255 F.3d 849 (D.C. Cir. 2001)
Eric Eldred, et al., Appellantsv.John Ashcroft, In his official capacity as Attorney General, Appellee
No. 99-5430
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 13, 2001

On Petition for Rehearing
Before:  Ginsburg, Sentelle and Henderson, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.*
Ginsburg,  Circuit Judge:
The plaintiffs-appellants in this  case, corporations, associations, and individuals who rely for  their vocations and avocations upon works in the public  domain, have petitioned for rehearing and filed a suggestion  for rehearing en banc.  They renew their contentions that the  Copyright Term Extension Act of 1998 (CTEA), Pub. L. No. 105-298, 112 Stat. 2827, violates both the First Amendment  and the Copyright Clause of the Constitution of the United  States.
The plaintiffs-appellants further complain that this court  erred in its treatment of the contentions advanced by one of  the amici.  We are not persuaded.  The district court's  rejection of the plaintiffs-appellants' constitutional attack followed from its conclusion, in the light of our decision in  Schnapper v. Foley, 667 F.2d 102, 112 (1981), that "[t]he  introductory language of the copyright clause does not limit  [the Congress's] power."  Upon appeal, the plaintiffsappellants did not challenge that determination;  rather, they  maintained only that the substantive grant of power in the  Copyright Clause -authorizing the Congress to grant copyrights for "limited Times" -does not authorize the Congress  to extend the terms of copyrights as it did in the CTEA.  In  sharp contrast, an amicus contended that the CTEA violates  the preamble to the Copyright Clause because extending the  term of a subsisting copyright does not "promote the Progress of Science and useful Arts."
As we stated in Part III of our opinion, 239 F.3d 372, 378  (2001), the court deems it "particularly inappropriate" in this  case to reach the merits of the amicus's position.  To elaborate:  First, in their brief the plaintiffs-appellants themselves  took the position, diametrically opposed to that of the amicus,  "that the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power";  when expressly  offered the opportunity at oral argument to adopt the position  of the amicus, the plaintiffs-appellants did not do so.  Therefore, even if we were to read the plaintiffs-appellants' brief  broadly as raising the issue whether the Copyright Clause as  a whole -including both the preamble and the grant of  authority -renders the CTEA unconstitutional, following  the lead of the Supreme Court we would still not reach what  would then be the supporting argument of the amicus.  See  New Jersey v. New York, 523 U.S. 761, 781 n.3 (1998)  (although arguments of amici and party stem from same  article of compact, court "must pass over the arguments of  the named amici for the reason that ... the party to the case[ ] has in effect renounced them, or at least any benefit  they might provide");  see also Amax Land Co. v. Quarterman, 181 F.3d 1356, 1367 (D.C. Cir. 1999) (remanding where  the parties "request[ed] us to remand to the district court for  consideration of [legal] issue," whereas "the amicus' prefer[red] that we resolve it" ourselves, which we could readily  have done);  Narragansett Indian Tribe v. Nat'l Indian  Gaming Comm'n, 158 F.3d 1335, 1338 (D.C. Cir. 1998) ("Because we ordinarily do not entertain arguments not raised by  parties ... we consider only the [party's] equal protection  challenge" where amicus filed brief "supporting equal protection claim and reiterating its separation of powers and bill of attainder arguments");  Michel v. Anderson, 14  F.3d 623, 625 (D.C. Cir. 1994) (court ordinarily "would not  entertain an amicus' argument if not presented by a party").
Second, the point advanced by the amicus -that the  preamble of the Copyright Clause is a substantive limitation  upon the power of the Congress -implicates discrete terms  of the Clause that are not otherwise at issue.  In that sense it  poses an additional constitutional question, subject to the  "rule of avoidance";  and there can hardly be a better reason  to avoid a constitutional question than that the parties are in  agreement.  See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)  ("Court will not 'anticipate a question of constitutional law in  advance of the necessity of deciding it' ").
Third, because the plaintiffs-appellants did not take the  same tack as the amicus, the Government did not on brief  address the district court's interpretation of this court's decision in Schnapper.  See New Jersey v. New York, 523 U.S. at  781 n.3.  Therefore, our usual concern with "avoid[ing] unnecessary or premature constitutional rulings," here as in Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989), "is  heightened by the absence of meaningful argument by the  parties on this question."
Finally, as explained in Part III of the opinion, id. at 37880, even if we considered the amicus's position we would not  reach a different result in this case:  Regardless whether, as the amicus contends, the preamble limits the power of the  Congress, the CTEA still passes muster under the "necessary  and proper review" applicable to the Congress's "exercise of a  power enumerated in Article I."  239 F.3d at 378.  The  Congress found that extending the duration of copyrights on  existing works would, among other things, give copyright  holders an incentive to preserve older works, particularly  motion pictures in need of restoration.  Id. at 379.  "Preserving access to works that would otherwise disappear -not  enter the public domain but disappear -'promotes Progress'  as surely as does stimulating the creation of new works."  Id.
We reject the plaintiffs-appellants' challenge under the  First Amendment for the reasons stated in the prior opinion. Accordingly, the petition for rehearing is


