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+<!--#include virtual="/server/header.html" -->
+<!-- Parent-Version: 1.78 -->
+<title>FSF's Brief Amicus Curiae, Eldred v. Ashcroft
+- GNU Project - Free Software Foundation</title>
+
+<meta name="Keywords" content="GNU, FSF, Free Software Foundation, GNU, Linux, freedom, software, power, rights, copyright, extension, opinion, eldred, ashcroft, mickey mouse, law, disney, sonny bono, retroactive, perpetual" />
+<!--#include virtual="/philosophy/po/eldred-amicus.translist" -->
+<!--#include virtual="/server/banner.html" -->
+
+<h2>FSF's Brief Amicus Curiae, Eldred v. Ashcroft</h2>
+
+<!--
+original version by: Nikos Drakos, CBLU, University of Leeds
+* revised and updated by: Marcus Hennecke, Ross Moore, Herb Swan
+* with significant contributions from:
+ Jens Lippmann, Marek Rouchal, Martin Wilck and others -->
+
+<p>
+[ This file is also available
+in <a href="/philosophy/eldred-amicus.ps">PostScript</a>
+and <a href="/philosophy/eldred-amicus.pdf">PDF</a> formats. ]
+</p>
+
+<p style="text-align:center">
+No. 01-618
+<br />
+<br />
+<br />
+I<small>N </small>T<small>HE</small>
+<br /> <b>Supreme Court of the United States</b>
+<br />
+<br />
+E<small>RIC </small>E<small>LDRED</small>, <i>et al.</i>,
+<br /> <i>Petitioners,</i> <br />
+<br />
+v. <br />
+<br />
+J<small>OHN </small>D. A<small>SHCROFT</small>, In his official capacity
+<br />
+as Attorney General,
+<br /> <i>Respondent.</i> <br />
+<br />
+<br /> <b>On Writ of Certiorari to the United States
+<br />
+Court of Appeals for the
+<br />
+District of Columbia Circuit</b>
+<br />
+<br /> <b>Brief <i>Amicus Curiae</i> of the
+<br />
+Free Software Foundation
+<br />
+in Support of Petitioners</b>
+<br />
+<br />
+</p>
+
+<ul>
+<li>E<small>BEN </small>M<small>OGLEN</small>
+<br /> <i>Counsel of record</i>
+<br />
+435 West 116th Street
+<br />
+New York, NY 10027
+<br /> (212) 854-8382 <br />
+<br />
+Counsel for <i>Amicus Curiae</i>
+
+</li>
+</ul>
+
+<h3 style="text-align:center"
+id="SECTION01000000000000000000">Question Presented</h3>
+
+<ol>
+<li>Did the Court of Appeals err in holding that, under the Copyright
+Clause, Congress may indefinitely extend the term of existing
+copyrights by <i>seriatim</i> adoption of nominally
+&ldquo;limited&rdquo; extensions?</li>
+</ol>
+
+<h4 id="SECTION02000000000000000000">Contents</h4>
+<!--Table of Contents-->
+
+<ul>
+<li><a name="tex2html16"
+ href="eldred-amicus.html#SECTION01000000000000000000">Question
+ Presented</a></li>
+<li><a name="tex2html17"
+ href="eldred-amicus.html#SECTION02000000000000000000">Contents</a></li>
+<li><a name="tex2html18"
+ href="eldred-amicus.html#SECTION03000000000000000000">Table of
+ Authorities</a></li>
+<li><a name="tex2html19"
+ href="eldred-amicus.html#SECTION04000000000000000000">Interest
+ of <i>Amicus Curiae</i></a></li>
+<li><a name="tex2html20"
+ href="eldred-amicus.html#SECTION05000000000000000000">Summary of
+ Argument</a></li>
+<li><a name="tex2html21"
+ href="eldred-amicus.html#SECTION06000000000000000000">Argument</a>
+<ul>
+<li><a name="tex2html22"
+ href="eldred-amicus.html#SECTION06010000000000000000">The Framers
+ Intended Copyright to Be a Statutory Monopoly Awarded to Works of
+ Authorship For A Strictly Limited Time</a></li>
+<li><a name="tex2html23"
+ href="eldred-amicus.html#SECTION06020000000000000000">The Historical
+ Policy Embodied in the Copyright Clause is Absolutely Essential to
+ Reconcile the Copyright Monopoly with the System of Free
+ Expression</a>
+<ul>
+<li><a name="tex2html24"
+ href="eldred-amicus.html#SECTION06021000000000000000">Indefinite
+ Extension of the Term of Monopoly on Existing Works of Authorship is
+ Incompatible with Both the Copyright Clause and the First
+ Amendment</a></li>
+<li><a name="tex2html25"
+ href="eldred-amicus.html#SECTION06022000000000000000">The Fifth
+ Amendment Prohibits Legislative 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</a></li>
+</ul>
+</li>
+<li><a name="tex2html26"
+ href="eldred-amicus.html#SECTION06030000000000000000">Particular
