Fourteenth Amendment in 1868 changed the scope of judicial review. Initially, the Court was reluctant to expand its authority.[15] But eventually, it held that it was authorized to review the constitutionality of all legislation, state and federal, based on the police power.[16] And it assumed that its authority to review the constitutionality of legislation extended to economic legislation.[17]The stringency of the Court’s constitutional review of economic legislation reached its zenith in Lochner v. New York (1905), in which it held that the New York Bakeshop Act, which prohibited most bakery employees from working more than ten hours per day or sixty hours per week, was unconstitutional because it impeded the liberty of contract without a legitimate purpose.[18] Specifically, the Court held that a police power claim cannot be “a mere pretext,” and concluded that the Bakeshop Act was not a valid exercise of the state police power because its “real object and purpose were simply to regulate the hours of labor . . . in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees.”[19] In other words, the Court held that constitutional review obligated it to consider whether legislation was intended to achieve a legitimate purpose, and likely to actually achieve that purpose: “When assertions such as we have adverted to become necessary in order to give, if possible, a plausible foundation for the contention that the law is a ‘health law,’ it gives rise to at least a suspicion that there was some other motive dominating the legislature than the purpose to subserve the public health or welfare.”[20]Lochner immediately became the bete noire of progressives, who argued that courts should defer to legislators, especially in the case of economic legislation. Eventually, it became synonymous with judicial overreaching.[21] Commentators even coined the term “Lochnering” to describe illegitimate judicial review of economic legislation.[22] Notably, Lochner was initially an outlier, although the Court eventually began to apply its strict standard of review in other cases.[23]In any case, Lochner didn’t last long. In Nebbia v. New York (1934), the Court held that a New York law creating a Milk Control Board to establish the retail price of milk was constitutional because the liberty of contract was not “absolute” and could be regulated in order to promote the general welfare, so long as the regulations were not “unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”[24] And in West Coast Hotel Co. v. Parrish (1937), the Court held that a Washington minimum wage law was constitutional because Washington “was entitled to adopt measures to reduce the evils of the 'sweating system,'” and “had the right to consider that its minimum wage requirements would be an important aid in carrying out its policy of protection.”[25]Finally, in United States v. Carolene Products Company (1938), the Court held that a federal law prohibiting the “shipment in interstate commerce” of skimmed milk compounded with “any fat or oil other than milk fat” was constitutional because Congress could rationally believe that it was “‘an adulterated article of food, injurious to the public health.’"[26] Specifically, the Court held:

[T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.[27]

And then, in the most famous footnote in constitutional history, the Court noted that this “presumption of constitutionality” may not apply to fundamental rights protected by the Constitution, or to laws that affect minority groups:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . .

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . .

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious . . . or national . . . or racial minorities . . . : whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.[28]

Footnote four of Carolene Products eventually became the basis for modern constitutional review, which requires courts to apply three levels of judicial scrutiny when reviewing the constitutionality of government action, depending on the nature of the claim: strict scrutiny, intermediate scrutiny, and rational basis.[29]Strict scrutiny review applies to government action that affects fundamental rights and certain “suspect classes,” like race, religion, and national origin.[30] In order to survive strict scrutiny review, a government action must be justified by a compelling governmental interest, narrowly tailored to achieve that goal or interest, and the least restrictive means for achieving that interest.[31] It has become a truism that strict scrutiny is “‘strict’ in theory and fatal in fact,” because government action subject to strict scrutiny review is almost always held unconstitutional.[32]Intermediate scrutiny review applies to government action that affects other “suspect classes,” including gender. In order to survive intermediate scrutiny review, a government action must be “substantially related” to the achievement of “important governmental objectives.”[33] Scholars have argued that the Court developed intermediate scrutiny in order to protect groups that lack power in the political process.[34] In any case, while intermediate scrutiny is theoretically less stringent than strict scrutiny, it tends to produce similar results.Rational basis review applies to government action that does not affect a fundamental right or suspect class. In order to survive rational basis review, a government action must only be “rationally related” to a “legitimate government interest.”[35] Rational basis review is famously lenient. Any conceivable reason for the action is deemed rational, even if it is not the government’s actual reason for the action, and any conceivable interest is deemed legitimate, even if it is not the government’s actual interest.[36] Under rational basis review, courts must assume that the government’s motives are legitimate, even in the face of evidence to the contrary.[37] Scholars have long observed that rational basis review is “virtually none in fact.”[38]For example, in Williamson v. Lee Optical, the Court applied rational basis review to an Oklahoma statute that, inter alia, prohibited the manufacture of eyeglasses without a prescription and held that the statute did not violate due process or equal protection, because the legislature could have had a legitimate reason for enacting it. Moreover, the Court explicitly stated:

