01 618, Eldred V. Ashcroft
(Slip Opinion)
OCTOBER TERM, 2002
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ELDRED ET AL. v. ASHCROFT, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 01–618. Argued October 9, 2002—Decided January 15, 2003
The Copyright and Patent Clause, U. S. Const., Art. I, §8, cl. 8, provides
as to copyrights: “Congress shall have Power . . . [t]o promote the
Progress of Science . . . by securing [to Authors] for limited Times . . .
the exclusive Right to their . . . Writings.” In the 1998 Copyright
Term Extension Act (CTEA), Congress enlarged the duration of copy-
rights by 20 years: Under the 1976 Copyright Act (1976 Act), copy-
right protection generally lasted from a work’s creation until 50 years
after the author’s death; under the CTEA, most copyrights now run
from creation until 70 years after the author’s death, 17 U. S. C.
§302(a). As in the case of prior copyright extensions, principally in
1831, 1909, and 1976, Congress provided for application of the en-
larged terms to existing and future copyrights alike.
Petitioners, whose products or services build on copyrighted works
that have gone into the public domain, brought this suit seeking a de-
termination that the CTEA fails constitutional review under both the
Copyright Clause’s “limited Times” prescription and the First
Amendment’s free speech guarantee. Petitioners do not challenge the
CTEA’s “life-plus-70-years” time span itself. They maintain that
Congress went awry not with respect to newly created works, but in
enlarging the term for published works with existing copyrights. The
“limited Tim[e]” in effect when a copyright is secured, petitioners
urge, becomes the constitutional boundary, a clear line beyond the
power of Congress to extend. 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. The District Court entered judgment on the
pleadings for the Attorney General (respondent here), holding that
the CTEA does not violate the Copyright Clause’s “limited Times” re-
2
ELDRED v. ASHCROFT
Syllabus
striction because the CTEA’s terms, though longer than the 1976
Act’s terms, are still limited, not perpetual, and therefore fit within
Congress’ discretion. The court also held that there are no First
Amendment rights to use the copyrighted works of others. The Dis-
trict of Columbia Circuit affirmed. In that court’s unanimous view,
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539,
foreclosed petitioners’ First Amendment challenge to the CTEA. The
appeals court reasoned that copyright does not impermissibly restrict
free speech, for it grants the author an exclusive right only to the spe-
cific form of expression; it does not shield any idea or fact contained in
the copyrighted work, and it allows for “fair use” even of the expression
itself. A majority of the court also rejected petitioners’ Copyright
Clause claim. The court ruled that Circuit precedent precluded peti-
tioners’ plea for interpretation of the “limited Times” prescription
with a view to the Clause’s preambular statement of purpose: “To
promote the Progress of Science.” The court found nothing in the
constitutional text or history to suggest that a term of years for a
copyright is not a “limited Time” if it may later be extended for an-
other “limited Time.” Recounting that the First Congress made the
1790 Copyright Act applicable to existing copyrights arising under
state copyright laws, the court held that that construction by con-
temporaries of the Constitution’s formation merited almost conclu-
sive weight under Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53, 57. As early as McClurg v. Kingsland, 1 How. 202, the Court of Ap-
peals recognized, this Court made it plain that the Copyright Clause
permits Congress to amplify an existing patent’s terms. The court
added that this Court has been similarly deferential to Congress’ judg-
ment regarding copyright. E.g., Sony Corp. of America v. Universal City
Studios, Inc., 464 U. S. 417. Concerning petitioners’ assertion that
Congress could evade the limitation on its authority by stringing to-
gether an unlimited number of “limited Times,” the court stated that
such legislative misbehavior clearly was not before it. Rather, the
court emphasized, the CTEA matched the baseline term for United
States copyrights with the European Union term in order to meet
contemporary circumstances.
Held: In placing existing and future copyrights in parity in the CTEA,
Congress acted within its authority and did not transgress constitu-
tional limitations. Pp. 7–31.
1. The CTEA’s extension of existing copyrights does not exceed
Congress’ power under the Copyright Clause. Pp. 7–28.
(a) Guided by text, history, and precedent, this Court cannot
agree with petitioners that extending the duration of existing copy-
rights is categorically beyond Congress’ Copyright Clause authority.
Although conceding that the CTEA’s baseline term of life plus 70
Cite as: 537 U. S. ____ (2003)
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Syllabus
years qualifies as a “limited Tim[e]” as applied to future copyrights,
petitioners contend that existing copyrights extended to endure for
that same term are not “limited.” In petitioners’ view, a time pre-
scription, once set, becomes forever “fixed” or “inalterable.” The word
“limited,” however, does not convey a meaning so constricted. At the
time of the Framing, “limited” meant what it means today: confined
within certain bounds, restrained, or circumscribed. Thus under-
stood, a time span appropriately “limited” as applied to future copy-
rights does not automatically cease to be “limited” when applied to
existing copyrights. To comprehend the scope of Congress’ Copyright
Clause power, “a page of history is worth a volume of logic.” New
York Trust Co. v. Eisner, 256 U. S. 345, 349. History reveals an un-
broken 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. Moreover, because the Clause empowering Congress to con-
fer copyrights also authorizes patents, the Court’s inquiry is signifi-
cantly informed by the fact that early Congresses extended the dura-
tion of numerous individual patents as well as copyrights. Lower
courts saw no “limited Times” impediment to such extensions. Fur-
ther, although this Court never before has had occasion to decide
whether extending existing copyrights complies with the “limited
Times” prescription, the Court has found no constitutional barrier to
the legislative expansion of existing patents. See, e.g., McClurg, 1
How., at 206. Congress’ consistent historical practice reflects a
judgment that an author who sold his work a week before should not
be placed in a worse situation than the author who sold his work the
day after enactment of a copyright extension. The CTEA follows this
historical practice by keeping the 1976 Act’s duration provisions
largely in place and simply adding 20 years to each of them.
The CTEA is a rational exercise of the legislative authority con-
ferred by the Copyright Clause. On this point, the Court defers sub-
stantially to Congress. Sony, 464 U. S., at 429. The CTEA reflects
judgments of a kind Congress typically makes, judgments the Court
cannot dismiss as outside the Legislature’s domain. A key factor in
the CTEA’s passage was a 1993 European Union (EU) directive in-
structing EU members to establish a baseline copyright term of life
plus 70 years and to deny this longer term to the works of any non-
EU country whose laws did not secure the same extended term. By
extending the baseline United States copyright term, Congress
sought to ensure that American authors would receive the same
copyright protection in Europe as their European counterparts. The
CTEA may also provide greater incentive for American and other
authors to create and disseminate their work in the United States.
4
ELDRED v. ASHCROFT
Syllabus
Additionally, Congress passed the CTEA in light of demographic,
economic, and technological changes, and rationally credited projec-
tions that longer terms would encourage copyright holders to invest
in the restoration and public distribution of their works. Pp. 7–17.
(b) Petitioners’ Copyright Clause arguments, which rely on several
novel readings of the Clause, are unpersuasive. Pp. 17–28.
(1) Nothing before this Court warrants construction of the
CTEA’s 20-year term extension as a congressional attempt to evade
or override the “limited Times” constraint. Critically, petitioners fail
to show how the CTEA crosses a constitutionally significant thresh-
old with respect to “limited Times” that the 1831, 1909, and 1976
Acts did not. Those earlier Acts did not create perpetual copyrights,
and neither does the CTEA. Pp. 18–19.
(2) Petitioners’ dominant series of arguments, premised on the
proposition that Congress may not extend an existing copyright ab-
sent new consideration from the author, are unavailing. The first
such contention, that the CTEA’s extension of existing copyrights
overlooks the requirement of “originality,” incorrectly relies on Feist
Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 345,
359. That case did not touch on the duration of copyright protection.
Rather, it addressed only the core question of copyrightability. Ex-
plaining the originality requirement, Feist trained on the Copyright
Clause words “Authors” and “Writings,” id., at 346–347, and did not
construe the “limited Times” prescription, as to which the originality
requirement has no bearing. Also unavailing is petitioners’ second
argument, that the CTEA’s extension of existing copyrights fails to
“promote the Progress of Science” because it does not stimulate the
creation of new works, but merely adds value to works already cre-
ated. The justifications that motivated Congress to enact the CTEA,
set forth supra, provide a rational basis for concluding that the CTEA
“promote[s] the Progress of Science.” Moreover, Congress’ unbroken
practice since the founding generation of applying new definitions or
adjustments of the copyright term to both future works and existing
works overwhelms petitioners’ argument. Also rejected is petitioners’
third contention, that the CTEA’s extension of existing copyrights
without demanding additional consideration ignores copyright’s quid
pro quo, whereby Congress grants the author of an original work an
“exclusive Right” for a “limited Tim[e]” in exchange for a dedication
to the public thereafter. Given Congress’ consistent placement of ex-
isting copyright holders in parity with future holders, the author of a
work created in the last 170 years would reasonably comprehend, as
the protection offered her, a copyright not only for the time in place
when protection is gained, but also for any renewal or extension leg-
islated during that time. Sears, Roebuck & Co. v. Stiffel Co., 376
Cite as: 537 U. S. ____ (2003)
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U. S. 25, 229, and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489
U. S. 141, 146, both of which involved the federal patent regime, are
not to the contrary, since neither concerned the extension of a pat-
ent’s duration nor suggested that such an extension might be consti-
tutionally infirm. Furthermore, given crucial distinctions between
patents and copyrights, one cannot extract from language in the
Court’s patent decisions—language not trained on a grant’s dura-
tion—genuine support for petitioners’ quid pro quo argument. Pat-
ents and copyrights do not entail the same exchange, since immedi-
ate disclosure is not the objective of, but is exacted from, the patentee,
whereas disclosure is the desired objective of the author seeking
copyright protection. Moreover, while copyright gives the holder no
monopoly on any knowledge, fact, or idea, the grant of a patent pre-
vents full use by others of the inventor’s knowledge. Pp. 20–27.
(3) The “congruence and proportionality” standard of review de-
scribed in cases evaluating exercises of Congress’ power under §5 of
the Fourteenth Amendment has never been applied outside the §5
context. It does not hold sway for judicial review of legislation en-
acted, as copyright laws are, pursuant to Article I authorization. Sec-
tion 5 authorizes Congress to “enforce” commands contained in and
incorporated into the Fourteenth Amendment. 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 definition is “but a corollary to the grant to Con-
gress of any Article I power.” Graham v. John Deere Co. of Kansas
City, 383 U. S. 1, 6. It would be no more appropriate for this Court to
subject the CTEA to “congruence and proportionality” review than it
would be to hold the Act unconstitutional per se. Pp. 27–28.
2. The CTEA’s extension of existing and future copyrights does not
violate the First Amendment. That Amendment and the Copyright
Clause were adopted close in time. This proximity indicates the
Framers’ view that copyright’s limited monopolies are compatible
with free speech principles. In addition, copyright law contains built-
in First Amendment accommodations. See Harper & Row, 471 U. S.,
at 560. First, 17 U. S. C. §102(b), which makes only expression, not
ideas, eligible for copyright protection, strikes a definitional balance
between the First Amendment and copyright law by permitting free
communication of facts while still protecting an author’s expression.
Harper & Row, 471 U. S., at 556. Second, the “fair use” defense codi-
fied at §107 allows the public to use not only facts and ideas con-
tained in a copyrighted work, but also expression itself for limited
purposes. “Fair use” thereby affords considerable latitude for schol-
arship and comment, id., at 560, and even for parody, see Campbell v.
Acuff-Rose Music, Inc., 510 U. S. 569. The CTEA itself supplements
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ELDRED v. ASHCROFT
Syllabus
these traditional First Amendment safeguards in two prescrip-
tions: The first allows libraries and similar institutions to reproduce
and distribute copies of certain published works for scholarly pur-
poses during the last 20 years of any copyright term, if the work is
not already being exploited commercially and further copies are un-
available at a reasonable price, §108(h); the second exempts small
businesses from having to pay performance royalties on music played
from licensed radio, television, and similar facilities, §110(5)(B). Fi-
nally, petitioners’ reliance on Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 641, is misplaced. Turner Broadcasting invali-
dated a statute requiring cable television operators to carry and
transmit broadcast stations through their proprietary cable systems.
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. The First Amendment se-
curely 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. When, as in this case, Congress has not al-
tered the traditional contours of copyright protection, further First
Amendment scrutiny is unnecessary. See, e.g., Harper & Row, 471
U. S., at 560. Pp. 28–31.
239 F. 3d 372, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O’CONNOR, SCALIA, KENNEDY, SOUTER, and
THOMAS, JJ., joined. STEVENS, J., and BREYER, J., filed dissenting
opinions.
Cite as: 537 U. S. ____ (2003)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 01–618
_________________
ERIC ELDRED, ET AL., PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 15, 2003]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the authority the Constitution as-
signs 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 . . . [t]o 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 copy-
rights 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). 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 prod-
ucts 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 Copy-
right Clause’s “limited Times” prescription and the First
Amendment’s free speech guarantee. Under the 1976
Copyright Act, copyright protection generally lasted from
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ELDRED v. ASHCROFT
Opinion of the Court
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). Peti-
tioners 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 14.1 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 Tim[e]” in effect when a
copyright is secured, petitioners urge, becomes the con-
stitutional 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 regula-
tions.
