Amicus Curiae Brief — Eldred v. Ashcroft

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FILED

: MAY 20 2002

No. 01-618 |_OPFICE uF PME CLERK |

IN THE

Supreme Court of the United States

ERIC ELDRED, et al.,

Petitioners,

JOHN D. ASHCROFT, In his official capacity

as Attorney General,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the

District of Columbia Circuit

Brief Amicus Curiae of the

Free Software Foundation

in Support of Petitioners

EBEN MOGLEN

Counsel of record

435 West 116th Street

New York, NY 10027

(212) 854-8382

Counsel for Amicus Curiae

QUESTION PRESENTED

1. Did the Court of Appeals err in holding that, under

the Copyright Clause, Congress may indefinitel

extend the term of existing copyrights by seriatim

adoption of nominally “limited” extensions?

447

TABLE OF CONTENTS

I. The Framers Intended Copyright to Be a Statu-

tory Monopoly Awarded to Works of Author-

ship For A Strictly Limited Time 5

II. The Historical Policy Embodied in the Copy-

right Clause is Absolutely Essential to Recon-

cile the Copyright Monopoly with the System of

Free Expression 7

A. Indefinite Extension of the Term of

Monopoly on Existing Works of Author-

ship is Incompatible with Both the Copy-

right Clause and the First Amendment... 10

B. The Fifth Amendment Prohibits Legisla-

tive Action Such as This With Respect to

Physical Property Rights, and There Is No

Constitutional Justification for Permitting

What Cannot Be Done with Mere Property

to be Done with Free Expression ...... 13

III.Particular Dangers of Abuse and Corruption

Justify Strict Constitutional Scrutiny When the

Term of Statutory Monopolies is Extended 15

TABLE OF AUTHORITIES

Cases

Abrams v. United States, 250 U.S. 616 (1919) ......... 10

Darcy v. Allen, (The Case of Monopolies),

11 Co. Rep. 84 (1603) ........... eee ee ceeeeeeeeeeeees 5

Eldred v. Reno, 239 F.3d 372 (CADC 2001) ..... 7, passim

Feist Publications, Inc. v. Rural Telephone

Service, Co., Inc., 499 U.S. 340 (1991) .......... 7,11,12

Goldstein v. California, 412 U.S. 546 (1973) ........... 12

Harper & Row, Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539 (1985) ........-..eeeeeeeees 9

Hawaii Housing Authority v.

Midkiff, 467 U.S. 229 (1984) ......... 6. cece ee eee ees 14

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . 10

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) .... 2. cece cece cece eee eee eeeeee 10

San Francisco Arts & Athletics, Inc. v.

United States Olympic Committee,

SE EIETD cccvcccccccsccccccccccccccccccecs 9

Schnapper v. Foley, 667 F.2d 102 (CADC 1981) ....... 11

Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) . 11

Trademark Cases, 100 U.S. 82 (1879) ..........--5005- 11

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943) 0... cc cece cece cece cence eeenees 10

Constitutions, Statutes, and Regulations

US. Const. Art. 1, §8, cl. 8 «22... . ec cece cece ees 3, passim

EE 7, passim

TD . 8. ccccscccececooccceces 13,14

PELE cncncecdudenidcdcdsecevedecescceesesscs 6

Sonny Bono Copyright Term

Extension Act, Pub. L. No. 105-298,

Ce DEE sndccnesessscceciscntece 3, passim

Statute of Monopolies, 21 Jac. Lc. 3 ..............0000: 5

Other Materials

Yochai Benkler, Free as the Air to Common

Use: First Amendment Constraints on

Enclosure of the Public Domain,

Fis CEE SEO occccccccesccoscccccsoces 8

William Blackstone, Commentaries on

the Laws of England (1769) ..................00.0005 5

The Charter and General Laws of the Colony

and Province of Massachusetts Bay (Boston, 1814) .. 6

144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998) ......... 3

Thomas I. Emerson, The System of Freedom

REE TIE NEEDS )