The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. . . . For protection against abuses by legislatures the people must resort to the polls, not to the courts.[39]

As a consequence, challenging the constitutionality of economic legislation on due process or equal protection grounds soon became seen as quixotic, at best. For example, the Onion Futures Act of 1958 prohibited the sale of futures contracts in onions.[40] Initially, the Chicago Mercantile Exchange filed an action arguing that the Act was unconstitutional and requesting an injunction prohibiting its enforcement.[41] But when the district court applied the rational basis test and upheld the constitutionality of the Act, the Chicago Mercantile Exchange did not appeal because it considered the action hopeless.[42]

Eldred v. Ashcroft

The Court has also applied the rational basis test to actions challenging the constitutionality of copyright legislation. For example, the Sonny Bono Copyright Term Extension Act (“CTEA”) extended the copyright term of existing works of authorship by twenty years.[43]In Eldred v. Ashcroft (2003), petitioners argued, inter alia, that this retroactive extension exceeded Congress’s authority under the Intellectual Property Clause, because extending the copyright term of existing works does not and cannot “promote the Progress of Science.”[44] The Court has uniformly held that the purpose of copyright is to encourage the production of works of authorship.[45] Petitioners argued that extending the copyright term of an existing work cannot encourage its production.[46]The Court applied the rational basis test and unsurprisingly held that the CTEA was constitutional. Writing for the majority, Justice Ginsburg stated, “The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain.”[47] She observed that Congress intended the CTEA to “ensure that American authors would receive the same copyright protection in Europe as their European counterparts,” “provide greater incentive for American and other authors to create and disseminate their work in the United States,” and “encourage copyright holders to invest in the restoration and public distribution of their works.”[48] And she concluded, “In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.”[49]However, as Justices Stevens and Breyer pointed out in their dissents, the justifications provided by Congress are not credible and almost certainly pretextual. As Justice Stevens observed, the retroactive extension of the copyright term “will not even arguably promote any new works by authors or inventors,” and equitable concerns are “a classic non sequitur” because the “reason for increasing the inducement to create something new simply does not apply to an already-created work.”[50] Moreover, as Justice Breyer observed, “no one could reasonably conclude that copyright's traditional economic rationale applies here,” because the value of the copyright extension is too small to affect the incentives of marginal authors.[51] The claim that retroactive copyright extension provides incentives to republish and redistribute existing works is totally inconsistent with both the purpose of copyright and actual experience, which shows that public domain works are more readily available at lower prices than copyrighted works.[52]Finally, Justice Breyer pointed out that the actual reason that Congress retroactively extended the copyright term, as reflected in the legislative history of the CTEA, was to provide financial assistance to the entertainment industry, a purpose that is not consistent with the justification for copyright protection:

I can find nothing in the Copyright Clause that would authorize Congress to enhance the copyright grant's monopoly power, likely leading to higher prices both at home and abroad, solely in order to produce higher foreign earnings. That objective is not a copyright objective. Nor, standing alone, is it related to any other objective more closely tied to the Clause itself. Neither can higher corporate profits alone justify the grant's enhancement. The Clause seeks public, not private, benefits.[53]

Indeed, as many scholars have observed, the true purpose of the CTEA was to prevent certain iconic copyrighted works from falling into the public domain, and thereby enable their owners to continue to collect monopoly rents on their use.[54] As a result, the CTEA is often pejoratively referred to as the “Mickey Mouse Protection Act.”[55] In fact, a scholarly consensus has emerged that rent-seeking legislation of this kind is improper and ought to be unconstitutional.[56] However, this position is obviously inconsistent with traditional rational basis review of economic legislation.[57] As the Court implicitly observed in Eldred, if rational basis review does not permit examination of the actual motives for a government action, then any conceivably legitimate motive will do, no matter how implausible. 

