PLEASE TAKE NOTICE: BOSTON* just got real (Boston 3)

*Preliminary note: I know that the band BOSTON is not a party to Ahern v. Scholz, but all the same I like thinking of this case as the BOSTON case, because it involves BOSTON songs, and I like typing BOSTON in all caps, so I hope you’ll forgive me this impertinence/indulgence.

What was until this week a simple federal copyright action is now being brought to the attention of the Attorney General of the United States (who might or might not have other things on his mind just now). Plaintiffs Ahern and Next Decade Entertainment have given notice to Eric Holder of the presence of a constitutional question raised in the pleadings of the suit. (For a refresher of the allegations, see this post and then this post.)

Holder? You brought ’er!

Holder? You brought ’er!

In turn, the United States District Court for the Southern District of New York has issued an order certifying the matter to the AG. “In the parties’ Joint Pretrial Statement, filed with this Court on June 7, 2013,” the order reads,

the plaintiffs… asserted that, should the Court interpret Section 203 of the Copyright Act to allow termination of certain grants of copyrights, such application of the statute would constitute an unconstitutional taking of private property under the Fifth Amendment to the United States Constitution.

Whoa. That’s heavy. And that’s the sort of thing that 28 U.S.C. 2403(a) and F.R.C.P. Rule 5.1. mandates be brought to the attention of the AG.

The constitutional question as framed by Ahern:

Whether an author of musical compositions, written in whole or in part after January 1, 1978, whose copyright ownership had been transferred by him to a third party pursuant to a grant in the form of a five-year agreement entered into in 1975 encompassing all songs written by the author through 1980 [“Gap Works”], can invoke the termination of copyright assignment provisions of Section 203 of the Copyright Act….

Permitting Gap Works to qualify for the provisions of [S]ection 203… would result in [the plaintiffs]’ copyright ownership… being reduced from the fifty-six years set forth in Section 304… the law in existence at the time the 1975 [agreement] was executed… to only thirty-five years. Such a reduction… constitutes a violation of the Fifth Amendment to the United States Constitution in that it is an unlawful taking of private property without compensation to promote a public purpose (i.e., the public policy decision to afford composers the opportunity to reclaim their copyrights).

So now, if we’re lucky, we’ll get to read what Mr. Holder has to say about all this.

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