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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>


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