ERIC ELDRED, ET
AL., PETITIONERS v. JOHN D. ASHCROFT, ATTORNEY GENERAL
SUPREME COURT OF THE UNITED STATES
2003 U.S. LEXIS 751
October 9, 2002, Argued
January 15, 2003, Decided
OPINION: JUSTICE GINSBURG
delivered the opinion of the Court.
This case concerns the authority the Constitution assigns to Congress to prescribe
the duration of copyrights. The Copyright and Patent Clause of the Constitution,
Art. I, § 8, cl. 8, provides as to copyrights: "Congress shall have Power .
. . to promote the Progress of Science . . . by securing [to Authors] for limited
Times . . . the exclusive Right to their . . . Writings." In 1998, in the measure
here under inspection, Congress enlarged the duration of copyrights by 20 years.
Copyright Term Extension Act (CTEA), Pub. L. 105-298, § 102(b) and (d), 112
Stat. 2827-2828 (amending 17 U.S.C. §§ 302, 304). [*15] As in the case of prior
extensions, principally in 1831, 1909, and 1976, Congress provided for application
of the enlarged terms to existing and future copyrights alike.
Petitioners are individuals and businesses whose products or services build
on copyrighted works that have gone into the public domain. They seek a determination
that the CTEA fails constitutional review under both the Copyright Clause's
"limited Times" prescription and the First Amendment's free speech guarantee.
Under the 1976 Copyright Act, copyright protection generally lasted from the
work's creation until 50 years after the author's death. Pub. L. 94-553, § 302(a),
90 Stat. 2572 (1976 Act). Under the CTEA, most copyrights now run from creation
until 70 years after the author's death. 17 U.S.C. § 302(a). Petitioners do
not challenge the "life-plus-70-years" time span itself. "Whether 50 years is
enough, or 70 years too much," they acknowledge, "is not a judgment meet for
this Court." Brief for Petitioners 14. n1 Congress went awry, petitioners maintain,
not with respect to newly created works, but in enlarging the term for published
works with existing copyrights. The "limited Time" in [*16] effect when a copyright is secured,
petitioners urge, becomes the constitutional boundary, a clear line beyond the
power of Congress to extend. See ibid. As to the First Amendment, petitioners
contend that the CTEA is a content-neutral regulation of speech that fails inspection
under the heightened judicial scrutiny appropriate for such regulations.
In accord with the District Court and the Court of Appeals, we reject petitioners'
challenges to the CTEA. In that 1998 legislation, as in all previous copyright
term extensions, Congress placed existing and future copyrights in parity. In
prescribing that alignment, we hold, Congress acted within its authority and
did not transgress constitutional limitations.
We evaluate petitioners' challenge [*17] to the constitutionality of the CTEA
against the backdrop of Congress' previous exercises of its authority under
the Copyright Clause. The Nation's first copyright statute, enacted in 1790,
provided a federal copyright term of 14 years from the date of publication,
renewable for an additional 14 years if the author survived the first term.
Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124 (1790 Act). The 1790 Act's renewable
14-year term applied to existing works (i.e., works already published
and works created but not yet published) and future works alike. Ibid.
Congress expanded the federal copyright term to 42 years in 1831 (28 years from
publication, renewable for an additional 14 years), and to 56 years in 1909
(28 years from publication, renewable for an additional 28 years). Act of Feb.
3, 1831, ch. 16, §§ 1, 16, 4 Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909,
ch. 320, §§ 23-24, 35 Stat. 1080-1081 (1909 Act). Both times, Congress applied
the new copyright term to existing and future works, 1831 Act §§ 1, 16; 1909
Act §§ 23-24; to qualify for the 1831 extension, an existing work had to be
in its initial copyright term at the time the Act became effective, 1831 Act
§§ 1, [*18] 16.
In 1976, Congress altered the method for computing federal copyright terms.
1976 Act §§ 302-304. For works created by identified natural persons, the 1976
Act provided that federal copyright protection would run from the work's creation,
not -- as in the 1790, 1831, and 1909 Acts -- its publication; protection would
last until 50 years after the author's death. § 302(a). In these respects, the
1976 Act aligned United States copyright terms with the then-dominant international
standard adopted under the Berne Convention for the Protection of Literary and
Artistic Works. See H. R. Rep. No. 94-1476, p. 135 (1976). For anonymous works,
pseudonymous works, and works made for hire, the 1976 Act provided a term of
75 years from publication or 100 years from creation, whichever expired first.
These new copyright terms, the 1976 Act instructed, governed all works not published
by its effective date of January 1, 1978, regardless of when the works were
created. §§ 302-303. For published works with existing copyrights as of that
date, the 1976 Act granted a copyright term of 75 years from the date of publication,
§ 304(a) and (b), a 19-year increase over the 56-year term applicable [*19] under the 1909 Act.
The measure at issue here, the CTEA, installed the fourth major duration extension
of federal copyrights. n2 Retaining the general structure of the 1976 Act, the
CTEA enlarges the terms of all existing and future copyrights by 20 years. For
works created by identified natural persons, the term now lasts from creation
until 70 years after the author's death. 17 U.S.C. § 302(a). This standard harmonizes
the baseline United States copyright term with the term adopted by the European
Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing
the Term of Protection of Copyright and Certain Related Rights, 1993 Official
J. Eur. Cmty. 290 (EU Council Directive 93/98). For anonymous works, pseudonymous
works, and works made for hire, the term is 95 years from publication or 120
years from creation, whichever expires first. 17 U.S.C. § 302(c).
Paralleling the 1976 Act, the CTEA applies these new terms to all works not
published by January 1, 1978. §§ 302(a), 303(a). For works published before
1978 with existing copyrights as of the CTEA's effective date, the CTEA extends
the term to 95 years from publication. § 304(a) and (b). Thus, in common with
the 1831, 1909, and 1976 Acts, the CTEA's new terms apply to both future and
existing copyrights. n3 ...
We address first the determination of the courts below that Congress has authority
under the Copyright Clause to extend the terms of existing copyrights. Text,
history, and precedent, we conclude, confirm that the Copyright Clause empowers
Congress to prescribe "limited Times" for copyright protection and to secure
the same level and duration of protection for all copyright holders, present
The CTEA's baseline term of life plus 70 years, petitioners concede, qualifies
as a "limited Time" as applied to future copyrights. n4 Petitioners contend,
however, that existing copyrights extended to endure for that same term are
not "limited." Petitioners' argument essentially reads into the text of the
Copyright Clause the command that a time prescription, once set, becomes forever
"fixed" or "inalterable." The word "limited," however, does not convey a meaning
so constricted. At the time of the Framing, that word meant what it means today:
"confined within certain bounds," "restrained," or "circumscribed." S. Johnson,
A Dictionary of the English Language (7th ed. 1785); see T. Sheridan, A Complete
Dictionary of the English Language (6th ed. 1796) ("confined within certain
Webster's Third New International Dictionary 1312 (1976) ("confined within limits";
"restricted in extent, number, or duration"). Thus understood, a time span appropriately
"limited" as applied to future copyrights does not automatically cease to be
"limited" when applied to existing copyrights. And as we observe, infra,
at 18, there is no cause to suspect that a purpose to evade the "limited Times"
prescription prompted Congress to adopt the CTEA.
To comprehend the scope of Congress' power under the Copyright Clause, "a page
of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349 (1921) [*27] (Holmes, J.). History
reveals an unbroken congressional practice of granting to authors of works with
existing copyrights the benefit of term extensions so that all under copyright
protection will be governed evenhandedly under the same regime. As earlier recounted,
see supra, at 3, the First Congress accorded the protections of the
Nation's first federal copyright statute to existing and future works alike.
1790 Act § 1. n5 Since then, Congress has regularly applied duration extensions
to both existing and future copyrights. 1831 Act §§ 1, 16; 1909 Act §§ 23-24;
1976 Act §§ 302-303; 17 U.S.C. §§ 302-304. n6
Because the Clause empowering Congress to confer copyrights also authorizes
patents, congressional practice with respect to patents informs our inquiry.
We count it significant that early Congresses extended the [*29] duration of numerous individual patents
as well as copyrights. See, e.g., Act of Jan. 7, 1808, ch. 6, 6 Stat.
70 (patent); Act of Mar. 3, 1809, ch. 35, 6 Stat. 80 (patent); Act of Feb. 7,
1815, ch. 36, 6 Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6 Stat. 389
(copyright); Act of Feb. 11, 1830, ch. 13, 6 Stat. 403 (copyright); see generally
Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical
Perspective, 49 J. Copyright Society 19 (2001). The courts saw no "limited Times"
impediment to such extensions; renewed or extended terms were upheld in the
early days, for example, by Chief Justice Marshall and Justice Story sitting
as circuit justices. See Evans v. Jordan, 8 F. Cas. 872, 874,
F. Cas. No. 4564 (No. 4,564) (CC Va. 1813) (Marshall, J.) ("The construction
of the constitution which admits the renewal of a patent is not controverted.
A renewed patent . . . confers the same rights, with an original."), aff'd,
Evans v. Jordan & Morehead, 13 U.S. 199, 9 Cranch 199, 3 L. Ed. 704 (1815);
Blanchard v. Sprague, 3 F. Cas. 648, 650, F. Cas. No. 1518
(No. 1,518) (CC Mass. 1839) (Story, J.) ("I never have entertained any doubt
of the constitutional authority of congress" to enact a 14-year patent [*30] extension that "operates retrospectively");
see also Evans v. Robinson, 8 F. Cas. 886, 888, F. Cas. No.