+ Dangers of Abuse and Corruption Justify Strict Constitutional
+ Scrutiny When the Term of Statutory Monopolies is Extended</a></li>
+</ul>
+</li>
+<li><a name="tex2html27"
+ href="eldred-amicus.html#SECTION07000000000000000000">Conclusion</a></li>
+</ul>
+<!--End of Table of Contents-->
+
+<h3 id="SECTION03000000000000000000">Table of Authorities</h3>
+
+<p>
+<i>Cases</i>
+</p>
+
+<p>
+Abrams v. United States, 250 U.S. 616 (1919) 10
+<br />
+Darcy v. Allen, (The Case of Monopolies),
+<br />
+11 Co. Rep. 84 (1603) 5
+<br />
+Eldred v. Reno, 239 F.3d 372 (CADC 2001) 7, <i>passim</i>
+<br />
+Feist Publications, Inc. v. Rural Telephone
+<br />
+Service, Co., Inc., 499 U.S. 340 (1991) 7,11,12
+<br />
+Goldstein v. California, 412 U.S. 546 (1973) 12
+<br />
+Harper &amp; Row, Publishers, Inc. v. Nation
+<br />
+Enterprises, 471 U.S. 539 (1985) 9
+<br />
+Hawaii Housing Authority v.
+<br />
+Midkiff, 467 U.S. 229 (1984) 14
+<br />
+New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 10
+<br />
+Reno v. American Civil Liberties Union,
+<br />
+521 U.S. 844 (1997) 10
+<br />
+San Francisco Arts &amp; Athletics, Inc. v.
+<br />
+United States Olympic Committee,
+<br />
+483 U.S. 522 (1987) 9
+<br />
+Schnapper v. Foley, 667 F.2d 102 (CADC 1981) 11
+<br />
+Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) 11
+<br />
+Trademark Cases, 100 U.S. 82 (1879) 11
+<br />
+West Virginia Board of Education v. Barnette,
+<br />
+319 U.S. 624 (1943) 10
+</p>
+
+<p>
+<i>Constitutions, Statutes, and Regulations</i>
+</p>
+
+<p>
+U.S. Const. Art. I, &#167;8, cl.&nbsp;8 3, <i>passim</i>
+<br />
+U.S. Const. Amend. I 7, <i>passim</i>
+<br />
+U.S. Const. Amend. V 13,14
+<br />
+Copyright Act of 1709 (Statute of Anne),
+<br />
+8 Anne, c.&nbsp;19 6
+<br />
+Copyright Act of 1790, 1 Stat. 124 6
+<br />
+Sonny Bono Copyright Term
+<br />
+Extension Act, Pub.&nbsp;L.&nbsp;No.&nbsp;105-298,
+<br />
+Title I, 112 Stat. 2827 3, <i>passim</i>
+<br />
+Statute of Monopolies, 21 Jac.&nbsp;I, c.&nbsp;3 5
+</p>
+
+<p>
+<i>Other Materials</i>
+</p>
+
+<p>
+Yochai Benkler, Free as the Air to Common
+<br />
+Use: First Amendment Constraints on
+<br />
+Enclosure of the Public Domain,
+<br />
+74 N.Y.U.L. Rev. 354 (1999) 8
+<br />
+William Blackstone, Commentaries on
+<br />
+the Laws of England (1769) 5
+<br />
+The Charter and General Laws of the Colony
+<br />
+and Province of Massachusetts Bay (Boston, 1814) 6
+<br />
+144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998) 3
+<br />
+Thomas I. Emerson, The System of Freedom
+<br />
+of Expression (1970) 9
+<br />
+Max Farrand, The Records of the Federal
+<br />
+Convention of 1787 (1937) 6
+<br />
+George Lee Haskins, Law and Authority
+<br />
+in Early Massachusetts (1960) 6
+<br />
+Melville B. Nimmer, Does Copyright Abridge
+<br />
+the First Amendment Guaranties of Free Speech
+<br />
+and the Press?, 17 UCLA L. Rev. 1180 (1970) 8
+<br />
+Mark Rose, Authors and Owners:
+<br />
+The Invention of Copyright (1993) 6
+<br />
+Cecily Violet Wedgwood, The King's Peace (1955) 5
+</p>
+
+<p>
+No. 01-618
+<br />
+<br />
+<br />
+I<small>N </small>T<small>HE</small>
+<br /> <b>Supreme Court of the United States</b>
+<br />
+<br />
+E<small>RIC </small>E<small>LDRED</small>, <i>et al.</i>,
+<br /> <i>Petitioners,</i> <br />
+<br />
+v. <br />
+<br />
+J<small>OHN </small>D. A<small>SHCROFT</small>, In his official capacity
+<br />
+as Attorney General,
+<br /> <i>Respondent.</i> <br />
+<br />
+<br /> <b>On Writ of Certiorari to the United States
+<br />
+Court of Appeals for the
+<br />
+District of Columbia Circuit</b>
+<br />
+<br /> <b>Brief <i>Amicus Curiae</i> of the
+<br />
+Free Software Foundation
+<br />
+in Support of Petitioners</b>
+<br />
+<br />
+</p>
+
+<h3 id="SECTION04000000000000000000">Interest of <i>Amicus
+Curiae</i></h3>
+
+<p>
+This brief is filed on behalf of the Free Software Foundation, a
+charitable corporation with its main offices in Boston,
+Massachusetts.<a name="tex2html1"
+href="#foot151"><strong>[1]</strong></a> The Foundation believes that