1
Denied.



Notes:


*
 Circuit Judge Sentelle dissents from the denial of rehearing.



2
BEFORE:  Edwards, Chief Judge, Williams, Ginsburg,  Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland,  Circuit Judges.

O R D E R
Per Curiam

3
Appellants' petition for rehearing en banc and the response  thereto have been circulated to the full court.  The taking of  a vote was requested.  Thereafter, a majority of the judges of  the court in regular active service did not vote in favor of the  petition.  Upon consideration of the foregoing, it is


4
ORDERED that the petition be denied.


5
A statement of Circuit Judge Sentelle, joined by Circuit  Judge Tatel, dissenting from the denial of rehearing en banc  is attached.


6
Sentelle, Circuit Judge, dissenting from the denial of  rehearing en banc, with whom Circuit Judge Tatel joins:


7
In  my view, the decision in this case is not only incorrect, but is  worthy of en banc review on both circuit-specific procedural  grounds and fundamental constitutional grounds.


8
First, procedurally, the Court's opinion in this case effectively eliminates any role for amicus curiae in the practice of  this circuit, when it holds that an argument raised by an  amicus may not be considered by the Court.  See Eldred v.  Reno, 239 F.3d 372, 378 (D.C. Cir. 2001).  There is no dispute  that an amicus curiae may not raise new issues in an appeal. Rather, the role of an amicus is to assist the court in  addressing the issues already raised with new arguments and  perspectives.  In this case, the issue before the Court was, in  the panel's words, "whether ... the Copyright Clause of the  Constitution of the United States constrains the Congress  from extending for a period of years the duration of copyrights, both those already extant and those yet to come." Eldred, 239 F.3d at 373.  The amicus brief submitted on  behalf of Eagle Forum addressed this issue more persuasively than did appellants.  But amicus did not "expand the  scope" of the appeal by "implicat[ing] issues" not raised by  the appellant.  See Resident Council of Allen Parkway Vill.  v. HUD, 980 F.2d 1043, 1049 (5th Cir. 1993) ("We are  constrained only by the rule that an amicus curiae generally  cannot expand the scope of an appeal to implicate issues that  have not been presented by the parties to the appeal." (emphases added)).  Rather, as the majority noted, amicus  adopted a different "argument."  Eldred, 239 F.3d at 378.  A  new "argument" is not a new "issue."  This is clear from our  circuit's rules.  Specifically, an amicus brief "must avoid  repetition of facts or legal arguments made in the principal  (appellant/petitioner or appellee/respondent) brief and focus  on points not made or adequately elaborated upon in the  principal brief, although relevant to the issues before this  court."  Circuit Rule 29.  The role of amici is to help in this  process, by elaborating upon arguments made by the parties  and presenting arguments of their own that bear upon the  issues raised by the parties themselves.  See White v. Illinois, 502 U.S. 346, 352 (1992) ("We consider as a preliminary  matter an argument not considered below but urged by the  United States as amicus curiae in support of respondent.").