4571 (No. 4,571) (CC Md. 1813) (Congresses "have the exclusive right . . . to
limit the times for which a patent right shall be granted, and are not restrained
from renewing a patent or prolonging" it.). n7
Further, although prior to the instant case this Court did not have occasion
to decide whether extending the duration of existing copyrights complies with
the "limited Times" prescription, the Court has found no constitutional barrier
to the legislative expansion [*31] of existing patents. n8 McClurg
v. Kingsland, 1 How. 202, (1843), is the pathsetting precedent. The
patentee in that case was unprotected under the law in force when the patent
issued because he had allowed his employer briefly to practice the invention
before he obtained the patent. Only upon enactment, two years later, of an exemption
for such allowances did the patent become valid, retroactive to the time it
issued. McClurg upheld retroactive application of the new law. The
Court explained that the legal regime governing a particular patent "depends
on the law as it stood at the emanation of the patent, together with such changes
as have been since made; for though they may be retrospective in their operation,
that is not a sound objection to their validity." Id., 1 How. at 206.
n9 Neither is it a sound objection to the validity of a copyright term extension,
enacted pursuant to the same constitutional grant of authority, that the enlarged
term covers existing copyrights.
Congress' consistent historical practice of applying newly enacted copyright
terms to future and existing copyrights reflects a judgment stated concisely
by Representative Huntington at the time of the 1831 Act: "Justice, policy,
and equity alike forbid" that [*33] an "author who had
sold his [work] a week ago, be placed in a worse situation than the author who
should sell his work the day after the passing of [the] act." 7 Cong. Deb. 424
(1831); accord Symposium, The Constitutionality of Copyright Term Extension,
18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) ("Since 1790,
it has indeed been Congress's policy that the author of yesterday's work should
not get a lesser reward than the author of tomorrow's work just because Congress
passed a statute lengthening the term today."). The CTEA follows this historical
practice by keeping the duration provisions of the 1976 Act largely in place
and simply adding 20 years to each of them. Guided by text, history, and precedent,
we cannot agree with petitioners' submission that extending the duration of
existing copyrights is categorically beyond Congress' authority under the Copyright
Satisfied that the CTEA complies with the "limited Times" prescription, we turn
now to whether it is a rational exercise of the legislative authority conferred
by the Copyright Clause. On that point, we defer substantially to Congress.
Sony, 464 U.S., at 429 ("It is [*34]
Congress that has been assigned the task of defining the scope of the limited
monopoly that should be granted to authors . . . in order to give the public
appropriate access to their work product."). n10
The CTEA reflects judgments of a kind Congress typically makes, judgments we
cannot dismiss as outside the Legislature's domain. As respondent describes,
see Brief for Respondent 37-38, a key factor in the CTEA's passage was a 1993
European Union (EU) directive instructing EU members to establish a copyright
term of life plus 70 years. EU Council Directive 93/98, p. 4; see 144 Cong.
Rec. S12377-S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). Consistent
with the Berne Convention, the EU directed its members to deny this longer term
to the works of any non-EU country whose laws did not secure the same extended
term. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright § 5.3,
p. 239 (2001). By extending the baseline United States copyright term to life
plus 70 years, Congress sought to ensure that American authors would receive
the same copyright protection in Europe as their European counterparts. n11
The CTEA may also provide greater incentive for American and other authors to
create and disseminate their work in the United States. See Perlmutter, Participation
in the International Copyright System as a Means to Promote the Progress of
Science and Useful Arts, [*36]
36 Loyola (LA) L. Rev. 323, 330 (2002) ("Matching the level of [copyright] protection
in the United States [to that in the EU] can ensure stronger protection for
U.S. works abroad and avoid competitive disadvantages vis-a-vis foreign rightholders.");
see also id., at 332 (the United States could not "play a leadership
role" in the give-and-take evolution of the international copyright system,
indeed it would "lose all flexibility," "if the only way to promote the progress
of science were to provide incentives to create new works"). n12
In addition to international concerns, n13 Congress passed the CTEA in light
of demographic, economic, and technological changes, Brief for Respondent 25-26,
33, and nn. 23 and 24, n14 and rationally credited projections that longer terms
would encourage copyright holders to invest in the restoration and public distribution
of their works, id., at 34-37; see H. R. Rep. No. 105-452, p. 4 (1998)
(term extension "provides copyright owners generally with the incentive to restore
older works and further disseminate them to the public"). n15
In sum, we find that the CTEA is a rational enactment; we are not at liberty
to second-guess congressional determinations and policy judgments of this order,
however debatable or arguably unwise they may be. Accordingly, we cannot conclude
that the CTEA -- which continues the unbroken congressional practice of treating
future and existing copyrights in parity for term extension purposes -- is an
impermissible exercise of Congress' power under the Copyright Clause.
Petitioners' Copyright Clause arguments rely on several novel readings of the
Clause. We next address these arguments and explain why we find them unpersuasive.
Petitioners contend that even if the CTEA's 20-year term extension is literally
a "limited Time," permitting Congress to extend existing copyrights allows it
to evade the "limited Times" constraint by creating effectively perpetual copyrights
through repeated extensions. We disagree.
As the Court of Appeals observed, a regime of perpetual copyrights "clearly
is not the situation before us." 239 F.3d at 379. Nothing before this Court
warrants construction of the CTEA's 20-year term extension as a congressional
attempt to evade or override the [*41] "limited Times" constraint.
n16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses
a constitutionally significant threshold with respect to "limited Times" that
the 1831, 1909, and 1976 Acts did not. See supra, at 3-5; Austin, supra,
n. 13, at 56 ("If extending copyright protection to works already in existence
is constitutionally suspect," so is "extending the protections of U. S copyright
law to works by foreign authors that had already been created and even first
published when the federal rights attached."). Those earlier Acts did not create
perpetual copyrights, and neither does the CTEA. n17
Petitioners dominantly advance a series of arguments all premised on the proposition
that Congress may not extend an existing [*43] copyright absent new consideration
from the author. They pursue this main theme under three headings. Petitioners
contend that the CTEA's extension of existing copyrights (1) overlooks the requirement
of "originality," (2) fails to "promote the Progress of Science," and (3) ignores
copyright's quid pro quo.
Petitioners'"originality" argument draws on Feist Publications, Inc.
v. Rural Telephone Service Co., 499 U.S. 340, 113 L. Ed. 2d 358, 111
S. Ct. 1282(1991). In Feist, we observed that "the sine qua non
of copyright is originality," id., at 345, and held that copyright
protection is unavailable to "a narrow category of works in which the creative
spark is utterly lacking or so trivial as to be virtually nonexistent," id.,
at 359. Relying on Feist, petitioners urge that even if a work is sufficiently
"original" to qualify for copyright protection in the first instance, any extension
of the copyright's duration is impermissible because, once published, a work
is no longer original.
Feist, however, did not touch on the duration of copyright protection.
Rather, the decision addressed the core question of copyrightability, i.e.,
the "creative [*44] spark" a work must have to be eligible
for copyright protection at all. Explaining the originality requirement, Feist
trained on the Copyright Clause words "Authors" and "Writings." Id.,
at 346-347. The decision did not construe the "limited Times" for which a work
may be protected, and the originality requirement has no bearing on that prescription.
More forcibly, petitioners contend that the CTEA's extension of existing copyrights
does not "promote the Progress of Science" as contemplated by the preambular
language of the Copyright Clause. Art. I, § 8, cl. 8. To sustain this objection,
petitioners do not argue that the Clause's preamble is an independently enforceable
limit on Congress' power. See 239 F.3d at 378 (Petitioners acknowledge that
"the preamble of the Copyright Clause is not a substantive limit on Congress'
legislative power." (internal quotation marks omitted)). Rather, they maintain
that the preambular language identifies the sole end to which Congress may legislate;
accordingly, they conclude, the meaning of "limited Times" must be "determined
in light of that specified end." Brief for Petitioners 19. The CTEA's extension
of existing [*45] copyrights categorically fails to
"promote the Progress of Science," petitioners argue, because it does not stimulate
the creation of new works but merely adds value to works already created.
As petitioners point out, we have described the Copyright Clause as "both a
grant of power and a limitation," Graham v. John Deere Co. of Kansas
City, 383 U.S. 1, 5 (1966), and have said that "the primary objective of
copyright" is "to promote the Progress of Science," Feist, 499 U.S.,
at 349. The "constitutional command," we have recognized, is that Congress,
to the extent it enacts copyright laws at all, create a "system" that "promotes
the Progress of Science." Graham, 383 U.S., at 6. n18
We have also stressed, however, that it is generally for Congress, not the courts,
to decide how best to pursue the Copyright Clause's objectives. See Stewart
v. Abend, 495 U.S., at 230 ("The evolution of the duration of copyright
protection tellingly illustrates the difficulties Congress faces . . . . It
is not our role to alter the delicate balance Congress has labored to achieve.");
Sony, 464 U.S., at 429 ("It is Congress that has been assigned the
task of defining the scope of [rights] that should be granted to authors or
to inventors in order to give the public appropriate access to their work product.");
Graham, 383 U.S., at 6 ("Within the limits of the constitutional grant,
the Congress may, of course, implement the stated purpose of the Framers by
selecting the policy which in its judgment best effectuates the constitutional
aim."). The justifications we earlier set out for Congress' enactment of the
CTEA, supra, at 14-17, provide a rational basis for the conclusion
that the CTEA "promotes the Progress of Science."