Max Farrand, The Records of the Federal

gg, 6

George Lee Haskins, Law and Authority

in Early Massachusetts (1960) ................0.005. 6

Melville B. Nimmer, Does Copyright Abridge

the First Amendment Guaranties of Free Speech

and the Press?, 17 UCLA L. Rev. 1180 (1970) ........ 8

Mark Rose, Authors and Owners:

The Invention of Copyright (1993) .................. 6

Cecily Violet Wedgwood, The King’s Peace (1955) .... 5

No. 01-618

—_—_——————

IN THE

Supreme Court of the United States

ERIC ELDRED, et al., ;

Petitioners,

JOHN D. ASHCROFT, In his official capacity

as Attorney General,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the

District of Columbia Circuit

Brief Amicus Curiae of the

Free Software Foundation

in Support of Petitioners

INTEREST OF Amicus Curiae

This brief is filed on behalf of the Free Software Foun-

dation, a charitable corporation with its main offices in

Boston, Massachusetts.! The Foundation believes that

1Counsel for both parties have consented to the filing of this

brief, and those consents have been filed with the Clerk of this

people should be free to study, share and improve all

the software they use, as they are free to share and im-

prove all the recipes the cook with, and that this right

is an essential aspect of the system of free expression in

a technological society. The Foundation has been work-

ing to achieve this goal since 1985 by directly develop-

ing and distributing, and by helping others to develop

and distribute, software that is licensed on terms that

permit all users to copy, modify and redistribute the

works, so long as they give others the same freedoms

to use, modify and redistribute in turn. The Founda-

tion is the largest single contributor to the GNU oper-

ating system (used widely today in its GNU/Linux vari-

ant for computers from PCs to supercomputer clusters).

The Foundation’s GNU General Public License is the

most widely used “free software” license, covering ma-

jor components of the GNU operating system and tens

of thousands of other computer programs used on tens

of millions of computers around the world. The Foun-

dation is strongly interested in the use and development

of copyright law to encourage sharing, and to protect the

rights of users and the public domain.

Court. No counsel for either party had any role in authoring this

brief, and no person other than the amicus and its counsel made any

monetary contribution to its preparation and submission.

SUMMARY OF ARGUMENT

“Actually, Sonny [Bono] wanted the term

of copyright protection to last forever.”

—Rep. Mary Bono

144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)

If the late Representative Bono believed that was pos-

sible, he was mistaken. The Court of Appeals erred in

holding that Congressmen sharing his object can achieve

what the Constitution expressly forbids, simply because

they do so in a series of enactments rather than a single

statute.

No one seriously contends that Congress may achieve

an expressly unauthorized end by dividing the means

of its achievement into multiple statutes. Yet the Court

of Appeals held that, so long as each individual statute

states a precise numerical increment, Congress can ex-

tend the life of existing copyrights indefinitely. This

conclusion is in direct conflict with the language of

the Copyright Clause, Article I, §8, cl. 8, in its natu-

ral sense. The constitutional history of England and

British North America, moreover, is unambiguous about

the importance of “limited Times” in the control of all

state-awarded monopolies, of which genus copyright

and patent are species. The very evils that led English

and British North American constitutional lawyers to in-

sist on the strictly limited term of royal and statutory mo-

nopolies, and to embody that requirement in the Copy-

right Clause of Article I, are present in the retroactive ex-

tension of existing copyrights by the Sonny Bono Copy-

right Term Extension Act (CTEA), Pub. L. No. 105-298,

Title I, 112 Stat. 2827, at issue in this case.

In the sphere of copyright, the limited time require-

ment protects the public domain, by providing for its

constant enrichment. The public domain is an essential

resource of our constitutional system of free expression.

