Supreme Court Decision On Eldred V Ashcroft
Cite as: 537 U. S. ____ (2003)
1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 01–618
_________________
ERIC ELDRED, ET AL., PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 15, 2003]
JUSTICE BREYER, dissenting.
The Constitution’s Copyright Clause grants Congress
the power to “promote the Progress of Science . . . by se-
curing for limited Times to Authors . . . the exclusive Right
to their respective Writings.” Art. I, §8, cl. 8 (emphasis
added). The statute before us, the 1998 Sonny Bono Copy-
right Term Extension Act, extends the term of most ex-
isting copyrights to 95 years and that of many new copy-
rights to 70 years after the author’s death. The economic
effect of this 20-year extension—the longest blanket ex-
tension since the Nation’s founding—is to make the copy-
right term not limited, but virtually perpetual. Its pri-
mary legal effect is to grant the extended term not to
authors, but to their heirs, estates, or corporate succes-
sors. And most importantly, its practical effect is not to
promote, but to inhibit, the progress of “Science”—by
which word the Framers meant learning or knowledge, E.
Walterscheid, The Nature of the Intellectual Property
Clause: A Study in Historical Perspective 125–126 (2002).
The majority believes these conclusions rest upon prac-
tical judgments that at most suggest the statute is unwise,
not that it is unconstitutional. Legal distinctions, how-
ever, are often matters of degree. Panhandle Oil Co. v.
Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928)
(Holmes, J., dissenting), overruled in part by Alabama v.
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ELDRED v. ASHCROFT
BREYER, J., dissenting
King & Boozer, 314 U. S. 1, 8–9 (1941); accord, Walz v. Tax
Comm’n of City of New York, 397 U. S. 664, 678–679 (1970).
And in this case the failings of degree are so serious that
they amount to failings of constitutional kind. Although
the Copyright Clause grants broad legislative power to
Congress, that grant has limits. And in my view this
statute falls outside them.
I
The “monopoly privileges” that the Copyright Clause
confers “are neither unlimited nor primarily designed to
provide a special private benefit.” Sony Corp. of America
v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984);
cf. Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5
(1966). This Court has made clear that the Clause’s limi-
tations are judicially enforceable. E.g., Trade-Mark Cases,
100 U. S. 82, 93–94 (1879). And, in assessing this statute
for that purpose, I would take into account the fact that
the Constitution is a single document, that it contains
both a Copyright Clause and a First Amendment, and that
the two are related.
The Copyright Clause and the First Amendment seek
related objectives—the creation and dissemination of
information. When working in tandem, these provisions
mutually reinforce each other, the first serving as an
“engine of free expression,” Harper & Row, Publishers,
Inc. v. Nation Enterprises, 471 U. S. 539, 558 (1985), the
second assuring that government throws up no obstacle to
its dissemination. At the same time, a particular statute
that exceeds proper Copyright Clause bounds may set
Clause and Amendment at cross-purposes, thereby de-
priving the public of the speech-related benefits that the
Founders, through both, have promised.
Consequently, I would review plausible claims that a
copyright statute seriously, and unjustifiably, restricts the
dissemination of speech somewhat more carefully than
Cite as: 537 U. S. ____ (2003)
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BREYER, J., dissenting
reference to this Court’s traditional Commerce Clause
jurisprudence might suggest, cf. ante, at 13–14, and n. 10.
There is no need in this case to characterize that review as
a search for “ ‘congruence and proportionality,’” ante, at
27, or as some other variation of what this Court has
called “intermediate scrutiny,” e.g., San Francisco Arts &
Athletics, Inc. v. United States Olympic Comm., 483 U. S.
522, 536–537 (1987) (applying intermediate scrutiny to a
variant of normal trademark protection). Cf. Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 402–403
(2000) (BREYER, J., concurring) (test of proportionality
between burdens and benefits “where a law significantly
implicates competing constitutionally protected interests”).