In accord with the District Court and the Court of Ap-
peals, 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, Con-
gress acted within its authority and did not transgress
constitutional limitations.
I
A
We evaluate petitioners’ challenge to the constitutional-
ity of the CTEA against the backdrop of Congress’ previ-
ous exercises of its authority under the Copyright Clause.
——————
1 JUSTICE BREYER’s dissent is not similarly restrained. He makes no
effort meaningfully to distinguish existing copyrights from future
grants. See, e.g., post, at 1, 13–19, 23–25. Under his reasoning, the
CTEA’s 20-year extension is globally unconstitutional.
Cite as: 537 U. S. ____ (2003)
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Opinion of the Court
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 renew-
able 14-year term applied to existing works (i.e., works
already published and works created but not yet pub-
lished) 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, renew-
able 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, 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 pro-
vided 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 Artis-
tic 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. §302(c).
These new copyright terms, the 1976 Act instructed,
governed all works not published by its effective date of
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ELDRED v. ASHCROFT
Opinion of the Court
January 1, 1978, regardless of when the works were cre-
ated. §§302–303. For published works with existing copy-
rights 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
under the 1909 Act.
The measure at issue here, the CTEA, installed the
fourth major duration extension of federal copyrights.2
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 har-
monizes 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 Harmoniz-
ing the Term of Protection of Copyright and Certain Related
Rights, 1993 Official J. Eur. Cmty. 290 (EU Council Direc-
tive 93/98). For anonymous works, pseudonymous works,
and works made for hire, the term is 95 years from publi-
cation or 120 years from creation, whichever expires first.
17 U. S. C. §302(c).
Paralleling the 1976 Act, the CTEA applies these new
——————
2 Asserting that the last several decades have seen a proliferation of
copyright legislation in departure from Congress’ traditional pace of
legislative amendment in this area, petitioners cite nine statutes
passed between 1962 and 1974, each of which incrementally extended
existing copyrights for brief periods. See Pub. L. 87–668, 76 Stat. 555;
Pub. L. 89–142, 79 Stat. 581; Pub. L. 90–141, 81 Stat. 464; Pub. L. 90–
416, 82 Stat. 397; Pub. L. 91–147, 83 Stat. 360; Pub. L. 91–555, 84 Stat.
1441; Pub. L. 92–170, 85 Stat. 490; Pub. L. 92–566, 86 Stat. 1181; Pub.
L. 93–573, Title I, 88 Stat. 1873. As respondent (Attorney General
Ashcroft) points out, however, these statutes were all temporary
placeholders subsumed into the systemic changes effected by the 1976
Act. Brief for Respondent 9.
Cite as: 537 U. S. ____ (2003)
5
Opinion of the Court
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.3
B
Petitioners’ suit challenges the CTEA’s constitutionality
under both the Copyright Clause and the First Amend-
ment. On cross-motions for judgment on the pleadings,
the District Court entered judgment for the Attorney
General (respondent here). 74 F. Supp. 2d 1 (DC 1999).
The court held that the CTEA does not violate the “limited
Times” restriction of the Copyright Clause because the
CTEA’s terms, though longer than the 1976 Act’s terms,
are still limited, not perpetual, and therefore fit within
Congress’ discretion. Id., at 3. The court also held that
“there are no First Amendment rights to use the copy-
righted works of others.” Ibid.
The Court of Appeals for the District of Columbia Cir-
cuit affirmed. 239 F. 3d 372 (2001). In that court’s
unanimous view, Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U. S. 539 (1985), foreclosed petitioners’
First Amendment challenge to the CTEA. 239 F. 3d, at
——————
3 Petitioners argue that the 1790 Act must be distinguished from the
later Acts on the ground that it covered existing works but did not
extend existing copyrights. Reply Brief 3–7. The parties disagree on
the question whether the 1790 Act’s copyright term should be regarded
in part as compensation for the loss of any then existing state- or
common-law copyright protections. See Brief for Petitioners 28–30;
Brief for Respondent 17, n. 9; Reply Brief 3–7. Without resolving that
dispute, we underscore that the First Congress clearly did confer
copyright protection on works that had already been created.
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ELDRED v. ASHCROFT
Opinion of the Court
375. Copyright, the court reasoned, does not impermissibly
restrict free speech, for it grants the author an exclusive
right only to the specific form of expression; it does not
shield any idea or fact contained in the copyrighted work,
and it allows for “fair use” even of the expression itself. Id.,
at 375–376.
A majority of the Court of Appeals also upheld the
CTEA against petitioners’ contention that the measure
exceeds Congress’ power under the Copyright Clause.
Specifically, the court rejected petitioners’ plea for inter-
pretation of the “limited Times” prescription not discretely
but with a view to the “preambular statement of purpose”
contained in the Copyright Clause: “To promote the Prog-
ress of Science.” Id., at 377–378. Circuit precedent,
Schnapper v. Foley, 667 F. 2d 102 (CADC 1981), the court
determined, precluded that plea. In this regard, the court
took into account petitioners’ acknowledgment that the
preamble itself places no substantive limit on Congress’
legislative power. 239 F. 3d, at 378.
The appeals court found nothing in the constitutional
text or its history to suggest that “a term of years for a
copyright is not a ‘limited Time’ if it may later be extended
for another ‘limited Time.’ ” Id., at 379. The court re-
counted that “the First Congress made the Copyright Act
of 1790 applicable to subsisting copyrights arising under
the copyright laws of the several states.” Ibid. That
construction of Congress’ authority under the Copyright
Clause “by [those] contemporary with [the Constitution’s]
formation,” the court said, merited “very great” and in this
case “almost conclusive” weight. Ibid. (quoting Burrow-
Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884)).
As early as McClurg v. Kingsland, 1 How. 202 (1843), the
Court of Appeals added, this Court had made it “plain” that
the same Clause permits Congress to “amplify the terms of
an existing patent.” 239 F. 3d, at 380. The appeals court
recognized that this Court has been similarly deferential to
Cite as: 537 U. S. ____ (2003)
7
Opinion of the Court
the judgment of Congress in the realm of copyright. Ibid.
(citing Sony Corp. of America v. Universal City Studios, Inc.,
464 U. S. 417 (1984); Stewart v. Abend, 495 U. S. 207
(1990)).
Concerning petitioners’ assertion that Congress might
evade the limitation on its authority by stringing together
“an unlimited number of ‘limited Times,’ ” the Court of
Appeals stated that such legislative misbehavior “clearly
is not the situation before us.” 239 F. 3d, at 379. Rather,
the court noted, the CTEA “matches” the baseline term for
“United States copyrights [with] the terms of copyrights
granted by the European Union.” Ibid. “[I]n an era of
multinational publishers and instantaneous electronic
transmission,” the court said, “harmonization in this
regard has obvious practical benefits” and is “a ‘necessary
and proper’ measure to meet contemporary circumstances
rather than a step on the way to making copyrights per-
petual.” Ibid.
Judge Sentelle dissented in part. He concluded that
Congress lacks power under the Copyright Clause to
expand the copyright terms of existing works. Id., at 380–
384. The Court of Appeals subsequently denied rehearing
and rehearing en banc. 255 F. 3d 849 (2001).
We granted certiorari to address two questions: whether
the CTEA’s extension of existing copyrights exceeds Con-
gress’ power under the Copyright Clause; and whether the
CTEA’s extension of existing and future copyrights vio-
lates the First Amendment. 534 U. S. 1126 and 1160
(2002). We now answer those two questions in the nega-
tive and affirm.
II
A
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,
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ELDRED v. ASHCROFT
Opinion of the Court
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
and future.
The CTEA’s baseline term of life plus 70 years, petition-
ers concede, qualifies as a “limited Tim[e]” as applied to
future copyrights.4 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 con-
vey a meaning so constricted. At the time of the Framing,
that word meant what it means today: “confine[d] within
certain bounds,” “restrain[ed],” or “circumscribe[d].” S.
Johnson, A Dictionary of the English Language (7th ed.
1785); see T. Sheridan, A Complete Dictionary of the
English Language (6th ed. 1796) (“confine[d] within cer-
tain bounds”); Webster’s Third New International Diction-
ary 1312 (1976) (“confined within limits”; “restricted in
extent, number, or duration”). Thus understood, a time
span appropriately “limited” as applied to future copy-
rights 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
——————
4 We note again that JUSTICE BREYER makes no such concession. See
supra, at 2, n. 1. He does not train his fire, as petitioners do, on Con-
gress’ choice to place existing and future copyrights in parity. Moving
beyond the bounds of the parties’ presentations, and with abundant
policy arguments but precious little support from precedent, he would
condemn Congress’ entire product as irrational.
Cite as: 537 U. S. ____ (2003)
9
Opinion of the Court
Copyright Clause, “a page of history is worth a volume of
logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349
(1921) (Holmes, J.). History reveals an unbroken congres-
sional practice of granting to authors of works with exist-
ing 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 §1.5 Since then, Congress
——————
5 This approach comported with English practice at the time. The
Statute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to
books not yet composed or published, books already composed but not
yet published, and books already composed and published. See ibid.
(“[T]he author of any book or books already composed, and not printed
and published, or that shall hereafter be composed, and his assignee or
assigns, shall have the sole liberty of printing and reprinting such book
and books for the term of fourteen years, to commence from the day of
the first publishing the same, and no longer.”); ibid. (“[T]he author of
any book or books already printed . . . or the bookseller or booksellers,
printer or printers, or other person or persons, who hath or have
purchased or acquired the copy or copies of any book or books, in order
to print or reprint the same, shall have the sole right and liberty of
printing such book and books for the term of one and twenty years, to
commence from the said tenth day of April, and no longer.”).
JUSTICE STEVENS stresses the rejection of a proposed amendment to
the Statute of Anne that would have extended the term of existing
copyrights, and reports that opponents of the extension feared it would
perpetuate the monopoly position enjoyed by English booksellers. Post,
at 12, and n. 9. But the English Parliament confronted a situation that
never existed in the United States. Through the late 17th century, a
government-sanctioned printing monopoly was held by the Stationers’
Company, “the ancient London guild of printers and booksellers.” M.
Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L.
Patterson, Copyright in Historical Perspective ch. 3 (1968). Although
that legal monopoly ended in 1695, concerns about monopolistic prac-
tices remained, and the 18th century English Parliament was resistant
to any enhancement of booksellers’ and publishers’ entrenched position.
See Rose, supra, at 52–56. In this country, in contrast, competition
10
ELDRED v. ASHCROFT
Opinion of the Court
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. §§302–304.6
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 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 His-
torical Perspective, 49 J. Copyright Society 19 (2001). The
——————
among publishers, printers, and booksellers was “intens[e]” at the time
of the founding, and “there was not even a rough analog to the Station-
ers’ Company on the horizon.” Nachbar, Constructing Copyright’s
Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded
against the future accumulation of monopoly power in booksellers and
publishers by authorizing Congress to vest copyrights only in
“Authors.” JUSTICE STEVENS does not even attempt to explain how
Parliament’s response to England’s experience with a publishing
monopoly may be construed to impose a constitutional limitation on
Congress’ power to extend copyrights granted to “Authors.”
6 Moreover, the precise duration of a federal copyright has never been
fixed at the time of the initial grant. The 1790 Act provided a federal
copyright term of 14 years from the work’s publication, renewable for an
additional 14 years if the author survived and applied for an additional
term. §1. Congress retained that approach in subsequent statutes. See
Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copyright
statute in this country, the copyright term of ownership has been split
between an original term and a renewal term.”). Similarly, under the
method for measuring copyright terms established by the 1976 Act and
retained by the CTEA, the baseline copyright term is measured in part by
the life of the author, rendering its duration indeterminate at the time of
the grant. See 1976 Act §302(a); 17 U. S. C. §302(a).
Cite as: 537 U. S. ____ (2003)
11
Opinion of the Court
courts saw no “limited Times” impediment to such exten-
sions; 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 (No. 4,564) (CC Va. 1813) (Marshall, J.)
(“Th[e] 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, 9
Cranch 199 (1815); Blanchard v. Sprague, 3 F. Cas. 648,
650 (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 extension that “oper-
ates retrospectively”); see also Evans v. Robinson, 8 F.
Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have
the exclusive right . . . to limit the times for which a pat-
ent right shall be granted, and are not restrained from
renewing a patent or prolonging” it.).7
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 of existing patents.8
——————
7 JUSTICE STEVENS would sweep away these decisions, asserting that
Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), “flatly
contradicts” them. Post, at 17. Nothing but wishful thinking underpins
that assertion. The controversy in Graham involved no patent exten-
sion. Graham addressed an invention’s very eligibility for patent
protection, and spent no words on Congress’ power to enlarge a patent’s
duration.