On the issue of copyright duration, Congress, from the start, has routinely
applied new definitions [*47] or adjustments of the copyright term
to both future works and existing works not yet in the public domain. n19 Such
consistent congressional practice is entitled to "very great weight, and when
it is remembered that the rights thus established have not been disputed during
a period of [over two] centuries, it is almost conclusive." Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53, 57, 28 L. Ed. 349, 4
S. Ct. 279. Indeed, "this Court has repeatedly laid down the principle that
a contemporaneous legislative exposition of the Constitution when the founders
of our Government and framers of our Constitution were actively participating
in public affairs, acquiesced in for a long term of years, fixes the construction
to be given [the Constitution's] provisions." Myers v. United States,
272 U.S. 52, 175, 71 L. Ed. 160, 47 S. Ct. 21, 62 Ct. Cl. 773 (1926). Congress'
unbroken practice since the founding generation thus overwhelms petitioners'
argument that the CTEA's extension of existing copyrights fails per se
to "promote the Progress of Science." n20
Closely related to petitioners' preambular argument, or a variant of it, is
their assertion that the Copyright Clause "imbeds a quid pro quo." Brief for
Petitioners 23. They contend, in this regard, that Congress may grant to an
"Author" an "exclusive Right" for a "limited Time," but only in exchange for
a "Writing." Congress' power to confer copyright protection, petitioners argue,
is thus contingent upon an exchange: The author of an original work receives
an "exclusive [*49] Right" for a "limited Time" in exchange
for a dedication to the public thereafter. Extending an existing copyright without
demanding additional consideration, petitioners maintain, bestows an unpaid-for
benefit on copyright holders and their heirs, in violation of the quid pro
We can demur to petitioners' description of the Copyright Clause as a grant
of legislative authority empowering Congress "to secure a bargain -- this for
that." Brief for Petitioners 16; see Mazer v. Stein, 347 U.S.
201, 219 (1954) ("The economic philosophy behind the clause empowering Congress
to grant patents and copyrights is the conviction that encouragement of individual
effort by personal gain is the best way to advance public welfare through the
talents of authors and inventors in 'Science and useful Arts.'"). But the legislative
evolution earlier recalled demonstrates what the bargain entails. Given the
consistent placement of existing copyright holders in parity with future holders,
the author of a work created in the last 170 years would reasonably comprehend,
as the "this" offered her, a copyright not only for the time in place when protection
is gained, but [*50] also for any renewal or extension
legislated during that time. n21 *Vested interest in future extensions? Congress
could rationally seek to "promote . . . Progress" by including in every copyright
statute an express guarantee that authors would receive the benefit of any later
legislative extension of the copyright term. Nothing in the Copyright Clause
bars Congress from creating the same incentive by adopting the same position
as a matter of unbroken practice. See Brief for Respondent 31-32.
Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U.S.
225 (1964), nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
489 U.S. 141, 103 L. Ed. 2d 118, 109 S. Ct. 971 (1989), is to the contrary.
In both cases, we invalidated the application of certain state laws as inconsistent
with the federal patent regime. Sears, 376 U.S., at 231-233; Bonito,
489 U.S., at 152. Describing Congress' constitutional authority to confer patents,
Bonito Boats noted: "The Patent Clause itself reflects a balance between
the need to encourage innovation and the avoidance of monopolies which stifle
competition without any concomitant advance in the 'Progress of Science and
useful Arts.'" Id., at 146. Sears similarly stated that "patents
are not given as favors . . . but are meant to encourage invention by rewarding
the inventor with the right, limited to a term of years fixed by the patent,
to exclude others from the use of his invention." 376 U.S., at 229. Neither
case concerned the extension of a patent's duration. Nor did either suggest
that such an extension might be constitutionally infirm. Rather, Bonito
Boats reiterated [*52] the Court's unclouded
understanding: "It is for Congress to determine if the present system" effectuates
the goals of the Copyright and Patent Clause. 489 U.S., at 168. And as we have
documented, see supra, at 10-13, Congress has many times sought to
effectuate those goals by extending existing patents.
We note, furthermore, that patents and copyrights do not entail the same exchange,
and that our references to a quid pro quo typically appear in the patent
context. See, e.g., J. E. M. Ag Supply, Inc. v. Pioneer
Hi-Bred International, Inc., 534 U.S. 124, 142, 151 L. Ed. 2d 508, 122
S. Ct. 593 (2001) ("The disclosure required by the Patent Act is 'the quid
pro quo of the right to exclude.'" (quoting Kewanee Oil Co. v.
Bicron Corp., 416 U.S. 470, 484, 40 L. Ed. 2d 315, 94 S. Ct. 1879 (1974)));
Bonito Boats, 489 U.S., at 161 ("the quid pro quo of substantial
creative effort required by the federal [patent] statute"); Brenner
v. Manson, 383 U.S. 519, 534, 16 L. Ed. 2d 69, 86 S. Ct. 1033, 1966
Dec. Comm'r Pat. 74 (1966) ("The basic quid pro quo . . . for granting
a patent monopoly is the benefit derived by the public from an invention with
substantial utility."); Pennock v. Dialogue, 2 Pet. 1, 23,
27 U.S. 1, 7 L. Ed. 327 (1829) [*53] (If an invention is
already commonly known and used when the patent is sought, "there might be sound
reason for presuming, that the legislature did not intend to grant an exclusive
right," given the absence of a "quid pro quo."). This is understandable,
given that immediate disclosure is not the objective of, but is exacted
from, the patentee. It is the price paid for the exclusivity secured. See
J. E. M. Ag Supply, 534 U.S., at 142. For the author seeking copyright
protection, in contrast, disclosure is the desired objective, not something
exacted from the author in exchange for the copyright. Indeed, since the 1976
Act, copyright has run from creation, not publication. See 1976 Act § 302(a);
17 U.S.C. § 302(a).
Further distinguishing the two kinds of intellectual property, copyright gives
the holder no monopoly on any knowledge. A reader of an author's writing may
make full use of any fact or idea she acquires from her reading. See § 102(b).
The grant of a patent, on the other hand, does prevent full use by others of
the inventor's knowledge. See Brief for Respondent 22; Alfred Bell &
Co. v. Catalda Fine Arts, 191 F.2d 99, 103, n. 16 (CA2 1951) [*54] (The monopoly granted by a copyright
"is not a monopoly of knowledge. The grant of a patent does prevent full use
being made of knowledge, but the reader of a book is not by the copyright laws
prevented from making full use of any information he may acquire from his reading."
(quoting W. Copinger, Law of Copyright 2 (7th ed. 1936))). In light of these
distinctions, one cannot extract from language in our patent decisions -- language
not trained on a grant's duration -- genuine support for petitioners' bold view.
Accordingly, we reject the proposition that a quid pro quo requirement
stops Congress from expanding copyright's term in a manner that puts existing
and future copyrights in parity. n22
As an alternative to their various arguments that extending existing copyrights
violates the Copyright Clause per se, petitioners urge heightened judicial
review of such extensions to ensure that they appropriately pursue the purposes
of the Clause. See Brief for Petitioners 31-32. Specifically, petitioners ask
us to apply the "congruence and proportionality" standard described in cases
evaluating exercises of Congress' power under § 5 of the Fourteenth Amendment.
See, e.g., City of Boerne v. Flores, 521 U.S. 507,
138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997). But we have never applied that standard
outside the § 5 context; it does not hold sway for judicial review of legislation
enacted, as copyright laws are, pursuant to Article I authorization.
Section 5 authorizes Congress to enforce commands contained in and
incorporated into the Fourteenth Amendment. Amdt. 14, § 5 ("The Congress shall
have power to enforce, by appropriate legislation, the provisions of
this article." (emphasis added)). The Copyright Clause, in contrast, empowers
Congress to define the scope of the substantive right. See Sony,
464 U.S., at 429. Judicial deference to such congressional [*56] definition is "but a corollary to
the grant to Congress of any Article I power." Graham, 383 U.S., at
6. It would be no more appropriate for us to subject the CTEA to "congruence
and proportionality" review under the Copyright Clause than it would be for
us to hold the Act unconstitutional per se.
For the several reasons stated, we find no Copyright Clause impediment to the
CTEA's extension of existing copyrights.
Petitioners separately argue that the CTEA is a content-neutral regulation of
speech that fails heightened judicial review under the First Amendment. n23
We reject petitioners' plea for imposition of uncommonly strict scrutiny on
a copyright scheme that incorporates its own speech-protective purposes and
safeguards. The Copyright Clause and First Amendment were adopted close in time.
This proximity indicates that, in the Framers' view, copyright's limited monopolies
are compatible with free speech principles. Indeed, copyright's purpose is to
promote the creation and publication of free expression. As Harper
& Row observed: "The Framers intended copyright itself to be the engine
of free expression. By establishing a marketable right to [*57] the use of one's expression, copyright
supplies the economic incentive to create and disseminate ideas." 471 U.S.,
In addition to spurring the creation and publication of new expression, copyright
law contains built-in First Amendment accommodations. [*58]
See id., at 560. First, it distinguishes between ideas and expression
and makes only the latter eligible for copyright protection. Specifically, 17
U.S.C. § 102(b) provides: "In no case does copyright protection for an original
work of authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which
it is described, explained, illustrated, or embodied in such work." As we said
in Harper & Row, this "idea/expression dichotomy strikes a definitional
balance between the First Amendment and the Copyright Act by permitting free
communication of facts while still protecting an author's expression." 471 U.S.,
at 556 (internal quotation marks omitted). Due to this distinction, every idea,
theory, and fact in a copyrighted work becomes instantly available for public
exploitation at the moment of publication. See Feist, 499 U.S., at
Second, the "fair use" defense allows the public to use not only facts and ideas
contained in a copyrighted work, but also expression itself in certain circumstances.