+people should be free to study, share and improve all the software
+they use, as they are free to share and improve all the recipes they
+cook with, and that this right is an essential aspect of the system of
+free expression in a technological society. The Foundation has been
+working to achieve this goal since 1985 by directly developing 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 Foundation
+is the largest single contributor to the GNU operating system (used
+widely today in its GNU/Linux variant for computers from PCs to
+supercomputer clusters). The Foundation's GNU General Public License
+is the most widely used &ldquo;free software&rdquo; license, covering
+major 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 Foundation 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.</p>
+
+<h3 id="SECTION05000000000000000000">Summary of Argument</h3>
+
+<blockquote>
+<p>
+Actually, Sonny [Bono] wanted the term of copyright protection to
+last forever.
+<br /> --Rep. Mary Bono
+<br />
+144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)
+</p>
+</blockquote>
+
+<p>
+If the late Representative Bono believed that was possible, 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.</p>
+
+<p>
+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 extend the life of existing copyrights indefinitely. This
+conclusion is in direct conflict with the language of the Copyright
+Clause, Article I, &#167;8, cl.&nbsp;8, in its natural sense. The
+constitutional history of England and British North America, moreover,
+is unambiguous about the importance of &ldquo;limited Times&rdquo; 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 insist on the strictly
+limited term of royal and statutory monopolies, and to embody that
+requirement in the Copyright Clause of Article I, are present in the
+retroactive extension of existing copyrights by the Sonny Bono
+Copyright Term Extension Act (CTEA),
+Pub.&nbsp;L.&nbsp;No.&nbsp;105-298, Title I, 112 Stat. 2827, at issue
+in this case.</p>
+
+<p>
+In the sphere of copyright, the limited time requirement 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 aspects
+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&mdash;which goes beyond the
+textually-implicit limitations of fair use and the idea-expression
+dichotomy&mdash;but also in the function it serves: the protection of
+the common resource of the public domain.</p>
+
+<p>
+The CTEA unconstitutionally imperils the commons of the public domain
+by flouting the clear intention of the limited term requirement. If
+Congress had acted unilaterally to reduce copyright terms, as the
+Solicitor General 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 legislation 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 property. The constitutional system of free
+expression, the language of the Copyright Clause, and the history of
+our tradition demand no less.</p>
+
+<h3 id="SECTION06000000000000000000">Argument</h3>
+
+<h3 id="SECTION06010000000000000000">The Framers Intended Copyright
+to Be a Statutory Monopoly Awarded to Works of Authorship For A
+Strictly Limited Time</h3>
+
+<p>
+The words &ldquo;for limited Times&rdquo; appear in the Copyright
+Clause, Article I, &#167;8, cl.&nbsp;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 constitutional 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 <i>Darcy</i>
+v. <i>Allen</i>, (<i>The Case of Monopolies</i>), 11 Co. Rep. 84
+(1603), in which a royal patent monopoly on the making and
+distribution of playing cards was held void. Parliament followed in
+1624 with the Statute of Monopolies, 21 Jac.&nbsp;I, c.&nbsp;3, which
+declared that only Parliament might grant statutory monopolies,
+limited to new inventions, for a period not to exceed fourteen
+years. <i>See</i> 4 William Blackstone, <i>Commentaries on the Laws
+of England</i> *159 (1769). This constitutional limitation was evaded
+by Charles I during his period of despotic personal rule; the
+resulting royal monopolies formed a significant grievance in the years