8 JUSTICE STEVENS recites words from Sears, Roebuck & Co. v. Stiffel
Co., 376 U. S. 225 (1964), supporting the uncontroversial proposition that
a State may not “extend the life of a patent beyond its expiration date,”
id., at 231, then boldly asserts that for the same reasons Congress may
not do so either. See post, at 1, 5. But Sears placed no reins on Congress’
authority to extend a patent’s life. The full sentence in Sears, from which
JUSTICE STEVENS extracts words, reads: “Obviously a State could not,
consistently with the Supremacy Clause of the Constitution, extend the
12
ELDRED v. ASHCROFT
Opinion of the Court
McClurg v. Kingsland, 1 How. 202 (1843), is the pathset-
ting 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 “depend[s] 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 retrospec-
tive in their operation, that is not a sound objection to
their validity.” Id., at 206.9 Neither is it a sound objection
——————
life of a patent beyond its expiration date or give a patent on an article
which lacked the level of invention required for federal patents.” 376
U. S., at 231. The point insistently made in Sears is no more and no less
than this: States may not enact measures inconsistent with the federal
patent laws. Ibid. (“[A] State cannot encroach upon the federal patent
laws directly . . . [and] cannot . . . give protection of a kind that clashes
with the objectives of the federal patent laws.”). A decision thus rooted in
the Supremacy Clause cannot be turned around to shrink congressional
choices.
Also unavailing is JUSTICE STEVENS’ appeal to language found in a
private letter written by James Madison. Post, at 9, n. 6; see also
dissenting opinion of BREYER, J., post, at 5, 20. Respondent points to a
better “demonstrat[ion],” post, at 5, n. 3 (STEVENS, J., dissenting), of
Madison’s and other Framers’ understanding of the scope of Congress’
power to extend patents: “[T]hen-President Thomas Jefferson—the first
administrator of the patent system, and perhaps the Founder with the
narrowest view of the copyright and patent powers—signed the 1808
and 1809 patent term extensions into law; . . . James Madison, who
drafted the Constitution’s ‘limited Times’ language, issued the extended
patents under those laws as Secretary of State; and . . . Madison as
President signed another patent term extension in 1815.” Brief for
Respondent 15.
9 JUSTICE STEVENS reads McClurg to convey that “Congress cannot
change the bargain between the public and the patentee in a way that
Cite as: 537 U. S. ____ (2003)
13
Opinion of the Court
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 Repre-
sentative Huntington at the time of the 1831 Act:
“[J]ustice, policy, and equity alike forb[id]” that 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) (“[S]ince 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 tomor-
row’s work just because Congress passed a statute length-
ening 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 Clause.
Satisfied that the CTEA complies with the “limited
Times” prescription, we turn now to whether it is a ra-
——————
disadvantages the patentee.” Post, at 19. But McClurg concerned no
such change. To the contrary, as JUSTICE STEVENS acknowledges,
McClurg held that use of an invention by the patentee’s employer did
not invalidate the inventor’s 1834 patent, “even if it might have had
that effect prior to the amendment of the patent statute in 1836.” Post,
at 18. In other words, McClurg evaluated the patentee’s rights not
simply in light of the patent law in force at the time the patent issued,
but also in light of “such changes as ha[d] been since made.” 1 How., at
206. It is thus inescapably plain that McClurg upheld the application
of expanded patent protection to an existing patent.
14
ELDRED v. ASHCROFT
Opinion of the Court
tional exercise of the legislative authority conferred by the
Copyright Clause. On that point, we defer substantially to
Congress. Sony, 464 U. S., at 429 (“[I]t is 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.”).10
The CTEA reflects judgments of a kind Congress typi-
cally 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.
——————
10 JUSTICE BREYER would adopt a heightened, three-part test for the
constitutionality of copyright enactments. Post, at 3. He would invali-
date the CTEA as irrational in part because, in his view, harmonizing
the United States and European Union baseline copyright terms
“apparent[ly]” fails to achieve “significant” uniformity. Post, at 23. But
see infra, at 15. The novelty of the “rational basis” approach he pres-
ents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S.
356, 383 (2001) (BREYER, J., dissenting) (“Rational-basis review—with its
presumptions favoring constitutionality—is ‘a paradigm of judicial
restraint.’ ”) (quoting FCC v. Beach Communications, Inc., 508 U. S. 307,
314 (1993)). Rather than subjecting Congress’ legislative choices in the
copyright area to heightened judicial scrutiny, we have stressed that “it
is not our role to alter the delicate balance Congress has labored to
achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America
v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984). Congress’
exercise of its Copyright Clause authority must be rational, but JUSTICE
BREYER’s stringent version of rationality is unknown to our literary
property jurisprudence.
Cite as: 537 U. S. ____ (2003)
15
Opinion of the Court
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.11 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 Inter-
national Copyright System as a Means to Promote the
Progress of Science and Useful Arts, 36 Loyola (LA)
L. Rev. 323, 330 (2002) (“[M]atching th[e] level of [copy-
right] protection in the United States [to that in the EU]
can ensure stronger protection for U. S. works abroad and
avoid competitive disadvantages vis-à-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”).12
——————
11 Responding to an inquiry whether copyrights could be extended
“forever,” Register of Copyrights Marybeth Peters emphasized the
dominant reason for the CTEA: “There certainly are proponents of
perpetual copyright: We heard that in our proceeding on term exten-
sion. The Songwriters Guild suggested a perpetual term. However, our
Constitution says limited times, but there really isn’t a very good
indication on what limited times is. The reason why you’re going to
life-plus-70 today is because Europe has gone that way . . . .” 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 Committee on the Judiciary, 104th Cong., 1st
Sess., 230 (1995) (hereinafter House Hearings).
12 The author of the law review article cited in text, Shira Perlmutter,
currently a vice president of AOL Time Warner, was at the time of the
CTEA’s enactment Associate Register for Policy and International
Affairs, United States Copyright Office.
16
ELDRED v. ASHCROFT
Opinion of the Court
In addition to international concerns,13 Congress passed
the CTEA in light of demographic, economic, and techno-
logical changes, Brief for Respondent 25–26, 33, and
nn. 23 and 24,14 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 “provide[s] copyright owners generally with the
incentive to restore older works and further disseminate
them to the public”).15
——————
13 See also Austin, Does the Copyright Clause Mandate Isolationism?
26 Colum.–VLA J. L. & Arts 17, 59 (2002) (cautioning against “an
isolationist reading of the Copyright Clause that is in tension with . . .
America’s international copyright relations over the last hundred or so
years”).
14 Members of Congress expressed the view that, as a result of in-
creases in human longevity and in parents’ average age when their
children are born, the pre-CTEA term did not adequately secure “the
right to profit from licensing one’s work during one’s lifetime and
to take pride and comfort in knowing that one’s children—and per-
haps their children—might also benefit from one’s posthumous popu-
larity.” 141 Cong. Rec. 6553 (1995) (statement of Sen. Feinstein); see
144 Cong. Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen.
Hatch) (“Among the main developments [compelling reconsideration of
the 1976 Act’s term] is the effect of demographic trends, such as in-
creasing longevity and the trend toward rearing children later in life,
on the effectiveness of the life-plus-50 term to provide adequate protec-
tion for American creators and their heirs.”). Also cited was “the failure
of the U. S. copyright term to keep pace with the substantially in-
creased commercial life of copyrighted works resulting from the rapid
growth in communications media.” Ibid. (statement of Sen. Hatch); cf.
Sony, 464 U. S., at 430–431 (“From its beginning, the law of copyright has
developed in response to significant changes in technology. . . . [A]s new
developments have occurred in this country, it has been the Congress that
has fashioned the new rules that new technology made necessary.”).
15 JUSTICE BREYER urges that the economic incentives accompanying
copyright term extension are too insignificant to “mov[e]” any author
with a “rational economic perspective.” Post, at 14; see post, at 13–16.
Calibrating rational economic incentives, however, like “fashion[ing]
Cite as: 537 U. S. ____ (2003)
17
Opinion of the Court
In sum, we find that the CTEA is a rational enactment;
we are not at liberty to second-guess congressional deter-
minations 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.
B
Petitioners’ Copyright Clause arguments rely on several
novel readings of the Clause. We next address these
arguments and explain why we find them unpersuasive.
——————
. . . new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a
task primarily for Congress, not the courts. Congress heard testimony
from a number of prominent artists; each expressed the belief that the
copyright system’s assurance of fair compensation for themselves and
their heirs was an incentive to create. See, e.g., House Hearings 233–
239 (statement of Quincy Jones); Copyright Term Extension Act of
1995: Hearings before the Senate Committee on the Judiciary, 104th
Cong., 1st Sess., 55–56 (1995) (statement of Bob Dylan); id., at 56–57
(statement of Don Henley); id., at 57 (statement of Carlos Santana).
We would not take Congress to task for crediting this evidence which,
as JUSTICE BREYER acknowledges, reflects general “propositions about
the value of incentives” that are “undeniably true.” Post, at 14.
Congress also heard testimony from Register of Copyrights Marybeth
Peters and others regarding the economic incentives created by the
CTEA. According to the Register, extending the copyright for existing
works “could . . . provide additional income that would finance the
production and distribution of new works.” House Hearings 158.
“Authors would not be able to continue to create,” the Register ex-
plained, “unless they earned income on their finished works. The
public benefits not only from an author’s original work but also from his
or her further creations. Although this truism may be illustrated in
many ways, one of the best examples is Noah Webster[,] who supported
his entire family from the earnings on his speller and grammar during
the twenty years he took to complete his dictionary.” Id., at 165.
18
ELDRED v. ASHCROFT
Opinion of the Court
1
Petitioners contend that even if the CTEA’s 20-year
term extension is literally a “limited Tim[e],” 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 con-
struction of the CTEA’s 20-year term extension as a con-
gressional attempt to evade or override the “limited
Times” constraint.16 Critically, we again emphasize,
——————
16 JUSTICE BREYER agrees that “Congress did not intend to act uncon-
stitutionally” when it enacted the CTEA, post, at 15, yet in his very
next breath, he seems to make just that accusation, ibid. What else is
one to glean from his selection of scattered statements from individual
members of Congress? He does not identify any statement in the
statutory text that installs a perpetual copyright, for there is none. But
even if the statutory text were sufficiently ambiguous to warrant
recourse to legislative history, JUSTICE BREYER’s selections are not the
sort to which this Court accords high value: “In surveying legislative
history we have repeatedly stated that the authoritative source for
finding the Legislature’s intent lies in the Committee Reports on the
bill, which ‘represen[t] the considered and collective understanding of
those [members of Congress] involved in drafting and studying pro-
posed legislation.’ ” Garcia v. United States, 469 U. S. 70, 76 (1984)
(quoting Zuber v. Allen, 396 U. S. 168, 186 (1969)). The House and Senate
Reports accompanying the CTEA reflect no purpose to make copyright a
forever thing. Notably, the Senate Report expressly acknowledged that
the Constitution “clearly precludes Congress from granting unlimited
protection for copyrighted works,” S. Rep. No. 104–315, p. 11 (1996), and
disclaimed any intent to contravene that prohibition, ibid. Members of
Congress instrumental in the CTEA’s passage spoke to similar effect. See,
e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep.
Coble) (observing that “copyright protection should be for a limited time
only” and that “[p]erpetual protection does not benefit society”).
JUSTICE BREYER nevertheless insists that the “economic effect” of the
Cite as: 537 U. S. ____ (2003)
19
Opinion of the Court
petitioners fail to show how the CTEA crosses a constitu-
tionally 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 con-
stitutionally 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.17
——————
CTEA is to make the copyright term “virtually perpetual.” Post, at 1.
Relying on formulas and assumptions provided in an amicus brief
supporting petitioners, he stresses that the CTEA creates a copyright
term worth 99.8% of the value of a perpetual copyright. Post, at 13–15.
If JUSTICE BREYER’s calculations were a basis for holding the CTEA
unconstitutional, then the 1976 Act would surely fall as well, for—
under the same assumptions he indulges—the term set by that Act
secures 99.4% of the value of a perpetual term. See Brief for George A.
Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula).
Indeed, on that analysis even the “limited” character of the 1909
(97.7%) and 1831 (94.1%) Acts might be suspect. JUSTICE BREYER
several times places the Founding Fathers on his side. See, e.g., post,
at 5, 20. It is doubtful, however, that those architects of our Nation, in
framing the “limited Times” prescription, thought in terms of the
calculator rather than the calendar.
17 Respondent notes that the CTEA’s life-plus-70-years baseline term
is expected to produce an average copyright duration of 95 years, and
that this term “resembles some other long-accepted durational practices
in the law, such as 99-year leases of real property and bequests within
the rule against perpetuities.” Brief for Respondent 27, n. 18. Whether
such referents mark the outer boundary of “limited Times” is not before
us today. JUSTICE BREYER suggests that the CTEA’s baseline term
extends beyond that typically permitted by the traditional rule against
perpetuities. Post, at 15–16. The traditional common-law rule looks to
lives in being plus 21 years. Under that rule, the period before a
bequest vests could easily equal or exceed the anticipated average
copyright term under the CTEA. If, for example, the vesting period on
a deed were defined with reference to the life of an infant, the sum of
the measuring life plus 21 years could commonly add up to 95 years.
20
ELDRED v. ASHCROFT
Opinion of the Court
2
Petitioners dominantly advance a series of arguments
all premised on the proposition that Congress may not
extend an existing 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 require-
ment of “originality,” (2) fails to “promote the Progress of
Science,” and (3) ignores copyright’s quid pro quo.
