No. 01 618 In The Eric Eldred, Et Al., Petitioners, V. John D ...
No. 01-618
IN THE
ERIC ELDRED, et al.,
Petitioners,
v.
JOHN D. ASHCROFT, in his official capacity
as Attorney General,
Respondent.
On a Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
BRIEF FOR PETITIONERS
GEOFFREY S. STEWART
LAWRENCE LESSIG
DONALD B. AYER
(Counsel of Record)
ROBERT P. DUCATMAN
KATHLEEN M. SULLIVAN
DANIEL H. BROMBERG
ALAN B. MORRISON
JONES, DAY, REAVIS &
EDWARD LEE
POGUE
STANFORD LAW SCHOOL
51 Louisiana Ave., N.W.
CENTER FOR INTERNET &
Washington, DC 20001
SOCIETY
(202) 879-3939
559 Nathan Abbott Way
C
Stanford, CA 94305
HARLES R. NESSON
W
(650) 736-0999
ILLIAM W. FISHER
JONATHAN L. ZITTRAIN
CHARLES FRIED
THE BERKMAN CENTER FOR
Griswold Hall
INTERNET & SOCIETY
1525 Massachusetts Ave.
1563 Massachusetts Ave.
Cambridge, MA 02138
Cambridge, MA 02138
(617) 495-4636
(617) 495-7547
Counsel for Petitioners
- i -
QUESTIONS PRESENTED
1. 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?
2. Is a law that extends the term of existing and future copy-
rights “categorically immune from challenge[] under the
First Amendment”?
- ii -
PARTIES TO THE PROCEEDINGS AND CORPORATE
DISCLOSURE STATEMENT
The parties to the proceedings in the United States Court of
Appeals for the District of Columbia Circuit were petitioners
Eric Eldred, Eldritch Press, Higginson Book Company, Jill A.
Crandall, Tri-Horn International, Luck’s Music Library, Inc.,
Edwin F. Kalmus & Co., Inc., American Film Heritage Asso-
ciation, Moviecraft, Inc., Dover Publications, Inc., and Copy-
right’s Commons, and Janet Reno in her official capacity as
Attorney General of the United States and her successor, John
D. Ashcroft. None of these parties is either publicly held or
affiliated with an entity that is so held. The Eagle Forum Edu-
cation and Legal Defense Fund, L. Ray Patterson, Laura N.
Gasaway, and Edward Walterscheid, as well as the Sherwood
Anderson Literary Estate Trust, Sherwood Anderson Founda-
tion, the American Society of Composers, Authors, and Pub-
lishers, AmSong, Inc., the Association of American Publishers,
Inc., Broadcast Music, Inc., the Motion Picture Association of
America, the National Music Publishers’ Association, Inc., the
Recording Industry Association of America, Inc., and the
Songwriters Guild of America appeared as amici curiae in the
Court of Appeals.
- iii -
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED................................................ i
PARTIES TO THE PROCEEDINGS AND CORPO-
RATE DISCLOSURE STATEMENT ........................... ii
TABLE OF AUTHORITIES ............................................. vi
OPINIONS BELOW............................................................1
JURISDICTION ..................................................................1
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED........................................................1
STATEMENT OF THE CASE............................................1
SUMMARY OF ARGUMENT ...........................................9
ARGUMENT.....................................................................11
I.
THE COPYRIGHT TERM EXTENSION ACT’S
BLANKET RETROACTIVE EXTENSION OF
EXISTING COPYRIGHT TERMS EXCEEDS
CONGRESS’S POWER UNDER THE COPY-
RIGHT CLAUSE .......................................................11
A. Text and Structure of the Copyright
Clause.....................................................................14
B. CTEA’s Retroactive Aspect Violates the
“Limited Times” Requirement of the
Copyright Clause ...................................................17
1. Retroactively Extended Copyright
Terms Are Not “Limited” ................................18
2. Retroactively Extended Copyright
Terms Do Not “Promote the Progress
of Science” .......................................................19
3. Retroactively Extended Copyright
Terms Violate the Quid Pro Quo Re-
quirement of the Copyright Clause ..................23
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TABLE OF CONTENTS
(Continued)
Page
4. The Historical Context Confirms that a
Blanket, Retroactive Extension Ex-
ceeds Congress’s Power...................................23
5. The Copyright Act of 1790 Gives No
Support to Congress’s Retroactive
Extension of Copyright Terms.........................28
6. If Retroactive Extensions Are Not Per
Se Invalid, They Must at a Minimum
Be Tested for “Congruence and Pro-
portionality” to the Ends of the Copy-
right Clause ......................................................31
C. The Retroactive Aspect of CTEA Violates
the “Originality” Requirement of Feist..................32
II.
CTEA’S BLANKET RETROACTIVE AND PRO-
SPECTIVE EXTENSIONS OF COPYRIGHT
TERMS ARE NOT IMMUNE FROM FIRST
AMENDMENT SCRUTINY .....................................34
A. Harper & Row Does Not Exempt Copyright
Statutes from First Amendment Review................34
B. CTEA Is a Content-Neutral Regulation of
Speech Subject to Intermediate Scrutiny
under the Standard of Turner.................................37
C. CTEA’s Retroactive Extension of Copy-
right Does Not Satisfy Intermediate Scru-
tiny .........................................................................39
1. CTEA Fails to Advance an “Important
Governmental Interest”....................................40
2. CTEA Burdens Substantially More
Speech than Necessary.....................................45
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TABLE OF CONTENTS
(Continued)
Page
3. At a Minimum, the First Amendment
Requires Reversal and Remand for
Development of an Evidentiary Record...........47
III. CTEA’S PROSPECTIVE AND RETROACTIVE
EXTENSIONS OF COPYRIGHT TERMS ARE
INSEVERABLE.........................................................48
CONCLUSION..................................................................50
- vi -
TABLE OF AUTHORITIES
Page
Cases
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)..........48
Baker v. Selden, 101 U.S. 99 (1879)..................................22
Bartnicki v. Vopper, 532 U.S. 514 (2001) .........................39
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489
U.S. 141 (1989)...................................................12, 16, 21
Brenner v. Manson, 383 U.S. 519 (1966) ..........................16
Buckley v. Valeo, 424 U.S. 1 (1976) ............................41, 48
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S.
53 (1884).........................................................................31
Butcher’s Union Slaughter-House & Live-Stock
Landing Co. v. Crescent City Live-Stock & Slaugh-
ter House Co., 111 U.S. 746 (1884) ...............................16
Butler v. Michigan, 352 U.S. 380 (1957)...........................46
CBS Broad., Inc. v. EchoStar Communications Corp.,
265 F.3d 1193 (11th Cir. 2001), petition for cert.
filed, 70 U.S.W.L.3626 (Mar. 28, 2002) (No. 01-
1450) ..............................................................................37
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
(1994)..............................................................................22
Champlin Ref. Co. v. Corp. Comm’n of Okla., 286
U.S. 210 (1932)...............................................................48
City of Boerne v. Flores, 521 U.S. 507 (1997) ......11, 12, 31
Clayton v. Stone, 5 F. Cas. 999 (C.C.S.D. NY 1829) ........21
Donaldson v. Beckett, 4 Burr. 2408, 98 Eng. Rep. 257
(H.L. 1774)......................................................................26
Feist Publ’ns v. Rural Tel. Ser. Co., 499 U.S. 340
(1991)...................................................................... passim
Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) ...........16, 28
- vii -
TABLE OF AUTHORITIES
(Continued)
Page
Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314 (7th
Cir. 1972) ........................................................................22
Frontiero v. Richardson, 411 U.S. 677 (1973) ..................44
Goldstein v. California, 412 U.S. 546 (1973)..............15, 22
Graham v. John Deere Co., 383 U.S. 1 (1966) ......... passim
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985)................................................ passim
Higgins v. Keufel, 140 U.S. 428 (1891).............................22
Hill v. Wallace, 259 U.S. 44 (1922).............................48, 49
Kendall v. Winsor, 62 U.S. 322 (1858)..............................21
Kimel v. Florida Bd. of Regents, 528 U.S. 62
(2000)........................................................................11, 32
Marbury v. Madison, 5 U.S. (1 Cranch) 173
(1803)..........................................................................9, 17
Mazer v. Stein, 347 U.S. 201 (1954)..................................28
Pennock v. Dialogue, 27 U.S. 1 (1829) .................13, 15, 21
Printz v. United States, 521 U.S. 898 (1997).....................17
RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir.
1940) ...............................................................................16
Reno v. ACLU, 521 U.S. 824 (1997)..................................49
San Francisco Arts & Athletics, Inc. v. U.S. Olympic
Comm., 483 U.S. 522 (1987) ..........................................39
Satellite Broad. and Communications Ass’n v. FCC,
275 F.3d 337 (4th Cir. 2001), petition for cert. filed,
70 U.S.W.L.3580 (Mar. 7, 2002) (No. 01-1332) ...........37
Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169
(1896)..............................................................................16
Sloan v. Lemon, 413 U.S. 825 (1973) ................................49
- viii -
TABLE OF AUTHORITIES
(Continued)
Page
Sony Corp. v. Universal City Studios, 464 U.S. 417
(1984)...................................................................... passim
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
1257 (11th Cir. 2001)......................................................18
Trade-Mark Cases, 100 U.S. 82 (1879)..................... passim
Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997)...... passim
Turner Broadcasting v. FCC, 512 U.S. 622
(1994)............................................................39, 40, 41, 45
Twentieth Century Music Corp. v. Aiken, 422 U.S.
151 (1975).................................................................15, 26
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779
(1995)..............................................................................30
United States v. Lopez, 514 U.S. 549 (1995) .....9, 11, 12, 19
United States v. Morrison, 529 U.S. 598
(2000)..............................................................9, 11, 12, 19
United States v. O’Brien, 391 U.S. 367 (1968) .................39
United States v. Reese, 92 U.S. 214 (1875) .......................49
Universal City Studios, Inc. v. Corley, 273 F.3d 429
(2d Cir. 2001)..................................................................37
Virginia v. American Booksellers Ass’n, 484 U.S. 383
(1988)..............................................................................49
Ward v. Rock Against Racism, 491 U.S. 781
(1989)........................................................................39, 46
Wheaton v. Peters, 33 U.S. 591 (1834)............12, 19, 28, 32
Statutes & Constitutional Provisions
U.S. CONST. art. I, § 8, cl. 8 ...........................1, 2, 10, 14, 16
8 Anne, c. 19 §1 (1710) .....................................................27
28 U.S.C. § 1254(1) .............................................................1
Act of May 31, 1790, 1 Stat. 124.............................3, 30, 38
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TABLE OF AUTHORITIES
(Continued)
Page
Act of Feb. 21, 1793, ch. 11, § 7, 1 Stat. 322 ....................30
Act of Apr. 29, 1802 ch. 36, 2 Stat. 171 ............................30
Act of Feb. 3, 1831, 4 Stat. 36 .......................................2, 30
Act of March 4, 1909, § 24, 35 Stat. 1075.....................2, 30
Copyright Act of 1976
17 U.S.C. § 106...............................................................38
17 U.S.C. § 109 ................................................................6
17 U.S.C. § 301.................................................................1
17 U.S.C. § 302.......................................................2, 3, 49
17 U.S.C. § 304.............................................................1, 2
No Electronic Theft Act of 1997, Pub. L. No. 105-
147, 111 Stat. 2678 ...........................................................8
Pub. L. No. 87-668, 76 Stat. 555 (1962)..............................2
Pub. L. No. 89-142, 79 Stat. 581 (1965)..............................2
Pub. L. No. 90-141, 81 Stat. 464 (1967)..............................2
Pub. L. No. 90-416, 82 Stat. 397 (1968)..............................2
Pub. L. No. 91-147, 83 Stat. 360 (1969)..............................2
Pub. L. No. 91-555, 84 Stat. 1441 (1970)............................2
Pub. L. No. 92-170, 85 Stat. 490 (1971)..............................2
Pub. L. No. 92-566, 86 Stat. 1181 (1972)............................2
Pub. L. No. 93-573, Title I, § 104, 88 Stat. 1873
(1974)................................................................................2
Pub. L. No. 94-553, 90 Stat. 2572 (1976)........................2, 3
Sonny Bono Copyright Term Extension Act, Pub. L.
No. 105-298, Title I, 112 Stat. 2827 (1998)........1, 2, 3, 49
- x -
TABLE OF AUTHORITIES
(Continued)
Page
Legislative Materials
The Copyright Term Extension Act of 1995: Hearings
on S. 483 Before the Senate Judiciary Comm., 104th
Cong. 73 (1995) ..............................................................18
Copyright Term, Film Labeling, and Film Preserva-
tion Legislation: Hearings on H.R. 989, H.R. 1248,
and H.R. 1734 Before the Subcomm. On Courts and
Intellectual Property of the House Comm. on the
Judiciary, 104th Cong. (1995) ..................................42, 43
Miscellaneous
ROBERT L. BARD & LEWIS KURLANTZICK, COPYRIGHT
DURATION (1999)......................................................42, 43
1 WILLIAM W. CROSSKEY, POLITICS AND THE
CONSTITUTION IN THE HISTORY OF THE UNITED
STATES (1953) .................................................................29
DAVID DEAN, LAW-MAKING AND SOCIETY IN LATE
ELIZABETHAN ENGLAND: THE PARLIAMENT OF
ENGLAND, 1584-1601 (1996)..........................................25
III DOCUMENTARY HISTORY OF THE CONSTITUTION OF
THE UNITED STATES (Dep’t of State 1900) .....................17
ROBERT B. EKELUND & ROBERT D. TOLLISON,
MERCANTILISM AS A RENT-SEEKING SOCIETY:
ECONOMIC REGULATION IN HISTORICAL PER-
SPECTIVE (1981) ..............................................................28
7 GALES AND SEATON’S REGISTER OF DEBATES IN
CONGRESS (21st Cong., 2d Sess. 1831)...........................29
Hall & Sellers, THE PENNSYLVANIA GAZETTE,
Feb. 16, 1785, Item No. 71221 .......................................25
- xi -
TABLE OF AUTHORITIES
(Continued)
Page
Marci Hamilton, The Historical and Philosophical
Underpinnings of the Copyright Clause, 5 OC-
CASIONAL PAPERS INTELL. PROP. FROM BENJAMIN
N. CARDOZO SCH. L., YESHIVA U. (1999) ................26, 27
Marci Hamilton, Copyright Duration Extension and
The Dark Heart of Copyright, 14 CARDOZO ARTS &
ENT. L.J. 655 (1996) .......................................................26
Paul J. Heald and Suzanna Sherry, Implied Limits on
the Legislative Power: The Intellectual Property
Clause as an Absolute Constraint on Congress,
2000 U. Ill. L. Rev. 1119 .........................................16, 25
SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (W. Strahan 1755)..................................15, 17
Dennis S. Karjala, Harmonization Chart
http://makeashorterlink.com/?R2FB431E ......................43
Gary Lawson & Patricia Granger, The “Proper”
Scope of Federal Power: A Jurisdictional Interpre-
tation of the Sweeping Clause, 43 DUKE L.J. 2676
(1993)..............................................................................17
THE LIBRARY OF CONGRESS, 65 ANN. REP. OF THE
REG. OF COPYRIGHTS (1963).............................................7
THE LIBRARY OF CONGRESS, 70 ANN. REP. OF THE
REG. OF COPYRIGHTS (1968).............................................7
THE LIBRARY OF CONGRESS, 73 ANN. REP. OF THE
REG. OF COPYRIGHTS (1971).............................................7
Levi Lincoln, Patents for Inventions, 26 May 1802,
reprinted in 3 THE FOUNDERS’ CONSTITUTION
(P. Kurland & R. Lerner eds. 1987)................................38
CHRISTINE MACLEOD, INVENTING THE INDUSTRIAL
REVOLUTION: THE ENGLISH PATENT SYSTEM, 1660-
1800 (1988).....................................................................24
- xii -
TABLE OF AUTHORITIES
(Continued)
Page
James Madison, Aspects of Monopoly One Hundred
Years Ago, 128 HARPER’S MONTHLY MAGAZINE
(1914)........................................................................16, 23
JOHN MILTON, AREOPAGITICA & OF EDUCATION
(Kathleen Lea ed. 1973)..................................................27
National Copyright Legislation
http://www.unesco.org/culture/copy...............................43
Neil Weinstock Netanel, Locating Copyright Within
the First Amendment Skein, 54 STAN. L. REV. 1
(2001)........................................................................37, 38
Tyler T. Ochoa, Patent and Copyright Term Exten-
sions and the Constitution: A Historical Perspec-
tive, 49 J. COPYR. SOC’Y USA 19 (2002) .......................20
L. Ray Patterson & Judge Stanley F. Birch, Copyright
and Free Speech Rights, 4 J. INTELL. PROP. L. 1
(1996)..............................................................................38
L. RAY PATTERSON, COPYRIGHT IN HISTORICAL
PERSPECTIVE (1968)..................................................27, 29
L. Ray Patterson, Free Speech, Copyright, and Fair
Use, 40 VAND. L. REV. 1 (1987)...............................27, 38
Malla Pollack, Purveyance and Power, or Over-
Priced Free Lunch: The Intellectual Property
Clause as an Ally of the Takings Clause in the Pub-
lic’s Control of Government, 30 SW. U. L. REV. 1
(2000)..............................................................................24
WILLIAM HYDE PRICE, THE ENGLISH PATENTS OF
MONOPOLY (1906) ..........................................................25
Henry H. Permit, Jr., Recent Development: Electronic
Freedom of Information Act, 50 ADMIN. L. REV.