Rather, it is necessary only to recognize that this statute
involves not pure economic regulation, but regulation of
expression, and what may count as rational where economic
regulation is at issue is not necessarily rational where we
focus on expression—in a Nation constitutionally dedicated
to the free dissemination of speech, information, learning,
and culture. In this sense only, and where line-drawing
among constitutional interests is at issue, I would look
harder than does the majority at the statute’s rational-
ity—though less hard than precedent might justify, see,
e.g., Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432,
446–450 (1985); Plyler v. Doe, 457 U. S. 202, 223–224 (1982);
Department of Agriculture v. Moreno, 413 U. S. 528, 534–
538 (1973).
Thus, I would find that the statute lacks the constitution-
ally necessary rational support (1) if the significant benefits
that it bestows are private, not public; (2) if it threatens
seriously to undermine the expressive values that the
Copyright Clause embodies; and (3) if it cannot find justi-
fication in any significant Clause-related objective.
Where, after examination of the statute, it becomes diffi-
cult, if not impossible, even to dispute these characteriza-
tions, Congress’ “choice is clearly wrong.” Helvering v.
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ELDRED v. ASHCROFT
BREYER, J., dissenting
Davis, 301 U. S. 619, 640 (1937).
II
A
Because we must examine the relevant statutory effects
in light of the Copyright Clause’s own purposes, we should
begin by reviewing the basic objectives of that Clause.
The Clause authorizes a “tax on readers for the purpose of
giving a bounty to writers.” 56 Parl. Deb. (3d Ser.) (1841)
341, 350 (Lord Macaulay). Why? What constitutional
purposes does the “bounty” serve?
The Constitution itself describes the basic Clause objec-
tive as one of “promot[ing] the Progress of Science,” i.e.,
knowledge and learning. The Clause exists not to “provide
a special private benefit,” Sony, supra, at 429, but “to
stimulate artistic creativity for the general public good,”
Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156
(1975). It does so by “motivat[ing] the creative activity of
authors” through “the provision of a special reward.”
Sony, supra, at 429. The “reward” is a means, not an end.
And that is why the copyright term is limited. It is limited
so that its beneficiaries—the public—“will not be perma-
nently deprived of the fruits of an artist’s labors.” Stewart
v. Abend, 495 U. S. 207, 228 (1990).
That is how the Court previously has described the
Clause’s objectives. See also Mazer v. Stein, 347 U. S. 201,
219 (1954) (“[C]opyright law . . . makes reward to the owner
a secondary consideration” (internal quotation marks
omitted)); Sony, supra, at 429 (“[L]imited grant” is “in-
tended . . . to allow the public access to the products of
[authors’] genius after the limited period of exclusive
control has expired”); Harper & Row, supra, at 545 (Copy-
right is “intended to increase and not to impede the har-
vest of knowledge”). But cf. ante, at 21–22, n. 18. And, in
doing so, the Court simply has reiterated the views of the
Founders.
Cite as: 537 U. S. ____ (2003)
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BREYER, J., dissenting
Madison, like Jefferson and others in the founding
generation, warned against the dangers of monopolies.
See, e.g., Monopolies. Perpetuities. Corporations. Eccle-
siastical Endowments. in J. Madison, Writings 756 (J.
Rakove ed. 1999) (hereinafter Madison on Monopolies);
Letter from Thomas Jefferson to James Madison (July 31,
1788), in 13 Papers of Thomas Jefferson 443 (J. Boyd ed.
1956) (hereinafter Papers of Thomas Jefferson) (arguing
against even copyright monopolies); 2 Annals of Cong.
1917 (Gales and Seaton eds. 1834) (statement of Rep.
Jackson in the First Congress, Feb. 1791) (“What was it
drove our forefathers to this country? Was it not the
ecclesiastical corporations and perpetual monopolies of
England and Scotland?”). Madison noted that the Consti-
tution had “limited them to two cases, the authors of
Books, and of useful inventions.” Madison on Monopolies
756. He thought that in those two cases monopoly is
justified because it amounts to “compensation for” an
actual community “benefit” and because the monopoly is
“temporary”—the term originally being 14 years (once
renewable). Ibid. Madison concluded that “under that
limitation a sufficient recompence and encouragement
may be given.” Ibid. But he warned in general that mo-
nopolies must be “guarded with strictness agst abuse.”