As this Court has previously recognized, several as-

pects of the copyright system represent constitutionally-

required limitations on the nature of the monopoly

Congress is empowered to grant. The limited term is not

only a particularly important constitutional limitation on

Congressional power by virtue of its presence in the text

itself—which goes beyond the textually-implicit limita-

tions of fair use and the idea-expression dichotomy—but

also in the function it serves: the protection of the com-

mon resource of the public domain.

The CTEA unconstitutionally imperils the commons

of the public domain by flouting the clear intention of

the limited term requirement. If Congress had acted uni-

laterally to reduce copyright terms, as the Solicitor Gen-

eral seems to believe it may, forcing some material into

the public domain decades ahead of current schedule, no

doubt the copyright industries would attack the legisla-

tion as a taking. If, on the other hand, Congress acted

to extend every 50-year lease by the federal government

for an additional 99 years at the government's current

rent, there is no question that compensation would be

required. Congress should not be permitted to take the

public’s reversionary interest in the public domain, any

more than it can take a portion of the copyright holder’s

original term or of any leasehold interest in real prop-

erty. The constitutional system of free expression, the

language of the Copyright Clause, and the history of our

tradition demand no less.

ARGUMENT

I. The Framers Intended Copyright to Be a Statutory

Monopoly Awarded to Works of Authorship For A

Strictly Limited Time

The words “for limited Times” appear in the Copy-

right Clause, Article I, §8, cl. 8 as the result of long and

bitter experience with the constitutional evil of state-

awarded monopolies. From the seventeenth century,

the requirement of limitation in time was a basic con-

stitutional mechanism for dealing with the potential

for abuse of power inherent in the royal or statutory

monopoly. The use by Queen Elizabeth of letters patent

monopolizing certain trades as a means of raising money

from bidders for monopoly profits gave rise to the case

of Darcy v. Allen, (The Case of Monopolies), 11 Co. Rep. 84

(1603), in which a royal patent monopoly on the making

and distribution of playing cards was held void. Par-

liament followed in 1624 with the Statute of Monop-

olies, 21 Jac. I, c. 3, which declared that only Parlia-

ment might grant statutory monopolies, limited to new

inventions, for a period not to exceed fourteen years.

See 4 William Blackstone, Commentaries on the Laws of

England *159 (1769). This constitutional limitation was

evaded by Charles I during his period of despotic per-

sonal rule; the resulting royal monopolies formed a sig-

nificant grievance in the years leading up to the English

Civil War. See Cecily Violet Wedgwood, The King’s Peace

156-62 (1955).

American colonists at odds with the government of

Charles I perceived the evil of governmental monopo-

lies; in the Massachusetts Bay Colony as early as 1641,

the Colony’s General Court decreed that “there shall be

no monopolies granted or allowed amongst us, but of

such new inventions that are profitable to the country,

and that for a short time.” The Charter and General Laws of

the Colony and Province of Massachusetts Bay 170 (Boston,

1814); see also George Lee Haskins, Law and Authority in

Early Massachusetts 130 (1960).

When the Copyright Act of 1709, the famous “Statute

of Anne,” was framed, the drafters insisted on a lim-

ited term far more stringent than authors, including John

Locke, had proposed; they adopted the fourteen-year

limit from the Statute of Monopolies. See Mark Rose, Au-

thors and Owners: The Invention of Copyright 44-47 (1993).

The term provided by the Statute of Anne, fourteen years

with a renewal of fourteen years if the author survived

the first term, was adopted by First Congress in the

Anne, c. 19; Act of May 31, 1790, 1 Stat. 124-25.

The Framers of the Constitution unanimously ac-

cepted the idea of the limited term for copyrights in the

drafting of Article I, without substantial discussion. See 2

Max Farrand, The Records of the Federal Convention of 1787,

at 321-325, 505-510, 570, 595 (1937).? In doing so, as the

subsequent employment in the Copyright Act of 1790 of

the term of years from the Statute of Monopolies shows,

the Framers and the First Congress acted in full aware-

ness of the long history of attempts to control the harm

done by statutory monopolies by limiting their term.