The “New Rationality”

Under traditional rational basis review, Eldred was a foregone conclusion. But what if rational basis review changed to permit consideration of the actual motives for a government action? Can Eldred survive more searching review? And should it?It appears that rational basis review may have undergone just such a change. In Lawrence v. Texas (2003),[58] United States v. Windsor (2013),[59] and Obergefell v. Hodges (2015), the Court seems to have applied rational basis review, but considered the actual motive for a government action or omission, rather than searching for a conceivably legitimate motive.[60]In Lawrence v. Texas, the Court held that a Texas law prohibiting homosexual conduct was unconstitutional, because it violated due process.[61] The basis for the Court’s ruling is surprisingly unclear, because it did not specify the standard of constitutional review.[62] However, Lawrence explicitly overruled Bowers v. Hardwick (1986), which applied rational basis review to hold that “the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable” was a legitimate government interest.[63] In Romer v. Evans (1996), the Court applied rational basis review to hold that an amendment to the Colorado Constitution violated equal protection, because it was “born of animosity toward the class of persons affected,” which is not a legitimate government interest.[64] The Lawrence Court relied on Romer, holding that there is no legitimate government interest in prohibiting homosexual conduct: “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”[65]Moreover, Justice O’Connor’s concurrence explicitly applied rational basis review and concluded that the Texas law violated equal protection because it was intended to harm homosexuals, and “some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests.”[66] And Justice Scalia’s dissent explicitly pointed out that the majority can only be applying rational basis review:

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.[67]

Accordingly, it appears that the Lawrence Court applied rational basis review and held that the Texas law was unconstitutional because animosity toward a politically unpopular group is not a legitimate government interest: “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”[68]Then, in United States v. Windsor, the Court held that a federal law prohibiting the federal recognition of same-sex marriages was unconstitutional because it violated the Equal Protection clause of the Fourteenth Amendment.[69] As in Lawrence, the basis for the Court’s ruling in Windsor is unclear, because it did not specify the standard of constitutional review. However, it seems that the Court once again applied rational basis review and held that the federal law failed to advance a legitimate public interest because it was motivated by animosity:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.[70]

Moreover, in his dissent, Justice Scalia once again observed that the majority must have been applying rational basis review, albeit of a form considerably more stringent than historically applied:

In accord with my previously expressed skepticism about the Court's “tiers of scrutiny” approach, I would review this classification only for its rationality. As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework.[71]

Finally, in Obergefell v. Hodges, the Court held that the Fourteenth Amendment requires states to license marriages between two people of the same sex.[72] Again, the basis for the Court’s holding is unclear, because it did not specify the standard of constitutional review. But it appears to have applied rational basis review, and held that there is no legitimate basis to refuse to license marriages between two people of the same sex. The Court did not hold that gay people are a suspect class, which would have required the application of strict scrutiny. Instead, it observed that marriage is fundamental right protected by due process, and held that the refusal to license marriages between two people of the same sex violates equal protection by preventing gays and lesbians from exercising that right:

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.[73]

Indeed, Chief Justice Roberts’s dissent explicitly accused the majority of “Lochnering,” or constitutionalizing its policy preferences: “Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U.S. 45.”[74] Roberts argued that the fundamental right of marriage provides only a right to marry “as traditionally defined,” which has never included a right to marry a person of the same sex, and that the majority’s decision was based only on its own policy preferences:

The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” . . . Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner.[75]