+leading up to the English Civil War. <i>See</i> Cecily Violet
+Wedgwood, <i>The King's Peace</i> 156-62 (1955).</p>
+
+<p>
+American colonists at odds with the government of Charles I perceived
+the evil of governmental monopolies; in the Massachusetts Bay Colony
+as early as 1641, the Colony's General Court decreed that &ldquo;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.&rdquo; <i>The Charter and General Laws of the Colony and
+Province of Massachusetts Bay</i> 170 (Boston, 1814); see also George
+Lee Haskins, <i>Law and Authority in Early Massachusetts</i> 130
+(1960).</p>
+
+<p>
+When the Copyright Act of 1709, the famous &ldquo;Statute of
+Anne,&rdquo; was framed, the drafters insisted on a limited term far
+more stringent than authors, including John Locke, had proposed; they
+adopted the fourteen-year limit from the Statute of
+Monopolies. <i>See</i> Mark Rose, <i>Authors and Owners: The
+Invention of Copyright</i> 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. <i>See</i> Copyright Act of 1709, 8 Anne,
+c.&nbsp;19; Act of May 31, 1790, 1 Stat. 124-25.</p>
+
+<p>
+The Framers of the Constitution unanimously accepted the idea of the
+limited term for copyrights in the drafting of Article I, without
+substantial discussion. <i>See</i> 2 Max Farrand, <i>The Records of
+the Federal Convention of 1787</i>, at 321-325, 505-510, 570, 595
+(1937).<a name="tex2html2" href="#foot152"><strong>[2]</strong></a> 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 awareness of the long history of
+attempts to control the harm done by statutory monopolies by limiting
+their term.</p>
+
+<p>
+The constitutional importance of the &ldquo;limited Times&rdquo;
+restriction cannot be vitiated, as the Court of Appeals' reasoning
+would do, by affording Congress the opportunity to create perpetuities
+on the installment plan, any more than Congress can eliminate the
+constitutional requirement of originality. <i>Feist Publications,
+Inc.</i> v. <i>Rural Telephone Service, Co., Inc.</i>, 499 U.S. 340,
+346-347 (1991). The Court of Appeals erred fundamentally in its
+conclusion that there is &ldquo;nothing in text or in history that
+suggests that a term of years for a copyright is not a &lsquo;limited
+Time&rsquo; if it may later be extended for another &lsquo;limited
+Time.&rsquo;&rdquo; <i>Eldred</i> v. <i>Reno</i>, 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
+history 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.</p>
+
+<h3 id="SECTION06020000000000000000">The Historical Policy Embodied
+in the Copyright Clause is Absolutely Essential to Reconcile the
+Copyright Monopoly with the System of Free Expression</h3>
+
+<p>
+As important as the principle of limited time is in the general
+restraint of the harms that flow from statutory monopolies, in the
+area of copyright it has an even more crucial purpose to serve. The
+limited term of copyright ensures the steady replenishment of the
+public domain, the vast repository of the common culture of humankind.
+The public domain is the springboard of societal creativity, the zone
+of free reproduction and exchange that makes innovation possible. As
+Yochai Benkler has elegantly shown, the existence of a vital and
+expanding public domain reconciles the exclusive rights of the
+copyright system with the underlying goals of the system of free
+expression protected by the First Amendment. <i>See</i> Yochai
+Benkler, <i>Free as the Air to Common Use: First Amendment Constraints
+on Enclosure of the Public Domain</i>, 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 opinion that
+the First Amendment's requirements are &ldquo;categorically&rdquo;
+satisfied by the distinction between expression and idea, and then
+that any material covered by copyright 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.</p>
+
+<p>
+This position simply cannot be right. The Court below conceded that
+an attempt by Congress to make copyright perpetual <i>in haec
+verba</i> would be prohibited by the language of the Copyright Clause.