The constitutional importance of the “limited Times”

restriction cannot be vitiated, as the Court of Appeals’

reasoning would do, by affording Congress the oppor-

tunity to create perpetuities on the installment plan, any

The only amendment made was in the replacement of the

phrase originally suggested by Charles Pinckney of South Carolina,

that monopolies be granted for a “certain” time. See 3 id., at 122.

more than Congress can eliminate the constitutional re-

quirement of originality. Feist Publications, Inc. v. Rural

Telephone Service, Co., Inc., 499 U.S. 340, 346-347 (1991).

The Court of Appeals erred fundamentally in its conclu-

sion that there is “nothing in text or in history that sug-

gests that a term of years for a copyright is not a ‘lim-

ited Time’ if it may later be extended for another ‘limited

Time.’ ” Eldred v. Reno, 239 F.3d 372, 379 (CADC 2001). In

this regard, the CTEA should not be judged in isolation.

The question is whether there is anything in text or his-

tory rendering constitutionally objectionable the eleven

extensions of the monopoly term in the last forty years,

resulting in a virtual cessation of enlargements to the

public domain, capped by the statute before the Court,

which postpones the reversion on every single existing

Il. The Historical Policy Embodied in the Copyright

Clause is Absolutely Essential to Reconcile the

pression

As important as the principle of limited time is in

the general restraint of the harms that flow from statu-

tory monopolies, in the area of copyright it has an even

mcre crucial purpose to serve. The limited term of copy-

right ensures the steady replenishment of the public do-

main, the vast repository of the common culture of hu-

mankind. The public domain is the springboard of so-

cietal creativity, the zone of free reproduction and ex-

change that makes innovation possible. As Yochai Ben-

kler has elegantly shown, the existence of a vital and ex-

panding public domain reconciles the exclusive rights of

the copyright system with the underlying goals of the

system of free expression protected by the First Amend-

ment. See Yochai Benkler, Free as the Air to Common Use:

First Amendment Constraints on Ficlosure of the Public Do-

main, 74 N.Y.U.L. Rev. 354, 386-394 (1999). The Court

below erred in its facile dismissal of petitioners’ First

Amendment concerns. That Court first held in its opin-

ion that the First Amendment’s requirements are “cate-

gorically” satisfied by the distinction between expression

and idea, and then that any material covered by copy-

right but subject to the defense of fair use is therefore so

copiously protected for purposes of free expression that

no First Amendment claim can possibly lie. 239 F.3d, at

375-376.

This position simply cannot be right. The Court below

conceded that an attempt by Congress to make copyright

perpetual in haec verba would be prohibited by the lan-

guage of the Copyright Clause. Id., at 377. But even if

the subterfuge of achieving perpetuity piecemeal, by re-

peated retroactive extensions, somehow evades the plain

command of the Copyright Clause, it does not thus ren-

der impotent the First Amendment. As the great copy-

right scholar Melville Nimmer asked:

If I may own Blackacre in perpetuity, why

not also Black Beauty? The answer lies in the

first amendment. There is no countervail-

ing speech interest which must be balanced ©

against perpetual ownership of tangible real

and personal property. There is such a speech

interest, with respect to literary property, or

Melville B. Nimmer, Does Copyright Abridge the First

Amendment Guaranties of Free Speech and the Press?, 17

UCLA L. Rev. 1180, 1193 (1970).