So, it appears that Lawrence, Windsor, and Obergefell may all have applied a new form of rational basis review, based on Romer and other cases, under which courts must consider the actual motivation for a government action in determining whether it advances a legitimate state interest, which cannot include animosity. Many commentators have argued that this development should be understood as the gradual emergence of a new level of judicial scrutiny, “rational basis review with bite,” which is limited to government actions that affect particular suspect classes.[76] Curiously, this new level of scrutiny seems indistinguishable in practice from intermediate scrutiny.[77] Others have argued that the Court actually created, sub silentio, a fundamental right to engage in homosexual conduct.[78] And some federal courts have agreed with this reading.[79]But why not take Lawrence, Windsor, and Obergefell at face value and assume that the Court actually intended to change rational basis review, by authorizing courts to consider the actual motivation for government action when determining whether it was intended to advance a legitimate government interest? I will refer to this apparent change in the application of the rational basis test as the “new rationality.” But the terms of the new rationality remain unclear.If the new rationality requires courts applying the rational basis doctrine to consider the actual motives for a government action, rather than hunting for any conceivably legitimate motive, which motives are legitimate and which are not? In Lawrence, Windsor, and Obergefell, the court held that animosity is not a legitimate motive, and explicitly rejected religious justifications for legislative decisions. That stands to reason, although as Justice White observed in Bowers, “if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”[80]Are any other motives illegitimate under the rational basis test? Several scholars have argued that the new rationality should also extend to rational basis review of economic legislation. For example, David Bernstein has argued that Lawrence and other substantive due process cases reflect a gradual return to the form of judicial review applied in Lochner.[81] And Randy Barnett has argued that Lawrence reflects the wholesale importation of libertarian values into constitutional review.[82]Some federal judges seem to agree. Several courts have held that economic legislation failed the rational basis test because its actual purpose was economic protectionism. For example, in Craigmiles v. Giles (2002), the Sixth Circuit held that rational basis review does not require courts to accept pretextual justifications for government actions, and that economic protectionism is not a legitimate government interest.[83] In Merrifield v. Lockyer (2008), the Ninth Circuit held that rational basis review does not require courts to accept irrational justifications, and that economic protectionism is not a legitimate government interest.[84] In St. Joseph Abbey v. Castille (2013), the Fifth Circuit held that rational basis review requires courts to identify an actual rational basis for believing that a government action would advance a legitimate government interest, and that economic protectionism is not legitimate.[85] And in Wildcat Moving v. Zawacki (2013), the United States District Court for the Eastern District of Kentucky applied Craigmiles and held that a Kentucky law regulating intrastate moving failed the rational basis test because its sole purpose was “to protect existing moving companies from outside economic competition.”[86]Of course, these cases appear to be facially inconsistent with Supreme Court precedent. Specifically, in New Orleans v. Dukes (1976), the Supreme Court held that a New Orleans ordinance prohibiting pushcart food vendors in the French Quarter, with a “grandfather clause” that provided an exception for certain long-time vendors, passed the rational basis test, because:

The city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation in the Vieux Carre and that the two vendors who qualified under the "grandfather clause"—both of whom had operated in the area for over 20 years rather than only eight—had themselves become part of the distinctive character and charm that distinguishes the Vieux Carre. We cannot say that these judgments so lack rationality that they constitute a constitutionally impermissible denial of equal protection.[87]

Essentially, the Dukes Court held that courts should not question the rationality of economic legislation explicitly overruling Morey v. Doud (1957), the last case in which it had overruled economic legislation as irrational.[88]And yet, the Supreme Court seems newly concerned by government action based on economic protectionism. For example, in North Carolina Board of Dental Examiners v. Federal Trade Commission (2015), the Court held that the North Carolina State Board of Dental Examiners was not entitled to state-action antitrust immunity because it was not actively supervised by the state.[89] The Board of Dental Examiners was a state regulatory body composed primarily of practicing dentists, which prohibited non-dentists from offering teeth-whitening services that do not require medical skill. The FTC argued that the Board’s action violated federal antitrust law, but the Board responded that it was entitled to state-action antitrust immunity. While the Court did not actually apply the rational basis test, it was clearly concerned about the legitimacy of the Board’s action. Indeed, Justice Alito’s dissent explicitly argued that the majority’s opinion was motivated by opposition to economic protectionism:

When the Court asks whether market participants control the North Carolina Board, the Court in essence is asking whether this regulatory body has been captured by the entities that it is supposed to regulate. Regulatory capture can occur in many ways. So why ask only whether the members of a board are active market participants? The answer may be that determining when regulatory capture has occurred is no simple task. That answer provides a reason for relieving courts from the obligation to make such determinations at all. It does not explain why it is appropriate for the Court to adopt the rather crude test for capture that constitutes the holding of today's decision.[90]

Eldred & the New Rationality

If the new rationality prohibits economic protectionism—or rather, corruption—an Eldred survive the new rationality? In practice, of course it can. The Court can do whatever it likes, and it is perfectly capable of turning a blind eye to corruption, if it so chooses. In fact, Eldred has already survived the new rationality. In Golan v. Holder (2012), it relied on Eldred to hold that Congress could restore copyright protection of works that had fallen into the public domain.[91] In particular, the Court held that the Copyright Clause empowers Congress to grant copyright protection in order to promote both the creation of new works and the dissemination of existing works, and Congress could have believed that restoring copyright protection of existing works could encourage their dissemination.[92] In other words, the Court applied the traditional rational basis test, rather than the new rationality.The more interesting question is, should Eldred and Golan survive the new rationality? And that is a question that has been percolating for quite some time. Ever since Eldred was decided, scholars have recognized that requiring courts to consider the actual motives for copyright legislation would inevitably invoke the spectre of Lochner.[93] As a consequence, they have argued that courts should defer to Congress when reviewing copyright legislation, and by extension, that courts should defer to legislatures when reviewing economic legislation.[94]And yet, perhaps they overstate their case. The traditional reason for rejecting Lochner and its more stringent review of economic legislation is that courts should respect the democratic process, even if it results in government action unlikely to achieve welfare-maximizing ends.[95] Or rather, as Justice Holmes put it, “if my fellow citizens want to go to Hell I will help them. It’s my job.”[96]But what if economic legislation is not the result of the democratic process? What if it is the result of corruption? Should courts defer to all economic legislation, even in the face of evidence of corruption? The justification for judicial deference is that courts should respect government actions based on majority opinion. As Justice Stevens observed:

I think it appropriate to emphasize the distinction between constitutionality and wise policy . . . [A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.”[97]

But Lawrence, Windsor, and Obergefell held that courts should not respect government actions based on animosity, because animosity is not a legitimate basis for government action. Neither should courts respect government actions based on corruption, because it is not even an expression of majority opinion, it is just a means of rent-seeking. As other commentators have noted, “[w]ith the appearance in the circuits of a new series of cases applying ‘rational basis with bite,’ one might ask whether underlying them is another normative change, one of growing public disapproval of rent-seeking and special-interest legislation.”[98]In other words, perhaps the “new rationality” should be understood to provide that courts may consider legislative intent, but not legislative wisdom. Of course, legislative intent may be diffuse and difficult to discern. And yet, courts routinely consider the intent of non-economic legislation. Indeed, the purpose of strict and intermediate scrutiny is essentially to enable courts to review the intentions motivating government action that affects fundamental rights and minority groups. While the stakes are high, because the protecting fundamental rights and minority groups is of paramount importance, there is also room for legitimate disagreement on normative grounds as to what counts as a fundamental right and how minority groups ought to be protected. By contrast, corruption and rent-seeking are considerably easier to identify.So, perhaps the new rationality provides that government action can be foolish, but cannot have improper motives, like animosity or corruption. Courts can and do review the motives for government action. There is no reason for them not to review for both animosity and corruption. And there is no reason to believe that the public will object. In fact, it is far more likely that the public will object to invalidation of government action based on animosity than that it will object to the invalidation of government action based on corruption.It goes without saying that Eldred and Golan would not fare well under this “new rationality.” No one seriously believes that the CTEA was intended to do anything but benefit the owners of valuable copyrights that were nearing the end of their term. Any degree of scrutiny more searching than the Court’s credulous acceptance of Congress’s absurd justifications would require reversal. But it remains to be seen whether the Court will follow this new line of doctrine to its logical conclusion.