Petitioners’ “originality” argument draws on Feist Publi-
cations, Inc. v. Rural Telephone Service Co., 499 U. S. 340
(1991). In Feist, we observed that “[t]he sine qua non of
copyright is originality,” id., at 345, and held that copy-
right 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 copy-
right protection. Rather, the decision addressed the core
question of copyrightability, i.e., the “creative 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 origi-
nality 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
Cite as: 537 U. S. ____ (2003)
21
Opinion of the Court
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 main-
tain that the preambular language identifies the sole end
to which Congress may legislate; accordingly, they con-
clude, the meaning of “limited Times” must be “deter-
mined in light of that specified end.” Brief for Petitioners
19. The CTEA’s extension of existing copyrights categori-
cally 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 Copy-
right 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 “[t]he primary objective of
copyright” is “[t]o 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 copy-
right laws at all, create a “system” that “promote[s] the
Progress of Science.” Graham, 383 U. S., at 6.18
——————
18 JUSTICE STEVENS’ characterization of reward to the author as “a
secondary consideration” of copyright law, post, at 6, n. 4 (internal
quotation marks omitted), understates the relationship between such
rewards and the “Progress of Science.” As we have explained, “[t]he
economic philosophy behind the [Copyright] [C]lause . . . is the convic-
tion that encouragement of individual effort by personal gain is the best
way to advance public welfare through the talents of authors and
inventors.” Mazer v. Stein, 347 U. S. 201, 219 (1954). Accordingly,
“copyright law celebrates the profit motive, recognizing that the incentive
to profit from the exploitation of copyrights will redound to the public
benefit by resulting in the proliferation of knowledge. . . . The profit
motive is the engine that ensures the progress of science.” American
Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d,
60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and
“promot[ing] . . . Progress” are thus complementary; as James Madison
observed, in copyright “[t]he public good fully coincides . . . with the claims
22
ELDRED v. ASHCROFT
Opinion of the Court
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 (“Th[e] evolution of the duration of copyright
protection tellingly illustrates the difficulties Congress
faces . . . . [I]t is not our role to alter the delicate balance
Congress has labored to achieve.”); Sony, 464 U. S., at 429
(“[I]t is Congress that has been assigned the task of de-
fining the scope of [rights] that should be granted to
authors or to inventors in order to give the public appro-
priate 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 justifica-
tions we earlier set out for Congress’ enactment of the
CTEA, supra, at 14–17, provide a rational basis for the
conclusion that the CTEA “promote[s] the Progress of
Science.”
On the issue of copyright duration, Congress, from the
start, has routinely applied new definitions or adjustments
of the copyright term to both future works and existing
works not yet in the public domain.19 Such consistent
——————
of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961).
JUSTICE BREYER’s assertion that “copyright statutes must serve public, not
private, ends” post, at 6, similarly misses the mark. The two ends are not
mutually exclusive; copyright law serves public ends by providing indi-
viduals with an incentive to pursue private ones.
19 As we have noted, see supra, at 5, n. 3, petitioners seek to distin-
guish the 1790 Act from those that followed. They argue that by
requiring authors seeking its protection to surrender whatever rights
they had under state law, the 1790 Act enhanced uniformity and
certainty and thus “promote[d] . . . Progress.” See Brief for Petitioners
28–31. This account of the 1790 Act simply confirms, however, that
the First Congress understood it could “promote . . . Progress” by
extending copyright protection to existing works. Every subsequent
Cite as: 537 U. S. ____ (2003)
23
Opinion of the Court
congressional practice is entitled to “very great weight,
and when it is remembered that the rights thus estab-
lished have not been disputed during a period of [over two]
centur[ies], it is almost conclusive.” Burrow-Giles Litho-
graphic Co. v. Sarony, 111 U. S., at 57. Indeed, “[t]his
Court has repeatedly laid down the principle that a con-
temporaneous 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 construc-
tion to be given [the Constitution’s] provisions.” Myers v.
United States, 272 U. S. 52, 175 (1926). Congress’ unbro-
ken practice since the founding generation thus over-
whelms petitioners’ argument that the CTEA’s extension
of existing copyrights fails per se to “promote the Progress
of Science.”20
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
“Autho[r]” an “exclusive Right” for a “limited Tim[e],” but
only in exchange for a “Writin[g].” Congress’ power to
confer copyright protection, petitioners argue, is thus
contingent upon an exchange: The author of an original
work receives an “exclusive Right” for a “limited Tim[e]” in
——————
adjustment of copyright’s duration, including the CTEA, reflects a
similar understanding.
20 JUSTICE STEVENS, post, at 15, refers to the “legislative veto” held
unconstitutional in INS v. Chadha, 462 U. S. 919 (1983), and observes
that we reached that decision despite its impact on federal laws geared to
our “contemporary political system,” id., at 967 (White, J., dissenting).
Placing existing works in parity with future works for copyright purposes,
in contrast, is not a similarly pragmatic endeavor responsive to modern
times. It is a measure of the kind Congress has enacted under its Patent
and Copyright Clause authority since the founding generation. See supra,
at 3–5.
24
ELDRED v. ASHCROFT
Opinion of the Court
exchange for a dedication to the public thereafter. Ex-
tending an existing copyright without demanding addi-
tional consideration, petitioners maintain, bestows an
unpaid-for benefit on copyright holders and their heirs, in
violation of the quid pro quo requirement.
We can demur to petitioners’ description of the Copy-
right Clause as a grant of legislative authority empower-
ing 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 em-
powering 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 also for any renewal or
extension legislated during that time.21 Congress could
——————
21 Standard copyright assignment agreements reflect this expectation.
See, e.g., A. Kohn & B. Kohn, Music Licensing 471 (3d ed. 1992–2002)
(short form copyright assignment for musical composition, under which
assignor conveys all rights to the work, “including the copyrights and
proprietary rights therein and in any and all versions of said musical
composition(s), and any renewals and extensions thereof (whether
presently available or subsequently available as a result of intervening
legislation)” (emphasis added)); 5 M. Nimmer & D. Nimmer, Copyright
§21.11[B], p. 21–305 (2002) (short form copyright assignment under
which assignor conveys all assets relating to the work, “including
without limitation, copyrights and renewals and/or extensions thereof”);
6 id., §30.04[B][1], p. 30–325 (form composer-producer agreement under
which composer “assigns to Producer all rights (copyrights, rights
under copyright and otherwise, whether now or hereafter known) and
all renewals and extensions (as may now or hereafter exist)”).
Cite as: 537 U. S. ____ (2003)
25
Opinion of the Court
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 adopt-
ing 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 (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, Bo-
nito Boats noted: “The Patent Clause itself reflects a bal-
ance 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
“[p]atents 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 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 Interna-
26
ELDRED v. ASHCROFT
Opinion of the Court
tional, Inc., 534 U. S. 124, 142 (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 (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 (1966) (“The basic quid pro quo . . . for
granting a patent monopoly is the benefit derived by the
public from an invention with substantial utility.”); Pen-
nock v. Dialogue, 2 Pet. 1, 23 (1829) (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 under-
standable, 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 copy-
right protection, in contrast, disclosure is the desired
objective, not something exacted from the author in ex-
change 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) (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
Cite as: 537 U. S. ____ (2003)
27
Opinion of the Court
of Copyright 2 (7th ed. 1936))). In light of these distinc-
tions, 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 require-
ment stops Congress from expanding copyright’s term
in a manner that puts existing and future copyrights in
parity.22
3
As an alternative to their various arguments that ex-
tending 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 evaluat-
ing exercises of Congress’ power under §5 of the Four-
teenth Amendment. See, e.g., City of Boerne v. Flores, 521
U. S. 507 (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, pur-
suant 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,
——————
22 The fact that patent and copyright involve different exchanges does
not, of course, mean that we may not be guided in our “limited Times”
analysis by Congress’ repeated extensions of existing patents. See
supra, at 10–13. If patent’s quid pro quo is more exacting than copy-
right’s, then Congress’ repeated extensions of existing patents without
constitutional objection suggests even more strongly that similar
legislation with respect to copyrights is constitutionally permissible.
28
ELDRED v. ASHCROFT
Opinion of the Court
in contrast, empowers Congress to define the scope of the
substantive right. See Sony, 464 U. S., at 429. Judicial
deference to such congressional definition is “but a corol-
lary 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 proportion-
ality” 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.
III
Petitioners separately argue that the CTEA is a content-
neutral regulation of speech that fails heightened judicial
review under the First Amendment.23 We reject petition-
ers’ 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, copy-
right’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: “[T]he Framers intended copyright itself to
——————
23 Petitioners originally framed this argument as implicating the
CTEA’s extension of both existing and future copyrights. See Pet. for
Cert. i. Now, however, they train on the CTEA’s extension of existing
copyrights and urge against consideration of the CTEA’s First Amend-
ment validity as applied to future copyrights. See Brief for Petitioners 39–
48; Reply Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider
petitioners’ argument as so limited. We note, however, that petitioners do
not explain how their First Amendment argument is moored to the
prospective/retrospective line they urge us to draw, nor do they say
whether or how their free speech argument applies to copyright duration
but not to other aspects of copyright protection, notably scope.
Cite as: 537 U. S. ____ (2003)
29
Opinion of the Court
be the engine of free expression. By establishing a mar-
ketable right to the use of one’s expression, copyright
supplies the economic incentive to create and disseminate
ideas.” 471 U. S., at 558.
In addition to spurring the creation and publication of
new expression, copyright law contains built-in First
Amendment accommodations. See id., at 560. First, it
distinguishes between ideas and expression and makes
only the latter eligible for copyright protection. Specifi-
cally, 17 U. S. C. §102(b) provides: “In no case does copy-
right protection for an original work of authorship extend
to any idea, procedure, process, system, method of opera-
tion, 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 strike[s] 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 distinc-
tion, 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 349–350.
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. Codi-
fied at 17 U. S. C. §107, the defense provides: “[T]he fair
use of a copyrighted work, including such use by reproduc-
tion in copies . . . , for purposes such as criticism, com-
ment, 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
30
ELDRED v. ASHCROFT
Opinion of the Court
Woman” may be fair use).
The CTEA itself supplements these traditional First
Amendment safeguards. First, it allows libraries, ar-
chives, and similar institutions to “reproduce” and “dis-
tribute, 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 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 Sensen-
brenner, 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 (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 adher-
ence.” Id., at 641.
The CTEA, in contrast, does not oblige anyone to repro-
duce 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 concerns present when the government com-
pels or burdens the communication of particular facts or
ideas. The First Amendment securely protects the free-
dom to make—or decline to make—one’s own speech; it
Cite as: 537 U. S. ____ (2003)
31
Opinion of the Court
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 al-
tered 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 (1987).24
IV
If petitioners’ vision of the Copyright Clause held sway,
it would do more than render the CTEA’s duration exten-
sions unconstitutional as to existing works. Indeed, peti-
tioners’ 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 exten-
sions, 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,
——————
24 We are not persuaded by petitioners’ attempt to distinguish Harper
& Row on the ground that it involved an infringement suit rather than
a declaratory action of the kind here presented. As respondent ob-
serves, the same legal question can arise in either posture. See Brief
for Respondent 42. In both postures, it is appropriate to construe
copyright’s internal safeguards to accommodate First Amendment
concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78
(1994) (“It is . . . incumbent upon us to read the statute to eliminate
[serious constitutional] doubts so long as such a reading is not plainly
contrary to the intent of Congress.”).
32
ELDRED v. ASHCROFT
Opinion of the Court
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 inter-
pretation, petitioners forcefully urge that Congress pur-
sued 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 Branch, we affirm the judgment of the
Court of Appeals.
It is so ordered.
Cite as: 537 U. S. ____ (2003)
1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 01–618
_________________
ERIC ELDRED, ET AL., PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 15, 2003]
JUSTICE STEVENS, dissenting.
Writing for a unanimous Court in 1964, Justice Black
stated that it is obvious that a State could not “extend the
life of a patent beyond its expiration date,” Sears, Roebuck
& Co. v. Stiffel Co., 376 U. S. 225, 231 (1964).1 As I shall
explain, the reasons why a State may not extend the life of
a patent apply to Congress as well. If Congress may not
expand the scope of a patent monopoly, it also may not
extend the life of a copyright beyond its expiration date.
Accordingly, insofar as the 1998 Sonny Bono Copyright
Term Extension Act, 112 Stat. 2827, purported to extend
the life of unexpired copyrights, it is invalid. Because the
majority’s contrary conclusion rests on the mistaken
premise that this Court has virtually no role in reviewing
——————
1 Justice Harlan wrote a brief concurrence, but did not disagree with
this statement. Justice Black’s statement echoed a portion of Attorney
General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824):
“The law of Congress declares, that all inventors of useful improve-
ments throughout the United States, shall be entitled to the exclusive
right in their discoveries for fourteen years only. The law of New-York
declares, that this inventor shall be entitled to the exclusive use of his
discovery for thirty years, and as much longer as the State shall permit.
The law of Congress, by limiting the exclusive right to fourteen years,
in effect declares, that after the expiration of that time, the discovery
shall be the common right of the whole people of the United States.”
2
ELDRED v. ASHCROFT
STEVENS, J., dissenting
congressional grants of monopoly privileges to authors,
inventors and their successors, I respectfully dissent.
I
The authority to issue copyrights stems from the same
Clause in the Constitution that created the patent power.