391 (1998).......................................................................25
- xiii -
TABLE OF AUTHORITIES
(Continued)
Page
George Ramsey, The Historical Background of
Patents, 18 J. PAT. OFF. SOC’Y (1936) ...........................24
Edward Rappaport, Copyright Term Extension:
Estimating the Economic Values, Congressional
Research Service Report for Congress (May 11,
1998) .....................................................................7, 45, 47
WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF
UNITED STATES OF AMERICA (1825) ...............................29
Redefining Film Preservation: A National Plan;
Recommendations of the Librarian of Congress
in Consultation with the National Film Preser-
vation Board (1994)........................................................46
Report of the Librarian of Congress, Film
Preservation 1993: A study of the Current
State of American Film Preservation (1993) ..................45
Dinitia Smith, Immortal Words, Immortal Royalties?,
N.Y. Times, Mar. 28, 1998 .............................................18
JOSEPH STORY, COMMENTARIES ON THE CONSTI-
TUTION OF THE UNITED STATES § 502 (R. Rotunda &
Nowak eds., 1987) ..............................................10, 12, 36
Roger Syn, Copyright God: Enforcement of Copyright
in the Bible and Religious Works, 14 REGENT U.L.
REV. 1 (2001) ..................................................................24
TOWARD A THEORY OF THE RENT SEEKING
SOCIETY (James Buchanan, Robert Tollson &
Gordon Tullock, eds. 1980) ......................................25, 26
Rebecca Tushnet, Copyright as a Model for Free
Speech Law, 42 B.C. L. REV. 1 (2000) ...........................42
Unfair Use, Wall St. J., Feb. 21, 2002 ...............................27
- xiv -
TABLE OF AUTHORITIES
(Continued)
Page
U.S. BUREAU OF THE CENSUS, STATISTICAL HISTORY
OF THE UNITED STATES FROM COLONIAL TIMES TO
THE PRESENT (1965) ..........................................................7
U.S. COPYRIGHT OFFICE, COPYRIGHT ENACTMENTS:
LAWS PASSED IN THE UNITED STATES SINCE 1783
RELATING TO COPYRIGHT, BULLETIN NO. 3 (rev. ed.
1963) ...............................................................................29
Edward C. Walterscheid, Inherent or Created Rights:
Early Views on the Intellectual Property Clause, 19
HAMLINE L. REV. 81 (1995)............................................29
EDWARD C. WALTERSCHEID, THE NATURE OF THE
INTELLECTUAL PROPERTY CLAUSE: A STUDY IN
HISTORICAL PERSPECTIVE (2002)............................ passim
WEBSTER’S NEW INT’L DICTIONARY ...........................15, 17
ARTHUR W. WEIL, AMERICAN COPYRIGHT LAW
(1917)..............................................................................22
PHILLIP WITTENBERG, THE PROTECTION LITERARY
PROPERTY (1968) ............................................................27
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
District of Columbia Circuit is reported at 239 F.3d 372, and is
reproduced in the appendix to the petition (“Pet. App.”) at 1a.
The order denying the petition for rehearing and for rehearing
en banc (Pet. App. 24a) is reported at 255 F.3d 849 (2001). The
memorandum opinion of the district court (Pet. App. 34a) is
reported at 74 F. Supp. 2d 1 (1999).
JURISDICTION
The judgment of the Court of Appeals was issued on Febru-
ary 16, 2001. Petitioners filed a timely petition for rehearing or
rehearing en banc, which the Court of Appeals denied on July
13, 2001. The petition for certiorari was filed on October 11,
2001. The Court granted the writ on February 19, 2002 and
amended the grant on February 25, 2002. This Court has juris-
diction over this petition under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Copyright and Patent Clause confers upon Congress the
power:
To promote the Progress of Science and useful Arts, by se-
curing for limited Times to Authors and Inventors the exclu-
sive Right to their respective Writings and Discoveries.
U.S. CONST. art. I, § 8, cl. 8.
The First Amendment provides, in pertinent part, that “Con-
gress shall make no law . . . abridging the freedom of speech,
or of the press . . . .” Id. amend. I.
The pertinent provisions of the Sonny Bono Copyright Term
Extension Act, Pub. L. No. 105-298, Title I, 112 Stat. 2827
(1998) (amending 17 U.S.C. §§ 301-304), and the other copy-
right laws cited in this petition are reprinted in the appendix to
the petition (Pet. App. 54a-67a) and the addendum to this brief.
STATEMENT OF THE CASE
This case is about the limits on Congress’s Copyright
Clause power, both internal to its enumeration in Article I, and
under the constraints imposed by the Free Speech and Press
Clause of the First Amendment.
- 2 -
1. The Constitution gives Congress the power to “promote
the Progress of Science” by granting “exclusive Right[s]” to
“Authors” for “limited Times.” U.S. CONST. art. I, § 8, cl. 8.
Congress now regularly escapes the restriction of “limited
Times” by repeatedly extending the terms of existing copy-
rights—eleven times in the past forty years.1 These blanket
extensions were initially short (one or two years). In 1976, the
extension was for nineteen years. Pub. L. No. 94-553, § 304(a),
90 Stat. 2573-74. In the statute at issue in this case, the Sonny
Bono Copyright Term Extension Act (CTEA or Act), Pub. L.
No. 105-298, Title I, 112 Stat. 2827, Congress has extended the
term of existing and future copyrights by an additional twenty
years. Id. § 102(b)&(d), 112 Stat. 2827-28 (amending 17
U.S.C. §§ 302, 304).
2. CTEA extends the duration of copyrights within the basic
framework of the 1976 Act, which itself changed the system for
calculating copyright duration. Before the 1976 Act, duration was
a fixed term (28 years), renewable once. Act of March 4, 1909,
ch. 320, § 23, 35 Stat. 1080. The 1976 Act replaced the 1909
system with a dual system for calculating terms. Under this new
system, the basic term for authors was the life of the author plus
50 years, but for works made for hire, and anonymous or pseu-
donymous works, the term was 75 years. Pub. L. No. 94-553,
§§ 302-304, 90 Stat. 2572-76 (1976).
CTEA extends both types of terms, retroactively as well as
prospectively. For any work published before January 1, 1978,
1 See Pub. L. No. 87-668, 76 Stat. 555 (1962); Pub. L. No. 89-142, 79 Stat.
581 (1965); Pub. L. No. 90-141, 81 Stat. 464 (1967); Pub. L. No. 90-416,
82 Stat. 397 (1968); Pub. L. No. 91-147, 83 Stat. 360 (1969); Pub. L. No.
91-555, 84 Stat. 1441 (1970); Pub. L. No. 92-170, 85 Stat. 490 (1971); Pub.
L. No. 92-566, 86 Stat. 1181 (1972); Pub. L. No. 93-573, Title I, § 104, 88
Stat. 1873 (1974); Pub. L. No. 94-553, § 304, 90 Stat. 2572 (1976); Pub. L.
No. 105-298, § 102, 112 Stat. 2827 (1998); see also Pet. App. 42a-58a (re-
printing statutes). This pattern is substantially different from the history of
copyright during the Republic’s first 150 years. In the first hundred years of
federal copyright regulation, Congress extended the terms of copyrights
once. Act of February 3, 1831, ch. 16, §§ 1, 16, 4 Stat. 436, 439. In the next
fifty years, Congress again extended the terms only once. Act of March 4,
1909, ch. 320, §§ 23-24, 35 Stat. 1080-81.
- 3 -
and still under copyright on October 27, 1998, CTEA extends
the copyright term to 95 years. Pub. L. No. 105-298,
§ 102(b)(1), 112 Stat. 2827. For work created on or after Janu-
ary 1, 1978, the term depends upon the nature of the “author.”
If the “author” is a natural and known person, then the term is
extended to the life of the author plus 70 years. Id.
§ 102(b)(1)&(2), 112 Stat. 2827. If the author is a corporation
(under the work made for hire doctrine), or is anonymous or
pseudonymous, then the term is the shorter of 95 years from
the year of first publication, or 120 years from creation. Id.
§ 102(b)(3), 112 Stat. 2827. See generally 17 U.S.C. § 302(a).
Thus, because of CTEA, works authored from 1923 on, which
would initially have begun to fall into the public domain in 1998,
will now remain under copyright until the end of 2018 at the ear-
liest—a term of 95 years, unless extended again. Because of
CTEA, future copyrights will now extend for the life of the author
plus 70 years, or for works made for hire, 95 years, unless ex-
tended again. These terms contrast with the Framers’ initial term
of 14 years, renewable once if the author survived. Act of May
31, 1790, ch. 15, § 1, 1 Stat. 124. As applied to an author who
produced throughout a long lifetime in the pattern of Irving Ber-
lin, the current rule would produce a term of 140 years.
3. Petitioners are various individuals and businesses that
rely upon speech in the public domain for their creative work
and livelihood. Most of the petitioners are commercial entities
that build upon the public domain. Best known in this group is
Dover Publications, a large-scale publisher of high-quality pa-
perback books, including fiction and children’s books. J.A. 18-
19. Prior to CTEA, Dover had planned to republish a number
of works from the 1920’s and 1930’s, including “The Prophet”
by Kahlil Gibran and “The Harp-Weaver” by Edna St. Vincent
Millay. J.A. 19. CTEA has delayed the entry of these works
into the public domain by 20 years. Id.
Other petitioners engaged in commercial ventures face a
similar constraint. Petitioners Luck’s Music Library, Inc. and
Edwin F. Kalmus & Co., Inc. specialize in selling and renting
classical orchestral sheet music. J.A. 16-17. Both sell to thou-
sands of customers worldwide, including many community
- 4 -
and scholastic orchestras. J.A. 16. Both had made preparations
to release new sheet music for work that was to pass into the
public domain in 1998. This included the work of Bela Bartok,
Maurice J. Ravel, Richard Strauss. J.A. 16-17. Those plans
have been blocked for 20 years.
Petitioners Higginson Book Company and Tri-Horn Interna-
tional publish historical works that draw upon the public do-
main. Higginson Book Company specializes in genealogy,
historical maps, and local and county histories. J.A. 14. It re-
prints works that are in the public domain or with the permis-
sion of copyright holders. Because of the expense of tracing
copyright ownership, Higginson must often wait until works
pass into the public domain. Id; see also J.A. 14-15 (describing
example). Tri-Horn sells products relating to the history and
traditions of golf. J.A. 15. Because of the nature of this content,
it is often difficult, if not impossible, to identify the copyright
owner of this material. As a consequence, although prior to
CTEA Tri-Horn expected to be able to release works based on
golfers Bobby Jones and Walter Hagen, it has postponed its
plans to do so. J.A. 15-16.
The American Film Heritage Association is a non-profit
film preservation group. It represents documentary filmmakers
and other commercial organizations who oppose copyright
term extensions because of their significant adverse effects on
film preservation. J.A. 17-18. Moviecraft, Inc. is a related
commercial entity that depends upon old film for its business.
J.A. 18. Much of this film is “orphaned” because current copy-
right holders cannot be identified, and all of it is now decaying
because of the unstable properties of nitrate-based film and
even so-called “safety” film. Id.; see Brief of Amici Hal Roach
Studios & Michael Agee at 11-12 [“Agee Br.”]. Moviecraft
restores these old films when they pass into the public domain,
but under CTEA no films will pass into the public domain for
20 years. J.A. 18.
Petitioners also include noncommercial individuals and en-
tities that depend upon the public domain. Jill Crandall was a
choir director at St. Gregory the Great Episcopal Church, in
Athens, Georgia. J.A. 15. The high cost of sheet music for
- 5 -
copyrighted works forced her to select much of her music from
work within the public domain. Id.; see also J.A. 16 (noting
that Luck’s Music sells some public domain works for half the
amount charged for renting copyrighted pieces). Before CTEA,
she had planned to perform work by Ralph Vaughan Williams
and Edward Elgar. Under CTEA, these works will be unavail-
able for another generation. J.A. 15.
Lead petitioner, Eric Eldred, is a noncommercial publisher of
existing works and a creator of new derivative ones.2 In 1995, El-
dred founded an Internet-based press, Eldritch Press. J.A. 12. El-
dritch Press creates free versions of public domain works for the
World Wide Web, as well as works for which he has obtained
permission. These works are coded in the hypertext markup lan-
guage (HTML) that underlies the Web. Eldred’s press specializes
in collections of Hawthorne, Oliver Wendell Holmes, Sr., and
Henry James, among others. J.A. 12-14.
Eldred’s creations are both copies and derivative works. J.A.
12-13. By using the technology of the Internet, he is able to
build texts that are available freely around the world. By inte-
grating search technologies and links, his texts enable students
and scholars to study these works in ways that would be im-
possible with printed books. Id. In this sense, Eldred is build-
ing a library of public domain works, but with a technological
capacity far exceeding that of the ordinary library.