en se oa

Nor has the Court of Appeals’ position any support

in the holdings of this Court. On the contrary, as this

Court’s cases make clear, copyright and related statu-

tory monopolies in expression must conform like any

other regulation of speech to the requirements of the

First Amendment. In Harper & Row, Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539 (1985), this Court re-

jected what it characterized as “a public figure excep-

tion to copyright,” because it found sufficient “the First

Amendment protections already embodied in the Copy-

right Act’s distinction between ... facts and ideas, and

the latitude for scholarship and comment traditionally

afforded by fair use.” Id., at 560. Thus, the Court said, it

found “no warrant” for a further expansion of the doc-

trine of fair use. Id. This by no means implies, as the

Court of Appeals somehow concluded, that Harper &

Row stands as an “insuperable” bar to all First Amend-

ment challenges to all subsequent copyright statutes. See

239 F.3d, at 375. In San Francisco Arts & Athletics, Inc. v.

United States Olympic Committee, 483 U.S. 522 (1987), this

Court applied standard First Amendment analysis to a

statute conveying special quasi-trademark protection to

the word “Olympic,” asking “whether the incidental re-

strictions on First Amendment freedoms are greater than

necessary to further a substantial government interest.”

Id., at 537 (citation omitted).

The First Amendment abhors the vacuum of limited

expression. The making of new works by the criticism,

imitation, revision, and rearrangement of existing mate-

rial is the hallmark of literate culture in all the arts and

sciences. The First Amendment establishes not merely a

series of independent docirines, but a “system of free ex-

_pression.” See Thomas I. Emerson, The System of Freedom

of Expression (1970). Our constitutional commitments to

‘an “uninhibited, robust, and wide-open” public debate,

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),

a “marketplace of ideas,” Reno v. American Civil Liberties

Union, 521 U.S. 844, 885 (1997); cf. Abrams v. United States,

250 U.S. 616, 630 (1919), where there shall be no power

to “prescribe what shall be orthodox” West Virginia Board

of Education v. Barnette, 319 U.S. 624, 642 (1943), require

us to view with great skepticism all restrictions on the

formation and expression of ideas. Laws tending to es-

tablish monopolies in the expression of ideas must pass

the exacting scrutiny that protects our most fundamen-

tal freedoms. The Copyright Clause does not exempt

the legislation enacted under it from such scrutiny, bu*

rather establishes principles that enable statutory mo-

nopolies and freedom of expression to coexist. Of these,

the principle of limitation in time is far from the least im-

portant. By refusing to consider the effect of the instant

legislation in the broader context of a Congressional pol-

icy of piecemeal, indefinite, wholesale extension of copy-

rights, and in relation to the purposes established by the

duty to protect the invaluable interests of the system of

free expression.

A. INDEFINITE EXTENSION OF THE TERM OF

MONOPOLY ON EXISTING WORKS OF AUTHORSHIP

IS INCOMPATIBLE WITH BOTH THE COPYRIGHT

CLAUSE AND THE FIRST AMENDMENT

Precisely because the creation of exclusive rights in ex-

pressions inevitably involves some danger of the mo-

nopolization of ideas, it is crucial to the coexistence of

rights over expressions are limited in time. At some spe-

cific moment, all exclusionary rights must end. Under

our Constitution, the reversion of every work of author-

ship is irrevocably vested in the public.

This reversion is not constitutionally optional. In the

context of patents, this Court has described the rever-

sion as a “condition” that the work subject to tempo-

rary statutory monopoly will pass into the public do-

main upon the patent’s expiration. Singer Mfg. Co. v.

June Mfg. Co., 163 U.S. 169, 185 (1896).

Notwithstanding this evident constitutional principle,

the Court of Appeals held that Congress may create a

perpetuity in copyrights so long as it does so sequen-

tially, by repeatedly extending all existing copyrights for

nominally “limited” terms. This holding contradicts the

spirit of both the Copyright Clause and the First Amend-

ment. The Court of Appeals erroneously held, following

its own precedent, see Schnapper v. Foley, 667 F.2d 102, 112

(1981), that the single phrase comprising the Copyright

Clause, empowering Congress “To promote the Progress

of Science and useful Art-, by securing for limited Times

to Authors and Inventors the exclusive Right to their

respective Writings and Discoveries,” imposes no sub-

stantive limitation on Congress through its declaration

of purpose. But the Court of Appeals acknowledged, as

it must, that this Court’s cases show clearly that Congres-

sional power is indeed limited by the Copyright Clause,

and so its effort is bent to the disintegration of a single

phrase of twenty-seven words, directed at showing that

the first nine are somehow constitutionally irrelevant.