It provides:
“Congress shall have Power . . . To promote the Prog-
ress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.” Art. I, §8,
cl. 8.
It is well settled that the Clause is “both a grant of
power and a limitation” and that Congress “may not over-
reach the restraints imposed by the stated constitutional
purpose.” Graham v. John Deere Co. of Kansas City, 383
U. S. 1, 5–6 (1966). As we have made clear in the patent
context, that purpose has two dimensions. Most obviously
the grant of exclusive rights to their respective writings
and discoveries is intended to encourage the creativity of
“Authors and Inventors.” But the requirement that those
exclusive grants be for “limited Times” serves the ultimate
purpose of promoting the “Progress of Science and useful
Arts” by guaranteeing that those innovations will enter
the public domain as soon as the period of exclusivity
expires:
“Once the patent issues, it is strictly construed,
United States v. Masonite Corp., 316 U. S. 265, 280
(1942), it cannot be used to secure any monopoly be-
yond that contained in the patent, Morton Salt Co. v.
G. S. Suppiger Co., 314 U. S. 488, 492 (1942), . . . and
especially relevant here, when the patent expires the
monopoly created by it expires, too, and the right to
make the article—including the right to make it in
precisely the shape it carried when patented—passes
Cite as: 537 U. S. ____ (2003)
3
STEVENS, J., dissenting
to the public. Kellogg Co. v. National Biscuit Co., 305
U. S. 111, 120–122 (1938); Singer Mfg. Co. v. June
Mfg. Co., 163 U. S. 169, 185 (1896).” Sears, Roebuck &
Co., 376 U. S., at 230.
It is that ultimate purpose that explains why a patent
may not issue unless it discloses the invention in such
detail that one skilled in the art may copy it. See, e.g.,
Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.)
(“The third section [of the 1793 Act] requires, as preliminary
to a patent, a correct specification and description of the
thing discovered. This is necessary in order to give the
public, after the privilege shall expire, the advantage for
which the privilege is allowed, and is the foundation of the
power to issue the patent”). Complete disclosure as a
precondition to the issuance of a patent is part of the quid
pro quo that justifies the limited monopoly for the inventor
as consideration for full and immediate access by the
public when the limited time expires.2
Almost two centuries ago the Court plainly stated that
public access to inventions at the earliest possible date
was the essential purpose of the Clause:
“While one great object was, by holding out a reason-
able reward to inventors, and giving them an exclu-
sive right to their inventions for a limited period, to
stimulate the efforts of genius; the main object was ‘to
promote the progress of science and useful arts;’ and
——————
2Attorney General Wirt made this precise point in his argument in
Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advan-
tage of the inventor, but of society at large, which is to take the benefit
of the invention after the period of limitation has expired. The patentee
pays a duty on his patent, which is an effective source of revenue to the
United States. It is virtually a contract between each patentee and the
people of the United States, by which the time of exclusive and secure
enjoyment is limited, and then the benefit of the discovery results to
the public.”
4
ELDRED v. ASHCROFT
STEVENS, J., dissenting
this could be done best, by giving the public at large a
right to make, construct, use, and vend the thing in-
vented, at as early a period as possible, having a due
regard to the rights of the inventor. If an inventor
should be permitted to hold back from the knowledge
of the public the secrets of his invention; if he should
for a long period of years retain the monopoly, and
make, and sell his invention publicly, and thus gather
the whole profits of it, relying upon his superior skill
and knowledge of the structure; and then, and then
only, when the danger of competition should force him
to secure the exclusive right, he should be allowed to
take out a patent, and thus exclude the public from
any farther use than what should be derived under it
during his fourteen years; it would materially retard
the progress of science and the useful arts, and give a
premium to those, who should be least prompt to
communicate their discoveries.” Pennock v. Dialogue,
2 Pet. 1, 18 (1829).
Pennock held that an inventor could not extend the
period of patent protection by postponing his application
for the patent while exploiting the invention commercially.
As we recently explained, “implicit in the Patent Clause
itself” is the understanding “that free exploitation of ideas
will be the rule, to which the protection of a federal patent
is the exception. Moreover, the ultimate goal of the patent
system is to bring new designs and technologies into the
public domain through disclosure.” Bonito Boats, Inc. v.
Thunder Craft Boats, Inc., 489 U. S. 141, 151 (1989).
The issuance of a patent is appropriately regarded as a
quid pro quo—the grant of a limited right for the inven-
tor’s disclosure and subsequent contribution to the public
domain. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S.
55, 63 (1998) (“[T]he patent system represents a carefully
crafted bargain that encourages both the creation and the
Cite as: 537 U. S. ____ (2003)
5
STEVENS, J., dissenting
public disclosure of new and useful advances in technol-
ogy, in return for an exclusive monopoly for a limited
period of time”). It would be manifestly unfair if, after
issuing a patent, the Government as a representative of
the public sought to modify the bargain by shortening the
term of the patent in order to accelerate public access to
the invention. The fairness considerations that underlie
the constitutional protections against ex post facto laws
and laws impairing the obligation of contracts would
presumably disable Congress from making such a retroac-
tive change in the public’s bargain with an inventor with-
out providing compensation for the taking. Those same
considerations should protect members of the public who
make plans to exploit an invention as soon as it enters the
public domain from a retroactive modification of the bar-
gain that extends the term of the patent monopoly. As I
discuss below, the few historical exceptions to this rule do
not undermine the constitutional analysis. For quite
plainly, the limitations “implicit in the Patent Clause
itself,” 489 U. S., at 151, adequately explain why neither a
State nor Congress may “extend the life of a patent beyond
its expiration date,” Sears, Roebuck & Co., 376 U. S., at
231.3
Neither the purpose of encouraging new inventions nor
the overriding interest in advancing progress by adding
——————
3The Court acknowledges that this proposition is “uncontroversial”
today, see ante, at 11, n. 6, but overlooks the fact that it was highly
controversial in the early 1800’s. See n. 11, infra. The Court assumes
that the Sears holding rested entirely on the pre-emptive effect of
congressional statutes even though the opinion itself, like the opinions
in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), and
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989), also
relied on the pre-emptive effect of the constitutional provision. That at
least some of the Framers recognized that the Constitution itself
imposed a limitation even before Congress acted is demonstrated by
Madison’s letter, quoted in n. 6, infra.
6
ELDRED v. ASHCROFT
STEVENS, J., dissenting
knowledge to the public domain is served by retroactively
increasing the inventor’s compensation for a completed
invention and frustrating the legitimate expectations of
members of the public who want to make use of it in a free
market. Because those twin purposes provide the only
avenue for congressional action under the Copy-
right/Patent Clause of the Constitution, any other action
is manifestly unconstitutional.
II
We have recognized that these twin purposes of encour-
aging new works and adding to the public domain apply to
copyrights as well as patents. Thus, with regard to copy-
rights on motion pictures, we have clearly identified the
overriding interest in the “release to the public of the
products of [the author’s] creative genius.” United States
v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948).4
And, as with patents, we have emphasized that the over-
riding purpose of providing a reward for authors’ creative
activity is to motivate that activity and “to allow the pub-
lic access to the products of their genius after the limited
period of exclusive control has expired.” Sony Corp. of
America v. Universal City Studios, Inc., 464 U. S. 417, 429
(1984). Ex post facto extensions of copyrights result in a
gratuitous transfer of wealth from the public to authors,
publishers, and their successors in interest. Such retroac-
tive extensions do not even arguably serve either of the
purposes of the Copyright/Patent Clause. The reasons
——————
4 “The copyright law, like the patent statutes, makes reward to the
owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S.
123, 127, Chief Justice Hughes spoke as follows respecting the copy-
right monopoly granted by Congress, ‘The sole interest of the United
States and the primary object in conferring the monopoly lie in the
general benefits derived by the public from the labors of authors.’ It is
said that reward to the author or artist serves to induce release to the
public of the products of his creative genius.” 334 U. S., at 158.
Cite as: 537 U. S. ____ (2003)
7
STEVENS, J., dissenting
why such extensions of the patent monopoly are unconsti-
tutional apply to copyrights as well.
Respondent, however, advances four arguments in
support of the constitutionality of such retroactive exten-
sions: (1) the first Copyright Act enacted shortly after the
Constitution was ratified applied to works that had al-
ready been produced; (2) later Congresses have repeatedly
authorized extensions of copyrights and patents; (3) such
extensions promote the useful arts by giving copyright
holders an incentive to preserve and restore certain valu-
able motion pictures; and (4) as a matter of equity, when-
ever Congress provides a longer term as an incentive to
the creation of new works by authors, it should provide an
equivalent reward to the owners of all unexpired copy-
rights. None of these arguments is persuasive.
III
Congress first enacted legislation under the Copy-
right/Patent Clause in 1790 when it passed bills creating
federal patent and copyright protection. Because the
content of that first legislation, the debate that accompa-
nied it, and the differences between the initial versions
and the bills that ultimately passed provide strong evi-
dence of early Congresses’ understanding of the constitu-
tional limits of the Copyright/Patent Clause, I examine
both the initial copyright and patent statutes.
Congress first considered intellectual property statutes
in its inaugural session in 1789. The bill debated, House
Resolution 10—“a bill to promote the progress of science
and useful arts, by securing to authors and inventors the
exclusive right to their respective writings and discover-
ies,” 3 Documentary History of the First Federal Congress
of the United States of America, March 4, 1789–March 3,
1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds.,
8
ELDRED v. ASHCROFT
STEVENS, J., dissenting
1977)—provided both copyright and patent protection for
similar terms.5 The first Congress did not pass H. R. 10,
though a similar version was reintroduced in the second
Congress in 1790. After minimal debate, however, the
House of Representatives began consideration of two
separate bills, one covering patents and the other copy-
rights. Because, as the majority recognizes, “congressional
practice with respect to patents informs our inquiry,” ante,
at 9, I consider the history of both patent and copyright
legislation.
The Patent Act
What eventually became the Patent Act of 1790 had its
genesis in House Resolution 41, introduced on February
16, 1790. That resolution differed from H. R. 10 in one
important respect. Whereas H. R. 10 would have extended
patent protection to only those inventions that were “not
before known or used,” H. R. 41, by contrast, added the
phrase “within the United States” to that limitation and
expressly authorized patent protection for “any person,
who shall after the passing of this act, first import into the
United States . . . any . . . device . . . not before used or
known in the said States.” 6 Documentary History, supra,
at 1626–1632. This change would have authorized patents
of importation, providing United States patent protection
for inventions already in use elsewhere. This change,
however, was short lived and was removed by a floor
amendment on March 5, 1789. Walterscheid 125. Though
exact records of the floor debate are lost, correspondence
from House members indicate that doubts about the con-
——————
5 A copy of this bill specifically identified has not been found, though
strong support exists for considering a bill from that session as H. R.
10. See E. Walterscheid, To Promote the Progress of Useful Arts:
American Patent Law and Administration, 1798–1836, pp. 87–88
(1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documen-
tary History 513–519.
Cite as: 537 U. S. ____ (2003)
9
STEVENS, J., dissenting
stitutionality of such a provision led to its removal. Rep-
resentative Thomas Fitzsimmons wrote to a leading in-
dustrialist that day stating that the section “‘allowing to
Importers, was left out, the Constitutional power being
Questionable.’ ” Id., at 126 (quoting Letter from Rep.
Thomas Fitzsimmons to Tench Coxe (March 5, 1790)).
James Madison himself recognized this constitutional
limitation on patents of importation, flatly stating that the
constitution “forbids patents for that purpose.” 13 Papers
of James Madison 128 (C. Hobson & R. Rutland, eds.
1981) (reprinting letter to Tench Coxe (March, 28 1790)).6
The final version of the 1790 Patent Act, 1 Stat. 109, did
not contain the geographic qualifier and thus did not
provide for patents of importation. This statutory omis-
sion, coupled with the contemporaneous statements by
legislators, provides strong evidence that Congress recog-
nized significant limitations on their constitutional
authority under the Copyright/Patent Clause to extend
protection to a class of intellectual properties. This recog-
nition of a categorical constitutional limitation is funda-
mentally at odds with the majority’s reading of Article I,
§8 to provide essentially no limit on congressional action
under the Clause. If early congressional practice does,
——————
6 “Your idea of appropriating a district of territory to the encourage-
ment of imported inventions is new and worthy of consideration. I can
not but apprehend however that the clause in the constitution which
forbids patents for that purpose will lie equally in the way of your
expedient. Congress seem to be tied down to the single mode of encour-
aging inventions by granting the exclusive benefit of them for a limited
time, and therefore to have no more power to give a further encourage-
ment out of a fund of land than a fund of money. This fetter on the
National Legislature tho’ an unfortunate one, was a deliberate one.
The Latitude of authority now wished for was strongly urged and
expressly rejected.” Madison’s description of the Copyright/Patent
Clause as a “fetter on the National Legislature” is fully consistent with
this Court’s opinion in Graham.
10
ELDRED v. ASHCROFT
STEVENS, J., dissenting
indeed, inform our analysis, as it should, then the major-
ity’s judicial excision of these constitutional limits cannot
be correct.
The Copyright Act
Congress also passed the first Copyright Act, 1 Stat.
