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diff --git a/talermerchantdemos/blog/articles/en/eldred-amicus.html b/talermerchantdemos/blog/articles/en/eldred-amicus.html new file mode 100644 index 0000000..952357a --- /dev/null +++ b/talermerchantdemos/blog/articles/en/eldred-amicus.html @@ -0,0 +1,895 @@ +<!--#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 +“limited” 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 & 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 & 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, §8, cl. 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. 19 6 +<br /> +Copyright Act of 1790, 1 Stat. 124 6 +<br /> +Sonny Bono Copyright Term +<br /> +Extension Act, Pub. L. No. 105-298, +<br /> +Title I, 112 Stat. 2827 3, <i>passim</i> +<br /> +Statute of Monopolies, 21 Jac. I, c. 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 “free software” 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, §8, cl. 8, in its natural 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 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. L. No. 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—which goes beyond the +textually-implicit limitations of fair use and the idea-expression +dichotomy—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 “for limited Times” appear in the Copyright +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 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. I, c. 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 “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.” <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 “Statute of +Anne,” 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. 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 “limited Times” +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 “nothing in text or in history that +suggests that a term of years for a copyright is not a ‘limited +Time’ if it may later be extended for another ‘limited +Time.’” <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 “categorically” +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 & Row, Publishers, Inc.</i> v. <i>Nation +Enterprises</i>, 471 U.S. 539 (1985), this Court rejected what it +characterized as “a public figure exception to copyright,” +because it found sufficient “the First Amendment protections +already embodied in the Copyright Act's distinction between … +facts and ideas, and the latitude for scholarship and comment +traditionally afforded by fair use.” <i>Id.</i>, at 560. Thus, +the Court said, it found “no warrant” 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 +& Row</i> stands as an “insuperable” bar to all First +Amendment challenges to all subsequent copyright statutes. <i>See</i> +239 F.3d, at 375. In <i>San Francisco Arts & 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 “Olympic,” +asking “whether the incidental restrictions on First Amendment +freedoms are greater than necessary to further a substantial +government interest.” <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 “system of free +expression.” <i>See</i> Thomas I. Emerson, <i>The System of +Freedom of Expression</i> (1970). Our constitutional commitments to +an “uninhibited, robust, and wide-open” public +debate, <i>New York Times Co.</i> v. <i>Sullivan</i>, 376 U.S. 254, +270 (1964), a “marketplace of ideas,” <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 +“prescribe what shall be orthodox” <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 +“condition” 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 “limited” 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 “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,” 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 “modicum of creativity” the +Constitution requires. According to the Court of Appeals, however, +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.</p> + +<p> +The Copyright Clause is unique among the enumerations of legislative +power in Article I, §8 in containing a declaration of purpose; it +alone “describes both the objective which Congress may seek and +the means to achieve it.” <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 +“limited Times” in purely formal terms, so +that—after ten previous interlocking extensions beginning in +1962, holding substantially 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 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 “writings” in the same crabbed sense that +the term extension contained in the CTEA is “limited.”</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 “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” supposedly “secures” +them.</p> + +<p> +But the copyright bargain faces two ways: “securing” +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—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 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 “public use” +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 “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 create 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 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—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 “certain” 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 “[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, 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 & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. 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For web pages, it is ok to list just the latest year the + document was modified, or published. + + If you wish to list earlier years, that is ok too. + Either "2001, 2002, 2003" or "2001-2003" are ok for specifying + years, as long as each year in the range is in fact a copyrightable + year, i.e., a year in which the document was published (including + 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 © 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> |