+<i>Id.</i>, at 377. But even if the subterfuge of achieving
+perpetuity piecemeal, by repeated retroactive extensions, somehow
+evades the plain command of the Copyright Clause, it does not thus
+render impotent the First Amendment. As the great copyright scholar
+Melville Nimmer asked:</p>
+
+<blockquote><p>
+If I may own Blackacre in perpetuity, why not also <i>Black
+Beauty</i>? The answer lies in the first amendment. There is no
+countervailing 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.</p>
+</blockquote>
+<p>Melville B. Nimmer, <i>Does Copyright Abridge the First Amendment
+Guaranties of Free Speech and the Press?</i>, 17 UCLA L. Rev. 1180,
+1193 (1970). </p>
+
+<p>
+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 statutory monopolies in expression must conform
+like any other regulation of speech to the requirements of the First
+Amendment. In <i>Harper &amp; Row, Publishers, Inc.</i> v. <i>Nation
+Enterprises</i>, 471 U.S. 539 (1985), this Court rejected what it
+characterized as &ldquo;a public figure exception to copyright,&rdquo;
+because it found sufficient &ldquo;the First Amendment protections
+already embodied in the Copyright Act's distinction between &hellip;
+facts and ideas, and the latitude for scholarship and comment
+traditionally afforded by fair use.&rdquo; <i>Id.</i>, at 560. Thus,
+the Court said, it found &ldquo;no warrant&rdquo; for a further
+expansion of the doctrine of fair use. <i>Id.</i> This by no means
+implies, as the Court of Appeals somehow concluded, that <i>Harper
+&amp; Row</i> stands as an &ldquo;insuperable&rdquo; bar to all First
+Amendment challenges to all subsequent copyright statutes. <i>See</i>
+239 F.3d, at 375. In <i>San Francisco Arts &amp; Athletics, Inc.</i>
+v. <i>United States Olympic Committee</i>, 483 U.S. 522 (1987), this
+Court applied standard First Amendment analysis to a statute conveying
+special quasi-trademark protection to the word &ldquo;Olympic,&rdquo;
+asking &ldquo;whether the incidental restrictions on First Amendment
+freedoms are greater than necessary to further a substantial
+government interest.&rdquo; <i>Id.</i>, at 537 (citation omitted).</p>
+
+<p>
+The First Amendment abhors the vacuum of limited expression. The
+making of new works by the criticism, imitation, revision, and
+rearrangement of existing material is the hallmark of literate culture
+in all the arts and sciences. The First Amendment establishes not
+merely a series of independent doctrines, but a &ldquo;system of free
+expression.&rdquo; <i>See</i> Thomas I. Emerson, <i>The System of
+Freedom of Expression</i> (1970). Our constitutional commitments to
+an &ldquo;uninhibited, robust, and wide-open&rdquo; public
+debate, <i>New York Times Co.</i> v. <i>Sullivan</i>, 376 U.S. 254,
+270 (1964), a &ldquo;marketplace of ideas,&rdquo; <i>Reno</i>
+v. <i>American Civil Liberties Union</i>, 521 U.S. 844, 885
+(1997); <i>cf.</i> <i>Abrams</i> v. <i>United States</i>, 250
+U.S. 616, 630 (1919), where there shall be no power to
+&ldquo;prescribe what shall be orthodox&rdquo; <i>West Virginia Board
+of Education</i> v. <i>Barnette</i>, 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 establish monopolies in the
+expression of ideas must pass the exacting scrutiny that protects our
+most fundamental freedoms. The Copyright Clause does not exempt the
+legislation enacted under it from such scrutiny, but rather
+establishes principles that enable statutory monopolies and freedom of
+expression to coexist. Of these, the principle of limitation in time
+is far from the least important. By refusing to consider the effect
+of the instant legislation in the broader context of a Congressional
+policy of piecemeal, indefinite, wholesale extension of copyrights,
+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.</p>
+
+<h4 id="SECTION06021000000000000000">Indefinite Extension of the
+Term of Monopoly on Existing Works of Authorship is Incompatible with
+Both the Copyright Clause and the First Amendment</h4>
+
+<p>
+Precisely because the creation of exclusive rights in expressions
+inevitably involves some danger of the monopolization 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
+specific moment, all exclusionary rights must end. Under our
+Constitution, the reversion of every work of authorship is irrevocably
+vested in the public.</p>
+
+<p>
+This reversion is not constitutionally optional. In the context of
+patents, this Court has described the reversion as a
+&ldquo;condition&rdquo; that the work subject to temporary statutory
+monopoly will pass into the public domain upon the patent's
+expiration. <i>Singer Mfg. Co.</i> v. <i>June Mfg. Co.</i>, 163
+U.S. 169, 185 (1896).</p>
+
+<p>