124, in 1790. At that time there were a number of maps,
charts, and books that had already been printed, some of
which were copyrighted under state laws and some of
which were arguably entitled to perpetual protection
under the common law. The federal statute applied to
those works as well as to new works. In some cases the
application of the new federal rule reduced the
pre-existing protections, and in others it may have in-
creased the protection.7 What is significant is that the
statute provided a general rule creating new federal rights
that supplanted the diverse state rights that previously
existed. It did not extend or attach to any of those
pre-existing state and common-law rights: “That congress,
in passing the act of 1790, did not legislate in reference to
existing rights, appears clear.” Wheaton v. Peters, 8 Pet.
591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S.
123, 127 (1932) (“As this Court has repeatedly said, the
Congress did not sanction an existing right but created a
——————
7 Importantly, even this first Act required a quid pro quo in order to
receive federal copyright protection. In order to receive protection
under the Act, the author was first required to register the work: “That
no person shall be entitled to the benefit of this act, in cases where any
map, chart, book or books, hath or have been already printed and
published, unless he shall first deposit, and in all other cases, unless he
shall before publication deposit a printed copy of the title of such map,
chart, book or books, in the clerk’s office of the district court where the
author or proprietor shall reside.” §3, 1 Stat. 124. This registration
requirement in federal district court—a requirement obviously not
required under the various state laws protecting written works—
further illustrates that the 1790 Act created new rights, rather than
extending existing rights.
Cite as: 537 U. S. ____ (2003)
11
STEVENS, J., dissenting
new one”). Congress set in place a federal structure gov-
erning certain types of intellectual property for the new
Republic. That Congress exercised its unquestionable
constitutional authority to create a new federal system
securing rights for authors and inventors in 1790 does not
provide support for the proposition that Congress can extend
pre-existing federal protections retroactively.
Respondent places great weight on this first congres-
sional action, arguing that it proves that “Congress thus
unquestionably understood that it had authority to apply
a new, more favorable copyright term to existing works.”
Brief for Respondent 12–13. That understanding, how-
ever, is not relevant to the question presented by this
case—whether “Congress has the power under the Copy-
right Clause to extend retroactively the term of existing
copyrights?” Brief for Petitioners i.8 Precisely put, the
question presented by this case does not even implicate
the 1790 Act, for that Act created, rather than extended,
copyright protection. That this law applied to works
already in existence says nothing about the First Con-
gress’ conception of their power to extend this newly cre-
ated federal right.
——————
8 Respondent’s reformulation of the questions presented by this case
confuses this basic distinction. We granted certiorari to consider the
question: “Did the D. C. Circuit err in holding that Congress has the
power under the Copyright Clause to extend retroactively the term of
existing copyrights?” Respondent’s reformulation of the first question
presented—“Whether the 20-year extension of the terms of all unex-
pired copyrights . . . violates the Copyright Clause of the Constitution
insofar as it applies to works in existence when it took effect”—signifi-
cantly changes the substance of inquiry by changing the focus from the
federal statute at issue to irrelevant common-law protections. Brief for
Respondent I. Indeed, this reformulation violated this Court’s Rule
24(1)(a), which states that “the brief [on the merits] may not raise
additional questions or change the substance of the questions already
presented in” the petition for certiorari.
12
ELDRED v. ASHCROFT
STEVENS, J., dissenting
Moreover, members of Congress in 1790 were well
aware of the distinction between the creation of new copy-
right regimes and the extension of existing copyrights.
The 1790 Act was patterned, in many ways, after the
Statute of Anne enacted in England in 1710. 8 Ann., c. 19;
see Fred Fisher Music Co. v. M. Witmark & Sons, 318
U. S. 643, 647–648 (1943). The English statute, in addi-
tion to providing authors with copyrights on new works for
a term of 14 years renewable for another 14-year term,
also replaced the booksellers’ claimed perpetual rights in
existing works with a single 21-year term. In 1735, the
booksellers proposed an amendment that would have
extended the terms of existing copyrights until 1756, but
the amendment was defeated. Opponents of the amend-
ment had argued that if the bill were to pass, it would “in
Effect be establishing a perpetual Monopoly . . . only to
increase the private Gain of the Booksellers . . . .”9 The
authors of the federal statute that used the Statute of
Anne as a model were familiar with this history. Accord-
ingly, this Court should be especially wary of relying on
Congress’ creation of a new system to support the proposi-
tion that Congress unquestionably understood that it had
constitutional authority to extend existing copyrights.
IV
Since the creation of federal patent and copyright pro-
tection in 1790, Congress has passed a variety of legisla-
tion, both providing specific relief for individual authors
and inventors as well as changing the general statutes
——————
9 “A LETTER to a Member of Parliament concerning the Bill now
depending . . . for making more effectual an Act in the 8th year of the
Reign of Queen Anne, entituled, An Act for the Encouragement of
Learning by . . . Vesting the Copies of Printed Books in the Authors or
Purchasers.” Document reproduced in Goldsmiths’—Kress Library of
Economic Literature, Segment 1: Printed Books Through 1800, Micro-
film No. 7300 (reel 460).
Cite as: 537 U. S. ____ (2003)
13
STEVENS, J., dissenting
conferring patent and copyright privileges. Some of the
changes did indeed, as the majority describes, extend
existing protections retroactively. Other changes, how-
ever, did not do so. A more complete and comprehensive
look at the history of congressional action under the
Copyright/Patent Clause demonstrates that history, in
this case, does not provide the “ ‘volume of logic,’ ”
ante, at 9, necessary to sustain the Sonny Bono Act’s
constitutionality.
Congress, aside from changing the process of applying
for a patent in the 1793 Patent Act, did not significantly
alter the basic patent and copyright systems for the next
40 years. During this time, however, Congress did con-
sider many private bills. Respondent seeks support from
“Congress’s historical practice of using its Copyright and
Patent Clause authority to extend the terms of individual
patents and copyrights.” Brief for Respondent 13. Care-
fully read, however, these private bills do not support
respondent’s historical gloss, but rather significantly
undermine the historical claim.
The first example relied upon by respondent, the exten-
sion of Oliver Evans’ patent in 1808, ch. 8, 6 Stat. 70,
demonstrates the pitfalls of relying on an incomplete
historical analysis. Evans, an inventor who had developed
several improvements in milling flour, received the third
federal patent on January 7, 1791. See Federico, Patent
Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945).
Under the 14-year term provided by the 1790 Patent Act,
this patent was to expire on January 7, 1805. Claiming
that 14 years had not provided him a sufficient time to
realize income from his invention and that the net profits
were spent developing improvements on the steam engine,
Evans first sought an extension of his patent in December
1804. Id., at 598; 14 Annals of Congress 1002. Unsuccess-
ful in 1804, he tried again in 1805, and yet again in 1806,
to persuade Congress to pass his private bill. Undaunted,
14
ELDRED v. ASHCROFT
STEVENS, J., dissenting
Evans tried one last time to revive his expired patent after
receiving an adverse judgment in an infringement action.
See Evans v. Chambers, 8 F. Cas. 837 (No. 4,555) (CC Pa.
1807). This time, his effort at private legislation was
successful and Congress passed a bill extending his patent
for 14 years. See An Act for the relief of Oliver Evans, 6
Stat. 70. This legislation, passed January 21, 1808, re-
stored a patent monopoly for an invention that had been
in the public domain for over four years. As such, this Act
unquestionably exceeded Congress’ authority under the
Copyright/Patent Clause: “The Congress in the exercise of
the patent power may not overreach the restraints im-
posed by the stated constitutional purpose. . . . Congress
may not authorize the issuance of patents whose effects are
to remove existent knowledge from the public domain, or to
restrict free access to materials already available.” Gra-
ham, 383 U. S., at 5–6 (emphasis added).
This extension of patent protection to an expired patent
was not an isolated incident. Congress passed private
bills either directly extending patents or allowing other-
wise untimely applicants to apply for patent extensions for
approximately 75 patents between 1790 and 1875. Of
these 75 patents, at least 56 had already fallen into the
public domain.10 The fact that this repeated practice was
patently unconstitutional completely undermines the
majority’s reliance on this history as “significant.” Ante,
at 9.
——————
10 See, e.g., ch. 74, 6 Stat. 458 (patent had expired for three months);
ch. 113, 6 Stat. 467 (patent had expired for over two years); ch. 213, 6
Stat. 589 (patent had expired for five months); ch. 158, 9 Stat. 734
(patent had expired for over two years); ch. 72, 14 Stat. 621 (patent had
expired nearly four years); ch. 175, 15 Stat. 461 (patent had expired for
over two years); ch. 15, 16 Stat. 613 (patent had expired for six years);
ch. 317, 16 Stat. 659 (patent had expired for nearly four years); ch. 508,
17 Stat. 689 (patent had expired for over two years).
Cite as: 537 U. S. ____ (2003)
15
STEVENS, J., dissenting
Copyright legislation has a similar history. The federal
Copyright Act was first amended in 1831. That amend-
ment, like later amendments, not only authorized a longer
term for new works, but also extended the terms of unex-
pired copyrights. Respondent argues that that historical
practice effectively establishes the constitutionality of
retroactive extensions of unexpired copyrights. Of course,
the practice buttressess the presumption of validity that
attaches to every Act of Congress. But, as our decision in
INS v. Chadha, 462 U. S. 919 (1983), demonstrates, the
fact that Congress has repeatedly acted on a mistaken
interpretation of the Constitution does not qualify our
duty to invalidate an unconstitutional practice when it is
finally challenged in an appropriate case. As Justice
White pointed out in his dissent in Chadha, that case
sounded the “death knell for nearly 200 other statutory
provisions” in which Congress had exercised a “legislative
veto.” Id., at 967. Regardless of the effect of unconstitu-
tional enactments of Congress, the scope of “‘the constitu-
tional power of Congress . . . is ultimately a judicial rather
than a legislative question, and can be settled finally only by
this Court.’” United States v. Morrison, 529 U. S. 598, 614
(2000) (quoting Heart of Atlanta Motel, Inc. v. United States,
379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as
this Court has long recognized, “[i]t is obviously correct that
no one acquires a vested or protected right in violation of the
Constitution by long use, even when that span of time cov-
ers our entire national existence.” Walz v. Tax Comm’n of
City of New York, 397 U. S. 664, 678 (1970).
It would be particularly unwise to attach constitutional
significance to the 1831 amendment because of the very
different legal landscape against which it was enacted.
Congress based its authority to pass the amendment on
grounds shortly thereafter declared improper by the
Court. The Judiciary Committee Report prepared for the
House of Representatives asserted that “an author has an
16
ELDRED v. ASHCROFT
STEVENS, J., dissenting
exclusive and perpetual right, in preference to any other,
to the fruits of his labor.” 7 Gales & Seaton, Register of
Debates in Congress cxx (1831). The floor debate echoed
this same sentiment. See, e.g., id., at 423 (statement of
Mr. Verplanck (rejecting the idea that copyright involved
“an implied contract existing between an author and the
public” for “[t]here was no contract; the work of an author
was the result of his own labor” and copyright was “merely
a legal provision for the protection of a natural right”)).
This sweat-of-the-brow view of copyright, however, was
emphatically rejected by this Court in 1834 in Wheaton v.
Peters, 8 Pet., at 661 (“Congress, then, by this act, instead
of sanctioning an existing right, as contended for, created
it”). No presumption of validity should attach to a statu-
tory enactment that relied on a shortly thereafter discred-
ited interpretation of the basis for congressional power.11
In 1861, Congress amended the term of patents, from a
14-year term plus opportunity for 7-year extension to a
flat 17 years with no extension permitted. Act of Mar. 2,
1861, ch. 88, §16, 12 Stat. 249. This change was not retro-
active, but rather only applied to “all patents hereafter
granted.” Ibid. To be sure, Congress, at many times in its
history, has retroactively extended the terms of existing
——————
11 In the period before our decision in Wheaton, the pre-emptive effect
of the Patent/Copyright Clause was also a matter of serious debate
within the legal profession. Indeed, in their argument in this Court in
Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New
York’s grant of a 30-year monopoly on the passenger trade between
New Jersey and Manhattan argued that the Clause actually should be
interpreted as confirming the State’s authority to grant monopoly
privileges that supplemented any federal grant. That argument is, of
course, flatly inconsistent with our recent unanimous decision in Bonito
Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attor-
ney General Wirt had urged the Court to endorse our present interpre-
tation of the Clause, its implicit limitations were unsettled when the
1831 Copyright Act was passed.
Cite as: 537 U. S. ____ (2003)
17
STEVENS, J., dissenting
copyrights and patents. This history, however, reveals a
much more heterogeneous practice than respondent con-
tends. It is replete with actions that were unquestionably
unconstitutional. Though relevant, the history is not
dispositive of the constitutionality of Sonny Bono Act.
The general presumption that historic practice illumi-
nates the constitutionality of congressional action is not
controlling in this case. That presumption is strongest
when the earliest acts of Congress are considered, for the
overlap of identity between those who created the Consti-
tution and those who first constituted Congress provides
“contemporaneous and weighty evidence” of the Constitu-
tion’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127
U. S. 265, 297 (1888). But that strong presumption does not
attach to congressional action in 1831, because no member
of the 1831 Congress had been a delegate to the framing
convention 44 years earlier.