Ibid.
Many Members of the Legislative Branch have ex-
pressed themselves similarly. Those who wrote the House
Report on the landmark Copyright Act of 1909, for exam-
ple, said that copyright was not designed “primarily” to
“benefit” the “author” or “any particular class of citizens,
however worthy.” H. R. Rep. No. 2222, 60th Cong., 2d
Sess., 6–7 (1909). Rather, under the Constitution, copy-
right was designed “primarily for the benefit of the pub-
lic,” for “the benefit of the great body of people, in that it
will stimulate writing and invention.” Id., at 7. And were
a copyright statute not “believed, in fact, to accomplish”
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ELDRED v. ASHCROFT
BREYER, J., dissenting
the basic constitutional objective of advancing learning,
that statute “would be beyond the power of Congress” to
enact. Id., at 6–7. Similarly, those who wrote the House
Report on legislation that implemented the Berne Conven-
tion for the Protection of Literary and Artistic Works said
that “[t]he constitutional purpose of copyright is to facili-
tate the flow of ideas in the interest of learning.” H. R.
Rep. No. 100–609, p. 22 (1988) (internal quotation marks
omitted). They added:
“Under the U. S. Constitution, the primary objective
of copyright law is not to reward the author, but
rather to secure for the public the benefits derived
from the authors’ labors. By giving authors an incen-
tive to create, the public benefits in two ways: when
the original expression is created and . . . when the
limited term . . . expires and the creation is added to
the public domain.” Id., at 17.
For present purposes, then, we should take the following
as well established: that copyright statutes must serve
public, not private, ends; that they must seek “to promote
the Progress” of knowledge and learning; and that they
must do so both by creating incentives for authors to
produce and by removing the related restrictions on dis-
semination after expiration of a copyright’s “limited
Tim[e]”—a time that (like “a limited monarch”) is “re-
strain[ed]” and “circumscribe[d],” “not [left] at large,” 2 S.
Johnson, A Dictionary of the English Language 1151 (4th
rev. ed. 1773). I would examine the statute’s effects in
light of these well-established constitutional purposes.
B
This statute, like virtually every copyright statute,
imposes upon the public certain expression-related costs in
the form of (1) royalties that may be higher than necessary
to evoke creation of the relevant work, and (2) a require-
Cite as: 537 U. S. ____ (2003)
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BREYER, J., dissenting
ment that one seeking to reproduce a copyrighted work
must obtain the copyright holder’s permission. The first of
these costs translates into higher prices that will poten-
tially restrict a work’s dissemination. The second means
search costs that themselves may prevent reproduction
even where the author has no objection. Although these
costs are, in a sense, inevitable concomitants of copyright
protection, there are special reasons for thinking them
especially serious here.
First, the present statute primarily benefits the holders
of existing copyrights, i.e., copyrights on works already
created. And a Congressional Research Service (CRS)
study prepared for Congress indicates that the added
royalty-related sum that the law will transfer to existing
copyright holders is large. E. Rappaport, CRS Report for
Congress, Copyright Term Extension: Estimating the
Economic Values (1998) (hereinafter CRS Report). In
conjunction with official figures on copyright renewals, the
CRS Report indicates that only about 2% of copyrights
between 55 and 75 years old retain commercial value—i.e.,
still generate royalties after that time. Brief for Petition-
ers 7 (estimate, uncontested by respondent, based on data
from the CRS, Census Bureau, and Library of Congress).
But books, songs, and movies of that vintage still earn
about $400 million per year in royalties. CRS Report 8,
12, 15. Hence, (despite declining consumer interest in any
given work over time) one might conservatively estimate
that 20 extra years of copyright protection will mean the
transfer of several billion extra royalty dollars to holders
of existing copyrights—copyrights that, together, already
will have earned many billions of dollars in royalty “re-
ward.” See id., at 16.