Unlike a library, however, every part of an online collection is
potentially regulated by copyright law. Because each posting of a
work is technically a “copy,” each posting is within the reach of
the Copyright Act. In contrast, a library benefits from the “first
sale doctrine,” which assures that once a book is sold, that copy
can be retransferred and even redistributed free of continuing
2 Other noncommercial activities affected by CTEA are described in the
briefs of amici. See, e.g., Brief of Amici Internet Archive et al. at 1 (libraries
and internet archives) [“Internet Archive Br.”]; Brief of Amici American
Ass’n of Law Libraries et al. § III.A (historical and cultural preservation
projects and scholarly research) [“AALL Br.”]; Brief of Amici College Art
Ass’n et al. at 3-16 (educational programs and materials, scholarly works,
paintings, novels, art books, dramatic performances, anthologies, and his-
torical publications).
- 6 -
control by the copyright owners. 17 U.S.C. § 109(a). Libraries
can therefore build their collections free of ongoing regulation by
copyright law. If the Derry New Hampshire Public Library, for
example, wanted to build a special collection of the works of by
Robert Frost, including his 1923 book of poems “New Hamp-
shire,” it could simply purchase copies of those works and make
them available to the public. For Eldred to compile the same col-
lection, he would have to secure the permission of the Frost es-
tate. Eldred’s need for a rich public domain is therefore greater
than the need of an ordinary library.
The impact on the Internet of the copyright extensions being
challenged here is the concern of many of the amici in this
case. Amicus Brewster Kahle, for example, through his “Inter-
net Archive,” has stored copies of the entire Internet over the
past 6 years. With Rick Prelinger, Kahle has also built an ar-
chive of public domain movies which will make film available
in a digital form to viewers and filmmakers around the world.
The technical capacity of this archive is limited only by the
number of machines linked to the network. See Internet Ar-
chive Br. § II.C. But the regulatory constraints of copyright
cannot be so easily overcome. The copyright owners of many
of these films cannot even be identified. Their work thus can-
not be made available on the Internet. Again, were Kahle and
Prelinger to build the same archive off the Internet, their li-
censing costs would be much lower, but their ability to spread
knowledge would be more restricted as well. A similar point is
raised by Amici College Art Association et al. on pages 15-16
of their brief. The ability of educators, museum professionals,
and librarians to educate depends upon the ability to use crea-
tive work. Extensions of copyright terms increase the cost of
that education, and restrict the scope of knowledge these pro-
fessionals can convey.
Petitioners have been harmed because of the delay that
CTEA has inflicted on their ability to build upon and use con-
tent. Copyright law had, in effect, vested in these petitioners, as
well as in the public, a remainderman interest in the works at
stake. CTEA took that remainderman interest, and vested it in
the current copyright holder. As a consequence, work that was
- 7 -
promised to pass into the public domain at the end of 1998 has
now been withheld until 2019, with no assurance that in 2019
it will not be withheld again.
Some numbers will put this change in context. Between
1923 and 1942, there were approximately 3,350,000 copyright
registrations. Approximately 425,000 (13%) of these were re-
newed.3 The Congressional Research Service (“CRS”) esti-
mated that of these, only 18%, or approximately 77,000 copy-
rights, would constitute “surviving works”—works that con-
tinue to earn a royalty. The annual royalties for one segment of
those surviving works, books, music, and film (which total
49,001 in the CRS study) will be, CRS estimates, approxi-
mately $317,000,000 (in 1997 dollars). Edward Rappaport,
Copyright Term Extension: Estimating the Economic Values,
CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS 8,
12, 15, 16 (May 11, 1998). This means that in order to give the
holders of less than 50,000 copyrights $317,000,000 in annual
royalties, CTEA has blocked for two decades the entry into the
public domain of more than 375,000 other works. Or put dif-
ferently, because of CTEA, the public will both have to pay an
additional $317 million annually in royalties for the approxi-
mately 50,000 surviving works, and be denied the benefits of
those and 375,000 other creative works passing into the public
domain in the first 20 years alone. (Today, the proportions
would be far more significant, since there is no “renewal” re-
quirement that moves over 85% of the works copyrighted into
the public domain. Under current law, 3.35 million works
would be blocked to protect 77,000.)
4. In January 1999, petitioners filed a facial challenge to
CTEA, arguing that the retroactive aspect of CTEA exceeded
Congress’s power under the Copyright Clause, and that the
3 U.S BUREAU OF THE CENSUS, STATISTICAL HISTORY OF THE UNITED
STATES FROM COLONIAL TIMES TO THE PRESENT 606 (1965); THE LIBRARY
OF CONGRESS, 65 A NN. REP. OF THE REG. OF COPYRIGHTS 16 (1963); THE
LIBRARY OF CONGRESS, 70 ANN. REP. OF THE REG. OF COPYRIGHTS 26
(1968); THE LIBRARY OF CONGRESS, 73 ANN. REP. OF THE REG. OF
COPYRIGHTS 20 (1971).
- 8 -
retroactive and prospective aspects of CTEA violated the Free
Speech and Press Clauses of the First Amendment. J.A. 1, 4-
26. Standing was based on the harm petitioners have suffered,
and the threat of prosecution under the No Electronic Theft Act
of 1997, Pub. L. No. 105-147, 111 Stat. 2678. J.A. 7, 10. On a
motion by the United States for judgment on the pleadings, the
District Court dismissed the complaint. Pet. App. 34a-39a.
Petitioners appealed the Copyright Clause and First Amend-
ment claims to the Court of Appeals for the D.C. Circuit. Over
the dissent of Judge Sentelle, the court affirmed the District
Court’s judgment. Pet. App. 1a-23a.
The court rejected petitioners’ First Amendment argument.
While it held that petitioners had standing to raise a First
Amendment challenge to both the prospective and retroactive
aspects of CTEA, Pet. App. 4a-5a, the court held the substance
of petitioners’ claim barred by circuit precedent and this
Court’s decision in Harper & Row Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539 (1985). Pet. App. 5a-8a. According
to the circuit court, this authority establishes that there is no
“first amendment right to exploit the copyrighted works of oth-
ers.” Pet. App. 8a. By challenging a statute that extends the
term of copyrights, the court concluded, petitioners were “by
definition” asserting a First Amendment right to exploit the
copyrighted works of others. Pet. App. 6a-8a. Indeed, accord-
ing to the circuit court, “copyrights are categorically immune
from challenges under the First Amendment.” Pet. App. 6a.
The Court of Appeals also rejected petitioners’ Copyright
Clause claims. The court rejected petitioners’ argument that the
term “limited Times” should be read in light of the requirement
that Congress “promote the Progress of Science.” Pet. App.
10a-11a. The court held instead that this text does not restrict
or even influence the scope of Congress’s power at all. Id. Un-
der the lower court’s rule, an extension (or multiple extensions)
of a “limited” term was permissible so long as each extension
itself was limited. Pet. App. 10a-14a. The court also rejected
petitioners’ argument that CTEA violated the “originality” re-
quirement of Feist Publications v. Rural Telephone Service
Co., 499 U.S. 340 (1991). Pet. App. 8a-10a.
- 9 -
Judge Sentelle dissented from the panel’s decision with re-
spect to the “limited Times” claim. Pet. App. 16a-23a. Fol-
lowing this Court’s approach in United States v. Lopez, 514
U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598
(2000), he reasoned that a court must be able to discover the
“outer limits” to a power granted Congress. Pet. App. 17a. To
do that, Judge Sentelle asked whether “the rationale offered in
support of [the extension of power] has any stopping point.”
Id. The answer was “no.” The government had argued that any
individual extension, no matter how repeatedly conferred,
would be constitutional so long as each was for a fixed length.
Pet. App. 18a-19a. That “rationale,” Judge Sentelle reasoned,
led to an “unlimited view of the copyright power”—just the
same sort of “unlimited view” this Court had “rejected with
reference to the Commerce Clause in Lopez.” Pet. App. 17a.
Instead, Judge Sentelle maintained, the proper limit to Con-
gress’s power is found by “[r]eturning to the language of the
clause itself”—in particular, its “grant of a power.” Pet. App.
18a. Interpreting that language, Judge Sentelle wrote:
[I]t is impossible that the Framers of the Constitution contem-
plated permanent protection, either directly obtained or at-
tained through the guise of progressive extension of existing
copyrights. . . . Extending existing copyrights is not promoting
useful arts, nor is it securing exclusivity for a limited time.
Pet. App. 18a-19a.
5. Petitioners filed for rehearing and rehearing en banc.
J.A. 3. The panel declined rehearing, and the D.C. Circuit de-
nied rehearing en banc. Pet. App. 24a-27a. Judge Sentelle,
joined by Judge Tatel, dissented from the denial of rehearing
en banc. Pet. App. 28a-29a.
SUMMARY OF ARGUMENT
“The powers of the legislature are defined and limited; and that
those limits may not be mistaken or forgotten, the constitution is
written.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
This case is about one important limit on the legislature’s
power that Congress has clearly “forgotten.” The Copyright
Clause gives Congress the power to “promote the Progress of
Science,” by granting “exclusive Right[s]” to “Authors” “for
- 10 -
limited Times.” U.S. Const. art. I, § 8, cl. 8 (emphasis added).
There is no mystery about what the Framers had in mind for
the duration of copyright—they expected it would be “short”
so that after a “short interval,” creative work would pass into
the public domain “without restraint.” JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
§ 557, at 402-03 (reprinted with introduction by R. Rotunda &
J. Nowak eds., 1987). Nor is there any doubting the Framers’
fear about the power that they were creating: the resolution
against monopolies was as strong in the framing generation as
in any time since; they, more than we, were keenly sensitive to
the dangers of state-backed monopolies.
But their hope was that the government might help spur
learning and innovation. And to balance their hope against
their fears, the Framers crafted the most carefully circum-
scribed power within Article I, § 8. The Copyright Clause is
the only power in Article I that specifies both its ends—”to
promote the Progress of Science”—and also its means—”by
securing for limited times . . . exclusive Right[s].” Monopolies
were to be allowed, but only to “promote [] Progress.”
Congress has now found a way to evade this constitutional
restraint. Rather than granting authors a fixed (i.e., “limited”)
term of copyright, Congress has repeatedly extended the terms
of existing copyrights—eleven times in the past forty years.
These extensions are for works that have already been created.
They are not grants that require any new creation in return.
These repeated, blanket extensions of existing copyright
terms exceed Congress’s power under the Copyright Clause,
both because they violate the “limited Times” requirement and
because they violate this Court’s “originality” requirement.
They violate the “limited Times” requirement, first, because
terms subject to repeated, blanket extensions are not “limited”;
second, because a term granted to a work that already exists
does not “promote the Progress of Science”; and third, because
the grant of a longer term for already existing works violates
the Copyright Clause’s quid pro quo requirement—that mo-
nopoly rights be given in exchange for public benefit in return.
- 11 -
Retroactive extensions of the duration of existing copyrights
also violate the Free Speech and Press Clauses of the First
Amendment. The court below held that copyrights were “cate-
gorically immun[e]” from First Amendment scrutiny. That
holding is erroneous. Copyright term extensions, like any con-
tent-neutral regulation of speech, must be subject to interme-
diate scrutiny. The government has offered, and could offer, no
“important governmental interest” that could satisfy in-
termediate review. Moreover, even if the government could
identify an important governmental interest, it has not (and
could not) argue that CTEA was narrowly tailored to such an
interest. This Court should therefore strike down the retroac-
tive aspect of CTEA under the First Amendment as well. And
because the retroactive aspect of CTEA is inseverable from its
prospective aspect, CTEA’s entire extension should be set
aside.
This Court has never been called upon to interpret the
meaning of “limited Times.” It has assumed that this constitu-
tional limit has been respected. As Justice Stevens wrote in
Sony Corp. v. Universal City Studios, Inc., because “copyright
protection is not perpetual, the number of . . . works in the
public domain necessarily increases each year.” 464 U.S. 417,
443 n.23 (1984) (emphasis added). That “necessity” was cer-
tainly the Framers’ design. It is not Congress’s current prac-
tice.
ARGUMENT
I.
THE COPYRIGHT TERM EXTENSION ACT’S
BLANKET RETROACTIVE EXTENSION OF EX-
ISTING COPYRIGHT TERMS EXCEEDS CON-
GRESS’S POWER UNDER THE COPYRIGHT
CLAUSE
The opinion of the Court of Appeals suggests that alone among
the enumerated powers, the Copyright Clause grants Congress
effectively unbounded authority. Despite this Court’s instruction
in United States v. Lopez, 514 U.S. 549 (1995), City of Boerne v.
Flores, 521 U.S. 507 (1997), Kimel v. Florida Board of Regents,
528 U.S. 62 (2000), and United States v. Morrison, 529 U.S. 598
- 12 -
(2000), that “[t]he powers of the legislature are defined and lim-
ited,” and that these limits are “not solely a matter of legislative
grace,” Morrison, 529 U.S. at 616, the Court of Appeals ruled
that the most distinctive feature of the Copyright Clause—its
grant of power “[t]o promote the Progress of Sci-
ence”—”constitutes [no] limit on congressional power.’” Pet.
App. 10a (quotation omitted). Thus freed from the Constitution’s
actual text, the Court of Appeals adopted a reading of the term
“limited Times” that permits Congress to evade the Framers’
clear intent that copyright terms be fixed, and that after a “short
interval,” creative works pass into the public domain “without
restraint.” STORY, supra, at 402.
This failure to interpret and apply the limits of the Copyright
Clause is error enough in light of this Court’s longstanding prac-
tice interpreting that Clause. No other clause in Article I, § 8 has a
longer history of substantive constraints on Congress’s power
recognized by this Court. See Wheaton v. Peters, 33 U.S. 591
(1834) (rejecting common law copyright); Trade-Mark Cases,
100 U.S. 82 (1879) (holding trademark law unsupported by
Copyright Clause power); Graham v. John Deere Co., 383 U.S. 1,
5 (1966) (clause “both a grant of power and a limitation”); Bonito
Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) (re-
jecting state law adding patent-like protection); Feist Publ’ns v.
Rural Tel. Ser. Co., 499 U.S. 499 U.S. 340, 346 (1991) (“original-
ity” a constitutional requirement).
But especially in light of this Court’s clear instruction that
enumerated powers are “subject to outer limits,” Lopez, 514
U.S. at 556-57, and that those limits must be judicially deter-
mined, see Boerne, 521 U.S. at 557, the refusal to give any
meaning to the Constitution’s plain text (“to promote the Pro-
gress of Science”) is error. As the Court wrote in Morrison,
citing Marbury, it is so “that . . . limits may not be mistaken or
forgotten [that] the constitution is written.” Morrison, 529 U.S.
at 607 (citation omitted) (emphasis added). By ignoring the
Constitution’s text, the Court of Appeals has allowed the
Framers’ limits to be ignored.
The limits of the Copyright Clause, like the limits of the
Commerce Clause, are both express and “inherent in [the] text
- 13 -
and constitutional context.” Morrison, 529 U.S. at 619. As
Judge Sentelle argued in dissent below, to determine their
scope, a court must identify a “stopping point” to the enumer-
ated power. Pet. App. 17a (Sentelle, J., dissenting). If the gov-
ernment cannot articulate a practical stopping point to the ex-
pansion of Congress’s power, then its understanding of that
enumerated power is incomplete. Id.
In this case, the government could identify no such “stop-
ping point.” So long as each extension of copyright terms was
itself fixed, the government argued that the constitutional re-
quirement was met. That reading, Judge Sentelle rightly found,
renders the constitutional restriction meaningless. “[T]here is
no apparent substantive distinction between permanent protec-
tion and permanently available authority to extend originally
limited protection.” Pet. App. 18a. Indeed, as is demonstrated
below (see infra pp. 23-28), the government’s interpretation
creates precisely the destructive incentives that the Framers
were trying to avoid. Thus under the principle of enumeration,
a different interpretation of “limited Times” is required—one
that forbids retroactive extensions of existing terms.