This Court first held in the Trademark Cases, 100 U.S.

82 (1879), and reaffirmed in Feist, supra, 499 U.S., at 346-

47, that Congress cannot constitutionally dilute the re-

quirement of originality, by extending copyright cover-

age to works of authorship that make use of expressions

already in existence, or in which the author’s effort in

collection and arrangement of existing information does

not establish that “modicum of creativity” the Constitu-

tion requires. According to the Court of Appeals, how-

ever, the principle of originality emerges solely from the

words “Writing” and “Author,” taking not the slightest

support from the declaration of purpose that begins the

The Copyright Clause is unique among the enumer-

ations of legislative power in Article I, §8 in contain-

ing a declaration of purpose; it alone “describes both

the objective which Congress may seek and the means

to achieve it.” Goldstein v. California, 412 U.S. 546, 555

(1973). Adopting a reading of the clause that denies le-

gal effect to the words the drafters specifically and atyp-

ically included is an implausible style of constitutional

construction.

Even without reference to the beginning of the clause,

however, this Court’s prior opinions show that the Court

of Appeals has misperceived the task of construction.

The Court of Appeals treats the words “limited Times”

in purely formal terms, so that—after ten previous in-

terlocking extensions beginning in 1962, holding sub-

stantially all works with otherwise-expiring copyrights

out of the public domain for a generation—the CTEA’s

extension of existing terms for another twenty years

raises no substantive constitutional question because the

new twenty-year extension period is numerically defi-

nite. The same formal, anti-contextual approach to the

words would result, however, in the result rejected by

this Court in Feist: telephone directories are undeniably

“writings” in the same crabbed sense that the term ex-

tension contained in the CTEA is “limited.”

B. THE FIFTH AMENDMENT PROHIBITS LEGISLA-

TIVE ACTION SUCH AS THIS WITH RESPECT TO

PHYSICAL PROPERTY RIGHTS, AND THERE Is No

CONSTITUTIONAL JUSTIFICATION FOR PERMITTING

WHAT CANNOT BE DONE WITH MERE PROPERTY

TO BE DONE WITH FREE EXPRESSION

On the logic of the Court of Appeals’ holding, which

is apparently supported in this Court by the Solicitor

General, Congress could pass a statute shortening the

term of existing copyrights, reallocating a large body of

currently-covered works to the public domain. If the

statute simply provided that the term of copyright be re-

duced to fourteen years, according to the Court of Ap-

peals, that would satisfy the requirement of “limited

Times,” and there would be no occasion for the Courts

to inquire into whether such a change promoted the

progress of science and the useful arts, though copyright

holders could well be expected to contend that such an

alteration of the duration of existing copyrights deprived

them of the benefit that the “copyright bargain” suppos-

edly “secures” them.

But the copyright bargain faces two ways: “securing”

authors their limited monopoly in return for the rever-

sion to the public. Increasing the reversionary interest at

the expense of the first estate is conceptually no different

than increasing the copyright holder’s monopoly at the

expense of the reversionary interest, which is that of the

whole society and the system of free expression. Shrink-

ing or eliminating the public domain in order to increase

the benefit to the monopolists, whose works have al-

ready been created in reliance on the previous allocation

of rights, neither promotes the progress of knowledge

nor respects the critically-important free speech interest

in the health of the public domain.’