The extra royalty payments will not come from thin air.
Rather, they ultimately come from those who wish to read
or see or hear those classic books or films or recordings
that have survived. Even the $500,000 that United Air-
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ELDRED v. ASHCROFT
BREYER, J., dissenting
lines has had to pay for the right to play George
Gershwin’s 1924 classic Rhapsody in Blue represents a
cost of doing business, potentially reflected in the ticket
prices of those who fly. See Ganzel, Copyright or Copy-
wrong? Training 36, 42 (Dec. 2002). Further, the likely
amounts of extra royalty payments are large enough to
suggest that unnecessarily high prices will unnecessarily
restrict distribution of classic works (or lead to disobedi-
ence of the law)—not just in theory but in practice. Cf.
CRS Report 3 (“[N]ew, cheaper editions can be expected
when works come out of copyright”); Brief for College Art
Association et al. as Amici Curiae 24 (One year after
expiration of copyright on Willa Cather’s My Antonia,
seven new editions appeared at prices ranging from $2 to
$24); Ganzel, supra, at 40–41, 44 (describing later aban-
doned plans to charge individual Girl Scout camps $257 to
$1,439 annually for a license to sing songs such as God
Bless America around a campfire).
A second, equally important, cause for concern arises
out of the fact that copyright extension imposes a “permis-
sions” requirement—not only upon potential users of
“classic” works that still retain commercial value, but also
upon potential users of any other work still in copyright.
Again using CRS estimates, one can estimate that, by
2018, the number of such works 75 years of age or older
will be about 350,000. See Brief for Petitioners 7. Be-
cause the Copyright Act of 1976 abolished the requirement
that an owner must renew a copyright, such still-in-
copyright works (of little or no commercial value) will
eventually number in the millions. See Pub. L. 94–553,
§§302–304, 90 Stat. 2572–2576; U. S. Dept. of Commerce,
Bureau of Census, Statistical History of the United States:
From Colonial Times to the Present 956 (1976) (hereinaf-
ter Statistical History).
The potential users of such works include not only movie
buffs and aging jazz fans, but also historians, scholars,
Cite as: 537 U. S. ____ (2003)
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BREYER, J., dissenting
teachers, writers, artists, database operators, and re-
searchers of all kinds—those who want to make the past
accessible for their own use or for that of others. The
permissions requirement can inhibit their ability to ac-
complish that task. Indeed, in an age where computer-
accessible databases promise to facilitate research and
learning, the permissions requirement can stand as a
significant obstacle to realization of that technological
hope.
The reason is that the permissions requirement can
inhibit or prevent the use of old works (particularly those
without commercial value): (1) because it may prove ex-
pensive to track down or to contract with the copyright
holder, (2) because the holder may prove impossible to
find, or (3) because the holder when found may deny per-
mission either outright or through misinformed efforts to
bargain. The CRS, for example, has found that the cost of
seeking permission “can be prohibitive.” CRS Report 4.
And amici, along with petitioners, provide examples of the
kinds of significant harm at issue.
Thus, the American Association of Law Libraries points
out that the clearance process associated with creating an
electronic archive, Documenting the American South,
“consumed approximately a dozen man-hours” per work.
Brief for American Association of Law Libraries et al. as
Amici Curiae 20. The College Art Association says that
the costs of obtaining permission for use of single images,
short excerpts, and other short works can become prohibi-
tively high; it describes the abandonment of efforts to
include, e.g., campaign songs, film excerpts, and docu-
ments exposing “horrors of the chain gang” in historical
works or archives; and it points to examples in which
copyright holders in effect have used their control of copy-
right to try to control the content of historical or cultural
works. Brief for College Art Association et al. as Amici
Curiae 7–13. The National Writers Union provides simi-
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BREYER, J., dissenting
lar examples. Brief for National Writers Union et al. as
Amici Curiae 25–27. Petitioners point to music fees that
may prevent youth or community orchestras, or church
choirs, from performing early 20th-century music. Brief
for Petitioners 3–5; see also App. 16–17 (Copyright exten-
sion caused abandonment of plans to sell sheet music of
Maurice Ravel’s Alborada Del Gracioso). Amici for peti-
tioners describe how electronic databases tend to avoid
adding to their collections works whose copyright holders
may prove difficult to contact, see, e.g., Arms, Getting the
Picture: Observations from the Library of Congress on
Providing Online Access to Pictorial Images, 48 Library
Trends 379, 405 (1999) (describing how this tendency
applies to the Library of Congress’ own digital archives).