In Lopez and Morrison, the principle of enumeration sup-
ported values of federalism. But there could be no principled
reason why federalist limits should be judicially enforced
while copyright’s limits should not. If anything, the reasons
favoring the application of a principle of enumeration to the
Copyright Clause are more compelling than its application in
the context of federalism. The textual limits are more certain;
copyright values intersect with First Amendment liberties; and
the political interests are not subject to self-regulation through
competition between sovereigns. These reasons explain this
Court’s long history enforcing the limits of the Copyright and
Patent Clause. They reinforce Judge Sentelle’s conclusion that
the principle of enumeration applies to the Copyright Clause as
it does to other limits on federal power.
Petitioners do not argue that there is no room for congres-
sional discretion in setting authors’ creative incentives through
copyright law. See, e.g., Pennock v. Dialogue, 27 U.S. 1, 16-17
(1829) (“this exclusive right shall exist but for a limited period,
- 14 -
and that the period shall be subject to the discretion of con-
gress.”). But it is “within the limits of the constitutional grant
[that] Congress may . . . implement the stated purpose of the
Framers by selecting the policy which in its judgment best ef-
fectuates the constitutional aim.” Graham, 383 U.S. at 6 (em-
phasis added). There is no discretion over whether the grant
has any limits at all.
Nor do petitioners argue, as the Court of Appeals implied,
that “50 years are enough to ‘promote . . . Progress,’ . . . [but] a
grant of 70 years is unconstitutional.” Pet. App. 10a. Whether
50 years is enough, or 70 years too much, is not a judgment
meet for this Court. But whether extensions for works already
created prevent copyrights from being for “limited Times,” and
exceeds a power to “promote the Progress of Science,” is a
judgment that this Court can appropriately make. The line be-
tween prospective and retroactive extensions is a clear one. If
“limited Times” is to have any meaningful content, it is a line
this Court must draw.
A. Text and Structure of the Copyright Clause
Petitioners’ argument depends fundamentally upon the text,
structure and original meaning of the Copyright Clause. The
Copyright Clause gives Congress the power:
[a] To promote the Progress of Science and useful Arts [b]
by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.
U.S. CONST. art. I, § 8, cl. 8. (brackets added). To help clarify
its meaning, petitioners refer to [a] as the progress part of the
Copyright Clause, and [b] as the rights part. (As the “useful
Arts” is understood to refer to the patent authority, EDWARD C.
WALTERSCHEID, THE NATURE OF THE INTELLECTUAL PROPERTY
CLAUSE: A STUDY IN HISTORICAL PERSPECTIVE 18 (2002), pe-
titioners refer to the “Progress of Science” only.)
In the context of the framing, the aim of this clause was
nothing new. Its structure, however, was distinct. England had
passed the Statute of Anne 80 years before; its ideal to “pro-
mote learning” was familiar in state legislation of the time.
Brief of Amici Tyler T. Ochoa et al. at 5-6, 11-13 [“Historians’
Br.”]. That the Constitution would grant Congress the power to
- 15 -
“promote learning” was not surprising. The only genuine
question was how.
The answer was a clause that is unique within Article I. The
Copyright Clause is the only clause in Article I that “describes
both the objective which Congress may seek and the means to
achieve it.” Goldstein v. California, 412 U.S. 546, 555 (1973).
That “objective” is identified in the progress part of the
clause—”to promote the Progress of Science.” Feist, 499 U.S.
at 349 (“primary objective”); Pennock v. Dialogue, 27 U.S. at
19 (“main object”). The “means” are enumerated in the rights
part—”by securing for limited Times to Authors . . . the exclu-
sive Right to their . . . Writings.” The two parts together grant
Congress the power to do X by means of Y—to promote the
Progress of Science by exchanging time-limited copyrights to
authors for their writings.
1. “To promote . . . Progress”: The words of the progress
half of the Copyright Clause have been defined by this Court
consistently with the Framers’ understanding. “To promote,”
this Court has said, means “‘to stimulate,’ ‘to encourage,’ or
‘to induce.’” Goldstein, 412 U.S. at 555. “[T]he Progress of
Science” means “artistic creativity,” Twentieth Century Music
Corp. v. Aiken, 422 U.S. 151, 156 (1975), “the creative activity
of authors,” Harper & Row, Publishers v. Nation Enters., 471
U.S. 539, 546 (1985) (citing Sony, 464 U.S. at 429), “the crea-
tive effort,” id. at 450, “the creation of useful works,” id. at
558, or simply “creation,” Feist, 499 U.S. at 347.4 The aim was
4 At the time of the framing, the term “science” did not have our contempo-
rary meaning. Instead, “science” meant “knowledge” or “learning.”
WALTERSCHEID, NATURE, supra, at 125. In contrast, “Progress” did have a
sense that is still familiar today. As Samuel Johnson defined the term, “pro-
gress” meant “advancement; motion forward” as in this passage from
Locke: “The bounds of all body we have no difficulty to arrive at; but when
the mind is there, it finds nothing to hinder its progress into the endless ex-
pansion,” or alternatively, “intellectual improvement; advancement in
knowledge.” SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (W. Strahan 1755). The latter definition is closest to the framing
purpose. Webster’s definition is not far from Johnson’s: “[t]he action or
progress of advancing or improving by marked stages or degrees; gradual
betterment; as, assured of his progress; the history of educational progress;
- 16 -
to induce the production of something “new to the world,”
Pennock, 27 U.S. at 20, using a state-granted monopoly “to
bring forth new knowledge.” Graham, 383 U.S. at 8-9.
2. “By securing for limited Times . . . exclusive Right[s]”:
The technique of the rights part of the Copyright Clause was
also familiar to the Framers. In exchange for an “exclusive
Right” limited in duration, the “Author[]” must produce a
“Writing[].” U.S. Const. art. I., § 8, cl. 8. The mechanism is a
quid pro quo. Pennock, 27 U.S. at 23 (rejecting patent for work
released to the public because there “would be no quid pro
quo”); see also Brenner v. Manson, 383 U.S. 519, 534 (1966)
(describing the “basic quid pro quo”). Congress may give
authors rights in exchange for writings. The clause gives Con-
gress the power to secure a bargain—this for that.5
These two parts of the Copyright Clause were plainly meant
to function together. The means specified in the rights part
(“by securing for limited Times . . . exclusive Right”) were set
against the ends specified in the progress part (“to promote the
Progress of Science”), so that the limited purpose for which
specifically progressive development or evolution of mankind, as a process
or fact.” W EBSTER’S NEW INT’L DICTIONARY 1977 (2d ed. 1950) (4th en-
try).
5 This language of “exchange” is uniform throughout the history of the
Copyright Clause. The monopoly granted is “the equivalent given by the
public for benefits bestowed,” Fox Film Corp. v. Doyal, 286 U.S. 123, 127-
28 (1932); it is to “repay[]” the author for what otherwise “would
not . . . have existed.” Butcher’s Union Slaughter-House & Live-Stock
Landing Co. v. Crescent City Live-Stock Landing & Slaughter House Co.,
111 U.S. 746, 763 (1884). As Judge Learned Hand described it, the “mo-
nopoly [is] in exchange for a dedication” to the public, RCA Mfg. Co. v.
Whiteman, 114 F.2d 86, 89 (2d Cir. 1940), which this Court held the “States
may not render fruitless” by adding new restrictions to the ones that Con-
gress has set. Bonito, 489 U.S. at 152. The grant is made upon the “condi-
tion” that the work will pass into the public domain upon the copyright’s
“expiration.” Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185 (1896).
The author “impliedly agrees” to this “condition,” id. at 191-92, as the grant
is, as James Madison wrote, “a compensation for a benefit actually gained
to the community as a purchase of property.” James Madison, Aspects of
Monopoly One Hundred Years Ago, 128 HARPER’S MONTHLY MAGAZINE
490 (1914). See generally Paul J. Heald & Suzanna Sherry, Implied Limits
on the Legislative Power: The Intellectual Property Clause as an Absolute
Constraint on Congress, 2000 U. ILL. L. REV. 1119, 1162-64.
- 17 -
monopolies could be granted would be clear, and not “forgot-
ten.” Marbury v. Madison, 5 U.S. at 176 (emphasis added).
Just as the Necessary and Proper Clause is constrained by the
enumerated powers, such that the only power granted by that
clause is the power to promote “proper” legislative ends,6 so
too is the rights half of the Copyright Clause (“by securing for
limited Times . . . exclusive Right”) constrained by its enumer-
ated end (“to promote the Progress of Science”). Indeed, the
structure of Article I, § 8, cl. 8 mirrors the overall structure of
Article I, § 8—the rights part of the Copyright Clause stands to
the progress part as the Necessary and Proper Clause stands to
the other enumerated powers.
3. “Limited Times”: The duration of the copyright grant
was to be “limited.” In the framing context, the meaning of
“limited” was as plain as it is today. A term is limited if it is
“appointed, fixed,” “narrow,” or “circumscribed.” WEBSTER’S
NEW INT’L DICTIONARY 1434 (2d ed. 1950); see also SAMUEL
JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (W.
Strahan 1755) (defining “to limit”: “to confine within certain
bounds; to restrain; to circumscribe; not to leave at large”). In
the drafting of the Copyright Clause, Charles Pinckney of
South Carolina first proposed the term “a certain time.” “Cer-
tain” was struck, and “limited” was put in its place. See III
DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED
STATES 556 (Dep’t of State 1900) (Convention, Aug. 18,
1787). “Certain” suggests a fixed, knowable period; “limited”
suggests not just that the period be fixed, but that it also be
short in duration. STORY, supra, at 402 (“a short interval”).
B. CTEA’s Retroactive Aspect Violates the “Limited
Times” Requirement of the Copyright Clause
This Court has never decided whether Congress has the
power, consistent with the “limited Times” requirement, to ex-
tend the terms of existing copyrights. It is undisputed that, as
6 See Printz v. United States, 521 U.S. 898, 924 (1997) (citing Gary Lawson
& Patricia Granger, The “Proper” Scope of Federal Power: A Jurisdic-
tional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 297-33
(1993)).
- 18 -
the government concedes, and both the majority and dissent
agreed below, Congress has no power under the Copyright
Clause to grant permanent monopolies. Pet. App. 10a. Thus,
the sole issue is whether Congress may achieve indirectly what
it cannot achieve directly—a perpetual term “on the install-
ment plan.” The Copyright Term Extension Act of 1995:
Hearings on S. 483 before the Senate Judiciary Comm., 104th
Cong. 73 (1995) (statement of Jaszi) [1995 Senate Hearings].
This Court should hold that it cannot. A blanket extension of
existing copyright terms violates the “limited Times” require-
ment because it is (a) not a “limited Time[],” (b) not a “limited
Time[]” that “promotes the Progress of Science,” and (c) not
compatible with the quid pro quo requirement of the Copyright
Clause. These three requirements are all confirmed by the his-
tory of the framing context. CTEA fails all three.
1. Retroactively Extended Copyright Terms Are
Not “Limited”
As described above, the Constitution requires that the dura-
tion of a copyright term be “limited.” Under the recent practice
of Congress—extending the terms of existing copyrights
eleven times in the past forty years—copyright terms are no
longer “limited.” This practice shows that, rather than fixed, or
certain, or “limited,” terms are perpetually changeable and ex-
pandable. Under the reasoning of the Court of Appeals, so long
as each extension is for a fixed length, Congress is free to ex-
tend copyright terms ad infinitum. Pet. App. 10a-14a.
The consequence is that no author or artist can rely upon
work passing into the public domain. See Agee Br. at 10 (de-
scribing reliance interests). An author who wants to release a
counter-story to a famous novel cannot know when (or
whether) that novel will pass into the public domain. See, e.g.,
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th
Cir. 2001) (suit to enjoin publication of THE WIND DONE
GONE). A director who wants to adapt a play in a manner in-
consistent with the original author’s wish can never know
when the author’s rights will end. See Dinitia Smith, Immortal
Words, Immortal Royalties?, N.Y. TIMES, Mar. 28, 1998, at B7
(noting that Gershwin’s “Porgy and Bess” is only licensed for a
- 19 -
Black cast). It is by permitting retroactive extensions that this
uncertainty is created, and this uncertainty defeats the Framers’
purpose in protecting the public domain. It shows that terms
are not “limited.”
The government concedes that some limit is necessary. It ar-
gued below that “[i]t may well be that some term extensions
are so long . . . that a court could conclude that Congress has in
effect created an unlimited term.” Appellee’s Br. 17. But how
long is too long? Is 75 years for software “in effect . . . an un-
limited term”? As in Morrison and Lopez, the government
promises a limit, but offers no way to find it. On the govern-
ment’s test, “[t]he Congress that can extend the protection of
an existing work from 100 years to 120 years, can extend that
protection from 120 years to 140; and from 140 to 200; and
from 200 to 300.” Pet. App. 18a. (Sentelle, J., dissenting).7
The uncertainty in this standardless test, and the uncertainty
about whether copyright terms expire, means that by any rea-
sonable standard copyright terms are not “limited.” On this ba-
sis alone, this Court should conclude CTEA exceeds Con-
gress’s power, stating a clear and certain test that retroactive
extensions are not permitted.
2. Retroactively Extended Copyright Terms Do
Not “Promote the Progress of Science”
Because the “limited Times” requirement “stands con-
nected” to the power “to promote the Progress of Science,”
Wheaton, 33 U.S. at 661, its meaning must be determined in
light of that specified end. Id. The Court of Appeals declined to
do this. It expressly “rejected the argument ‘that the introduc-
7 There are, to be sure, always line-drawing problems. But it was in part in
response to them that the Court in Lopez and Morrison emphasized also a
categorical limit to Congress’s power under the Commerce Clause: in Lopez
the Court emphasized that the law had “nothing to do with the regulation of
commercial activity,” 514 U.S. at 577, and in Morrison that “our cases have
upheld Commerce Clause regulation of intrastate activity only where that
activity is economic in nature.” 529 U.S. at 613. Similarly here, the retroac-
tive extension in the Act violates the Constitution not only as a matter of
degree, but also of kind. It crosses the line of any plausible limit.
- 20 -
tory language of the Copyright Clause constitutes a limit on
congressional power.’” Pet. App. 10a.
The conclusion of the Court of Appeals is plainly erroneous.
This Court has consistently interpreted the scope of Congress’s
Copyright Clause power in light of the requirement that Con-
gress “promote the Progress of Science.” Indeed, there is no
way to make sense of this Court’s most significant Copyright
Clause cases, except in terms of the language and inherent re-
strictions of the progress part of the Copyright Clause.
In Feist Publications v. Rural Telephone Service Co., 499
U.S. 340 (1991), for example, this Court unanimously con-
firmed that the copyright power may only be deployed to pro-
tect work that is “original.” “Originality is a constitutional re-
quirement,” id. at 346, “the sine qua non of copyright.” Id. at
345. Because of this requirement, Congress is not permitted to
grant copyright protection to the mere statement of “facts,” or
to works within the “public domain.” Id. at 350.