---

[1] Assistant Professor of Law, University of Kentucky College of Law. J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A., University of California, Berkeley, 1995. Thanks to Paul Salamanca for his helpful comments.

[2] See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88 (1955).

[3] See generally Eldred v. Ashcroft, 537 U.S. 186 (2003).

[4] Lawrence v. Texas, 539 U.S. 558, 583 (2003).

[5] United States v. Windsor, 133 S.Ct. 2675, 2696 (2013).

[6] Obergefell v. Hodges, Nos. 14–556, 14–562, 14–571, 14–574, 2015 WL 2473451 (U.S. June 26, 2015).

[7] Ralph Waldo Emerson, Self-Reliance, in Essays by Ralph Waldo Emerson: First and Second Series Complete in One Volume 31, 41 (Thomas Y. Crowell Company, Inc. 1951) (1926). Also available at http://en.wikisource.org/wiki/Essays:_First_Series/Self-Reliance.

[8] Oliver Wendell Holmes, Jr., The Common Law 1 (1881).

[9] Golan v. Holder, 132 S. Ct. 873, 876 (2012).

[10] See generally Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) (reviewing the constitutionality of a federal tax under the Taxation Clause); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) (reviewing the constitutionality of a state law under the Contract Clause).

[11] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 138 (1803).

[12] See, e.g., Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827) (“It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.”).

[13] Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 395-96 (1857).

[14] Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 248 (1833).

[15] See generally The Civil Rights Cases, 109 U.S. 3 (1883); The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, (1873).

[16] Mugler v. Kansas, 8 S. Ct. 273, 291-92 (1887).

[17] See generally Allgeyer v. Louisiana, 165 U.S. 578 (1897) (holding unconstitutional under the Fourteenth Amendment's guarantee of liberty a Louisiana law which penalized a citizen of that state for contracting for insurance in New York).

[18] Lochner v. New York, 198 U.S. 45, 64 (1905).

[19] Id. at 56, 64.

[20] Id. at 62-63.

[21] David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex. L. Rev. 1, 2 n.4 (2003).

[22] See generally Cass R. Sunstein, Reply—Lochnering, 82 Tex. L. Rev. 65 (2003) (discussing judicial and scholarly treatment of the regulation of economic legislation).

[23] Bernstein, supra note 21.

[24] Nebbia v. New York, 291 U.S. 502, 525 (1934).

[25] W. Coast Hotel v. Parrish, 300 U.S. 379, 398-99 (1937).

[26] United States v. Carolene Prods. Co., 304 U.S. 144, at 146, 146 n.1 (1938).

[27] Id. at 152.

[28] Id. at 152 n.4.

[29] See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 798 (2006) (“As a mode of judicial review in constitutional law cases, the strict scrutiny standard was first suggested by implication in the famous footnote four of United States v. Carolene Products.”).

[30] See Skinner v. Okla. ex rel. Williamson, 316 U.S. 535, 541 (1942) (“We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.”).

[31] E.g., Winkler, supra note 29, at 800-01.

[32] Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972). But see Adarand Constructors v. Pena, 515 U.S. 200, 237 (1995) (expressing the “wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact’”). See also Winkler, supra note 29, at 796 (observing that “30 percent of all applications of strict scrutiny--nearly one in three--result in the challenged law being upheld”).

[33] Craig v. Boren, 429 U.S. 190, 197 (1976).

[34] Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L. J. 779, 784 (1987).

[36] See, e.g., Williamson v. Lee Optical, 348 U.S. at 487-88 (“But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”).

[37] See, e.g., City of New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976) (“When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. . . . Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step by step . . . , in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. . . . In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines . . . in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.”).

[38] Gunther, supra at note 32, at 8.

[39] Williamson v. Lee Optical, 348 U.S. at 488-89.

[40] 7 U.S.C.A. § 13-1(a) (West, current through P.L. 114-9 approved Apr. 7, 2015).

[41] Chicago Mercantile Exch. v. Tieken, 178 F. Supp. 779, 780 (N.D. Ill. 1959).

[42] See Russell Wasendorf, Sr., Interview with Leo Melamed, Innovation Deserves More Than 15 Minutes of Fame, SFO Magazine, June 2003, at 20, 22.