9
"When an issue or claim is properly before the court, the  court is not limited to the particular legal theories advanced  by the parties, but rather retains the independent power to  identify and apply the proper construction of governing law." Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see also United States Nat'l Bank of Oregon v. Indep. Ins.  Agents of Am. Inc., 508 U.S. 439, 446 (1993) (same).  Merely  because the parties fail to advance the proper legal theory  underlying their claim does not--indeed cannot--prevent a  court from arriving at the proper legal disposition.  Once the  issue is raised, a court has an obligation to determine what  the law is which will govern the case at hand.  This is so  irrespective of whether amici curiae enter an appearance. As it happened, Eagle Forum submitted an amicus curiae  brief augmenting appellants' position by making a different  argument on the issue before the Court, and at least one  member of the panel found it persuasive.  Even if the majority did not find amicus's argument compelling, it was properly  before the Court.


10
The majority holds that the "argument" raised by one  amicus was "not properly before" this Court because it was  effectively renounced by appellants.  Eldred, 239 F.3d at 378. This claim is not supported by the record.  The relevant  amicus brief was submitted some two weeks after appellants'  opening brief.  Insofar as the oral argument transcript shows  anything at all, it illustrates that appellants had not explicitly  adopted amicus's arguments in brief but had no problem  taking advantage of amicus's argument.1


11
The language of New Jersey v. New York, 523 U.S. 767, 781  n.3 (1998), might be taken to suggest that a court must "pass  over ... arguments" raised only by an amicus, but I believe  that this is a misreading of the case.  In New Jersey, the  Court noted that only amici took issue with the special  master's conclusion affirming the Court's prior holding that  "the 'boundary line' between the States established in Article  First [of the Interstate Compact]" was the line of sovereignty  between the states.  Id. at 781.  In other words, the amici,  and only the amici, sought to overturn Supreme Court precedent.  Additionally, insofar as the amici sought to make an  exception to the special master's finding with regard to  Article First of the compact, it sought to obtain the Court's  judgment about a matter about which there was no present  controversy.  See United States v. Louisiana, 446 U.S. 253,  260-61 (special master's recommendation not subject to exception by either party accepted by Court due to lack of  "present controversy"), reh'g denied, 447 U.S. 930 (1980). Thus, even though the Court used the word "argument" to  characterize the claims put forward by amici, they were  raising issues beyond the purview of the case before the  Court.


12
Contrary to the suggestion of the panel majority, appellants' argument did implicate the "preamble" of the Copyright Clause, just not in the same fashion as amicus.  Appellants stipulated to the reading postulated by the district  court, as the panel majority notes.  Appellants' Opening Brief  at 29 n.15. Yet in the very footnote cited by the panel  majority, appellants claimed that the remaining portions of  the Copyright Clause must be read "in light of th[e] preamble."  Id.  Contrary to my colleagues' suggestion, this Court  was not asked to "anticipate" a question of constitutional law,  but to decide a very discreet question--whether the CTEA  exceeds the grant of power in the Copyright Clause.  Whether appellants asked this Court to recognize that the so-called  "preamble" is in fact the enumerated power, or merely to  read the rest of the clause "in light of that preamble" should  be immaterial.  Indeed, the Supreme Court noted long ago  that the words of the Copyright Clause should be read "with  the words and sentences with which it stands connected." Wheaton v. Peters, 33 U.S. (8 Peters) 591, 661 (1834);  see also  Postmaster-General v. Early, 25 U.S. (12 Wheat.) 136, 152  (1827) (it is a "cardinal rule of construction" that "the whole  law is to be taken together, and one part expounded by any  other which may indicate the meaning annexed ... to ambiguous phrases").