Moreover, judicial opinions relied upon by the majority
interpreting early legislative enactments have either been
implicitly overruled or do not support the proposition
claimed. Graham flatly contradicts the cases relied on by
the majority and respondent for support that “renewed or
extended terms were upheld in the early days.” Ante, at
10.12 Evans v. Jordan, 8 F. Cas. 872, 874 (No. 4,564) (CC
——————
12 It is true, as the majority points out, ante at 11, n. 5, that Graham
did not expressly overrule those earlier cases because Graham did not
address the issue whether Congress could revive expired patents. That
observation does not even arguably justify reliance on a set of old
circuit court cases to support a proposition that is inconsistent with our
present understanding of the limits imposed by the Copyright/Patent
Clause. After all, a unanimous Court recently endorsed the precise
analysis that the majority now seeks to characterize as “wishful think-
ing.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress
may not create patent monopolies of unlimited duration, nor may it
‘authorize the issuance of patents whose effects are to remove existent
knowledge from the public domain, or to restrict free access to materials
18
ELDRED v. ASHCROFT
STEVENS, J., dissenting
Va. 1813) (Marshall, J.); Evans v. Robinson, 8 F. Cas. 886,
888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague,
3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.)
all held that private bills passed by Congress extending
previously expired patents rights were valid. Evans v.
Jordan and Evans v. Robinson both considered Oliver
Evans’ private bill discussed above while Blanchard in-
volved ch. 213, 6 Stat. 589, which extended Thomas Blan-
chard’s patent after it had been in the public domain for
five months. Irrespective of what circuit courts held “in
the early days,” ante, at 10, such holdings have been
implicitly overruled by Graham and, therefore, provide
no support for respondent in the present constitutional
inquiry.
The majority’s reliance on the other patent case it cites
is similarly misplaced. Contrary to the suggestion in the
Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843),
did not involve the “legislative expansion” of an existing
patent. Ante, at 10–11. The question in that case was
whether the former employer of the inventor, one James
Harley, could be held liable as an infringer for continuing to
use the process that Harley had invented in 1834 when he
was in its employ. The Court first held that the employer’s
use of the process before the patent issued was not a public
use that would invalidate the patent, even if it might have
had that effect prior to the amendment of the patent statute
in 1836. 1 How., at 206–208. The Court then disposed of
the case on the ground that a statute enacted in 1839 pro-
tected the alleged infringer’s right to continue to use the
process after the patent issued. Id., at 209–211. Our opin-
ion said nothing about the power of Congress to extend the
life of an issued patent. It did note that Congress has ple-
nary power to legislate on the subject of patents provided
——————
already available’” (quoting Graham, 383 U. S., at 6 )).
Cite as: 537 U. S. ____ (2003)
19
STEVENS, J., dissenting
“that they do not take away the rights of property in exist-
ing patents.” Id., at 206. The fact that Congress cannot
change the bargain between the public and the patentee in a
way that disadvantages the patentee is, of course, fully
consistent with the view that it cannot enlarge the patent
monopoly to the detriment of the public after a patent has
issued.
The history of retroactive extensions of existing and
expired copyrights and patents, though relevant, is not
conclusive of the constitutionality of the Sonny Bono Act.
The fact that the Court has not previously passed upon
the constitutionality of retroactive copyright extensions
does not insulate the present extension from constitutional
challenge.
V
Respondent also argues that the Act promotes the useful
arts by providing incentives to restore old movies. For at
least three reasons, the interest in preserving perishable
copies of old copyrighted films does not justify a wholesale
extension of existing copyrights. First, such restoration
and preservation will not even arguably promote any new
works by authors or inventors. And, of course, any origi-
nal expression in the restoration and preservation of
movies will receive new copyright protection.13 Second,
——————
13 Indeed, the Lodging of the Motion Picture Association of America,
Inc., as Amicus Curiae illustrates the significant creative work involved
in releasing these classics. The Casablanca Digital Video Disc (DVD)
contains a “documentary You Must Remember This, hosted by Lauren
Bacall and featuring recently unearthed outtakes” and an “[a]ll-new
introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen
Kane DVD includes “[t]wo feature-length audio commentaries: one by
film critic Roger Ebert and the other by director/Welles biographer
Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate
ad campaigns, studio correspondence, call sheets and other memora-
bilia” in addition to a 2-hour documentary. Disc cover text.
20
ELDRED v. ASHCROFT
STEVENS, J., dissenting
however strong the justification for preserving such works
may be, that justification applies equally to works whose
copyrights have already expired. Yet no one seriously
contends that the Copyright/Patent Clause would author-
ize the grant of monopoly privileges for works already in
the public domain solely to encourage their restoration.
Finally, even if this concern with aging movies would
permit congressional protection, the remedy offered—a
blanket extension of all copyrights—simply bears no rela-
tionship to the alleged harm.
VI
Finally, respondent relies on concerns of equity to justify
the retroactive extension. If Congress concludes that a
longer period of exclusivity is necessary in order to provide
an adequate incentive to authors to produce new works,
respondent seems to believe that simple fairness requires
that the same lengthened period be provided to authors
whose works have already been completed and copy-
righted. This is a classic non sequitur. The reason for
increasing the inducement to create something new simply
does not apply to an already-created work. To the con-
trary, the equity argument actually provides strong sup-
port for petitioners. Members of the public were entitled
to rely on a promised access to copyrighted or patented
works at the expiration of the terms specified when the
exclusive privileges were granted. On the other hand,
authors will receive the full benefit of the exclusive terms
that were promised as an inducement to their creativity,
and have no equitable claim to increased compensation for
doing nothing more.
One must indulge in two untenable assumptions to find
support in the equitable argument offered by respondent—
that the public interest in free access to copyrighted works
is entirely worthless and that authors, as a class, should
receive a windfall solely based on completed creative
Cite as: 537 U. S. ____ (2003)
21
STEVENS, J., dissenting
activity. Indeed, Congress has apparently indulged in
those assumptions for under the series of extensions to
copyrights, only one year’s worth of creative work—that
copyrighted in 1923—has fallen into the public domain
during the last 80 years. But as our cases repeatedly and
consistently emphasize, ultimate public access is the
overriding purpose of the constitutional provision. See,
e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions
of existing copyrights, unsupported by any consideration
of the public interest, frustrate the central purpose of the
Clause.
VII
The express grant of a perpetual copyright would un-
questionably violate the textual requirement that the
authors’ exclusive rights be only “for limited Times.”
Whether the extraordinary length of the grants authorized
by the 1998 Act are invalid because they are the functional
equivalent of perpetual copyrights is a question that need
not be answered in this case because the question pre-
sented by the certiorari petition merely challenges Con-
gress’ power to extend retroactively the terms of existing
copyrights. Accordingly, there is no need to determine
whether the deference that is normally given to congres-
sional policy judgments may save from judicial review its
decision respecting the appropriate length of the term.14 It
——————
14 Similarly, the validity of earlier retroactive extensions of copyright
protection is not at issue in this case. To decide the question now
presented, we need not consider whether the reliance and expectation
interests that have been established by prior extensions passed years
ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746
(1984) (“We have recognized, in a number of contexts, the legitimacy of
protecting reasonable reliance on prior law even when that requires
allowing an unconstitutional statute to remain in effect for a limited
period of time”). Those interests are not at issue now, because the act
under review in this case was passed only four years ago and has been
22
ELDRED v. ASHCROFT
STEVENS, J., dissenting
is important to note, however, that a categorical rule
prohibiting retroactive extensions would effectively pre-
clude perpetual copyrights. More importantly, as the
House of Lords recognized when it refused to amend the
Statute of Anne in 1735, unless the Clause is construed to
embody such a categorical rule, Congress may extend
existing monopoly privileges ad infinitum under the ma-
jority’s analysis.
By failing to protect the public interest in free access to
the products of inventive and artistic genius—indeed, by
virtually ignoring the central purpose of the Copy-
right/Patent Clause—the Court has quitclaimed to Con-
gress its principal responsibility in this area of the law.
Fairly read, the Court has stated that Congress’ actions
under the Copyright/Patent Clause are, for all intents and
purposes, judicially unreviewable. That result cannot be
squared with the basic tenets of our constitutional struc-
ture. It is not hyperbole to recall the trenchant words of
Chief Justice John Marshall: “It is emphatically the prov-
ince and duty of the judicial department to say what the
law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We
should discharge that responsibility as we did in Chadha.
I respectfully dissent.
——————
under challenge in court since shortly after its enactment.
Cite as: 537 U. S. ____ (2003)
1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 01–618
_________________
ERIC ELDRED, ET AL., PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 15, 2003]
JUSTICE BREYER, dissenting.
The Constitution’s Copyright Clause grants Congress
the power to “promote the Progress of Science . . . by se-
curing 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 Copy-
right Term Extension Act, extends the term of most ex-
isting copyrights to 95 years and that of many new copy-
rights to 70 years after the author’s death. The economic
effect of this 20-year extension—the longest blanket ex-
tension since the Nation’s founding—is to make the copy-
right term not limited, but virtually perpetual. Its pri-
mary legal effect is to grant the extended term not to
authors, but to their heirs, estates, or corporate succes-
sors. 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 prac-
tical judgments that at most suggest the statute is unwise,
not that it is unconstitutional. Legal distinctions, how-
ever, are often matters of degree. Panhandle Oil Co. v.
Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928)
(Holmes, J., dissenting), overruled in part by Alabama v.
2
ELDRED v. ASHCROFT
BREYER, J., dissenting
King & Boozer, 314 U. S. 1, 8–9 (1941); accord, Walz v. Tax
Comm’n of City of New York, 397 U. S. 664, 678–679 (1970).
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.
I
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 limi-
tations are judicially enforceable. E.g., Trade-Mark Cases,
100 U. S. 82, 93–94 (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 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 de-
priving 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
Cite as: 537 U. S. ____ (2003)
3
BREYER, J., dissenting
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
(2000) (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 rational-
ity—though less hard than precedent might justify, see,
e.g., Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432,
446–450 (1985); Plyler v. Doe, 457 U. S. 202, 223–224 (1982);
Department of Agriculture v. Moreno, 413 U. S. 528, 534–
538 (1973).
Thus, I would find that the statute lacks the constitution-
ally necessary rational support (1) if the significant benefits
that it bestows are private, not public; (2) if it threatens
seriously to undermine the expressive values that the
Copyright Clause embodies; and (3) if it cannot find justi-
fication in any significant Clause-related objective.
Where, after examination of the statute, it becomes diffi-
cult, if not impossible, even to dispute these characteriza-
tions, Congress’ “choice is clearly wrong.” Helvering v.
4
ELDRED v. ASHCROFT
BREYER, J., dissenting
Davis, 301 U. S. 619, 640 (1937).
II
A
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 objec-
tive as one of “promot[ing] 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
(1975). It does so by “motivat[ing] the creative 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 perma-
nently 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) (“[C]opyright law . . . makes reward to the owner
a secondary consideration” (internal quotation marks
omitted)); Sony, supra, at 429 (“[L]imited grant” is “in-
tended . . . 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 (Copy-
right is “intended to increase and not to impede the har-
vest of knowledge”). But cf. ante, at 21–22, n. 18. And, in
doing so, the Court simply has reiterated the views of the
Founders.
Cite as: 537 U. S. ____ (2003)
5
BREYER, J., dissenting
Madison, like Jefferson and others in the founding
generation, warned against the dangers of monopolies.
See, e.g., Monopolies. Perpetuities. Corporations. Eccle-
siastical 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 Consti-
tution 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 mo-
nopolies must be “guarded with strictness agst abuse.”
Ibid.
Many Members of the Legislative Branch have ex-
pressed themselves similarly. Those who wrote the House
Report on the landmark Copyright Act of 1909, for exam-
ple, 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, copy-
right was designed “primarily for the benefit of the pub-
lic,” 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”
6
ELDRED v. ASHCROFT
BREYER, J., dissenting
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 Conven-
tion for the Protection of Literary and Artistic Works said
that “[t]he constitutional purpose of copyright is to facili-
tate 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 secure for the public the benefits derived
from the authors’ labors. By giving authors an incen-
tive 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 dis-
semination after expiration of a copyright’s “limited
Tim[e]”—a time that (like “a limited monarch”) is “re-
strain[ed]” and “circumscribe[d],” “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.
B
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) a require-
Cite as: 537 U. S. ____ (2003)
7
BREYER, J., dissenting
ment 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 poten-
tially 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 serious here.
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 Petition-
ers 7 (estimate, uncontested 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 “re-
ward.” 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 Air-
8
ELDRED v. ASHCROFT
BREYER, J., dissenting
lines 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 Copy-
wrong? 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 of classic works (or lead to disobedi-
ence of the law)—not just in theory but in practice. Cf.
CRS Report 3 (“[N]ew, 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 aban-
doned 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 “permis-
sions” 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. Be-
cause 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) 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) (hereinaf-
ter Statistical History).