[43] Pub. L. 105-298, §102(b), (d), 112 Stat. 2827-28 (codified as amended in scattered sections of 17 U.S.C.). Under the Copyright Act of 1976, the copyright term was the life of the author plus fifty years. The CTEA extended the copyright term to the life of the author plus seventy years. See id.; 17 U.S.C. 302(a) (West, current through P.L. 114-25 (excluding P.L. 114-18) approved June 15, 2015).

[44] U.S. Const. art. I, § 8, cl. 8; Eldred v. Ashcroft, 537 U.S. 186, 189 (2003). Petitioners also argued that the extension of the copyright term violated the “limited Times” requirement of the Intellectual Property Clause and the First Amendment, but these claims were not decided under the rational basis test. Eldred, 537 U.S. at 199-204.

[45] See, e.g., Mazer v. Stein, 347 U.S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’”). See also Fox Film Corp. v. Doyal, 286 U.S. 123, 127-28 (1932). (“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors. A copyright, like a patent, is at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects.”) (internal quotations omitted).

[46] Eldred, 537 U.S. at 196 n.3.

[47] Id. at 205-08.

[48] Id. at 205-207.

[49] Id. at 208.

[50] Id. at 239-40 (Stevens, J., dissenting).

[51] Id. at 254-55 (Breyer, J., dissenting) (“Using assumptions about the time value of money provided us by a group of economists (including five Nobel prize winners), it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today.”) (citation omitted); id. at 267 (estimating “the economic value of 1998 Act copyrights relative to the economic value of a perpetual copyright, as well as the incremental value of a 20–year extension of a 75–year term”) (citation omitted).

[52] Eldred, 537 U.S. at 261 (Breyer, J., dissenting) (“[N]ew, cheaper editions can be expected when works come out of copyright”) (quoting Edward Rappaport, Cong. Research Serv., Copyright Term Extension: Estimating the Economic Values 3 (1998)).

[53] Id. at 262-63.

[54] Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property As Constitutional Property, 112 Yale L. J. 2331, 2333 (2003) (“At the time of the statute's passage, a number of iconic works were on the cusp of entering the public domain, the most prominent being early films starring Mickey Mouse.”).

[55] Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. Rev. 1057, 1065 (2001).

[56] Schwartz & Treanor, supra note 54, at 2332 (“With striking unanimity, scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area.”).

[57] Id. at 2332-34.

[58] See generally 539 U.S. 558 (2003) (appearing to apply rational basis to Texas’ actual interest in promoting morality).

[59] See generally 133 S. Ct. 2675 (2013) (appearing to apply rational basis to the Texas’ actual interest in promoting morality).

[60] E.g., Lawrence, 539 U.S. at 582 (O’Connor, J., concurring) (“Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality.”); Windsor, 133 S. Ct. at 2693 (“The House concluded that DOMA expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo–Christian) morality.’”) (quoting H.R. Rep. No. 104-664, 12-13 (1996)).

[61] Lawrence, 539 U.S. at 578-79.

[62] See, e.g., Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 55 Sup. Ct. Rev. 27, 45 (2003) (“Was Lawrence based on rational basis review, or instead on something else? It is astonishing but true that this question is exceedingly difficult to answer.”).

[63] Bowers v. Hardwick, 478 U.S. 186, 196 (1986), overruled by Lawrence, 539 U.S. at 560.

[64] 517 U.S. 620, 634 (1996).

[65] Lawrence, 539 U.S. at 559-60.

[66] Id. at 580 (O’Connor, J., concurring) (internal quotation marks omitted).

[67] Id. at 599 (Scalia, J., dissenting).

[68] Id. at 560 (quoting Bowers v. Hardwick, 478 U.S. at 216 (Stevens, J., dissenting)).

[69] United States v. Windsor, 133 S. Ct. 2675, 2696 (2013).

[70] Id. at 2696.

[71] Id. at 2706 (Scalia, J., dissenting) (citation omitted).