Yet the term “original” does not appear in the text of the Copy-
right Clause. Nor is this restriction explained by reference to the
words “Authors” or “Writings” alone. Cf. Trade-Mark Cases, su-
pra (explaining restriction). As this Court defined the term,
“[o]riginal . . . means only that the work was independently cre-
ated by the author (as opposed to copied from other works), and
that it possesses at least some minimal degree of creativity.” Feist,
499 U.S. at 345 (emphasis added). While the requirement that the
work be “independently created by the author” might derive from
the requirement that copyright be granted to “Authors” for “their
Writings” (emphasis added), the additional requirement that it
“possess[] at least some minimal degree of creativity” necessarily
depends upon the concept of “progress” set forth in the first half
of the Copyright Clause. For example, abstracted from the clause
as a whole (as the Court of Appeals read the term “limited
Times”), there would be no violence done to the word “Author”
by referring to the compiler of a book of discount and interest rate
tables as an “author.” Nor would there be error in calling that
book a “writing.” But a book of discount and interest rate tables is
not an “original” work under Feist, because a report of “facts” is
not the “creation” of the facts reported. Tyler T. Ochoa, Patent
- 21 -
and Copyright Term Extensions and the Constitution: A Histori-
cal Perspective, 49 J. COPYR. SOC’Y USA 19, 47, 51 (2002) (de-
scribing example and Feist). Feist’s requirement of “some mini-
mal degree of creativity” can only be explained in light of the re-
quirement that copyrights “promote the Progress of Science.” Ac-
cord WALTERSCHEID, NATURE, supra, at 396-97.
The same conclusion follows from this Court’s repeated in-
sistence that Congress may not use its power under the Copy-
right Clause to “remove existent knowledge from the public
domain.” Bonito, 489 U.S. at 146, citing Graham, 383 U.S. at
6 (patents); Feist, 499 U.S. at 350 (copyrights). There is no
“public domain” clause in the Copyright Clause, and absent the
requirement that patents “promote the Progress of . . . useful
Arts,” there is no textual reason why Congress today could not
grant a patent to an “Inventor” for his “Discover[y]” just be-
cause that discovery has already passed into the public domain.
There would be no misuse of the terms “Inventor” and “Dis-
coveries,” for example, if Congress today restored a patent to
Thomas Edison (and hence his heirs) for his 1923 patent relat-
ing to disk phonograph record production (patent no.
1,546,573), which entered the public domain over half-a-
century ago. Yet as this Court has held, in light of the “limita-
tions” built into the clause, “monopolies” are not permitted un-
der the Copyright Clause when there is no “concomitant ad-
vance in the ‘Progress of Science and useful Arts.’” Bonito,
489 U.S. at 146 (emphasis added). Instead, as the Court has
instructed, “[t]his is the standard expressed in the Constitu-
tion,” “and it may not be ignored.” Graham, 383 U.S. at 6
(emphasis added).
These restrictions on Congress’s power make sense only in
light of the requirement that Congress “promote the Progress
of Science.” They are consistent with a long line of authority
that reads the power of Congress under the rights part of the
Copyright Clause in light of the ends identified in the progress
part.8 They manifest a consistent method for interpreting Con-
8 See Pennock v. Dialogue, 27 U.S. at 19 (Story, J.) (patent would “materi-
ally retard the progress of science and the useful arts”); Kendall v. Winsor,
- 22 -
gress’s power to grant monopoly rights under a power to pro-
mote progress. That same method should apply to the term
“limited Times.”
So interpreted, a term would be a “limited Time[]” if it
“stimulate[s],” Goldstein, 412 U.S. at 555, “the creative activ-
ity of authors,” Sony, 464 U.S. at 429. It follows that a blanket
extension of existing copyrights cannot be a “limited Time[]”
that “promote[s] the Progress of Science.” It cannot, because
the incentive is being given for work that has already been
produced. Retroactive extensions cannot “promote” the past.
No matter what we offer Hawthorne or Hemingway or
Gershwin, they will not produce anything more. Retroactive
extension might promote harmonization—CTEA does not (see
infra pp. 43-44) but a hypothetical statute could. It might in-
crease the reward to heirs of long-dead authors. It might even
induce some to restore decaying films—though again, petition-
ers deny that CTEA does so, and deny that that alone is a suffi-
cient interest. See infra pp. 44-45. These alternative ends might
well be actual or legitimate. But they are not the ends specified
in the progress half of the Copyright Clause. Whatever else a
monopoly protection under that clause may do, it must pro-
mote “creative activity” to satisfy the limits of the Constitution.
Sony, 464 U.S. at 429.
62 U.S. 322, 328 (1858) (same); Clayton v. Stone, 5 F. Cas. 999, 1003
(C.C.S.D. N.Y. 1829) (No. 2,872) (Thompson, J.) (“object [of statute] was
the promotion of science”); Baker v. Selden, 101 U.S. 99, 105 (1879) (rely-
ing on Clayton); Higgins v. Keufel, 140 U.S. 428, 430 (1891) (act read in
light of purpose); Sony Corp., 464 U.S. at 477 (rejecting copyrights “in
which strict enforcement . . . would inhibit the very ‘Progress of Science
and Useful Arts’ that copyright is intended to promote”); Campbell v. Acuff-
Rose Music, Inc., 510 U.S. 569, 575 (1994) (“From the infancy of copyright
protection, some opportunity for fair use of copyrighted materials has been
thought necessary to fulfill copyright’s very purpose, ‘to promote the Pro-
gress of Science and useful Arts . . . ’”); see also Frantz Mfg. Co. v. Phenix
Mfg. Co., 457 F.2d 314, 327 n.48 (7th Cir. 1972) (“The congressional
power . . . is likewise limited to that which accomplishes the stated purpose
of promoting ‘the Progress of Science and useful Arts’”) (Stevens, J.);
ARTHUR W. WEIL, AMERICAN COPYRIGHT LAW 31 (1917) (“Copyright acts
must be passed for the promotion of the progress of science . . . [and] for
this purpose only”).
- 23 -
3. Retroactively Extended Copyright Terms Vio-
late the Quid Pro Quo Requirement of the
Copyright Clause
The text and structure of the rights part of the Copyright
Clause (“by securing for limited Times to Authors . . . exclu-
sive Right”) imbeds a quid pro quo. Congress may make a
trade—it may grant an “exclusive Right” for a “limited
Time[]” in exchange for a “Writing” by an “Author.” It may
not handout a monopoly over speech in exchange for noth-
ing—quid pro nihilo. This was the Framers’ clear understand-
ing, confirmed by this Court in its cases interpreting Con-
gress’s Copyright Clause power. See supra p. 16 & n.5.
The retroactive aspect of CTEA violates this requirement of
exchange. Whatever material benefit might flow to the author
or his heirs or publisher from the extension of this exclusive
right, Congress has not conditioned that grant upon a gain by
the public. The grant is thus a windfall, not an incentive.
Rather than “a compensation for a benefit actually gained to
the community as a purchase of property,” Madison, Aspects of
Monopoly, supra, at 490, CTEA is simply a boon to the heirs of
copyright holders. It thus violates the core of the quid pro quo
built into the Copyright Clause.
Congress certainly has the power to grant such windfalls
through tax benefits, or outright gifts. But its Copyright Clause
power is contingent upon an exchange. As nothing is received
by the public in exchange for, or conditioned upon, the retro-
active extension, CTEA is beyond Congress’s power.
4. The Historical Context Confirms that a Blanket,
Retroactive
Extension Exceeds Congress’s
Power
The Framers had a purpose in crafting the Copyright Clause
as carefully, and uniquely, as they did. Petitioners’ interpreta-
tion of “limited Times” makes sense of that purpose. The Court
of Appeals’ interpretation does not. Indeed, the interpretation
of the court below exacerbates the very problem that the
Framers were trying to avoid.
The Framers drafted the Copyright Clause against the back-
ground of English experience with monopolies in general, and
- 24 -
with publishing monopolies in particular. Their clear aim was
to avoid the “corruption” experienced with both. Royal abuse
of the Crown’s prerogative to grant monopoly had been a ma-
jor cause of the English Civil War. See, e.g., CHRISTINE
MACLEOD, INVENTING THE INDUSTRIAL REVOLUTION: THE
ENGLISH PATENT SYSTEM, 1660-1800, at 16 (1988). By the
time of the framing, England had restrained the excesses of the
Crown’s monopolistic practices generally, and weakened the
monopolistic control the London publishers held on learning.
Both experiences meant that the Framers “were not about to
give the Congress any general power to create monopolies,”
WALTERSCHEID, NATURE, supra, at 95, nor any specific power
to grant monopolies (such as the Copyright and Patent Clause)
unless carefully limited.
Of particular concern was the Crown’s practice of granting
monopolies for objects or items of trade that were already in ex-
istence. As this Court has explained, the clause “was written
against the backdrop of the practices—eventually curtailed by the
Statute of Monopolies—of the Crown in granting monopolies to
court favorites in goods or businesses which had long before been
enjoyed by the public.” Graham, 383 U.S. at 5; see also George
Ramsey, The Historical Background of Patents, 18 J. PAT. OFF.
SOC’Y 6, 7 (1936) (“during [Elizabeth’s] Reign patents were
granted that were monopolistic in character and covered most of
the necessities of life”). King Henry VIII issued a printer’s patent
for the Bible. Roger Syn, Copyright God: Enforcement of Copy-
right in the Bible and Religious Works, 14 REGENT U. L. REV. 1, 4
(2001). King James I issued a patent for the “sole right of making
certain writs in the Court of Common Pleas,” as well as for clay
pipes, printing ballads and playbills, gold and silver thread, and
most famously, playing cards. Malla Pollack, Purveyance and
Power, or Over-Priced Free Lunch: The Intellectual Property
Clause as an Ally of the Takings Clause in the Public’s Control of
Government, 30 SW. U. L. REV. 1, 65-66 (2000). Such an unre-
strained monopoly power in America, the Framers believed,
would simply create the incentive for the same kind of corruption.
Henry H. Permit, Jr., Electronic Freedom of Information Act, 50
ADMIN. L. REV. 391, 410 n.131 (1998) (“Some of the revolution-
- 25 -
ary fervor both for the English revolution and the American one
more than a century later came from reaction to perceived cor-
ruption associated with the grant of [monopolies]”).
The practice of granting monopolies to industries already in
existence had an obvious, and deleterious, effect not only on
consumer welfare, but on incentives to innovate. “The very
possibility of securing exclusive privileges was an invitation to
those at court to join in the race for favors.” WILLIAM HYDE
PRICE, THE ENGLISH PATENTS OF MONOPOLY 16 (1906). That
race was not for “new inventions.” Id. New inventions were
“left for poor and often chimerical inventors.” Id. Instead, the
powerful competed for “monopolies in old industries.” Id.; see
also Paul S. Heald & Suzanna Sherry, Implied Limits on the
Legislative Power: The Intellectual Property Clause as an Ab-
solute Constraint on Congress, 2000 U. ILL. L. REV. 1119,
1143; DAVID DEAN, LAW-MAKING AND SOCIETY IN LATE
ELIZABETHAN ENGLAND: THE PARLIAMENT OF ENGLAND,
1584-1601, at 163-64 (1996). This in turn produced what the
Framers referred to as “the spirit of monopoly”—the tendency
to look to government for favors and protection in industry
rather than to compete with new innovations and creativity.
Hall & Sellers, THE PENNSYLVANIA GAZETTE, Feb. 16, 1785,
Item No. 71221.
Today, the conduct that the Framers sought to prevent would
be called “rent-seeking”—economically inefficient attempts by
some private parties to gain advantage through invocations of the
political process.9 The Framers employed a different vocabulary,
but similarly recognized that governmental grants of exclusive
9 James Buchanan explains the concept and its historical roots:
Suppose that, instead of discovering a new commodity or service or
production process, an innovating entrepreneur discovers a way to
convince the government that he “deserves” to be granted a monopoly
right, and the government will enforce such a right by keeping out all
potential entrants. No value is created in the process; indeed, the mo-
nopolization involves a net destruction of value. The rents secured re-
flect a diversion of value from consumers generally to the favored rent
seeker, with a net loss of value in the process.
TOWARD A THEORY OF THE RENT-SEEKING SOCIETY 7 (James Buchanan,
Robert Tollson & Gordon Tullock, eds., 1980).
- 26 -
rights for already existing creations served no social end, but
merely induced private parties to dissipate “effort, time and other
productive resources” in currying lawmakers’ favor. TOWARD A
THEORY OF THE RENT-SEEKING SOCIETY 8 (James Buchanan,
Robert Tollson & Gordon Tullock, eds., 1980).
This danger was a particular concern for the Framers in the
context of copyright. Until the Statute of Anne (1710), copy-
right in England had been perpetual. Historians’ Br. at 5-6.
After the Statute of Anne limited the copyright term, publish-
ers continued to insist that their common law copyright re-
mained perpetual, the Statute of Anne notwithstanding. Not
until 1774 was this question finally resolved against the pub-
lishers. Donaldson v. Beckett, 4 Burr. 2408, 98 Eng. Rep. 257
(H.L. 1774). But by that time, publishers had achieved a strong
control over the publication of new works, fueled by their mo-
nopolistic control over the publication of old works. The
Framers feared that publishers in America would achieve the
same power over learning that they held in England. Marci
Hamilton, Copyright Duration Extension and the Dark Heart
of Copyright, 14 CARDOZO ARTS & ENT. L.J. 655, 659 (1996).
They therefore crafted the Copyright Clause so as to “prevent
the formation of oppressive monopolies.” Aiken, 422 U.S. at
164.
Their technique was familiar—a “mechanism[] [for] decen-
tralizing and controlling power.” Marci Hamilton, The Histori-
cal and Philosophical Underpinnings of the Copyright Clause,
5 OCCASIONAL PAPERS INTELL. PROP. FROM BENJAMIN N.
CARDOZO SCH. L., YESHIVA U. 6 (1999). Just as the Framers
had responded to fear about federal power (federalism), and to
fear about the power of the church (the Establishment Clause),
“[t]he Framers’ solution [to the fear about concentrated power
in publishers] was to divide power, to demarcate its limits, and
to establish mechanisms that would guard against [its] aggran-
dizement.” Id. Thus, unlike the Statute of Anne, the Copyright
Clause gave Congress the power to vest copyrights in
“Author[s],” not “booksellers.” 8 Anne, ch. 19, § 1 (1710). The
“English experience,” Professor Patterson has written, “caused
the framers . . . to exclude publishers from the copyright
- 27 -
clause.” L. Ray Patterson, Free Speech, Copyright, and Fair
Use, 40 VAND. L. REV. 1, 32-33 (1987). The Copyright Clause
is thus not so much “pro-author but rather anti-publisher.”10
Hamilton, Historical and Philosophical Underpinnings, supra,
at 8. By securing copyrights to “Authors” who individually
would never control the market generally, and by securing
those rights for just “limited Times,” the Framers established a
mechanism to staunch the concentration of power over speech
in the hands of a historically suspect few.
Against the background of these concerns over corruption,
and over the concentration of power in the hands of publish-
ers,11 this Court should apply a meaning of “limited Times”
that would achieve the Framers’ purpose. The Copyright
Clause would achieve that end if read to prohibit an indefinite
and endless power to extend existing terms.