+Notwithstanding this evident constitutional principle, the Court of
+Appeals held that Congress may create a perpetuity in copyrights so
+long as it does so sequentially, by repeatedly extending all existing
+copyrights for nominally &ldquo;limited&rdquo; terms. This holding
+contradicts the spirit of both the Copyright Clause and the First
+Amendment. The Court of Appeals erroneously held, following its own
+precedent, <i>see</i> <i>Schnapper</i> v. <i>Foley</i>, 667 F.2d 102,
+112 (1981), that the single phrase comprising the Copyright Clause,
+empowering Congress &ldquo;To promote the Progress of Science and
+useful Arts, by securing for limited Times to Authors and Inventors
+the exclusive Right to their respective Writings and
+Discoveries,&rdquo; imposes no substantive 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
+Congressional 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.</p>
+
+<p>
+This Court first held in the <i>Trademark Cases</i>, 100 U.S. 82
+(1879), and reaffirmed in <i>Feist, supra</i>, 499 U.S., at 346-47,
+that Congress cannot constitutionally dilute the requirement of
+originality, by extending copyright coverage 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 &ldquo;modicum of creativity&rdquo; the
+Constitution requires. According to the Court of Appeals, however,
+the principle of originality emerges solely from the words
+&ldquo;Writing&rdquo; and &ldquo;Author,&rdquo; taking not the
+slightest support from the declaration of purpose that begins the
+Copyright Clause.</p>
+
+<p>
+The Copyright Clause is unique among the enumerations of legislative
+power in Article I, &#167;8 in containing a declaration of purpose; it
+alone &ldquo;describes both the objective which Congress may seek and
+the means to achieve it.&rdquo; <i>Goldstein</i> v. <i>California</i>,
+412 U.S. 546, 555 (1973). Adopting a reading of the clause that
+denies legal effect to the words the drafters specifically and
+atypically included is an implausible style of constitutional
+construction.</p>
+
+<p>
+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
+&ldquo;limited Times&rdquo; in purely formal terms, so
+that&mdash;after ten previous interlocking extensions beginning in
+1962, holding substantially all works with otherwise-expiring
+copyrights out of the public domain for a generation&mdash;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 definite. The same formal,
+anti-contextual approach to the words would result, however, in the
+result rejected by this Court in <i>Feist</i>: telephone directories
+are undeniably &ldquo;writings&rdquo; in the same crabbed sense that
+the term extension contained in the CTEA is &ldquo;limited.&rdquo;</p>
+
+<h4 id="SECTION06022000000000000000">The Fifth Amendment Prohibits
+Legislative 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</h4>
+
+<p>
+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 reduced to
+fourteen years, according to the Court of Appeals, that would satisfy
+the requirement of &ldquo;limited Times,&rdquo; 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
+&ldquo;copyright bargain&rdquo; supposedly &ldquo;secures&rdquo;
+them.</p>
+
+<p>
+But the copyright bargain faces two ways: &ldquo;securing&rdquo;
+authors their limited monopoly in return for the reversion 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. Shrinking or eliminating the public domain in order to
+increase the benefit to the monopolists, whose works have already 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.<a name="tex2html3"
+href="#foot138"><strong>[3]</strong></a></p>
+
+<p>
+Nor would the Takings Clause of the Fifth Amendment permit such
+uncompensated legislative adjustment of the terms of interest in real
+property. Copyright&mdash;not surprisingly in view of its common law
+origins&mdash;adopts an essentially familiar structure of
+&ldquo;estates&rdquo; in works of authorship, beginning with a
+conveyance for term of years or a life interest plus a term of years,
+with a reversion to the public domain. This Court has held that
+legislative alteration of such estates that destroys or limits the
+reversionary interest in real property in order to achieve
+redistribution between private parties is &ldquo;public use&rdquo;
+within the meaning of the Takings Clause, and is constitutional if
+compensated. <i>Hawaii Housing Authority</i> v. <i>Midkiff</i>, 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 reversionary
+interest, without paying compensation.</p>
+
+<p>
+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 legislative changes in property rules are
+rights to the freedom of speech and publication. The Court of Appeals
