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 - GNU Project - Free Software Foundation</title>
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 <h2 class="c">FSF's Brief Amicus Curiae, Eldred&nbsp;v.&nbsp;Ashcroft</h2>
 <!--
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 <hr class="no-display" />
 <div class="emph-box c" style="background: none">
 <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>
 
 <div class="signature">
 <address>
 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>
 </address>
 </div>
 </div>
 
 <div class="emph-box">
 <h3 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>
 </div>
 
 <div class="toc">
 <h3 id="SECTION02000000000000000000">Contents</h3>
 <!--Table of Contents-->
 
 <ul>
 <li><a id="tex2html16"
   href="#SECTION01000000000000000000">Question
   Presented</a></li>
 <li><a id="tex2html17"
   href="#SECTION02000000000000000000">Contents</a></li>
 <li><a id="tex2html18"
   href="#SECTION03000000000000000000">Table of
   Authorities</a></li>
 <li><a id="tex2html19"
   href="#SECTION04000000000000000000">Interest
   of <i>Amicus Curiae</i></a></li>
 <li><a id="tex2html20"
   href="#SECTION05000000000000000000">Summary of
   Argument</a></li>
 <li><a id="tex2html21"
   href="#SECTION06000000000000000000">Argument</a>
 <ul>
 <li><a id="tex2html22"
   href="#SECTION06010000000000000000">I. The Framers
   Intended Copyright to Be a Statutory Monopoly Awarded to Works of
   Authorship For A Strictly Limited Time</a></li>
 <li><a id="tex2html23"
   href="#SECTION06020000000000000000">II. 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 id="tex2html24"
   href="#SECTION06021000000000000000">A. 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 id="tex2html25"
   href="#SECTION06022000000000000000">B. 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 id="tex2html26"
   href="#SECTION06030000000000000000">III. Particular
   Dangers of Abuse and Corruption Justify Strict Constitutional
   Scrutiny When the Term of Statutory Monopolies is Extended</a></li>
 </ul>
 </li>
 <li><a id="tex2html27"
   href="#SECTION07000000000000000000">Conclusion</a></li>
 </ul>
 <!--End of Table of Contents-->
 </div>
 
 
 <div class="infobox c">
 <h3 id="SECTION03000000000000000000">Table of Authorities</h3>
 
 <div class="nocenter" style="display:inline-block">
 <h4>
 <i>Cases</i>
 </h4>
 
 <ul>
 <li>Abrams v. United States, 250 U.S. 616 (1919) 10 
 </li><li>
 Darcy v. Allen, (The Case of Monopolies), 
 <br />
 11 Co. Rep. 84 (1603) 5 
 </li><li>
 Eldred v. Reno, 239 F.3d 372 (CADC 2001) 7, <i>passim</i> 
 </li><li>
 Feist Publications, Inc. v. Rural Telephone 
 <br />
 Service, Co., Inc., 499 U.S. 340 (1991) 7,11,12 
 </li><li>
 Goldstein v. California, 412 U.S. 546 (1973) 12 
 </li><li>
 Harper &amp; Row, Publishers, Inc.  v. Nation 
 <br />
 Enterprises, 471 U.S. 539 (1985) 9 
 </li><li>
 Hawaii Housing Authority v. 
 <br />
 Midkiff, 467 U.S. 229 (1984) 14 
 </li><li>
 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 10 
 </li><li>
 Reno v. American Civil Liberties Union, 
 <br />
 521 U.S. 844 (1997) 10 
 </li><li>
 San Francisco Arts &amp; Athletics, Inc. v. 
 <br />
 United States Olympic Committee, 
 <br />
 483 U.S. 522 (1987) 9 
 </li><li>
 Schnapper v. Foley, 667 F.2d 102 (CADC 1981) 11 
 </li><li>
 Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) 11 
 </li><li>
 Trademark Cases, 100 U.S. 82 (1879) 11 
 </li><li>
 West Virginia Board of Education v. Barnette, 
 <br />
 319 U.S. 624 (1943) 10 
 </li>
 </ul>
 
 <h4>
 <i>Constitutions, Statutes, and Regulations</i>
 </h4>
 
 <ul>
 <li>
 U.S. Const. Art. I, &#167;8, cl.&nbsp;8 3, <i>passim</i> 
 </li><li>
 U.S. Const. Amend. I 7, <i>passim</i> 
 </li><li>
 U.S. Const. Amend. V 13,14 
 </li><li>
 Copyright Act of 1709 (Statute of Anne), 
 <br />
 8 Anne, c.&nbsp;19 6 
 </li><li>
 Copyright Act of 1790, 1 Stat. 124 6 
 </li><li>
 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> 
 </li><li>
 Statute of Monopolies, 21 Jac.&nbsp;I, c.&nbsp;3 5 
 </li>
 </ul>
 
 <h4>
 <i>Other Materials</i>
 </h4>
 
 <ul>
 <li>
 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 
 </li><li>
 William Blackstone, Commentaries on 
 <br />
 the Laws of England (1769) 5 
 </li><li>
 The Charter and General Laws of the Colony 
 <br />
 and Province of Massachusetts Bay (Boston, 1814) 6 
 </li><li>
 144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998) 3 
 </li><li>
 Thomas I. Emerson, The System of Freedom 
 <br />
 of Expression (1970) 9 
 </li><li>
 Max Farrand, The Records of the Federal 
 <br />
 Convention of 1787 (1937) 6 
 </li><li>
 George Lee Haskins, Law and Authority 
 <br />
 in Early Massachusetts (1960) 6 
 </li><li>
 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 
 </li><li>
 Mark Rose, Authors and Owners: 
 <br />
 The Invention of Copyright (1993) 6 
 </li><li>
 Cecily Violet Wedgwood, The King's Peace (1955) 5 
 </li>
 </ul>
 </div>
 </div>
 <hr class="no-display" />
 
 <div class="emph-box c">
 <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>
 </div>
 
 <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 id="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>
 
 <h4 id="SECTION06010000000000000000">I. The Framers Intended Copyright
 to Be a Statutory Monopoly Awarded to Works of Authorship For A
 Strictly Limited Time</h4>
 
 <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 id="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>
 
 <h4 id="SECTION06020000000000000000">II. The Historical Policy Embodied
 in the Copyright Clause is Absolutely Essential to Reconcile the
 Copyright Monopoly with the System of Free Expression</h4>
 
 <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>
 
 <h5 id="SECTION06021000000000000000">A. Indefinite Extension of the
 Term of Monopoly on Existing Works of Authorship is Incompatible with
 Both the Copyright Clause and the First Amendment</h5>
 
 <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>
 
 <h5 id="SECTION06022000000000000000">B. 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</h5>
 
 <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 id="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>
 
 <h4 id="SECTION06030000000000000000">III. Particular Dangers of Abuse and
 Corruption Justify Strict Constitutional Scrutiny When the Term of
 Statutory Monopolies is Extended</h4>
 
 <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.
 </p>
 
 <div class="signature">
 <address>
 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>
 </address>
 </div>
 
 <div class="infobox">
 <hr />
 <ul class="no-bullet">
 <li><a id="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 id="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 id="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>
 </div>
 
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 <p>Copyright &copy; 2002 Eben Moglen</p>
 
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