The interpretation by the court below does not achieve this
end. Contrary to the Framers’ intent, under the reading of the
Court of Appeals, “publishers” retain a perpetual incentive to
lobby Congress to extend existing terms. The incentives to de-
centralize control over speech intended by the Framers are thus
erased.12
10 Milton had a view of those publishers that was shared generally: “old
patentees and monopolizers in the trade of bookselling, men who do not
labour in an honest profession to learning is indetted.” PHILIP WITTENBERG,
THE PROTECTION OF LITERARY PROPERTY 31 (1968) (citing JOHN MILTON,
AREOPAGITICA & OF EDUCATION 43 (Kathleen Lea ed., 1973)); see also L.
RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 178-79 (1968).
11 These concerns are not simply historical. As the Wall Street Journal
wrote, the clear effect of “leaving [CTEA] intact will [be to] do nothing
more than create an ever-growing cartel of ownership of intellectual prop-
erty that will stifle the continuing growth and spread of ideas.” Unfair Use,
WALL ST. J., Feb. 21, 2002, at A16.
12 Indeed, between the interpretation of “limited Times” proposed by the
Court of Appeals and a perpetual term, a perpetual term would better avoid
the incentives to corruption that were at least part of the Framers’ concern.
At least with a perpetual term, there would be no need repeatedly to direct
resources towards Congress to secure a continuing monopoly right as there
had been in England to secure monopoly favor. See ROBERT B. EKELUND &
ROBERT D. TOLLISON, MERCANTILISM AS A RENT-SEEKING SOCIETY:
ECONOMIC REGULATION IN HISTORICAL PERSPECTIVE 18 (1981).
- 28 -
There is no reason that “limited Times” needs to be read to
defeat the Framers’ plain purpose. A plain meaning of the
term, in light of the structure of the clause, and consistent with
the history of its interpretation, yields a result that would
achieve the Framers’ ends. An interpretation of “limited
Times” banning blanket retroactive extensions of the duration
can eliminate (a) the incentive to lobby for extended terms, (b)
the tendency to concentration, and (c) an excessive reliance by
those publishers on works from the past to the exclusion of the
new.
5. The Copyright Act of 1790 Gives No Support to
Congress’s Retroactive Extension of Copyright
Terms
The Court of Appeals suggested that, because the First Con-
gress in its first copyright act granted copyrights to works “al-
ready printed,” it itself “extended the terms of existing copy-
rights,” Pet. App. 13a-14a, and so must have considered per-
missible extensions such as the one challenged here. This ar-
gument is plainly mistaken.
The Copyright Act of 1790 did not extend the terms of ex-
isting copyrights. As this Court “has repeatedly said, [the 1790
Act] did not sanction an existing right, but created a new one.”
Fox, 286 U.S. at 127; see also Mazer v. Stein, 347 U.S. 201,
214-15 (1954); Wheaton, 33 U.S. at 661. The federal copyright
was the replacement for whatever rights—state statutory copy-
rights, or common law copyrights—might have existed prior to
the 1790 statute.
The need for this replacement was obvious to the first Con-
gress, in light of the general and continued confusion about
whether there was a common law copyright, and in light of the
states’ decision (at the request of the Continental Congress) to
create state law copyrights. U.S. COPYRIGHT OFFICE,
COPYRIGHT ENACTMENTS: LAWS PASSED IN THE UNITED
STATES SINCE 1783 RELATING TO COPYRIGHT, BULLETIN NO. 3,
at 1-21 (rev. ed. 1963); L. RAY PATTERSON, COPYRIGHT IN
HISTORICAL PERSPECTIVE 183 (1968). Although this Court in
1834 concluded in the Wheaton case that there was no com-
mon law copyright that protected an author after a work was
- 29 -
published, see supra p. 12, it is clear from the mix of state stat-
utes granting state law copyrights, as well as from the vari-
ously expressed views of different Framers and contemporane-
ous legal authority, that at the time the Constitution was en-
acted, the matter was at least uncertain. Edward C. Walter-
scheid, Inherent or Created Rights: Early Views on the Intel-
lectual Property Clause, 19 HAMLINE L. REV. 81, 87 (1995);
WALTERSCHEID, NATURE, supra, at 76; see also 1 WILLIAM W.
CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY
OF THE UNITED STATES 477 (1953) (“the Common Law of the
United States . . . was in a highly uncertain state on the subject
of copyrights”). Rawle believed there were common law copy-
rights in the United States as late as 1825. WILLIAM RAWLE, A
VIEW OF THE CONSTITUTION OF THE UNITED STATES OF
AMERICA 102 (1825). And Congress in its first major revision
of copyright law in 1831 treated copyright as a creature of
natural law—mistakenly, as Wheaton would show. 7 GALES
AND SEATON’S REGISTER OF DEBATES IN CONGRESS 424 (21st
Cong., 2d Sess. 1831) (“merely the legal provision for a pro-
tection of a natural right”).
In light of this uncertainty, the first Congress was fully justi-
fied in granting authors and proprietors of “already printed”
works a federal copyright to replace any common law or state
granted copyright the work might possess. The Framers’ aim
was to terminate any conflicting state or common law claims.
CROSSKEY, supra, at 477. The federal grant can thus be under-
stood as a compensation for the expected displacement of a
state-protected right. Accord WALTERSCHEID, NATURE, supra,
at 436-38.
It is therefore simply incorrect to infer from the 1790 Act
that the Framers envisioned a general exception to the rule that
“exclusive Rights” were to “promote [] progress.” The statute
of 1790 stands for nothing more than the need of the First
Congress to address fundamental issues of transition from a
state federation to a national government. Cf. U.S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 793 (1995) (citing Justice
Story’s account of conceptual problems of a transition to a fed-
eral government). That they chose this relatively uncumber-
- 30 -
some method (as opposed to the formal surrender of a right in
the context of patents, see Act of February 21, 1793, ch. 11,
§ 7, 1 Stat. 322) does not demonstrate a general principle per-
mitting the blanket extension of the term of existing copy-
rights.
To be sure, a rule against retroactive copyright extensions
would cast into doubt the 1831 and 1909 Acts, and possibly the
1976 Act. All three can be distinguished from CTEA.13 As pe-
titioners have argued, the 1831 statute was the product of what
this Court determined in 1834 to be a mistaken understanding
of the nature of the copyright power. See supra p. 29. The 1909
and 1976 statutes simply followed the examples that preceded
them. Never during this time was any court asked to rule on the
constitutionality of the retroactive extensions under the “lim-
ited Times” clause. Neither can the extension in 1831 be attrib-
uted to the Framers (no Framer sat in Congress in 1831), nor
can two extensions in 150 years be held to be a constitutionally
ratified practice. Cf. Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53, 57 (1884) (deference for “[t]he construction
placed upon the constitution by the first act of 1790 and the act
of 1802, by the men who were contemporary with its forma-
tion”) (emphasis added). Whether or not two extensions in 150
years are excusable, the eleventh in forty years must be held to
have crossed the line.
13 The 1831 Act extended, both prospectively and retrospectively, the initial
term from 14 to 28 years (and left the renewal term at 14 years). Act of
Feb. 3, 1831, § 2, 16. In order for a new work to receive a copyright, how-
ever, the Act imposed several requirements, including depositing a copy of
the work with the federal government for recording and paying a fee. Id.
§ 4. Similar prerequisites were imposed under the predecessor statute, the
Act of 1790, Act of May 31, 1790, § 3, as amended by Act of April 29,
1802, ch. 36, 2 Stat. 171, which would have applied to the copyrights whose
terms the 1831 Act retroactively extended. Similarly, the 1909 Act extended
the renewal term to 28 years for both existing and future copyrights. Act of
March 4, 1909, ch. 320, §§ 23-24, 35 Stat. 1080-81. This extension did not
automatically benefit every eligible author, however. In order to obtain a
renewal term of 28 years, an author (or his heirs) had to properly file an
application for renewal in the Copyright Office. Id. These requirements had
the salutary effect of keeping registrations of existing and protected work.
No comparable requirements exist under CTEA or current copyright law.
- 31 -
6. If Retroactive Extensions Are Not Per Se Inva-
lid, They Must at a Minimum Be Tested for
“Congruence and Proportionality” to the Ends
of the Copyright Clause
Petitioners advance a per se rule banning blanket retroactive
extensions of copyright terms. Just as the “originality require-
ment” bans all grants of copyright to works that are not “origi-
nal,” this rule would ban blanket retroactive extensions of
copyright terms as not being terms that are “limited.” Such a
rule would provide clarity and certainty for both copyright
holders and those building upon the public domain.
Even if this Court does not adopt this rule, however, Con-
gress must not be left to define on its own the limits the Con-
stitution sets. At a minimum, this Court should adopt a rule of
heightened review, requiring that any extensions be “congruent
and proportional” to proper Copyright Clause ends. This Court
recognized a similar standard in City of Boerne where it wrote
that “[t]here must be a congruence and proportionality between
the injury to be prevented or remedied and the means adopted
to that end” for legislation passed pursuant to § 5 of the 14th
Amendment to pass constitutional review. 521 U.S. at 508. The
same structure can guide the Court in enforcing the limits of
the Copyright Clause.
Like the power to enforce the 14th Amendment in § 5, the
power to “secure for limited Times to Authors . . . exclusive
Right[s]” is a means to a constitutionally specified end—to
“promote the Progress of Science.” Like § 5, the power to “se-
cure for limited Times” also contains language in the “affirma-
tive grant of congressional power [that] also serves to limit that
power.” Kimel, 528 U.S. at 81. Accordingly, as with § 5, this
Court should ensure that Congress does not exceed its power to
“secure for limited Times” by granting “exclusive Right[s]”
where there is no proportional Copyright Clause benefit.
The need for some form of heightened review is particularly
clear in this case. The Court of Appeals offered just one justifi-
cation for the retroactive extension of existing copyrights—that
it would create incentives to restore old films. Pet. App. 13a.
Petitioners would contest the factual premise of the court’s
- 32 -
judgment. See infra pp. 44-45. As Amicus Agee argues, it is the
extension of copyright terms that create the transaction costs
making restoration impossible. Agee Br. at 10-17. But even if
the court below were correct, the notion that the need to restore
old films could justify an across-the-board extension to all ex-
isting copyrights in all media is simply astounding. Just to en-
courage the preservation of film, a full generation of creative
work is denied to another generation of creators.
Therefore, in the alternative, this Court should reverse and
remand for consideration by the court below whether the ex-
tension of the existing terms challenged here can be shown to
be “congruent and proportional” to Congress’s legitimate
Copyright Clause ends. See AALL Br. § III. The government
should bear the burden of such a showing, and the court below
should reject it if the extension is significantly broader than is
necessary to achieve the government’s legitimate end. Cf.
Turner Broad. Sys. v. FCC, 520 U.S. 180, 182 (1997) (speech
burden must be “congruent to the benefits”) (Turner II).
C. The Retroactive Aspect of CTEA Violates the
“Originality” Requirement of Feist
Independent of CTEA’s violation of the “limited Times”
provision in the Copyright Clause, its retroactive extension of
existing terms violates the “originality” requirement of Feist.
Feist requires that copyrights be granted to works that are
“original.” While existing works with copyrights affected by
CTEA were presumptively original when copyright protection
first attached, this Court’s precedent shows that the constitu-
tional requirement of “originality” continues beyond that initial
vesting. If “the sine qua non of copyright is originality,” Feist,
449 U.S. at 345, then whenever Congress extends to an
“Author” an “exclusive Right,” that grant too must be tested
for originality.
The authority for this claim is Feist itself. Feist character-
ized material “in the public domain” as “not original.” Id. at
350; see also Harper, 471 U.S. at 548 (“copyright does not
prevent subsequent users from copying from a prior author’s
work those constituent elements that are not original—for ex-
ample . . . materials in the public domain”) (emphasis added).
- 33 -
But obviously, material in the public domain was, at one point,
original. Nathaniel Hawthorne’s The Scarlet Letter (1850) is in
the public domain. If a new copyright could not be granted to it
now because it is no longer “original,” that is not because it
failed to satisfy the requirements of “originality” when written.
It must instead be because the requirements of “originality”
restrict subsequent grants.
This Court expressed that same understanding in the Trade-
Mark Cases. In concluding that trademark legislation could not
be upheld under the Copyright Clause power, this Court rea-
soned that trademarks were often granted for expression “al-
ready in existence.” Trade-Mark Cases, 100 U.S. at 94. That
fact, the Court held, put trademarks beyond the scope of the
“Authors” and “Writings” intended to be covered by the Copy-
right Clause. Even though some of these marks were plainly, at
one point at least, “Writings” by some “Author,” the Court
found they were not sufficiently “original” to merit a new grant
of statutory protection.
The same reasoning should apply to retroactive extensions
of existing copyright terms. Such extensions are granted for
works that are “already in existence.” Id. at 94. Like works in
the public domain, these works may once have been “original”;
but like works in the public domain, they are “original” no
longer. Thus, under the reasoning of Feist and the Trade-Mark
Cases, the retroactive aspect of CTEA is beyond Congress’s
power for this reason as well.
II. CTEA’S BLANKET RETROACTIVE AND PRO-
SPECTIVE
EXTENSIONS
OF
COPYRIGHT
TERMS ARE NOT IMMUNE FROM FIRST
AMENDMENT SCRUTINY
Even if Congress were found to have authority under the
Copyright Clause to extend copyright terms without regard to
their effect upon the “Progress of Science,” CTEA violates the
Free Speech and Press Clauses of the First Amendment. Under
ordinary principles of First Amendment review, the restrictions
on speech effected by both extensions greatly outweigh any
plausible free speech benefit. The Court of Appeals held oth-
erwise only by declining to apply any First Amendment scru-
- 34 -
tiny at all to the challenged extensions. Stating that Congress’s
mere decision to place works under copyright, regardless of the
strength or weakness of its justification, “obviates further in-
quiry under the First Amendment,” Pet. App. 7a, the court be-
low announced the novel rule that “copyrights are categorically
immune from challenges under the First Amendment.” Pet.
App. 6a. That ruling was in error.
A. Harper & Row Does Not Exempt Copyright Stat-
utes from First Amendment Review
In categorically dismissing petitioners’ free speech claims,
the court below erroneously relied upon this Court’s decision
in Harper & Row Publishers, Inc. v. Nation Enterprises, 471
U.S. 539 (1985), treating Harper & Row as an “insuperable
bar[]” to a First Amendment challenge to any copyright statute.
Pet. App. 5a. Harper & Row, however, is no such thing.
In Harper & Row, this Court declined to craft “a public fig-
ure exception to copyright” that would have expanded beyond
recognition the exception already recognized for fair use. 471
U.S. at 560. Harper & Row had an exclusive right to President
Gerald Ford’s autobiography. The Nation Magazine “scooped”
part of that autobiography without Harper & Row’s consent. In
defending against an infringement action, The Nation argued
that because President Ford was a “public figure,” and his par-
don of President Nixon was of significant public import, free
speech values should trump Harper & Row’s copyright inter-
ests, forcing an exception to the enforcement of an otherwise
valid and pre-existing copyright.
The Nation Magazine did not argue that Harper & Row’s
copyright was invalid, that the law granting Harper & Row’s
copyright was unconstitutional, or that copyright law could not
properly extend to works about public figures. Instead, it sim-
ply asserted that it had a First Amendment right to trespass on
Harper & Row’s exclusive right.