As I have said, to some extent costs of this kind accom-
pany any copyright law, regardless of the length of the
copyright term. But to extend that term, preventing
works from the 1920’s and 1930’s from falling into the
public domain, will dramatically increase the size of the
costs just as—perversely —the likely benefits from protec-
tion diminish. See infra, at 13–15. The older the work,
the less likely it retains commercial value, and the harder
it will likely prove to find the current copyright holder.
The older the work, the more likely it will prove useful to
the historian, artist, or teacher. The older the work, the
less likely it is that a sense of authors’ rights can justify a
copyright holder’s decision not to permit reproduction, for
the more likely it is that the copyright holder making the
decision is not the work’s creator, but, say, a corporation
or a great-grandchild whom the work’s creator never
knew. Similarly, the costs of obtaining permission, now
perhaps ranging in the millions of dollars, will multiply as
the number of holders of affected copyrights increases
from several hundred thousand to several million. See
supra, at 8. The costs to the users of nonprofit databases,
now numbering in the low millions, will multiply as the
Cite as: 537 U. S. ____ (2003)
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BREYER, J., dissenting
use of those computer-assisted databases becomes more
prevalent. See, e.g., Brief for Internet Archive et al. as
Amici Curiae 2, 21, and n. 37 (describing nonprofit Project
Gutenberg). And the qualitative costs to education,
learning, and research will multiply as our children be-
come ever more dependent for the content of their knowl-
edge upon computer-accessible databases—thereby con-
demning that which is not so accessible, say, the cultural
content of early 20th-century history, to a kind of intellec-
tual purgatory from which it will not easily emerge.
The majority finds my description of these permissions-
related harms overstated in light of Congress’ inclusion of
a statutory exemption, which, during the last 20 years of a
copyright term, exempts “facsimile or digital” reproduction
by a “library or archives” “for purposes of preservation,
scholarship, or research,” 17 U. S. C. §108(h). Ante, at 30.
This exemption, however, applies only where the copy is
made for the special listed purposes; it simply permits a
library (not any other subsequent users) to make “a copy”
for those purposes; it covers only “published” works not
“subject to normal commercial exploitation” and not ob-
tainable, apparently not even as a used copy, at a “reason-
able price”; and it insists that the library assure itself
through “reasonable investigation” that these conditions
have been met. 17 U. S. C. §108(h). What database pro-
prietor can rely on so limited an exemption—particularly
when the phrase “reasonable investigation” is so open-
ended and particularly if the database has commercial, as
well as non-commercial, aspects?
The majority also invokes the “fair use” exception, and it
notes that copyright law itself is restricted to protection of
a work’s expression, not its substantive content. Ante, at
29–30. Neither the exception nor the restriction, however,
would necessarily help those who wish to obtain from
electronic databases material that is not there—say,
teachers wishing their students to see albums of Depres-
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BREYER, J., dissenting
sion Era photographs, to read the recorded words of those
who actually lived under slavery, or to contrast, say, Gary
Cooper’s heroic portrayal of Sergeant York with filmed
reality from the battlefield of Verdun. Such harm, and
more, see supra, at 6–11, will occur despite the 1998 Act’s
exemptions and despite the other “First Amendment
safeguards” in which the majority places its trust, ante, at
29–30.