Codified at 17 U.S.C. § 107, [*59] the defense provides: "The fair use
of a copyrighted work, including such use by reproduction in copies . . ., for
purposes such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement
of copyright." The fair use defense affords considerable "latitude for scholarship
and comment," Harper & Row, 471 U.S., at 560, and even for parody,
see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
(rap group's musical parody of Roy Orbison's "Oh, Pretty Woman" may be fair
The CTEA itself supplements these traditional First Amendment safeguards. First,
it allows libraries, archives, and similar institutions to "reproduce" and "distribute,
display, or perform in facsimile or digital form" copies of certain published
works "during the last 20 years of any term of copyright . . . for purposes
of preservation, scholarship, or research" if the work is not already being
exploited commercially and further copies are unavailable at a reasonable price.
17 U.S.C. § 108(h); see Brief for Respondent 36. Second, Title II of the CTEA,
known as the [*60] Fairness in Music Licensing
Act of 1998, exempts small businesses, restaurants, and like entities from having
to pay performance royalties on music played from licensed radio, television,
and similar facilities. 17 U.S.C. § 110(5)(B); see Brief for Representative
F. James Sensenbrenner, Jr., et al. as Amici Curiae 5-6, n. 3.
Finally, the case petitioners principally rely upon for their First Amendment
argument, Turner Broadcasting System, Inc. v. FCC, 512 U.S.
622, 129 L. Ed. 2d 497, 114 S. Ct. 2445 (1994), bears little on copyright. The
statute at issue in Turner required cable operators to carry and transmit
broadcast stations through their proprietary cable systems. Those "must-carry"
provisions, we explained, implicated "the heart of the First Amendment," namely,
"the principle that each person should decide for himself or herself the ideas
and beliefs deserving of expression, consideration, and adherence." Id.,
The CTEA, in contrast, does not oblige anyone to reproduce another's speech
against the carrier's will. Instead, it protects authors' original expression
from unrestricted exploitation. Protection of that order does not raise the
free speech [*61] concerns present when the government
compels or burdens the communication of particular facts or ideas. The First
Amendment securely protects the freedom to make -- or decline to make -- one's
own speech; it bears less heavily when speakers assert the right to make other
people's speeches. To the extent such assertions raise First Amendment concerns,
copyright's built-in free speech safeguards are generally adequate to address
them. We recognize that the D. C. Circuit spoke too broadly when it declared
copyrights "categorically immune from challenges under the First Amendment."
239 F.3d at 375. But when, as in this case, Congress has not altered the traditional
contours of copyright protection, further First Amendment scrutiny is unnecessary.
See Harper & Row, 471 U.S., at 560; cf. San Francisco Arts
& Athletics, Inc. v. United States Olympic Comm., 483 U.S.
522, 97 L. Ed. 2d 427, 107 S. Ct. 2971 (1987). n24
If petitioners' vision of the Copyright Clause held sway, it would do more than
render the CTEA's duration extensions unconstitutional as to existing works.
Indeed, petitioners' assertion that the provisions of the CTEA are not severable
would make the CTEA's enlarged terms invalid even as to tomorrow's work. The
1976 Act's time extensions, which set the pattern that the CTEA followed, would
be vulnerable as well.
As we read the Framers' instruction, the Copyright Clause empowers Congress
to determine the intellectual property regimes that, overall, in that body's
judgment, will serve the ends of the Clause. See Graham, 383 U.S.,
at 6 (Congress may "implement the stated purpose of the Framers by selecting
the policy which in its judgment best effectuates the constitutional
aim." (emphasis added)). Beneath the facade of their inventive constitutional
interpretation, petitioners forcefully urge that Congress pursued very bad policy
in prescribing the CTEA's long terms. The wisdom of Congress' action, however,
is not within our province to second guess. Satisfied that the legislation before
us remains inside the domain the Constitution assigns to the First [*63]
Branch, we affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE BREYER, dissenting.
The Constitution's Copyright Clause grants Congress the power to "promote
the Progress of Science . . . by securing for limited Times
to Authors . . . the exclusive Right to their respective Writings."
Art. I, § 8, cl. 8 (emphasis added). The statute before us, the 1998 Sonny Bono
Copyright [*97] Term Extension Act, extends the term
of most existing copyrights to 95 years and that of many new copyrights to 70
years after the author's death. The economic effect of this 20-year extension
-- the longest blanket extension since the Nation's founding -- is to make the
copyright term not limited, but virtually perpetual. Its primary legal effect
is to grant the extended term not to authors, but to their heirs, estates, or
corporate successors. And most importantly, its practical effect is not to promote,
but to inhibit, the progress of "Science" -- by which word the Framers meant
learning or knowledge, E. Walterscheid, The Nature of the Intellectual Property
Clause: A Study in Historical Perspective 125-126 (2002).
The majority believes these conclusions rest upon practical judgments that at
most suggest the statute is unwise, not that it is unconstitutional. Legal distinctions,
however, are often matters of degree. Panhandle Oil Co. v. Mississippi
ex rel. Knox, 277 U.S. 218, 223, 72 L. Ed. 857, 48 S. Ct. 451 (1928) (Holmes,
J., dissenting), overruled in part by Alabama v. King & Boozer,
314 U.S. 1, 8-9, 86 L. Ed. 3, 62 S. Ct. 43 (1941); accord, Walz v.
Tax Comm'n of City of New York, 397 U.S. 664, 678-679 (1970). [*98] And in this case the failings of degree
are so serious that they amount to failings of constitutional kind. Although
the Copyright Clause grants broad legislative power to Congress, that grant
has limits. And in my view this statute falls outside them.
The "monopoly privileges" that the Copyright Clause confers "are neither unlimited
nor primarily designed to provide a special private benefit." Sony Corp.
of America v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984); cf. Graham v. John Deere Co. of Kansas City, 383 U.S.
1, 5 (1966). This Court has made clear that the Clause's limitations are judicially
enforceable. E.g., Trade-Mark Cases, 100 U.S. 82, 93-94, 25
L. Ed. 550, 1879 Dec. Comm'r Pat. 619 (1879). And, in assessing this statute
for that purpose, I would take into account the fact that the Constitution is
a single document, that it contains both a Copyright Clause and a First Amendment,
and that the two are related.
The Copyright Clause and the First Amendment seek related objectives -- the
creation and dissemination of information. When working in tandem, these provisions
mutually reinforce each other, the first serving as an "engine of free [*99]
expression," Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 558 (1985), the second assuring that government throws up no obstacle
to its dissemination. At the same time, a particular statute that exceeds proper
Copyright Clause bounds may set Clause and Amendment at cross-purposes, thereby
depriving the public of the speech-related benefits that the Founders, through
both, have promised.
Consequently, I would review plausible claims that a copyright statute seriously,
and unjustifiably, restricts the dissemination of speech somewhat more carefully
than reference to this Court's traditional Commerce Clause jurisprudence might
suggest, cf. ante, at 13-14, and n. 10. There is no need in this case
to characterize that review as a search for "'congruence and proportionality,'"
ante, at 27, or as some other variation of what this Court has called
"intermediate scrutiny," e.g., San Francisco Arts & Athletics,
Inc. v. United States Olympic Comm., 483 U.S. 522, 536-537 (1987)
(applying intermediate scrutiny to a variant of normal trademark protection).
Cf. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,
402-403, 145 L. Ed. 2d 886, 120 S. Ct. 897 (2000) [*100] (BREYER, J., concurring)
(test of proportionality between burdens and benefits "where a law significantly
implicates competing constitutionally protected interests"). Rather, it is necessary
only to recognize that this statute involves not pure economic regulation, but
regulation of expression, and what may count as rational where economic regulation
is at issue is not necessarily rational where we focus on expression -- in a
Nation constitutionally dedicated to the free dissemination of speech, information,
learning, and culture. In this sense only, and where line-drawing among constitutional
interests is at issue, I would look harder than does the majority at the statute's
rationality -- though less hard than precedent might justify, see, e.g.,
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446-450,
87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Plyler v. Doe, 457
U.S. 202, 223-224, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982); Department
of Agriculture v. Moreno, 413 U.S. 528, 534-538, 37 L. Ed. 2d
782, 93 S. Ct. 2821 (1973).
Thus, I would find that the statute lacks the constitutionally necessary rational
support (1) if the significant benefits that it bestows are private, not public;
(2) if it threatens seriously [*101] to undermine the expressive
values that the Copyright Clause embodies; and (3) if it cannot find justification
in any significant Clause-related objective. Where, after examination of the
statute, it becomes difficult, if not impossible, even to dispute these characterizations,
Congress'"choice is clearly wrong." Helvering v. Davis, 301
U.S. 619, 640, 81 L. Ed. 1307, 57 S. Ct. 904 (1937).