This Court properly rejected The Nation’s argument. By
creating an incentive to produce speech that otherwise would
not be produced, the Court explained, copyright functions as an
“engine of free expression.” 471 U.S. at 558. If a work lost that
protection simply because it became important, or because it
- 35 -
was about a public figure, that would destroy much of the
speech-inducing effect that copyright law produced. Id. This
would defeat the purpose of copyright protection. Thus, so
long as copyright law protects expression rather than “facts or
ideas,” and so long as it preserves space for “fair use,” this
Court found “no warrant for expanding the doctrine of fair use
to create what amounts to a public figure exception to copy-
right.” Id. at 560.
This Court’s refusal to carve out a public figure exception to
the scope of copyright in Harper & Row, however, plainly did
not establish a general First Amendment immunity for all
copyright statutes. At most, the case established a presumption
against the need to engage in a First Amendment analysis
every time a copyright owner seeks to enforce his copyright
against an infringer. Id. But nothing in Harper & Row suggests
that Congress could evade First Amendment review should it
amend the copyright statute to eliminate the idea/expression
distinction or to constrict the scope of fair use. Nor would
Harper & Row immunize from First Amendment review a
copyright act that was content-based simply because it reached
expression only. (If France, for example, adopted a statute ban-
ning copyright for “hate speech,” and Congress sought to
“harmonize” with that rule, Harper & Row would not preclude
First Amendment review.) Harper & Row simply applied the
First Amendment to the existing exceptions for ideas and fair
use, and found them sufficient to satisfy the requirements of
the Free Speech and Press Clauses on the merits. Nothing in
Harper & Row obviated the need for First Amendment inquiry
into whether a copyright law has permissibly struck the bal-
ance between copyright and free speech at the outset.
The First Amendment interests raised by copyright’s dura-
tion are in any event distinct from the First Amendment inter-
ests raised by the scope of protection enjoyed during the term
of a copyright. Harper & Row held that copyright law is justi-
fied by substantial content-neutral interests that make copy-
right “an engine of free expression,” 471 U.S. at 558, so long
as it creates a market in authors’ expression and does not give
an author a property right in his ideas, see id. at 560; id. at 582
- 36 -
(Brennan, J., dissenting), and so long as the “fair use” excep-
tion limits the scope of a copyright owner’s control over his
expression. Id. at 560.
The idea/expression and fair use limitations, however, are ir-
relevant to the First Amendment interests protected by limita-
tions on the duration of copyright. The whole point of the
Framers’ directive that terms be “limited” was that copyrighted
works would pass into a public domain where they would
“admit the people at large . . . to the full possession and enjoy-
ment of all writings and inventions without restraint.” STORY,
supra, at 402-03. The constitutional interest in the public do-
main is an interest in guaranteeing access not just to the
author’s ideas but also his expression. The idea/expression dis-
tinction cited in Harper & Row and relied on by the court be-
low by definition cannot protect this interest.
Likewise with the limitations of “fair use.” As this Court
explained,
[A] use that has no demonstrable effect upon the potential
market for, or the value of, the copyrighted work need not
be prohibited in order to protect the author’s incentive to
create. The prohibition of such noncommercial uses would
merely inhibit access to ideas without any countervailing
benefit.
Sony, 464 U.S. at 450-51 (emphasis added). By contrast, a
limitation of the duration of copyright enables both commer-
cial and non-commercial actors to vindicate First Amendment
interests in drawing upon the creator’s work. The purpose of
the public domain—the default state that copyright is tempo-
rarily permitted to alter—is to free material for any kind of use.
As “fair use” does not extend the benefit of use to commercial
and non-commercial actors alike, it is insufficient to vindicate
the Framers’ objective in limiting copyright terms.
In sum, Harper & Row does not bar First Amendment scru-
tiny of extensions of copyright terms. To the contrary, the in-
jury to vital First Amendment interests caused by elongating
copyrights should be reviewed under the very same standard
that Harper & Row announced and applied: that copyright law
may be upheld against First Amendment challenge inso-
- 37 -
far—but only insofar—as it protects an “engine of free expres-
sion,” Harper & Row, 471 U.S. at 558, and it should be invali-
dated if its restrictions “merely inhibit access to ideas without
any countervailing benefit.” Sony, 464 U.S. at 450-51. The de-
cision of the court below to bypass the First Amendment en-
tirely was therefore plain error.
B. CTEA Is a Content-Neutral Regulation of Speech
Subject to Intermediate Scrutiny under the Stan-
dard of Turner
By barring the unauthorized use or dissemination of copy-
righted works, copyright law regulates speech. To be sure,
copyright law is content-neutral speech regulation, for its sole
purpose is to provide an economic incentive for authors to pro-
duce “original” work, without regard to the content of the ma-
terial protected, the viewpoint of the author, or the subject
matter of the speech. See, e.g., CBS Broad., Inc. v. EchoStar
Communications Corp., 265 F.3d 1193, 1211 (11th Cir. 2001)
(copyright law is content-neutral speech regulation), petition
for cert. filed, 70 U.S.L.W. 3626 (Mar. 28, 2002) (No. 01-
1450); Satellite Broad. & Communications Ass’n v. FCC, 275
F.3d 337, 355 (4th Cir. 2001) (same), petition for cert. filed, 70
U.S.L.W. 3580 (Mar. 7, 2002) (No. 01-1332); Universal City
Studios, Inc. v. Corley, 273 F.3d 429, 450-51 (2d Cir. 2001)
(same); see also Neil Weinstock Netanel, Locating Copyright
Within the First Amendment Skein, 54 STAN. L. REV. 1, 47-54
(2001). But there can be no dispute that copyright law prevents
willing speakers who would adapt or distribute copyrighted
works from reaching willing audiences. It is regulation “in
derogation of common right,” as Jefferson’s attorney general,
Levi Lincoln, said of patents. Levi Lincoln, Patents for Inven-
tions, 26 May 1802, reprinted in 3 THE FOUNDERS’ CON-
STITUTION 41 (P. Kurland & R. Lerner eds., 1987). It is there-
fore speech regulation.
The significance of this speech regulation has only increased
over time. The scope of the monopoly that the government
confers under the copyright laws has expanded dramatically
over the nation’s history, and with it the severity of copyright’s
interference with freedom of speech. The “exclusive Right” of
- 38 -
which the Framers spoke was little more than an unfair com-
petition law, directed exclusively against publishers, reaching
only the right to “publish, republish, and vend” a particular
writing, and lasting for just 14 years, renewable once. Act of
May 31, 1790, § 1, 1 Stat. 124. In the two centuries since,
Congress has expanded this “exclusive Right” to cover “copy-
ing” as well as publishing, to regulate derivative as well as
original works, and to last often for more than a century. The
consequence is that authors now may bar translations, abridg-
ments, dramatizations, performances, and other uses of copy-
righted works that the Framers left unregulated. See 17 U.S.C.
§ 106; Netanel, supra, at 16-17. And now, because of the
emergence of the Internet (and the technological fact that every
interaction in the context of the Internet makes a “copy” of
something), copyright law will increasingly control ordinary
uses of creative content in activities that before the Internet
were not even remotely within the reach of copyright. See, e.g.,
L. Ray Patterson & Judge Stanley F. Birch, Copyright and Free
Speech Rights, 4 J. INTELL. PROP. L. 1, 3 (1996) (“New tech-
nology provides new means [to] enable[] the copyright owner
to control access”); L. Ray Patterson, Free Speech, Copyright,
and Fair Use, supra, at 48 (“copyright owner’s right to control
access to the work far exceeds what could have been imagined
in 1841”).
These changes are not necessarily improper. But they must
be tested against unchanging principles—that speech regula-
tions go no further than is necessary to achieve important gov-
ernmental interests. Accordingly, like any other form of con-
tent-neutral regulation that tries to balance free speech interests
“on both sides of the equation,” Turner II, 520 U.S. at 227
(Breyer, J., concurring), CTEA should be subject to intermedi-
ate scrutiny under the First Amendment. Like cable regulation
(which restricts the free speech rights of cable operators in or-
der to balance speech rights of viewers, see Turner II, supra),
or privacy regulation (which “directly interfere[s] with free
expression . . . [in order] to protect . . . an interest . . . ’in fos-
tering private speech,’” Bartnicki v. Vopper, 532 U.S. 514, 536
(2001) (Breyer, J., concurring)), copyright regulation restricts
- 39 -
the reach of the public domain in order to fuel an “engine of
free expression” by authors. But like all regulation that allo-
cates the right to speak among speakers, copyright regulation
too must be justified under intermediate review. Cf. Turner
Broadcasting v. FCC, 512 U.S. 622, 675-76 (1994) (describing
speaker-based regulation subject to intermediate scrutiny)
(Turner I).
C. CTEA’s Retroactive Extension of Copyright Does
Not Satisfy Intermediate Scrutiny
CTEA can withstand First Amendment review only “[1] if it
advances important governmental interests unrelated to the
suppression of free speech and [2] does not burden substan-
tially more speech than necessary to further those interests.”
Turner II, 520 U.S. at 189; see also United States v. O’Brien,
391 U.S. 367, 377 (1968); Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (applying intermediate scrutiny to time,
place, and manner regulation of speech in the public forum);
San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm.,
483 U.S. 522, 537 (1987) (applying O’Brien review to a law
protecting the word “Olympic” under trademark law).
In Turner, this Court suggested that the “important govern-
mental interests” advanced to sustain such regulation must
have been Congress’s at the time it legislated. As the Court
wrote, a reviewing court must “assure that, in formulating its
judgments, Congress has drawn reasonable inferences based on
substantial evidence.” Turner I, 512 U.S. at 666; Turner II, 520
U.S. at 195. But whether this Court limits itself to what Con-
gress considered, or considers anew any interest the govern-
ment could have advanced, CTEA cannot sustain the burden of
intermediate review. The “mere assertion of dysfunction or
failure in a speech market, without more, is not sufficient to
shield a speech regulation” from First Amendment review, 512
U.S. at 640, and Congress engaged in little more than “asser-
tion” in this case.
Indeed, as we now show, the legislative record falls so far
short of Turner’s requirements that this Court may review
- 40 -
CTEA under the Turner standard and deem it invalid on its
face without remand.14
1. CTEA Fails to Advance an “Important Gov-
ernmental Interest”
In the court below, the government did not advance any in-
terest in retroactive copyright extension that it claimed would
satisfy intermediate scrutiny. Nor could it, for the only content-
neutral interest that this Court has recognized as sustaining
copyright’s speech restrictions—namely, providing incentives
to authors to create original works, Harper, 471 U.S. at
558—is irrelevant once a work has been created. See Pet. App.
32a-33a; Brief of Amici Akerlof et al. at 3-9 [“Economists’
Br.”] The other reasons the government might advance for
CTEA’s retroactive extension of the duration of copyright are
all either illegitimate, insignificant, or hypothesized after the
fact in violation of Turner’s actual purpose requirement. None
is substantial enough to outweigh the free speech burden upon
those who have long relied on the expectation that the “limited
Times” requirement would assure that works would enter the
table domain.
a. Income to heirs: The government argued below that Con-
gress’s desire to secure a longer economic return to aged living
authors and dead authors’ heirs is a sufficient justification for
the retroactive extension of terms under rational basis scrutiny.
See Appellee’s Br. at 22-28. But windfall benefits for the eco-
14 Because the prospective extension of copyrights in CTEA is inseverable
from the retroactive, see infra § III, the prospective extension stands or falls
under the First Amendment with the strength of the justification for the ret-
roactive extension. Alternatively, this Court should strike the retroactive
extension and remand for an evidentiary hearing under the Turner standard
on the prospective extension.
Because the court of appeals found CTEA immune from First Amendment
scrutiny, it did not conduct the Turner balancing. Accordingly, our petition
sought only a remand on the First Amendment claims. However, in its op-
position, the Government broadened the second question to include the
merits of the First Amendment claim, and therefore we believe that the
Court may consider it. As Part III of this brief demonstrates, a remand is
necessary to consider the non-severability of the prospective CTEA exten-
sion from the retroactive extension.
- 41 -
nomic well-being of authors and their heirs independent of any
claimed incentive to create cannot constitute a legitimate,
much less an important or substantial, governmental interest
sufficient to justify a restriction of speech. Whatever their per-
missibility elsewhere in the legislative lexicon, naked wealth
transfers between speakers are forbidden by the First Amend-
ment. Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (“[T]he con-
cept that government may restrict the speech of some elements
of our society in order to enhance the relative voice of others is
wholly foreign to the First Amendment”).
By retroactively extending copyright terms, Congress is di-
rectly re-allocating the right to speak. It is choosing favored
speakers (including rightly-beloved speakers, such as Disney,
or the estate of Robert Frost) and disfavoring other speakers
who would, but for this regulation, be permitted to develop de-
rivative works, or perform free of the restrictions of copyright.
Such speech restrictions for the benefit of some speakers at the
expense of other speakers and listeners, if unrelated to the in-
centive to create, are no more sanctioned by the First Amend-
ment than a tax on CNN to benefit C-SPAN. Cf. Turner I, 512
U.S. at 676 (O’Connor, J., dissenting) (noting that a “prefer-
ence for broadcasters over cable programmers” that was “justi-
fied with reference to content” rather than market incentives
would be subject to strict scrutiny under the First Amendment).
b. Speech promotion: The only justification this Court has
ever recognized for restricting speech in order to benefit
authors has been the incentives that restriction produces to cre-
ate more speech. See Rebecca Tushnet, Copyright as a Model
for Free Speech Law, 42 B.C. L. REV. 1, 35-67 (2000);
Netanel, supra, at 26-30. Such an incentive to create could
qualify as an “important governmental interest” if Congress
could reasonably have believed that the restriction it imposed
through CTEA’s retroactive copyright extensions actually ad-
vanced the incentive to create. But no such plausible inference
is possible when the extension is granted long after the mo-
ment of creation or in many cases after the author’s own death.
The government argued below that a windfall to the heirs of
creators, and to companies that hold copyrights, might inspire
- 42 -
them to produce new, creative work that they otherwise would
not have created. See Appellee’s Br. at 37. Were this true, it
might well constitute an “important governmental interest.”
But Congress had before it no evidence whatever that creators’
heirs or corporate holders of copyrights are more likely to
make creative use of earlier work than those who, like petition-
ers, have eagerly awaited that work’s entry into the public do-
main. Neither is there any such evidence. Nor is there any logi-
cal reason to conclude that such windfalls would increase
creativity. When copyright is offered as a quid pro quo, the
conferral provides an important incentive. But when an exten-
sion is granted without a quid pro quo, there is no change in
incentives to produce. Economists’ Br. at 8-10; ROBERT L.
BARD & LEWIS KURLANTZICK, COPYRIGHT DURATION 59-63,
81-84 (1999). The extension is a windfall, pure and simple, not
an “engine of free expression.” There is no more reason to be-
lieve the heirs of Gershwin will use this windfall to produce
new work than that they will use it to fund a longer vacation.
As Congressman Hoke stated, in support of CTEA, “I think it’s
a sham to try to hang on the theory that we’re creating incen-
tives.” Copyright Term, Film Labeling, and Film Preservation
Legislation: Hearings on H.R. 989, H.R. 1248, and H.R. 1734
Before the Subcomm. on Courts and Intell. Prop. of the House
Comm. on the Judiciary, 104th Cong., 420 (1995) (Statement
of Rep. Hoke) [1995 House Hearings].
c. Harmonization with international regimes: The govern-
ment has also argued that harmonization with European copy-
right terms provides a rational basis for the retroactive exten-
sion of terms. With respect to existing works, however, the
only effects that harmonization might possibly have are (1) re-
ducing the transaction costs for commercial use of copyrighted
work, or (2) increasing income to authors and their heirs. The
second interest is insufficient for the reasons already given.