[72] Obergefell v. Hodges, Nos. 14–556, 14–562, 14–571, 14–574, 2015 WL 2473451 (U.S. June 26, 2015).

[73] Id.

[74] Id. (Roberts, C.J., dissenting). See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 944 (1973) (coining the term “Lochnering” to describe the constitutionalization of judicial policy preferences).

[75] Obergefell, 2015 WL 2473451 (Roberts, C.J., dissenting).

[76] See, e.g., Ian Bartrum, The Ninth Circuit's Treatment of Sexual Orientation: Defining "Rational Basis Review with Bite," 112 Mich. L. Rev. First Impressions 142, 145-46 (2014). See also Gunther, supra at note 32, at 18-19 (arguing that several “minimal scrutiny” cases applied a standard with “bite”).

[77] See Pettinga, supra note 34, at 779-80.

[78] Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004).

[79] See, e.g., Witt v. Dep't of Air Force, 527 F.3d 806, 816 (9th Cir. 2008) (“We cannot reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review.”).

[80] Bowers v. Hardwick, 478 U.S. 186, 196 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).

[81] David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo. L. J. 1, 52 (2003).

[82] Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2003 Cato Sup. Ct. Rev. 21 (2002-2003). See also Joseph F. Morrissey, Lochner, Lawrence, and Liberty, 27 Ga. St. U. L. Rev. 609, 652 (2011).

[83] Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002) (“No sophisticated economic analysis is required to see the pretextual nature of the state's proffered explanations for the 1972 amendment. We are not imposing our view of a well-functioning market on the people of Tennessee. Instead, we invalidate only the General Assembly's naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review.”).

[84] Merrifield v. Lockyer, 547 F.3d 978, 991 (9th Cir. 2008) (“Indeed, the record highlights that the irrational singling out of three types of vertebrate pests from all other vertebrate animals was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield.”).

[85] St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013), cert. denied, 134 S. Ct. 423, (2013) (“Mindful that a hypothetical rationale, even post hoc, cannot be fantasy, and that the State Board's chosen means must rationally relate to the state interests it articulates, we turn to the State Board's proffered rational bases for the challenged law. Our analysis does not proceed with abstraction for hypothesized ends and means do not include post hoc hypothesized facts.”).

[86] Bruner v. Zawacki, No. 3:12-57-DCR, 2013 WL 2903241 (E.D. Ky. June 13, 2013).

[87] New Orleans v. Dukes, 427 U.S. 297, 305 (1976).

[88] Id. at 306 (“Actually, the reliance on the statute's potential irrationality in Morey v. Doud, as the dissenters in that case correctly pointed out, . . . was a needlessly intrusive judicial infringement on the State's legislative powers, and we have concluded that the equal protection analysis employed in that opinion should no longer be followed. Morey was the only case in the last half century to invalidate a wholly economic regulation solely on equal protection grounds, and we are now satisfied that the decision was erroneous. Morey is, as appellee and the Court of Appeals properly recognized, essentially indistinguishable from this case, but the decision so far departs from proper equal protection analysis in cases of exclusively economic regulation that it should be, and it is, overruled.”) (citing Morey v. Doud, 354 U.S. 457, 474-75 (1957) (citation omitted)).

[89] N. Carolina State Bd. of Dental Exam’rs v. F.T.C., 135 S. Ct. 1101, 1104 (2015).

[90] Id. at 1123.

[91] Golan v. Holder, 132 S. Ct. 873, 875 (2012).

[92] Id.

[93] See generally Schwartz & Treanor, supra note 54.

[94] Id.

[95] See, e.g., Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 874 (1987) (“The received wisdom is that Lochner was wrong because it involved ‘judicial activism’: an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government.”).

[96] Letter from Oliver Wendell Holmes, Jr., to Harold J. Laski (Mar. 4, 1920), in 1 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1916-1935, 248, 249 (Mark DeWolfe Howe ed., Harvard University Press 1953).

[97] N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 209 (2008) (Stevens, J., concurring).

[98] Steven Menashi & Douglas H. Ginsburg, Rational Basis With Economic Bite, 8 N.Y.U. J. L. & Liberty 1055, 1086 (2014).