Because we must examine the relevant statutory effects in light of the Copyright
Clause's own purposes, we should begin by reviewing the basic objectives of
that Clause. The Clause authorizes a "tax on readers for the purpose of giving
a bounty to writers." 56 Parl. Deb. (3d Ser.) (1841) 341, 350 (Lord Macaulay).
Why? What constitutional purposes does the "bounty" serve?
The Constitution itself describes the basic Clause objective as one of "promoting
the Progress of Science," i.e., knowledge and learning. The Clause
exists not to "provide a special private benefit," Sony, supra, at
429, but "to stimulate artistic creativity for the general public good," Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151, 156, 45 L. Ed. 2d
84, 95 S. Ct. 2040 (1975). It does so by "motivating the creative [*102] activity of authors"
through "the provision of a special reward." Sony, supra,
at 429. The "reward" is a means, not an end. And that is why the copyright term
is limited. It is limited so that its beneficiaries -- the public -- "will not
be permanently deprived of the fruits of an artist's labors." Stewart
v. Abend, 495 U.S. 207, 228 (1990).
That is how the Court previously has described the Clause's objectives. See
also Mazer v. Stein, 347 U.S. 201, 219 (1954) ("Copyright
law . . . makes reward to the owner a secondary consideration" (internal quotation
marks omitted)); Sony, supra, at 429 ("Limited grant" is "intended
. . . to allow the public access to the products of [authors'] genius after
the limited period of exclusive control has expired"); Harper & Row,
supra, at 545 (Copyright is "intended to increase and not to impede
the harvest of knowledge"). But cf. ante, at 21-22, n. 18. And, in
doing so, the Court simply has reiterated the views of the Founders.
Madison, like Jefferson and others in the founding generation, warned against
the dangers of monopolies. See, e.g., Monopolies. Perpetuities. Corporations.
[*103] Ecclesiastical Endowments. in J.
Madison, Writings 756 (J. Rakove ed. 1999) (hereinafter Madison on Monopolies);
Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers
of Thomas Jefferson 443 (J. Boyd ed. 1956) (hereinafter Papers of Thomas Jefferson)
(arguing against even copyright monopolies); 2 Annals of Cong. 1917 (Gales and
Seaton eds. 1834) (statement of Rep. Jackson in the First Congress, Feb. 1791)
("What was it drove our forefathers to this country? Was it not the ecclesiastical
corporations and perpetual monopolies of England and Scotland?"). Madison noted
that the Constitution had "limited them to two cases, the authors of Books,
and of useful inventions." Madison on Monopolies 756. He thought that
in those two cases monopoly is justified because it amounts to "compensation
for" an actual community "benefit" and because the monopoly is "temporary" --
the term originally being 14 years (once renewable). Ibid. Madison
concluded that "under that limitation a sufficient recompence and encouragement
may be given." Ibid. But he warned in general that monopolies must
be "guarded with strictness agst abuse." Ibid.
Many Members of the [*104] Legislative Branch
have expressed themselves similarly. Those who wrote the House Report on the
landmark Copyright Act of 1909, for example, said that copyright was not designed
"primarily" to "benefit" the "author" or "any particular class of citizens,
however worthy." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 6-7 (1909). Rather,
under the Constitution, copyright was designed "primarily for the benefit of
the public," for "the benefit of the great body of people, in that it will stimulate
writing and invention." Id., at 7. And were a copyright statute not
"believed, in fact, to accomplish" the basic constitutional objective of advancing
learning, that statute "would be beyond the power of Congress" to enact. Id.,
at 6-7. Similarly, those who wrote the House Report on legislation that implemented
the Berne Convention for the Protection of Literary and Artistic Works said
that "the constitutional purpose of copyright is to facilitate the flow of ideas
in the interest of learning." H. R. Rep. No. 100-609, p. 22 (1988) (internal
quotation marks omitted). They added:
"Under the U.S. Constitution, the primary objective of copyright law is not
to reward the author, but rather to [*105]
secure for the public the benefits derived from the authors' labors. By giving
authors an incentive to create, the public benefits in two ways: when the original
expression is created and . . . when the limited term . . . expires and the
creation is added to the public domain." Id., at 17.
For present purposes, then, we should take the following as well established:
that copyright statutes must serve public, not private, ends; that they must
seek "to promote the Progress" of knowledge and learning; and that they must
do so both by creating incentives for authors to produce and by removing the
related restrictions on dissemination after expiration of a copyright's "limited
Time" -- a time that (like "a limited monarch") is "restrained" and
"circumscribed," "not [left] at large," 2 S. Johnson, A Dictionary of the English
Language 1151 (4th rev. ed. 1773). I would examine the statute's effects in
light of these well-established constitutional purposes.
This statute, like virtually every copyright statute, imposes upon the public
certain expression-related costs in the form of (1) royalties that may be higher
than necessary to evoke creation of the relevant work, and (2) [*106]
a requirement that one seeking to reproduce a copyrighted work must obtain the
copyright holder's permission. The first of these costs translates into higher
prices that will potentially restrict a work's dissemination. The second means
search costs that themselves may prevent reproduction even where the author
has no objection. Although these costs are, in a sense, inevitable concomitants
of copyright protection, there are special reasons for thinking them especially
First, the present statute primarily benefits the holders of existing copyrights,
i.e., copyrights on works already created. And a Congressional Research
Service (CRS) study prepared for Congress indicates that the added royalty-related
sum that the law will transfer to existing copyright holders is large. E. Rappaport,
CRS Report for Congress, Copyright Term Extension: Estimating the Economic Values
(1998) (hereinafter CRS Report). In conjunction with official figures on copyright
renewals, the CRS Report indicates that only about 2% of copyrights between
55 and 75 years old retain commercial value -- i.e., still generate
royalties after that time. Brief for Petitioners 7 (estimate, uncontested [*107] by respondent, based
on data from the CRS, Census Bureau, and Library of Congress). But books, songs,
and movies of that vintage still earn about $ 400 million per year in royalties.
CRS Report 8, 12, 15. Hence, (despite declining consumer interest in any given
work over time) one might conservatively estimate that 20 extra years of copyright
protection will mean the transfer of several billion extra royalty dollars to
holders of existing copyrights -- copyrights that, together, already will have
earned many billions of dollars in royalty "reward." See id., at 16.
The extra royalty payments will not come from thin air. Rather, they ultimately
come from those who wish to read or see or hear those classic books or films
or recordings that have survived. Even the $ 500,000 that United Airlines has
had to pay for the right to play George Gershwin's 1924 classic Rhapsody in
Blue represents a cost of doing business, potentially reflected in the ticket
prices of those who fly. See Ganzel, Copyright or Copywrong? Training 36, 42
(Dec. 2002). Further, the likely amounts of extra royalty payments are large
enough to suggest that unnecessarily high prices will unnecessarily restrict
distribution [*108] of classic works (or lead to disobedience
of the law) -- not just in theory but in practice. Cf. CRS Report 3 ("New, cheaper
editions can be expected when works come out of copyright"); Brief for College
Art Association et al. as Amici Curiae 24 (One year after expiration
of copyright on Willa Cather's My Antonia, seven new editions appeared at prices
ranging from $ 2 to $ 24); Ganzel, supra, at 40-41, 44 (describing
later abandoned plans to charge individual Girl Scout camps $ 257 to $ 1,439
annually for a license to sing songs such as God Bless America around a campfire).
A second, equally important, cause for concern arises out of the fact that copyright
extension imposes a "permissions" requirement -- not only upon potential users
of "classic" works that still retain commercial value, but also upon potential
users of any other work still in copyright. Again using CRS estimates,
one can estimate that, by 2018, the number of such works 75 years of age or
older will be about 350,000. See Brief for Petitioners 7. Because the Copyright
Act of 1976 abolished the requirement that an owner must renew a copyright,
such still-in-copyright works (of little or no commercial value) [*109] will eventually number in the millions.
See Pub. L. 94-553, §§ 302-304, 90 Stat. 2572-2576; U.S. Dept. of Commerce,
Bureau of Census, Statistical History of the United States: From Colonial Times
to the Present 956 (1976) (hereinafter Statistical History).
The potential users of such works include not only movie buffs and aging jazz
fans, but also historians, scholars, teachers, writers, artists, database operators,
and researchers of all kinds -- those who want to make the past accessible for
their own use or for that of others. The permissions requirement can inhibit
their ability to accomplish that task. Indeed, in an age where computer-accessible
databases promise to facilitate research and learning, the permissions requirement
can stand as a significant obstacle to realization of that technological hope.
The reason is that the permissions requirement can inhibit or prevent the use
of old works (particularly those without commercial value): (1) because it may
prove expensive to track down or to contract with the copyright holder, (2)
because the holder may prove impossible to find, or (3) because the holder when
found may deny permission either outright or through misinformed [*110] efforts to bargain. The CRS, for
example, has found that the cost of seeking permission "can be prohibitive."
CRS Report 4. And amici, along with petitioners, provide examples of
the kinds of significant harm at issue.
Thus, the American Association of Law Libraries points out that the clearance
process associated with creating an electronic archive, Documenting the American
South, "consumed approximately a dozen man-hours" per work. Brief for
American Association of Law Libraries et al. as Amici Curiae 20. The
College Art Association says that the costs of obtaining permission for use
of single images, short excerpts, and other short works can become prohibitively
high; it describes the abandonment of efforts to include, e.g., campaign
songs, film excerpts, and documents exposing "horrors of the chain gang" in
historical works or archives; and it points to examples in which copyright holders
in effect have used their control of copyright to try to control the content
of historical or cultural works. Brief for College Art Association et al. as
Amici Curiae 7-13. The National Writers Union provides similar examples.