I should add that the Motion Picture Association of
America also finds my concerns overstated, at least with
respect to films, because the extension will sometimes
make it profitable to reissue old films, saving them from
extinction. Brief for Motion Picture Association of Amer-
ica, Inc., as Amicus Curiae 14–24. Other film preserva-
tionists note, however, that only a small minority of the
many films, particularly silent films, from the 1920’s and
1930’s have been preserved. 1 Report of the Librarian of
Congress, Film Preservation 1993, pp. 3–4 (Half of all pre-
1950 feature films and more than 80% of all such pre-1929
films have already been lost); cf. Brief for Hal Roach Stu-
dios et al. as Amici Curiae 18 (Out of 1,200 Twenties Era
silent films still under copyright, 63 are now available on
digital video disc). They seek to preserve the remainder.
See, e.g., Brief for Internet Archive et al. as Amici Cu-
riae 22 (Nonprofit database digitized 1,001 public-domain
films, releasing them online without charge); 1 Film Pres-
ervation 1993, supra, at 23 (reporting well over 200,000
titles held in public archives). And they tell us that copy-
right extension will impede preservation by forbidding the
reproduction of films within their own or within other
public collections. Brief for Hal Roach Studios et al. as
Amici Curiae 10–21; see also Brief for Internet Archive
et al. as Amici Curiae 16–29; Brief for American Associa-
tion of Law Libraries et al. as Amici Curiae 26–27.
Because this subsection concerns only costs, not coun-
tervailing benefits, I shall simply note here that, with
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BREYER, J., dissenting
respect to films as with respect to other works, extension
does cause substantial harm to efforts to preserve and to
disseminate works that were created long ago. And I shall
turn to the second half of the equation: Could Congress
reasonably have found that the extension’s toll-related and
permissions-related harms are justified by extension’s
countervailing preservationist incentives or in other ways?
C
What copyright-related benefits might justify the stat-
ute’s extension of copyright protection? First, no one could
reasonably conclude that copyright’s traditional economic
rationale applies here. The extension will not act as an
economic spur encouraging authors to create new works.
See Mazer, 347 U. S., at 219 (The “economic philosophy” of
the Copyright Clause is to “advance public welfare” by
“encourag[ing] individual effort” through “personal gain”);
see also ante, at 21–22, n. 18 (“[C]opyright law serves
public ends by providing individuals with an incentive to
pursue private ones”). No potential author can reasonably
believe that he has more than a tiny chance of writing a
classic that will survive commercially long enough for the
copyright extension to matter. After all, if, after 55 to 75
years, only 2% of all copyrights retain commercial value,
the percentage surviving after 75 years or more (a typical
pre-extension copyright term)—must be far smaller. See
supra, at 7; CRS Report 7 (estimating that, even after
copyright renewal, about 3.8% of copyrighted books go out
of print each year). And any remaining monetary incen-
tive is diminished dramatically by the fact that the rele-
vant royalties will not arrive until 75 years or more into
the future, when, not the author, but distant heirs, or
shareholders in a successor corporation, will receive them.
Using assumptions about the time value of money pro-
vided us by a group of economists (including five Nobel
prize winners), Brief for George A. Akerlof et al. as Amici
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BREYER, J., dissenting
Curiae 5–7, it seems fair to say that, for example, a 1%
likelihood of earning $100 annually for 20 years, starting
75 years into the future, is worth less than seven cents
today. See id., at 3a; see also CRS Report 5. See generally
Appendix, Part A, infra.
What potential Shakespeare, Wharton, or Hemingway
would be moved by such a sum? What monetarily moti-
vated Melville would not realize that he could do better for
his grandchildren by putting a few dollars into an interest-
bearing bank account? The Court itself finds no evidence
to the contrary. It refers to testimony before Congress (1)
that the copyright system’s incentives encourage creation,
and (2) (referring to Noah Webster) that income earned
from one work can help support an artist who
“ ‘ continue[s] to create.’” Ante, at 16–17, n. 15. But the
first of these amounts to no more than a set of undeniably
true propositions about the value of incentives in general.