+dismissively viewed petitioners as seeking to enforce 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 unconstitutional Congressional
+interference.</p>
+
+<h3 id="SECTION06030000000000000000">Particular Dangers of Abuse and
+Corruption Justify Strict Constitutional Scrutiny When the Term of
+Statutory Monopolies is Extended</h3>
+
+<p>
+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 ranging 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.</p>
+
+<p>
+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 requirement for &ldquo;limited Times.&rdquo; 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 create such
+monopolies by Article I, &#167;8, will use that power to benefit
+copyright holders at the expense of the public domain. Such a
+purpose&mdash;to turn the system of free expression into a series of
+private fiefdoms for the benefit of monopolists, who may choose to
+rebate a small portion of the monopoly rents thus extracted from the
+population in the form of campaign contributions&mdash;is forbidden 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 contrary,
+such a legislative practice increases the dangers of corruption
+without reducing the harm to the public domain.</p>
+
+<h3 id="SECTION07000000000000000000">Conclusion</h3>
+
+<p>
+Perhaps the late Representative Bono did indeed believe that copyright
+should last forever. That any legislator 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 violates
+the requirements of the Copyright Clause and the First Amendment. The
+decision of the Court of Appeals should be reversed.</p>
+
+<p>
+Respectfully submitted.
+<br />
+<br />
+<br />
+</p>
+
+<ul>
+<li>E<small>BEN </small>M<small>OGLEN</small>
+<br /> <i>Counsel of record</i>
+<br />
+435 West 116th Street
+<br />
+New York, NY 10027
+<br /> (212) 854-8382 <br />
+<br />
+Counsel for <i>Amicus Curiae</i>
+</li>
+</ul>
+
+<hr />
+
+<ul>
+<li><a name="foot151" href="#tex2html1"><sup>1</sup></a> Counsel for
+both parties have consented to the filing of this brief, and those
+consents have been filed with the Clerk of this Court. No counsel for
+either party had any role in authoring this brief, and no person other
+than the <i>amicus</i> and its counsel made any monetary contribution
+to its preparation and submission.</li>
+
+<li><a name="foot152" href="#tex2html2"><sup>2</sup></a> 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 &ldquo;certain&rdquo; time. <i>See</i> 3
+<i>id.</i>, at 122.</li>
+
+<li><a name="foot138" href="#tex2html3"><sup>3</sup></a> The Court of
+Appeals minimized the importance of the impoverishment of the public
+domain when it maintained that &ldquo;[p]reserving access to works
+that would otherwise disappear&mdash;not enter the public domain but
+disappear&mdash;&lsquo;promotes Progress&rsquo; as surely as does
+stimulating the creation of new works.&rdquo; 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, particularly films,
+would not be physically preserved unless the copyright 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 cannot elect to preserve
+books, films, or music by conveying to the conservator a statutory
+monopoly of copying and distribution lasting decades.</li>
+</ul>
+
+
+</div><!-- for id="content", starts in the include above -->
+<!--#include virtual="/server/footer.html" -->
+<div id="footer">
+<div class="unprintable">
+
+<p>Please send general FSF &amp; GNU inquiries to
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+There are also <a href="/contact/">other ways to contact</a>
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+</div>
+
+<!-- Regarding copyright, in general, standalone pages (as opposed to
+ files generated as part of manuals) on the GNU web server should
+ be under CC BY-ND 4.0. Please do NOT change or remove this
+ without talking with the webmasters or licensing team first.
+ Please make sure the copyright date is consistent with the
+ document. For web pages, it is ok to list just the latest year the
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+
+ If you wish to list earlier years, that is ok too.
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+ being publicly visible on the web or in a revision control system).
+
+ There is more detail about copyright years in the GNU Maintainers
+ Information document, www.gnu.org/prep/maintain. -->
+
+<p>Copyright &copy; 2002 Eben Moglen</p>
+
+<p>Verbatim copying and distribution of this entire article are
+permitted worldwide, without royalty, in any medium, provided this
+notice, and the copyright notice, are preserved.</p>
+
+<!--#include virtual="/server/bottom-notes.html" -->
+
+<p class="unprintable">Updated:
+<!-- timestamp start -->
+$Date: 2015/05/29 07:59:56 $
+<!-- timestamp end -->
+</p>
+</div>
+</div>
+</body>
+</html>