Brief for National Writers Union et al. as [*111] Amici Curiae 25-27. Petitioners
point to music fees that may prevent youth or community orchestras, or church
choirs, from performing early 20th-century music. Brief for Petitioners 3-5;
see also App. 16-17 (Copyright extension caused abandonment of plans to sell
sheet music of Maurice Ravel's Alborada Del Gracioso). Amici for petitioners
describe how electronic databases tend to avoid adding to their collections
works whose copyright holders may prove difficult to contact, see, e.g.,
Arms, Getting the Picture: Observations from the Library of Congress on Providing
Online Access to Pictorial Images, 48 Library Trends 379, 405 (1999) (describing
how this tendency applies to the Library of Congress' own digital archives).
As I have said, to some extent costs of this kind accompany any copyright law,
regardless of the length of the copyright term. But to extend that term, preventing
works from the 1920's and 1930's from falling into the public domain, will dramatically
increase the size of the costs just as -- perversely -- the likely benefits
from protection diminish. See infra, at 13-15. The older the work,
the less likely it retains commercial value, and the harder [*112] it will likely prove to find the
current copyright holder. The older the work, the more likely it will prove
useful to the historian, artist, or teacher. The older the work, the less likely
it is that a sense of authors' rights can justify a copyright holder's decision
not to permit reproduction, for the more likely it is that the copyright holder
making the decision is not the work's creator, but, say, a corporation or a
great-grandchild whom the work's creator never knew. Similarly, the costs of
obtaining permission, now perhaps ranging in the millions of dollars, will multiply
as the number of holders of affected copyrights increases from several hundred
thousand to several million. See supra, at 8. The costs to the users
of nonprofit databases, now numbering in the low millions, will multiply as
the use of those computer-assisted databases becomes more prevalent. See, e.g.,
Brief for Internet Archive et al. as Amici Curiae 2, 21, and n. 37
(describing nonprofit Project Gutenberg). And the qualitative costs to education,
learning, and research will multiply as our children become ever more dependent
for the content of their knowledge upon computer-accessible databases [*113] -- thereby condemning that which
is not so accessible, say, the cultural content of early 20th-century history,
to a kind of intellectual purgatory from which it will not easily emerge.
The majority finds my description of these permissions-related harms overstated
in light of Congress' inclusion of a statutory exemption, which, during the
last 20 years of a copyright term, exempts "facsimile or digital" reproduction
by a "library or archives" "for purposes of preservation, scholarship, or research,"
17 U.S.C. § 108(h). Ante, at 30. This exemption, however, applies only
where the copy is made for the special listed purposes; it simply permits a
library (not any other subsequent users) to make "a copy" for those purposes;
it covers only "published" works not "subject to normal commercial exploitation"
and not obtainable, apparently not even as a used copy, at a "reasonable price";
and it insists that the library assure itself through "reasonable investigation"
that these conditions have been met. 17 U.S.C. § 108(h). What database proprietor
can rely on so limited an exemption -- particularly when the phrase "reasonable
investigation" [*114] is so open-ended and particularly
if the database has commercial, as well as non-commercial, aspects?
The majority also invokes the "fair use" exception, and it notes that copyright
law itself is restricted to protection of a work's expression, not its substantive
content. Ante, at 29-30. Neither the exception nor the restriction,
however, would necessarily help those who wish to obtain from electronic databases
material that is not there -- say, teachers wishing their students to see albums
of Depression Era photographs, to read the recorded words of those who actually
lived under slavery, or to contrast, say, Gary Cooper's heroic portrayal of
Sergeant York with filmed reality from the battlefield of Verdun. Such harm,
and more, see supra, at 6-11, will occur despite the 1998 Act's exemptions
and despite the other "First Amendment safeguards" in which the majority places
its trust, ante, at 29-30.
I should add that the Motion Picture Association of America also finds my concerns
overstated, at least with respect to films, because the extension will sometimes
make it profitable to reissue old films, saving them from extinction. Brief
for Motion Picture Association of [*115] America, Inc., as Amicus Curiae
14-24. Other film preservationists note, however, that only a small minority
of the many films, particularly silent films, from the 1920's and 1930's have
been preserved. 1 Report of the Librarian of Congress, Film Preservation 1993,
pp. 3-4 (Half of all pre-1950 feature films and more than 80% of all such pre-1929
films have already been lost); cf. Brief for Hal Roach Studios et al. as Amici
Curiae 18 (Out of 1,200 Twenties Era silent films still under copyright,
63 are now available on digital video disc). They seek to preserve the remainder.
See, e.g., Brief for Internet Archive et al. as Amici Curiae
22 (Nonprofit database digitized 1,001 public-domain films, releasing them online
without charge); 1 Film Preservation 1993, supra, at 23 (reporting
well over 200,000 titles held in public archives). And they tell us that copyright
extension will impede preservation by forbidding the reproduction of films within
their own or within other public collections. Brief for Hal Roach Studios et
al. as Amici Curiae 10-21; see also Brief for Internet Archive et al.
as Amici Curiae 16-29; Brief for American Association of Law Libraries
[*116] et al. as Amici
Because this subsection concerns only costs, not countervailing benefits, I
shall simply note here that, with respect to films as with respect to other
works, extension does cause substantial harm to efforts to preserve and to disseminate
works that were created long ago. And I shall turn to the second half of the
equation: Could Congress reasonably have found that the extension's toll-related
and permissions-related harms are justified by extension's countervailing preservationist
incentives or in other ways?
What copyright-related benefits might justify the statute's extension of copyright
protection? First, no one could reasonably conclude that copyright's traditional
economic rationale applies here. The extension will not act as an economic spur
encouraging authors to create new works. See Mazer, 347 U.S., at 219
(The "economic philosophy" of the Copyright Clause is to "advance public welfare"
by "encouraging individual effort" through "personal gain"); see also ante,
at 21-22, n. 18 ("Copyright law serves public ends by providing individuals
with an incentive to pursue private ones"). No potential author can reasonably
[*117] believe that he has more than a tiny
chance of writing a classic that will survive commercially long enough for the
copyright extension to matter. After all, if, after 55 to 75 years, only 2%
of all copyrights retain commercial value, the percentage surviving after 75
years or more (a typical pre-extension copyright term) -- must be far smaller.
See supra, at 7; CRS Report 7 (estimating that, even after copyright
renewal, about 3.8% of copyrighted books go out of print each year). And any
remaining monetary incentive is diminished dramatically by the fact that the
relevant royalties will not arrive until 75 years or more into the future, when,
not the author, but distant heirs, or shareholders in a successor corporation,
will receive them. Using assumptions about the time value of money provided
us by a group of economists (including five Nobel prize winners), Brief for
George A. Akerlof et al. as Amici Curiae 5-7, it seems fair to say
that, for example, a 1% likelihood of earning $ 100 annually for 20 years, starting
75 years into the future, is worth less than seven cents today. See
id., at 3a; see also CRS Report 5. See generally Appendix, Part A,
What [*118] potential Shakespeare, Wharton, or
Hemingway would be moved by such a sum? What monetarily motivated Melville would
not realize that he could do better for his grandchildren by putting a few dollars
into an interest-bearing bank account? The Court itself finds no evidence to
the contrary. It refers to testimony before Congress (1) that the copyright
system's incentives encourage creation, and (2) (referring to Noah Webster)
that income earned from one work can help support an artist who "' continues
to create.'" Ante, at 16-17, n. 15. But the first of these amounts
to no more than a set of undeniably true propositions about the value of incentives
in general. And the applicability of the second to this Act
is mysterious. How will extension help today's Noah Webster create new works
50 years after his death? Or is that hypothetical Webster supposed to support
himself with the extension's present discounted value, i.e., a few
pennies? Or (to change the metaphor) is the argument that Dumas fils
would have written more books had Dumas pere's Three Musketeers earned
Regardless, even if this cited testimony were meant more specifically to tell
that somehow, somewhere, some potential author might be moved by the thought
of great-grandchildren receiving copyright royalties a century hence, so might
some potential author also be moved by the thought of royalties being paid for
two centuries, five centuries, 1,000 years, "'til the End of Time." And from
a rational economic perspective the time difference among these periods makes
no real difference. The present extension will produce a copyright period
of protection that, even under conservative assumptions, is worth more than
99.8% of protection in perpetuity (more than 99.99%
for a songwriter like Irving Berlin and a song like Alexander's Ragtime Band).
See Appendix, Part A, infra. The lack of a practically meaningful distinction
from an author's ex ante perspective between (a) the statute's extended
terms and (b) an infinite term makes this latest extension difficult to square
with the Constitution's insistence on "limited Times." Cf. Tr. of Oral Arg.
34 (Solicitor General's related concession).
I am not certain why the Court considers it relevant in this respect that "nothing
. . . warrants construction of the [1998 Act's] 20-year term extension [*120]
as a congressional attempt to evade or override the 'limited Times' constraint."
Ante, at 18. Of course Congress did not intend to act unconstitutionally.