Nor would the Takings Clause of the Fifth Amend-

ment permit such uncompensated legislative adjustment

of the terms of interest in real property. Copyright—not

surprisingly in view of its common law origins—adopts

an essentially familiar structure of “estates” in works

of authorship, beginning with a conveyance for term of

years or a life interest plus a term of years, with a re-

version to the public domain. This Court has held that

legislative alteration of such estates that destroys or lim-

its the reversionary interest in real property in order to

achieve redistribution between private parties is “pub-

lic use” within the meaning of the Takings Clause, and

is constitutional if compensated. Hawaii Housing Au-

thority v. Midkiff, 467 U.S. 229 (1984). But it has never

been suggested that Congress or a state legislature could

achieve a similarly vast wealth transfer to present lessees

through the extension of the terms of all existing leases,

extinguishing or indefinitely postponing the reversion-

ary interest, without paying compensation.

What the Fifth Amendment prohibits with respect to

interference with existing rights in real property should

not be permissible where the rights being destroyed by

’The Court of Appeals minimized the importance of the im-

poverishment of the public domain when it maintained that

“[p]reserving 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.” 239 F.3d,

at 379. This is an apparent reference to claims made by copyright

holders in the legislative process that certain classes of works, par-

ticularly films, would not be physically preserved unless the copy-

right monopoly were extended. It is sufficient to point out that such

a principle for the award of copyright monopolies conflicts with the

constitutionally mandated requirement of originality: Congress can-

not elect to preserve books, films, or music by conveying to the con-

servator a statutory monopoly of copying and distribution lasting

decades.

legislative changes in property rules are rights to the

freedom of speech and publication. The Court of Ap-

peals dismissively viewed petitioners as seeking to en-

force rights to use the copyrighted works of others. 239

F.3d, at 376. On the contrary, petitioners claim only their

constitutional entitlement to use the works that would

have entered the public domain, as required by the law

in effect at the time the particular statutory monopolies

at issue were granted, had it not been for unconstitu-

tional Congressional interference.

Ill. Particular Dangers of Abuse and Corruption Jus-

tify Strict Constitutional Scrutiny When the Term

of Statutory Monopolies is Extended

During the first century of our Republic, the term of

years, it was extended once more. Since 1962, copyright

terms have been extended regularly, in increments rang-

ing from one year to twenty years, and the flow of US-

copyrighted works into the public domain has nearly

ceased. The statute before this Court postpones rights

in material protected by the First Amendment to any

but the holders of statutory monopolies for an additional

generation.

No pattern of legislation could more clearly indicate

the presence of the very evils against which the Framers

of the Constitution and their forebears contended, and

which gave rise to the Copyright Clause and its require-

ment for “limited Times.” When our predecessors in

the struggle for constitutional liberty perceived a danger

from corruption in the grant of monopolies, the danger

they apprehended was from the executive, which might

use its power to grant such monopolies to raise money

independent of the legislature. In our time the risk is

that the legislature, which is granted the power to cre-

ate such monopolies by Article I, §8, will use that power

to benefit copyright holders at the expense of the public

domain. Such a purpose—to turn the system of free ex-

pression into a series of private fiefdoms for the benefit

of monopolists, who may choose to rebate a small por-

tion of the monopoly rents thus extracted from the pop-

ulation in the form of campaign contributions—is forbid-

den to Congress by the plain wording of the Copyright

Clause and by the First Amendment. The use of repeated

interim extensions to achieve the effect of a perpetuity

is not less dangerous than the single enactment that all

parties concede would be unconstitutional. On the con-

trary, such a legislative practice increases the dangers of

corruption without reducing the harm to the public do-

main.

CONCLUSION

Perhaps the late Representative Bono did indeed be-

lieve that copyright should last forever. That any legisla-

tor could hold that view suggests the degree of danger to

a fundamental part of the system of free expression into

which we have drifted. This Court should hold that the

extension of existing copyright terms in the CTEA vio-

lates the requirements of the Copyright Clause and the

First Amendment. The decision of the Court of Appeals

should be reversed.

Respectfully submitted.