(concurring):
I do not view the case as so clear as the majority opinion views it. Rather, like the late Melville B. Nimmer, I believe judicial review of the manufacturing clause requires a balancing between the interests in authorship under the copyright clause and in freedom to disseminate one’s views under the First Amendment on the one hand and the protectionist interest in aiding our country’s book manufacturers and printing unions on the other hand. See 2 M. Nimmer, Nimmer on Copyright § 7.22[C], at 7-161 n. 51 (1985); see also Notes of the Committee on the Judiciary, H.Rep. No. *22594-1476, reprinted as 17 U.S.C. § 601 note (1982). At the same time, I recognize that Congress may in the exercise of its commerce power frame customs duties with a view to protecting and encouraging domestic industries, especially since it has done so since the second act it adopted, Act of July 4, 1789, ch. 2, 1 Stat. 24, cited in J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 411, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928). Given the clear legitimacy of such enactments, I can see no reason why there should be a per se rule that Congress cannot in the exercise of its commerce powers condition copyright protection on American manufacture in order to advance the same protectionist interest, at least when, as in this case, the condition applies only to dissemination in the United States of the works of United States domiciliaries and there is no demonstrably significant burden on the exercise of First Amendment rights.
Professor Nimmer viewed the manufacturing clause as a prior restraint, Nimmer on Copyright § 7.22[C], at 7-161 n. 51, with its attendant. heavy burdens. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). But under certain circumstances, as Professor Paul Freund has reminded us, generalizations about prior restraints and repugnance “must yield to more particularistic analysis.” Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539 (1951); see Oakes, The Doctrine of Prior Restraint Since the Pentagon Papers, 15 U.Mich.J.L.Ref. 497 (1982). Here, the extent of restraining, of the impact of the clause so to speak, may properly be taken into constitutional account. The restraint that the clause imposes on nondramatic literary works is one of finding a North American publisher/printer and bearing the cost of publication/printing in this country or Canada. There is no restraint whatsoever on 2,000 copies of the author’s work. 17 U.S.C. § 601(b)(2) (1982). Even as to other copies, while violation of the clause gives copyright infringers a complete defense, it does not invalidate copyright protection. 17 U.S.C. § 601(d) (1982). Moreover, the restraint applies only to “copies of a work consisting preponderantly of nondramatic literary material that is in the English language,” 17 U.S.C. § 601(a) (1982), and even then a number of exceptions are made, e.g., where importation is sought for use by any government body or by the library of an organization operated for scholarly, educational, or religious purposes. 17 U.S.C. §§ 601(b)(3), 601(b)(4)(C) (1982). Thus, books consisting of dramatic material, see 17 U.S.C. § 601(a), and those composed preponderantly of pictorial, graphic, or other nonliterary material are free of restraint, Stonehill Communications, Inc. v. Martuge, 512 F.Supp. 349, 351 (S.D.N.Y.1981). In light of these exceptions, which permit, within limits, the dissemination of material printed abroad, the extent of the facial restraint that the manufacturing clause produces is not constitutionally unacceptable.
This is not to say that I would necessarily hold the manufacturing clause valid as to all authors or if its exceptions were in any way narrowed. On the facts of this case there is no showing that the plaintiffs could not have their copyrighted pamphlet, “Fundamental Requirements of the Copyright Act,” printed in this country for a sum no greater than the cost of printing in England, where it was in fact printed for 300 & 50/100 pounds sterling. In short, there has been no showing that the burden imposed on plaintiffs is significant. But there may be circumstances in which a heavy burden can be shown. The Notes to the House Committee on the Judiciary Report above mentioned, for example, refer to “small editions and scholarly works, some of which could not be published otherwise,” i.e., if the clause were not eliminated. 17 U.S.C. § 601 note at 102 (1982). In other words, given a sufficient showing of actual prior restraint, the statute as applied may well in my opinion be unconstitutional. But no such showing has been made in this “test” case. Thus, I would hold that the statute is not unconstitutional on its face and leave to another day the question whether it is unconstitutional as applied to *226a given author — a day which with expiration of the statute will, hopefully, never come. Thus, I concur in the judgment of affirmance.