But it may have sought to test the Constitution's limits. After all, the statute
was named after a Member of Congress, who, the legislative history records,
"wanted the term of copyright protection to last forever." 144 Cong. Rec. H9952
(daily ed. Oct. 7, 1998) (statement of Rep. Mary Bono). See also Copyright Term,
Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al.
before the Subcommittee on Courts and Intellectual Property of the House Judiciary
Committee, 104th Cong., 1st Sess., 94 (1995) (hereinafter House Hearings) (statement
of Rep. Sonny Bono) (questioning why copyrights should ever expire); ibid.
(statement of Rep. Berman) ("I guess we could . . . just make a permanent moratorium
on the expiration of copyrights"); id., at 230 (statement of Rep. Hoke)
("Why 70 years? Why not forever? Why not 150 years?"); cf. ibid. (statement
of the Register of Copyrights) (In Copyright Office proceedings, "the Songwriters
Guild suggested a perpetual term"); id., at 234 (statement of Quincy
Jones) [*121] ("I'm particularly fascinated with
Representative Hoke's statement. . . . Why not forever?"); id., at
277 (statement of Quincy Jones) ("If we can start with 70, add 20, it would
be a good start"). And the statute ended up creating a term so long that (were
the vesting of 19th-century real property at issue) it would typically violate
the traditional rule against perpetuities. See 10 R. Powell, Real Property §§
71.02-, p. 71-11 (M. Wolf ed. 2002) (traditional rule that estate must
vest, if at all, within lives in being plus 21 years); cf. id. § 71.03,
p. 71-15 (modern statutory perpetuity term of 90 years, 5 years shorter than
95-year copyright terms).
In any event, the incentive-related numbers are far too small for Congress to
have concluded rationally, even with respect to new works, that the extension's
economic-incentive effect could justify the serious expression-related harms
earlier described. See Part II-B, supra. And, of course, in respect
to works already created -- the source of many of the harms previously described
-- the statute creates no economic incentive at all. See ante,
at 5-6 (STEVENS, J., dissenting).
Second, the Court relies heavily [*122]
for justification upon international uniformity of terms. Ante, at
4, 14-15. Although it can be helpful to look to international norms and legal
experience in understanding American law, cf. Printz v. U.S.,
521 U.S. 898, 977, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997) (BREYER, J., dissenting),
in this case the justification based upon foreign rules is surprisingly weak.
Those who claim that significant copyright-related benefits flow from greater
international uniformity of terms point to the fact that the nations of the
European Union have adopted a system of copyright terms uniform among themselves.
And the extension before this Court implements a term of life plus 70 years
that appears to conform with the European standard. But how does "uniformity"
help to justify this statute?
Despite appearances, the statute does not create a uniform American-European
term with respect to the lion's share of the economically significant works
that it affects -- all works made "for hire" and all existing
works created prior to 1978. See Appendix, Part B, infra. With respect
to those works the American statute produces an extended term of 95 years while
comparable European rights in "for hire" [*123] works last for periods that vary
from 50 years to 70 years to life plus 70 years. Compare 17 U.S.C. §§ 302(c),
304(a)-(b) with Council Directive 93/98/EEC of 29 October 1993 Harmonizing the
Term of Protection of Copyright and Certain Related Rights, Arts. 1-3, 1993
Official J. Eur. Cmty. 290 (hereinafter EU Council Directive 93/98). Neither
does the statute create uniformity with respect to anonymous or pseudonymous
works. Compare 17 U.S.C. §§ 302(c), 304(a)-(b) with EU Council Directive 93/98,
The statute does produce uniformity with respect to copyrights in new, post-1977
works attributed to natural persons. Compare 17 U.S.C. § 302(a) with EU Council
Directive 93/98, Art. 1(1). But these works constitute only a subset (likely
a minority) of works that retain commercial value after 75 years. See Appendix,
Part B, infra. And the fact that uniformity comes so late, if at all,
means that bringing American law into conformity with this particular aspect
of European law will neither encourage creation nor benefit the long-dead author
in any other important way.
What benefit, then, might this partial future [*124] uniformity achieve? The majority
refers to "greater incentive for American and other authors to create and disseminate
their work in the United States," and cites a law review article suggesting
a need to "'avoid competitive disadvantages.'" Ante, at 15. The Solicitor
General elaborates on this theme, postulating that because uncorrected disuniformity
would permit Europe, not the United States, to hold out the prospect of protection
lasting for "life plus 70 years" (instead of "life plus 50 years"), a potential
author might decide to publish initially in Europe, delaying American publication.
Brief for Respondent 38. And the statute, by creating a uniformly longer term,
corrects for the disincentive that this disuniformity might otherwise produce.
That disincentive, however, could not possibly bring about serious harm of the
sort that the Court, the Solicitor General, or the law review author fears.
For one thing, it is unclear just who will be hurt and how, should American
publication come second -- for the Berne Convention still offers full protection
as long as a second publication is delayed by 30 days. See Berne Conv. Arts.
3(4), 5(4). For another, few, if any, potential [*125] authors would turn a "where to publish"
decision upon this particular difference in the length of the copyright term.
As we have seen, the present commercial value of any such difference amounts
at most to comparative pennies. See supra, at 13-14. And a commercial
decision that turned upon such a difference would have had to have rested previously
upon a knife edge so fine as to be invisible. A rational legislature could not
give major weight to an invisible, likely nonexistent incentive-related effect.
But if there is no incentive-related benefit, what is the benefit of the future
uniformity that the statute only partially achieves? Unlike the Copyright Act
of 1976, this statute does not constitute part of an American effort to conform
to an important international treaty like the Berne Convention. See H. R. Rep.
No. 94-1476, pp. 135-136 (1976) (The 1976 Act's life-plus-50 term was "required
for adherence to the Berne Convention"); S. Rep. No. 94-473, p. 118 (1975) (same).
Nor does European acceptance of the longer term seem to reflect more than special
European institutional considerations, i.e., the needs of, and the
international politics surrounding, the development of [*126] the European Union. House Hearings
230 (statement of the Register of Copyrights); id., at 396-398 (statement
of J. Reichman). European and American copyright law have long coexisted despite
important differences, including Europe's traditional respect for authors'"moral
rights" and the absence in Europe of constitutional restraints that restrict
copyrights to "limited Times." See, e.g., Kwall, Copyright and the
Moral Right: Is an American Marriage Possible? 38 Vand. L. Rev. 1, 1-3 (1985)
(moral rights); House Hearings 187 (testimony of the Register of Copyrights)
In sum, the partial, future uniformity that the 1998 Act promises cannot reasonably
be said to justify extension of the copyright term for new works. And concerns
with uniformity cannot possibly justify the extension of the new term to older
works, for the statute there creates no uniformity at all.
Third, several publishers and filmmakers argue that the statute provides incentives
to those who act as publishers to republish and to redistribute older
copyrighted works. This claim cannot justify this statute, however, because
the rationale is inconsistent with the basic purpose [*127] of the Copyright Clause -- as understood
by the Framers and by this Court. The Clause assumes an initial grant of monopoly,
designed primarily to encourage creation, followed by termination of the monopoly
grant in order to promote dissemination of already-created works. It assumes
that it is the disappearance of the monopoly grant, not its perpetuation,
that will, on balance, promote the dissemination of works already in existence.
This view of the Clause does not deny the empirical possibility that grant of
a copyright monopoly to the heirs or successors of a long-dead author could
on occasion help publishers resurrect the work, say, of a long-lost
Shakespeare. But it does deny Congress the Copyright Clause power to base its
actions primarily upon that empirical possibility -- lest copyright grants become
perpetual, lest on balance they restrict dissemination, lest too often they
seek to bestow benefits that are solely retroactive.
This view of the Clause finds strong support in the writings of Madison, in
the antimonopoly environment in which the Framers wrote the Clause, and in the
history of the Clause's English antecedent, the Statute of Anne -- a statute
which sought [*128] to break up a publishers' monopoly
by offering, as an alternative, an author's monopoly of limited duration. See
Patterson, Understanding the Copyright Clause, 47 J. Copyright Society 365,
379 (2000) (Statute of Anne); L. Patterson, Copyright in Historical Perspective
144-147 (1968) (same); Madison on Monopolies 756-757; Papers of Thomas Jefferson
442-443; The Constitutional Convention and the Formation of the Union 334, 338
(W. Solberg 2d ed. 1990); see also supra, at 5.
This view finds virtually conclusive support in the Court's own precedents.
See Sony, 464 U.S., at 429 (The Copyright Clause is "intended . . .
to allow the public access . . . after the limited period of exclusive control");
Stewart, 495 U.S., at 228 (The copyright term is limited to avoid "permanently
depriving" the public of "the fruits of an artist's labors"); see also supra,
This view also finds textual support in the Copyright Clause's word "limited."
Cf. J. Story, Commentaries on the Constitution § 558, p. 402 (R. Rotunda &
J. Nowak eds. 1987) (The Copyright Clause benefits the public in part because
it "admits the people at large, after a short [*129] interval, to the full possession
and enjoyment of all writings . . . without restraint" (emphasis added)). It
finds added textual support in the word "Authors," which is difficult to reconcile
with a rationale that rests entirely upon incentives given to publishers perhaps
long after the death of the work's creator. Cf. Feist Publications, Inc.
v. Rural Telephone Service Co., 499 U.S. 340, 346-347 (1991).