The first interest is not one that CTEA plausibly advances, and
even if it did, it would be insufficiently substantial to satisfy
intermediate review.
The government has yet to demonstrate any meaningful
sense in which CTEA “harmonized” copyright terms. Nor
- 43 -
could it, for CTEA in fact does no such thing. As the Register
of Copyrights, Marybeth Peters testified, the bill “does not
completely harmonize our law with the [EU directive]. In some
cases, the U.S. term would be longer; in others the EU terms
would be.” 1995 House Hearings, supra, at 197. Scholars
agreed that CTEA would achieve no harmonization between
American and global property regimes. Id. 305 (statement of
Professor Karjala); 349 (statement of Professor Patry); 382-87
(statement of Professor Reichman); see also Copyright Law
Professors Br. at 16-20; BARD & KURLANTZICK, supra, 191-
93, 198-200 nn. 276-77. Indeed, as many noted, CTEA actually
increases the disharmony between American and EU law. See,
e.g., 1995 House Hearings, supra, at 372 (statement of Prof.
Reichman) (noting that CTEA would “unilaterally worsen the
existing disparities”).
The fantasy of alleged “harmonization” is apparent from
even a cursory review of the statute. The only categories of
work that CTEA harmonized are works by non-corporate
authors after 1978. Every other category of published copy-
righted work has either not been harmonized, or has had its
dissonance increased. See Dennis S. Karjala, Harmonization
Chart, http://makeashorterlink.com/?R2FB432E (mapping out
difference between U.S. and EU law) (reprinted in Addendum
at 15a-19a). Six out of twenty categories of copyright are actu-
ally less harmonized now than they were prior to CTEA. Id. In
no meaningful sense, then, can CTEA be said to harmonize
terms.
Even with respect to the work of non-corporate authors after
1978, however, the government has yet to show how the
change from life plus 50 to life plus 70 increased harmoniza-
tion from a global perspective. There are 76 countries today
with a life plus 50 regime but only 26 with life plus 70. See
National Copyright Legislation, http://www.unesco.org/cul-
ture/copy. CTEA, thus, moved the United States from the
dominant world standard to a minority one. The copyright term
within the United States is therefore actually less harmonized
with foreign copyright terms today than before CTEA and in
important categories even less harmonized with EU policy.
- 44 -
But even assuming CTEA did actually harmonize terms, the
only possible benefit from harmonization itself is a reduction in
the transaction costs of copyright licensing. Congress made no
showing—nor could it—that the transaction costs in calculat-
ing terms were interfering with the creation of copyrighted
work. But even if it could, merely increasing administrative
convenience has never been deemed a sufficiently substantial
governmental interest to satisfy intermediate review. As this
Court has held in parallel contexts, the reduction of adminis-
trative burdens is not an “important governmental interest” that
could satisfy any standard more demanding than mere ration-
ality review. See, e.g., Frontiero v. Richardson, 411 U.S. 677,
690 (1973) (holding “any statutory scheme which draws a
sharp line between the sexes, solely for the purpose of achiev-
ing administrative convenience,” violates equal protection).
Nor should such an interest, even if found credible, be found
substantial here.
d. Preservation of existing works: Finally, the government
has argued, and the Court of Appeals found below, that
CTEA’s retroactive extension of copyright would provide an
incentive “to preserve older works, particularly motion pictures
in need of restoration.” Pet. App. 12a.
Were there any substantial evidence in the legislative record
to support the belief that longer terms would increase the in-
centives of holders of “older works” to restore them, this might
well be an “important governmental interest.” (It would not,
however, constitute a Copyright Clause interest if the restored
work were not “original.” Feist, supra.). But as Amici College
Art Association et al. demonstrate, there was absolutely no
credible evidence presented to Congress upon which this Court
could rely to conclude that CTEA would spur restoration. See
College Art Ass’n Br. at 19-20. Indeed, as Amici Agee exhaus-
tively demonstrates, extended terms reduce the likelihood that
films will be restored. More often than not, the most significant
barrier to restoring and distributing old films is the legal barrier
caused by old and untraceable copyrights. See Agee Br. at 14-
17. The large number of “orphaned” films described by the
Librarian of Congress testifies to the costs of extended terms.
- 45 -
Report of the Librarian of Congress, Film Preservation 1993:
A Study of the Current State of American Film Preservation 5-
10 (1993). These are films that cannot be restored and distrib-
uted by the copyright owners because the owners cannot be
identified. Increased terms only increase this cost. See AALL
Br. at 21-25; Agee Br. at 15-17; College Art Ass’n Br. at 5-10.
There is no way, on the legislative record actually compiled,
that this Court could conclude that Congress found to the con-
trary on the basis of substantial evidence.
2. CTEA Burdens Substantially More Speech than
Necessary
Even if the government could demonstrate that CTEA ad-
vanced an important governmental interest in speech promo-
tion or preservation, the law burdens far more speech than nec-
essary to achieve such interests. While a content-neutral
“regulation need not be the least speech-restrictive means of
advancing the Government’s interests,” Turner I, 512 U.S. at
662, the requirement of intermediate scrutiny is not satisfied
when a “substantial portion of the burden on speech does not
serve to advance” the important governmental interest. Id. at
682 (O’Connor, dissenting). “That some speech within a broad
category causes harm . . . does not justify restricting the whole
category.” Id.
The example relied upon by the Court of Appeals—the sup-
posed incentive to film preservation—is the clearest case of such
excessive overbreadth. Based on the figures provided by the Con-
gressional Research Service, it can be estimated that approxi-
mately 19,000 films under copyright from 1923-42 have been
affected by CTEA. Of these, 5,000 would continue to earn royal-
ties and survive to expiration. Rappaport, supra, at 15. If the in-
terest advanced by the government is that films that would not
have been restored will now be restored because of CTEA, then it
could only be a portion of the remaining 14,000 films.
Yet even if CTEA produced enough incentive to restore all of
these films, there is no reason for CTEA to reach beyond these
films to all copyrighted material, including books, magazine arti-
cles, works of art, music and musical recordings, plays, and other
artistic creations bearing no relation whatever to the physical
- 46 -
properties of decaying celluloid film. More than 400,000 works
are affected by the extension of CTEA in its first 20 years. See
supra p. 7. The preservation of even 15,000 films could not pos-
sibly justify the exclusion of willing speakers and listeners from
use of more than 400,000 other creative works. Congress may not
“burn the house to roast the pig.” Butler v. Michigan, 352 U.S.
380, 383 (1957). A restriction of all existing copyrights just to
save a relatively tiny number of films restricts “substantially more
speech than is necessary to further the government’s legitimate
interests.” Ward, 491 U.S. at 799.
In any event, Congress could easily have achieved the same
alleged pro-speech benefit by conditioning the extension of
copyright upon the copyright holder’s restoration of the endan-
gered work. By granting an extension that is unconditional,
Congress not only provides a weak incentive for copyright
holders to restore these old works, but also creates a legal
thicket ensuring that no one else can restore these works either.
As the Librarian of Congress testified, the vast majority of old,
early films needing preservation have copyrights that are held
by unknown entities. Redefining Film Preservation: A National
Plan; Recommendations of the Librarian of Congress in Con-
sultation with the National Film Preservation Board 25 (1994).
These “orphaned works” cannot be released because the copy-
rights cannot be cleared. Here the law serves no function ex-
cept to block access to creative works. A more narrowly tai-
lored restriction could have avoided this harm.
The same problem with extreme overbreadth affects each of
the other alleged governmental interests that might be asserted in
CTEA’s defense. If international harmonization is an important
governmental interest, then it would only justify extensions that
actually harmonized terms, or harmonization for foreign works
only, or harmonized prospectively. CTEA’s extensions do not. If
the incentive to heirs of authors or holders of copyright were an
important governmental interest, then Congress could have con-
ditioned the grant upon new creativity. There was no need to grant
a windfall rather than the traditional quid pro quo. And finally, if
income to heirs of authors were a legitimate, much less an im-
portant, governmental interest, then Congress could have adopted
- 47 -
the proposal of the Congressional Research Service to make any
extension contingent upon the payment of a user fee. Then only
owners of copyrights in works generating an estimated income
exceeding the user fee would pay the fee. Rappaport, supra, at 17-
20. The balance of the copyrighted works would have passed into
the public domain.
On the legislative record actually compiled in Congress, it is
impossible to conclude that Congress could rationally have
found CTEA’s blanket retroactive copyright term extension
narrowly tailored to increasing speech or any other important
governmental interest. This Court should therefore find the ret-
roactive aspect of CTEA unconstitutional, and strike down its
prospective aspect as inseverable (see Part III below).
3. At a Minimum, the First Amendment Requires
Reversal and Remand for Development of an
Evidentiary Record
If this Court cannot conclude on the record before it whether
CTEA survives intermediate scrutiny under the First Amendment,
then it should remand this case to the District Court to hold a
Turner hearing to consider the evidence. While petitioners have
requested intermediate scrutiny throughout this litigation, neither
the District Court nor the Court of Appeals conducted any First
Amendment review whatever. As a consequence, if this Court
believes that CTEA might be justified by some argument not yet
advanced or fully articulated by the government, it should reverse
the judgment below and remand with instructions that any such
proffered justifications be subjected to intermediate scrutiny as set
forth in Turner.
III. CTEA’S PROSPECTIVE AND RETROACTIVE
EXTENSIONS OF COPYRIGHT TERMS ARE IN-
SEVERABLE
If this Court agrees with petitioners that CTEA is unconsti-
tutional in its retroactive extension of existing copyrights, then
it must decide how the court below should proceed on remand.
While this question is not expressly within the scope of the
questions presented, petitioners are bound to advise this Court
that under its precedents, the retroactive aspect of CTEA can-
not be severed from the prospective aspect. As petitioners ar-
- 48 -
gued below, see Pl. Summ. J. Mem. at 87-89, § 102 of CTEA
must therefore be struck in its entirety.
As this Court has recognized, the standard for severability is
“well established: ‘Unless it is evident that the Legislature
would not have enacted those provisions which are within its
power, independently of that which is not, the invalid part may
be dropped if what is left is fully operative as a law.’” Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (citing Buck-
ley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam), quoting
Champlin Ref. Co. v. Corp. Comm’n of Okla., 286 U.S. 210,
234 (1932)). Of course, “Congress could not have intended a
constitutionally flawed provision to be severed from the re-
mainder of the statute if the balance of the legislation is inca-
pable of functioning independently.” Alaska Airlines, 480 U.S.
at 684. Moreover, it is impermissible for a court “to give to the
words used by Congress a narrower meaning than they are
manifestly intended to bear,” Trade-Mark Cases, 100 U.S. at
98, or “to dissect an unconstitutional measure and reframe a
valid one out of it by inserting limitations it does not contain.”
Hill v. Wallace, 259 U.S. 44, 70 (1922) (emphasis added).
Although CTEA is silent on the issue of severability, it is
immediately apparent on the face of § 102 that it cannot be
severed in a way to apply only prospectively to works created
after CTEA became effective. Subsection (b) contains the rele-
vant portion of § 102 that applies prospectively to works cre-
ated after CTEA’s effective date. Pub. L. No. 105-298,
§ 102(b). That subsection, however, applies retroactively as
well, applying generally to “works created on or after January
1, 1978.” Id. There is no distinction made in § 102(b) between
retroactive or prospective application of CTEA—between
works, in other words, that are produced on or after Octo-
ber 27, 1998, and works created before.
Likewise, 17 U.S.C. § 302, the relevant section of the Copy-
right Act which was amended by § 102(b) of CTEA, suffers from
the same flaw: it applies generally to “a work created on or after
January 1, 1978” and contains no language whatsoever that can
limit CTEA’s application to works created on or after the date
CTEA became effective. Those words simply do not appear any-
- 49 -
where in the provision. To insert those limiting words now is
“legislative work beyond the power and function of the court.”
Hill, 259 U.S. at 70. Cf. Sloan v. Lemon, 413 U.S. 825, 834
(1973) (statute that gave financial aid to students of nonpublic
schools violated Establishment Clause and could not be severed
to apply only to nonpublic, nonsectarian schools because “[t]he
statute nowhere sets up this suggested dichotomy between sec-
tarian and nonsectarian schools”).15 As this Court has long recog-
nized, severability cannot be achieved “by inserting [words] that
are not now there.” United States v. Reese, 92 U.S. 214, 221
(1875); see also Reno v. ACLU, 521 U.S. 844, 884-85 (1997)
(“This Court ‘will not rewrite a . . . law to conform it to constitu-
tional requirements.’”) (quoting Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 397 (1988)). Accordingly, § 102 of CTEA must be
struck in its entirety.
There is no reason in the text or history of CTEA to suppose
that Congress would have enacted the prospective aspect absent
its retroactive aspect. Where Congress fails to include a sever-
ability clause, and fails to craft the Act to permit severability,
there is no warrant for this Court to engage in legislative drafting.
CONCLUSION
For the foregoing reasons, this Court should reverse the de-
cision of the Court of Appeals for the D.C. Circuit and remand
to the District Court for further proceedings, holding (1a) that
the retroactive aspect of CTEA is beyond Congress’s Copy-
right Clause power, or (1b) that the retroactive aspect of CTEA
must be found to be “congruent and proportional” to the rele-
vant Copyright Clause ends; (2) that copyright is not “im-
mune” from First Amendment review, and (2a) that the retro-
active aspect of CTEA violates the First Amendment or (2b)
15 Even were it permissible for a court to insert limiting words in a statute in
place of the ones found there, this Court could not merely insert “works
created on or after CTEA became effective” in place of “works created on
or after January 1, 1978” in 17 U.S.C. § 302, since to do so would create a
gap in the law. There would be no provision in the Copyright Act to set the
term duration for works created on or after January 1, 1978 but before
CTEA became effective. An entirely new provision would have to be
drafted to cover those works—a task which is clearly Congress’s.
- 50 -
that the prospective and retroactive aspects of CTEA must be
tested under intermediate First Amendment review; and (3) if
the retroactive aspect of CTEA is invalid, then the prospective
aspect is invalid because not severable.
Respectfully submitted,
GEOFFREY S. STEWART
LAWRENCE LESSIG
DONALD B. AYER
(Counsel of Record)
ROBERT P. DUCATMAN
KATHLEEN M. SULLIVAN
DANIEL H. BROMBERG
ALAN B. MORRISON
JONES, DAY, REAVIS &
EDWARD LEE
POGUE
STANFORD LAW SCHOOL
51 Louisiana Ave., N.W.
CENTER FOR INTERNET &
Washington, DC 20001
SOCIETY
(202) 879-3939
559 Nathan Abbott Way
C
Stanford, CA 94305
HARLES R. NESSON
W
(650) 736-0999
ILLIAM W. FISHER
JONATHAN L. ZITTRAIN
CHARLES FRIED
THE BERKMAN CENTER FOR
Griswold Hall
INTERNET & SOCIETY
1525 Massachusetts Ave.
1563 Massachusetts Ave.
Cambridge, MA 02138
Cambridge, MA 02138
(617) 495-4636
(617) 495-7547
Counsel for Petitioners
