# Amicus Curiae Brief — Eldred v. Ashcroft > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0514%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 537 U.S. 186 ## Text es Supseme Count! U5. FILED : MAY 20 2002 Sy No. 01-618 |_OPFICE uF PME CLERK | Sd IN THE Supreme Court of the United States ERIC ELDRED, et al., Petitioners, V. 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 Oe r 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 Copyright Act of 1709 (Statute of Anne), PELE cncncecdudenidcdcdsecevedecescceesesscs 6 Copyright Act of 1790, 1 Stat. 124 ..................... 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 iv No. 01-618 —_—_—————— IN THE Supreme Court of the United States ERIC ELDRED, et al., ; Petitioners, V. 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 1 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. 2 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 3 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 5 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 Copyright Act of 1790. See Copyright Act of 1709, 8 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. 6 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 copyright for decades. Il. The Historical Policy Embodied in the Copyright Clause is Absolutely Essential to Reconcile the Copyright Monopoly with the System of Free Ex- 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- 7 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 copyright. Melville B. Nimmer, Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?, 17 UCLA L. Rev. 1180, 1193 (1970). 8 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, 9 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 Copyright Clause itself, the Court of Appeals failed in its 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 copyright and the First Amendment that all exclusive rights over expressions are limited in time. At some spe- cific moment, all exclusionary rights must end. Under 10 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 11 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 Copyright Clause. 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.” 12 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 13 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. 14 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 copyright was extended once. During the next seventy 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 15 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. 16 Respectfully submitted. EBEN MOGLEN Counsel of record 435 West 116th Street New York, NY 10027 (212) 854-8382 Counsel for Amicus Curiae 17 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0514%3A18. Public record. Not legal advice.