13
Under the panel's holding, it is now the law of this circuit  that amici are precluded both from raising new issues and  from raising new arguments.  If allowed to stand, this holding will effectively bar future amici from adding anything  except possibly rhetorical flourish to arguments already outlined and embraced by the parties.  This is particularly the  case for those amici who, true to their traditional role as  "friends of the court," operate independently to assist the  Court in its determinations.  If this Court is to adopt such a  rule--and I hope we do not--we should do so sitting en banc,  not by a divided panel.


14
Second, and more importantly, the Court's construction of  the Copyright Clause of the Constitution renders Congress's  power under Art. I, 8, cl. 8, limitless despite express  limitations in the terms of that clause.  The clause grants to  Congress the "power ... [t]o promote the progress of science  and useful arts, by securing for limited times to authors and  inventors the exclusive rights to their respective writings and  discoveries...."  Under the Court's decision herein, Congress may at or before the end of each such "limited period"  enact a new extension, apparently without limitation.  As the  majority conceded, "[i]f the Congress were to make copyright  protection permanent, then it surely would exceed the power  conferred upon it by the Copyright Clause."  Eldred, 239  F.3d at 377.  The majority never explained how a precedent  that would permit the perpetuation of protection in increments is somehow more constitutional than one which did it in one fell swoop.  As the majority noted in describing my panel  dissent, "Judge Sentelle ... sees a categorical distinction  between extending the term of a subsisting copyright and  extending that of a prospective copyright."  Id. at 379.  Indeed I do.  Establishing the term of a prospective copyright  is not an extension, nor does it in itself implicate the authority  of Congress to incrementally create perpetual exclusivity.


15
Contrary to my colleagues, I do not accept that it is  sufficient for Congress to merely articulate some hypothetical  basis to justify the claimed exercise of an enumerated power. The Copyright Clause only bestows the power "to promote  the progress of science and useful arts."  In exercising this  power, Congress "may not overreach the restraints imposed  by the stated constitutional purpose," which is "the promotion  of advances in the 'useful arts.' "  Graham v. John Deere Co.,  383 U.S. 1, 5, 6 (1966).  I accept that extending copyright  terms for future works may well increase creative efforts at  the margin.  Once a work is published, however, extending  the copyright term does absolutely nothing to induce further  creative activity by the author--and how could it?  The work  is already published.  A simple finding by Congress to the  contrary is not sufficient to demonstrate that the exercise of  that power is "necessary and proper."  As the Supreme  Court noted in Lopez and again in Morrison, that Congress  concluded a given piece of legislation serves a Constitutional  purpose "does not necessarily make it so."  United States v.  Lopez, 514 U.S. 549, 557 n.2 (1995) (citation omitted);  United  States v. Morrison, 120 S. Ct. 1740, 1752 (2000).


16
The panel concluded--wrongly in my view, see Eldred, 239  F.3d at 382-83 (Sentelle, J., dissenting)--that my interpretation of the Copyright Clause is precluded by Schnapper v.  Foley, 667 F.2d 102 (D.C. Cir. 1981), which appeared to reject  any meaningful limit on the scope of the copyright power. This interpretation of Schnapper erases from Article I half of  the Copyright Clause--indeed, that half which defines the  very power bestowed.  If Schnapper indeed precludes a panel  of this Court from applying the Constitution as written, then  we have yet one more reason to consider this case en banc.


17
The majority opinion in this case dramatically narrowed the  role of amici before this Court and, in my view, effectively  erased portions of the Copyright Clause of the Constitution. Though I believe that this Court should grant en banc review  quite sparingly, either issue individually merits en banc review.  Because this case presents both questions, it is particularly worthy of the full Court's attention.



Notes:


1
  The relevant portion of the transcript reads as follows:
THE COURT:  Have you adopted any point--any arguments that appear in any of these amicus briefs?  Or maybe--I don't remember--there is more than one, but in any brief other than your own?
LESSIG:  Well, in particular, Mr. Jaffe's brief is a brief that makes textualist arguments that we believe are quite strong in this way.
THE COURT:  Is there any place in which you have adopted them, in your briefs? LESSIG:  We formally acknowledge them in our briefs.  I don't believe we have, Your Honor, no.