The potential users of such works include not only movie
buffs and aging jazz fans, but also historians, scholars,
Cite as: 537 U. S. ____ (2003)
9
BREYER, J., dissenting
teachers, writers, artists, database operators, and re-
searchers 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 ac-
complish 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 ex-
pensive 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 per-
mission either outright or through misinformed 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 prohibi-
tively high; it describes the abandonment of efforts to
include, e.g., campaign songs, film excerpts, and docu-
ments 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 copy-
right 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 simi-
10
ELDRED v. ASHCROFT
BREYER, J., dissenting
lar examples. Brief for National Writers Union et al. as
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 exten-
sion caused abandonment of plans to sell sheet music of
Maurice Ravel’s Alborada Del Gracioso). Amici for peti-
tioners 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 accom-
pany 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 protec-
tion diminish. See infra, at 13–15. The older the work,
the less likely it retains commercial value, and the harder
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
Cite as: 537 U. S. ____ (2003)
11
BREYER, J., dissenting
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 be-
come ever more dependent for the content of their knowl-
edge upon computer-accessible databases—thereby con-
demning that which is not so accessible, say, the cultural
content of early 20th-century history, to a kind of intellec-
tual 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 ob-
tainable, apparently not even as a used copy, at a “reason-
able 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 pro-
prietor can rely on so limited an exemption—particularly
when the phrase “reasonable investigation” 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 Depres-
12
ELDRED v. ASHCROFT
BREYER, J., dissenting
sion 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 Amer-
ica, Inc., as Amicus Curiae 14–24. Other film preserva-
tionists 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 Stu-
dios 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 Cu-
riae 22 (Nonprofit database digitized 1,001 public-domain
films, releasing them online without charge); 1 Film Pres-
ervation 1993, supra, at 23 (reporting well over 200,000
titles held in public archives). And they tell us that copy-
right 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 Associa-
tion of Law Libraries et al. as Amici Curiae 26–27.
Because this subsection concerns only costs, not coun-
tervailing benefits, I shall simply note here that, with
Cite as: 537 U. S. ____ (2003)
13
BREYER, J., dissenting
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?
C
What copyright-related benefits might justify the stat-
ute’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
“encourag[ing] individual effort” through “personal gain”);
see also ante, at 21–22, n. 18 (“[C]opyright law serves
public ends by providing individuals with an incentive to
pursue private ones”). No potential author can reasonably
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 incen-
tive is diminished dramatically by the fact that the rele-
vant 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 pro-
vided us by a group of economists (including five Nobel
prize winners), Brief for George A. Akerlof et al. as Amici
14
ELDRED v. ASHCROFT
BREYER, J., dissenting
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, infra.
What potential Shakespeare, Wharton, or Hemingway
would be moved by such a sum? What monetarily moti-
vated 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
“ ‘ continue[s] 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 mysteri-
ous. How will extension help today’s Noah Webster create
new works 50 years after his death? Or is that hypotheti-
cal Webster supposed to support himself with the exten-
sion’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 père’s Three
Musketeers earned more royalties?
Regardless, even if this cited testimony were meant
more specifically to tell Congress that somehow, some-
where, some potential author might be moved by the
thought of great-grandchildren receiving copyright royal-
ties 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
Cite as: 537 U. S. ____ (2003)
15
BREYER, J., dissenting
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 stat-
ute’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 “[n]othing . . . warrants construction of
the [1998 Act’s] 20-year term extension as a congressional
attempt to evade or override the ‘limited Times’ con-
straint.” 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: Hear-
ings on H. R. 989 et al. before the Subcommittee on Courts
and Intellectual Property of the House Judiciary Commit-
tee, 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 perma-
nent 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,
“[t]he Songwriters Guild suggested a perpetual term”); id.,
at 234 (statement of Quincy Jones) (“I’m particularly
fascinated with Representative Hoke’s statement. . . .
[W]hy not forever?”); id., at 277 (statement of Quincy
Jones) (“If we can start with 70, add 20, it would be a good
16
ELDRED v. ASHCROFT
BREYER, J., dissenting
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[2]–[3], 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 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 (1997) (BREYER, J.,
dissenting), in this case the justification based upon for-
eign 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 uni-
form American-European term with respect to the lion’s
share of the economically significant works that it af-
Cite as: 537 U. S. ____ (2003)
17
BREYER, J., dissenting
fects—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” 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, Art. 1.
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 commer-
cial 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 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 disadvan-
tages.’ ” Ante, at 15. The Solicitor General elaborates on
this theme, postulating that because uncorrected disuni-
formity 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
18
ELDRED v. ASHCROFT
BREYER, J., dissenting
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 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 Euro-
pean institutional considerations, i.e., the needs of, and
the international politics surrounding, the development of
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
Cite as: 537 U. S. ____ (2003)
19
BREYER, J., dissenting
have long coexisted despite important differences, includ-
ing 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 Copy-
rights) (“limited [T]imes”).
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 uni-
formity 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 of the
Copyright Clause—as understood by the Framers and by
this Court. The Clause assumes an initial grant of mo-
nopoly, 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 per-
petuation, that will, on balance, promote the dissemina-
tion 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.
20
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BREYER, J., dissenting
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 to break up a publishers’ monopoly
by offering, as an alternative, an author’s monopoly of
limited duration. See Patterson, Understanding the Copy-
right Clause, 47 J. Copyright Society 365, 379 (2000)
(Statute of Anne); L. Patterson, Copyright in Historical
Perspective 144–147 (1968) (same); Madison on Monopo-
lies 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 depriv[ing]” the public of “the fruits of
an artist’s labors”); see also supra, at 4.
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 “admit[s] the people at large, after a short
interval, to the full possession and enjoyment of all writ-
ings . . . 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
(“[N]ew, cheaper editions can be expected when works
come out of copyright”); see also Part II–B, supra. And it
Cite as: 537 U. S. ____ (2003)
21
BREYER, J., dissenting
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 contin-
ued protection of the works of Shakespeare, Melville,
Mozart, or perhaps Salieri, Mozart’s currently less popular
contemporary? Could 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 exten-
sion, rather than limitation, of the grant will, by reward-
ing publishers with a form of monopoly, promote, rather
than retard, the dissemination of works already in exis-
tence. 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 entertain-
ment 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 protec-
tion for American works in foreign nations and the contin-
ued 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,” “[w]hether it is Sony, BMI, Disney”
or other companies). I recognize that Congress has some-
22
ELDRED v. ASHCROFT
BREYER, J., dissenting
times found that suppression of competition will help
Americans sell abroad—though it has simultaneously
taken care to protect American buyers from higher domes-
tic 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 ¶251a, 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 profits alone justify the grant’s en-
hancement. 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 in-
stead 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
Cite as: 537 U. S. ____ (2003)
23
BREYER, J., dissenting
underscores the conclusion that emerges from considera-
tion of earlier attempts at justification: There is no le-
gitimate, serious copyright-related justification for this
statute.
III
The Court is concerned that our holding in this case not
inhibit the broad decisionmaking leeway that the Copy-
right 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 copy-
right’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 of any
incentive effect, see supra, at 13–16; and (3) the statute’s
apparent failure to provide significant international uni-
formity, 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 rele-
vant 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 sen-
tence points to the question, rather than the answer. Nor
24
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BREYER, J., dissenting
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 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 copy-
right 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 sub-
stantive protections from a copyright’s very inception,
Berne Conv. Art. 7(1). Consequently, the balance of copy-
right-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 con-
sider, the constitutionality of other copyright statutes.
Neither do 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 de-
cide) that this particular statute simply goes too far. And
such examples—of what goes too far—sometimes offer
better constitutional guidance than more absolute-
Cite as: 537 U. S. ____ (2003)
25
BREYER, J., dissenting
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., dissent-
ing). In my view, “[t]ext, 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 “re-
strained” my argument or “train[ed my] fire, as petitioners
do, on Congress’ choice to place existing and future copy-
rights 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 under-
standing that, for reasons of “[j]ustice, policy, and eq-
uity”—as well as established historical practice—it is not
“categorically beyond Congress’ authority” to “exten[d] 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’ per-
suasive arguments to the contrary, ante, at 5–22 (dis-
senting 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?
IV
This statute will cause serious expression-related harm.
It will likely restrict traditional dissemination of copy-
26
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BREYER, J., dissenting
righted works. It will likely inhibit new forms of dissemi-
nation through the use 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 inter-
ests of corporations or heirs who own existing copyrights.
But I cannot find any constitutionally legitimate, copy-
right-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 conclu-
sion that the statute cannot be understood rationally to
advance a constitutionally legitimate interest. The statute
falls outside the scope of legislative power that the Copy-
right Clause, read in light of the First Amendment, grants
to Congress. I would hold the statute unconstitutional.
I respectfully dissent.
Cite as: 537 U. S. ____ (2003)
27
Appendix to opinion of BREYER, J.
APPENDIX TO OPINION OF BREYER, J.
A
The text’s estimates of the economic value of 1998 Act
copyrights relative to the economic value of a perpetual
copyright, supra, at 14–15, as well as the incremental
value of a 20-year extension of a 75-year term, supra, at
13–14, rest upon the conservative future value and dis-
count rate assumptions set forth in the brief of economist
amici. Brief for George A. Akerlof et al. as Amici Curiae
5–7. Under these assumptions, if an author expects to live
30 years after writing a book, the copyright extension (by
increasing the copyright term from “life of the author plus
50 years” to “life of the author plus 70 years”) increases
the author’s expected income from that book—i.e., the
economic incentive to write—by no more than about
0.33%. Id., at 6.
The text assumes that the extension creates a term of 95
years (the term corresponding to works made for hire and
for all existing pre-1978 copyrights). Under the econo-
mists’ conservative assumptions, the value of a 95-year
copyright is slightly more than 99.8% of the value of a
perpetual copyright. See also Tr. of Oral Arg. 50 (Peti-
tioners’ statement of the 99.8% figure). If a “life plus 70”
term applies, and if an author lives 78 years after creation
of a work (as with Irving Berlin and Alexander’s Ragtime
Band), the same assumptions yield a figure of 99.996%.
The most unrealistically conservative aspect of these
assumptions, i.e., the aspect most unrealistically favorable
to the majority, is the assumption of a constant future
income stream. In fact, as noted in the text, supra, at 7,
uncontested data indicate that no author could rationally
expect that a stream of copyright royalties will be constant
forever. Indeed, only about 2% of copyrights can be ex-
28
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Appendix to opinion of BREYER, J.
pected to retain commercial value at the end of 55 to 75
years. Ibid. Thus, in the overwhelming majority of cases,
the ultimate value of the extension to copyright holders
will be zero, and the economic difference between the
extended copyright and a perpetual copyright will be zero.
Nonetheless, there remains a small 2% or so chance that
a given work will remain profitable. The CRS Report
suggests a way to take account of both that likelihood and
the related “decay” in a work’s commercial viability: Find
the annual decay rate that corresponds to the percentage
of works that become commercially unavailable in any
given year, and then discount the revenue for each succes-
sive year accordingly. See CRS Report 7. Following this
approach, if one estimates, conservatively, that a full 2%
of all works survives at the end of 75 years, the corre-
sponding annual decay rate is about 5%. I instead (and
again conservatively) use the 3.8% decay rate the CRS has
applied in the case of books whose copyrights were re-
newed between 1950 and 1970. Ibid. Using this 3.8%
decay rate and the economist amici’s proposed 7% dis-
count rate, the value of a 95-year copyright is more realis-
tically estimated not as 99.8%, but as 99.996% of the value
of a perpetual copyright. The comparable “Irving Berlin”
figure is 99.99999%. (With a 5% decay rate, the figures
are 99.999% and 99.999998%, respectively.) Even these
figures seem likely to be underestimates in the sense that
they assume that, if a work is still commercially avail-
able, it earns as much as it did in a year shortly after its
creation.
B
Conclusions regarding the economic significance of
“works made for hire” are judgmental because statistical
information about the ratio of “for hire” works to all works
is scarce. Cf. Community for Creative Non-Violence v. Reid,
490 U. S. 730, 737–738, n. 4 (1989). But we know that, as
Cite as: 537 U. S. ____ (2003)
29
Appendix to opinion of BREYER, J.
of 1955, copyrights on “for hire” works accounted for 40%
of newly registered copyrights. Varmer, Works Made for
Hire and on Commission, Study No. 13, in Copyright Law
Revision Studies Nos. 1–19, prepared for the Subcommit-
tee on Patents, Trademarks, and Copyrights of the Senate
Committee on the Judiciary, 86th Cong., 2d Sess., 139, n.
49 (Comm. Print 1960). We also know that copyrights on
works typically made for hire—feature-length movies—
were renewed, and since the 1930’s apparently have re-
mained commercially viable, at a higher than average
rate. CRS Report 13–14. Further, we know that “har-
monization” looks to benefit United States exports, see,
e.g., H. R. Rep. No. 105–452, p. 4 (1998), and that films
and sound recordings account for the dominant share of
export revenues earned by new copyrighted works of
potential lasting commercial value (i.e., works other than
computer software), S. Siwek, Copyright Industries in the
U. S. Economy: The 2002 Report 17. It also appears gen-
erally accepted that, in these categories, “for hire” works
predominate. E.g., House Hearings 176 (testimony of the
Register of Copyrights) (“[A]udiovisual works are gener-
ally works made for hire”). Taken together, these circum-
stances support the conclusion in the text that the exten-
sion fails to create uniformity where it would appear to be
most important—pre-1978 copyrighted works nearing the
end of their pre-extension terms, and works made for hire.