It finds empirical support in sources that underscore the wisdom of the Framers'
judgment. See CRS Report 3 ("New, cheaper editions can be expected when works
come out of copyright"); see also Part II-B, supra. And it draws logical
support from the endlessly self-perpetuating nature of the publishers' claim
and the difficulty of finding any kind of logical stopping place were this Court
to accept such a uniquely publisher-related rationale. (Would it justify continuing
to extend copyrights indefinitely, say, for those granted to F. Scott Fitzgerald
or his lesser known contemporaries? Would it not, in principle, justify continued
protection of the works of Shakespeare, Melville, Mozart, or perhaps Salieri,
Mozart's currently less popular contemporary? Could [*130] it justify yet further extension
of the copyright on the song Happy Birthday to You (melody first published in
1893, song copyrighted after litigation in 1935), still in effect and
currently owned by a subsidiary of AOL Time Warner? See Profitable "Happy Birthday,"
Times of London, Aug. 5, 2000, p. 6.)
Given this support, it is difficult to accept the conflicting rationale that
the publishers advance, namely that extension, rather than limitation, of the
grant will, by rewarding publishers with a form of monopoly, promote, rather
than retard, the dissemination of works already in existence. Indeed, given
these considerations, this rationale seems constitutionally perverse -- unable,
constitutionally speaking, to justify the blanket extension here at issue. Cf.
ante, at 20 (STEVENS, J., dissenting).
Fourth, the statute's legislative history suggests another possible justification.
That history refers frequently to the financial assistance the statute will
bring the entertainment industry, particularly through the promotion of exports.
See, e.g., S. Rep. No. 104-315, p. 3 (1996) ("The purpose of this bill
is to ensure adequate copyright protection for American works in [*131] foreign nations and the continued
economic benefits of a healthy surplus balance of trade"); 144 Cong. Rec., at
H9951 (statement of Rep. Foley) (noting "the importance of this issue to America's
creative community," "whether it is Sony, BMI, Disney" or other companies).
I recognize that Congress has sometimes found that suppression of competition
will help Americans sell abroad -- though it has simultaneously taken care to
protect American buyers from higher domestic prices. See, e.g., Webb-Pomerene
Act (Export Trade), 40 Stat. 516, as amended, 15 U.S.C. §§ 61-65; see also IA
P. Areeda & H. Hovenkamp, Antitrust Law P251a, pp. 134-137 (2d ed. 2000)
(criticizing export cartels). In doing so, however, Congress has exercised its
commerce, not its copyright, power. I can find nothing in the Copyright Clause
that would authorize Congress to enhance the copyright grant's monopoly power,
likely leading to higher prices both at home and abroad, solely in
order to produce higher foreign earnings. That objective is not a copyright
objective. Nor, standing alone, is it related to any other objective more closely
tied to the Clause itself. Neither can higher corporate [*132] profits alone justify the grant's
enhancement. The Clause seeks public, not private, benefits.
Finally, the Court mentions as possible justifications "demographic, economic,
and technological changes" -- by which the Court apparently means the facts
that today people communicate with the help of modern technology, live longer,
and have children at a later age. Ante, at 16, and n. 14. The first
fact seems to argue not for, but instead against, extension. See Part II-B,
supra. The second fact seems already corrected for by the 1976 Act's
life-plus-50 term, which automatically grows with lifespans. Cf. Department
of Health and Human Services, Centers for Disease Control and Prevention, Deaths:
Final Data for 2000 (2002) (Table 8) (reporting a 4-year increase in expected
lifespan between 1976 and 1998). And the third fact -- that adults are having
children later in life -- is a makeweight at best, providing no explanation
of why the 1976 Act's term of 50 years after an author's death -- a longer term
than was available to authors themselves for most of our Nation's history --
is an insufficient potential bequest. The weakness of these final rationales
simply underscores the conclusion [*133] that emerges from consideration of
earlier attempts at justification: There is no legitimate, serious copyright-related
justification for this statute.
The Court is concerned that our holding in this case not inhibit the broad decisionmaking
leeway that the Copyright Clause grants Congress. Ante, at 13-14, 17,
31-32. It is concerned about the implications of today's decision for the Copyright
Act of 1976 -- an Act that changed copyright's basic term from 56 years (assuming
renewal) to life of the author plus 50 years, ante, at 3. Ante,
at 31. It is concerned about having to determine just how many years of copyright
is too many -- a determination that it fears would require it to find the "right"
constitutional number, a task for which the Court is not well suited. See ante,
at 32; but cf. ante, at 19, n. 17.
I share the Court's initial concern, about intrusion upon the decisionmaking
authority of Congress. See ante, at 14, n. 10. But I do not believe
it intrudes upon that authority to find the statute unconstitutional on the
basis of (1) a legal analysis of the Copyright Clause's objectives, see supra,
at 4-6, 19-21; (2) the total implausibility [*134]
of any incentive effect, see supra, at 13-16; and (3) the statute's
apparent failure to provide significant international uniformity, see supra,
at 16-19. Nor does it intrude upon congressional authority to consider rationality
in light of the expressive values underlying the Copyright Clause, related as
it is to the First Amendment, and given the constitutional importance of correctly
drawing the relevant Clause/Amendment boundary. Supra, at 2-4. We cannot
avoid the need to examine the statute carefully by saying that "Congress has
not altered the traditional contours of copyright protection," ante,
at 31, for the sentence points to the question, rather than the answer. Nor
should we avoid that examination here. That degree of judicial vigilance --
at the far outer boundaries of the Clause -- is warranted if we are to avoid
the monopolies and consequent restrictions of expression that the Clause, read
consistently with the First Amendment, seeks to preclude. And that vigilance
is all the more necessary in a new Century that will see intellectual property
rights and the forms of expression that underlie them play an ever more important
role in the Nation's economy and [*135]
the lives of its citizens.
I do not share the Court's concern that my view of the 1998 Act could automatically
doom the 1976 Act. Unlike the present statute, the 1976 Act thoroughly revised
copyright law and enabled the United States to join the Berne Convention --
an international treaty that requires the 1976 Act's basic life-plus-50 term
as a condition for substantive protections from a copyright's very inception,
Berne Conv. Art. 7(1). Consequently, the balance of copyright-related harms
and benefits there is far less one-sided. The same is true of the 1909 and 1831
Acts, which, in any event, provided for maximum terms of 56 years or 42 years
while requiring renewal after 28 years, with most copyrighted works falling
into the public domain after that 28-year period, well before the putative maximum
terms had elapsed. See ante, at 3; Statistical History 956-957. Regardless,
the law provides means to protect those who have reasonably relied upon prior
copyright statutes. See Heckler v. Mathews, 465 U.S. 728,
746 (1984). And, in any event, we are not here considering, and we need not
consider, the constitutionality of other copyright statutes.
Neither do [*136]
I share the Court's aversion to line-drawing in this case. Even if it is difficult
to draw a single clear bright line, the Court could easily decide (as I would
decide) that this particular statute simply goes too far. And such examples
-- of what goes too far -- sometimes offer better constitutional guidance than
more absolute-sounding rules. In any event, "this Court sits" in part to decide
when a statute exceeds a constitutional boundary. See Panhandle Oil,
277 U.S., at 223 (Holmes, J., dissenting). In my view, "text, history, and precedent,"
ante, at 7-8, support both the need to draw lines in general and the
need to draw the line here short of this statute. See supra, at 1-6,
19-21. But see ante, at 8, n. 4.
Finally, the Court complains that I have not "restrained" my argument or "train[ed
my] fire, as petitioners do, on Congress' choice to place existing and future
copyrights in parity." Ante, at 2, n. 1, and 8, n. 4. The reason that
I have not so limited my argument is my willingness to accept, for purposes
of this opinion, the Court's understanding that, for reasons of "justice, policy,
and equity" -- as well as established historical practice [*137]
-- it is not "categorically beyond Congress' authority" to "extend the duration
of existing copyrights" to achieve such parity. Ante, at 13 (internal
quotation marks omitted). I have accepted this view, however, only for argument's
sake -- putting to the side, for the present, JUSTICE STEVENS' persuasive arguments
to the contrary, ante, at 5-22 (dissenting opinion). And I make this
assumption only to emphasize the lack of rational justification for the present
statute. A desire for "parity" between A (old copyrights) and B
(new copyrights) cannot justify extending A when there is no rational
justification for extending B. At the very least, (if I put aside my
rationality characterization) to ask B to support A here is
like asking Tom Thumb to support Paul Bunyan's ox. Where the case for extending
new copyrights is itself so weak, what "justice," what "policy," what "equity"
can warrant the tolls and barriers that extension of existing copyrights imposes?
This statute will cause serious expression-related harm. It will likely restrict
traditional dissemination of copyrighted works. It will likely inhibit new forms
of dissemination through the use [*138] of new technology. It threatens to
interfere with efforts to preserve our Nation's historical and cultural heritage
and efforts to use that heritage, say, to educate our Nation's children. It
is easy to understand how the statute might benefit the private financial interests
of corporations or heirs who own existing copyrights. But I cannot find any
constitutionally legitimate, copyright-related way in which the statute will
benefit the public. Indeed, in respect to existing works, the serious public
harm and the virtually nonexistent public benefit could not be more clear.
I have set forth the analysis upon which I rest these judgments. This analysis
leads inexorably to the conclusion that the statute cannot be understood rationally
to advance a constitutionally legitimate interest. The statute falls outside
the scope of legislative power that the Copyright Clause, read in light of the
First Amendment, grants to Congress. I would hold the statute unconstitutional.
I respectfully dissent.