And the applicability of the second to this Act is mysteri-
ous. How will extension help today’s Noah Webster create
new works 50 years after his death? Or is that hypotheti-
cal Webster supposed to support himself with the exten-
sion’s present discounted value, i.e., a few pennies? Or (to
change the metaphor) is the argument that Dumas fils
would have written more books had Dumas père’s Three
Musketeers earned more royalties?
Regardless, even if this cited testimony were meant
more specifically to tell Congress that somehow, some-
where, some potential author might be moved by the
thought of great-grandchildren receiving copyright royal-
ties a century hence, so might some potential author also
be moved by the thought of royalties being paid for two
centuries, five centuries, 1,000 years, “ ’til the End of
Time.” And from a rational economic perspective the time
difference among these periods makes no real difference.
The present extension will produce a copyright period of
protection that, even under conservative assumptions, is
Cite as: 537 U. S. ____ (2003)
15
BREYER, J., dissenting
worth more than 99.8% of protection in perpetuity (more
than 99.99% for a songwriter like Irving Berlin and a song
like Alexander’s Ragtime Band). See Appendix, Part A,
infra. The lack of a practically meaningful distinction
from an author’s ex ante perspective between (a) the stat-
ute’s extended terms and (b) an infinite term makes this
latest extension difficult to square with the Constitution’s
insistence on “limited Times.” Cf. Tr. of Oral Arg. 34
(Solicitor General’s related concession).
I am not certain why the Court considers it relevant in
this respect that “[n]othing . . . warrants construction of
the [1998 Act’s] 20-year term extension as a congressional
attempt to evade or override the ‘limited Times’ con-
straint.” Ante, at 18. Of course Congress did not intend to
act unconstitutionally. But it may have sought to test the
Constitution’s limits. After all, the statute was named
after a Member of Congress, who, the legislative history
records, “wanted the term of copyright protection to last
forever.” 144 Cong. Rec. H9952 (daily ed. Oct. 7, 1998)
(statement of Rep. Mary Bono). See also Copyright Term,
Film Labeling, and Film Preservation Legislation: Hear-
ings on H. R. 989 et al. before the Subcommittee on Courts
and Intellectual Property of the House Judiciary Commit-
tee, 104th Cong., 1st Sess., 94 (1995) (hereinafter House
Hearings) (statement of Rep. Sonny Bono) (questioning
why copyrights should ever expire); ibid. (statement of
Rep. Berman) (“I guess we could . . . just make a perma-
nent moratorium on the expiration of copyrights”); id., at
230 (statement of Rep. Hoke) (“Why 70 years? Why not
forever? Why not 150 years?”); cf. ibid. (statement of the
Register of Copyrights) (In Copyright Office proceedings,
“[t]he Songwriters Guild suggested a perpetual term”); id.,
at 234 (statement of Quincy Jones) (“I’m particularly
fascinated with Representative Hoke’s statement. . . .
[W]hy not forever?”); id., at 277 (statement of Quincy
Jones) (“If we can start with 70, add 20, it would be a good
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BREYER, J., dissenting
start”). And the statute ended up creating a term so long
that (were the vesting of 19th-century real property at
issue) it would typically violate the traditional rule
against perpetuities. See 10 R. Powell, Real Property
§§71.02[2]–[3], p. 71–11 (M. Wolf ed. 2002) (traditional
rule that estate must vest, if at all, within lives in being
plus 21 years); cf. id. §71.03, p. 71–15 (modern statutory
perpetuity term of 90 years, 5 years shorter than 95-year
copyright terms).
In any event, the incentive-related numbers are far too
small for Congress to have concluded rationally, even with
respect to new works, that the extension’s economic-
incentive effect could justify the serious expression-related
harms earlier described. See Part II–B, supra. And, of
course, in respect to works already created—the source of
many of the harms previously described—the statute
creates no economic incentive at all. See ante, at 5–6
(STEVENS, J., dissenting).
Second, the Court relies heavily for justification upon
international uniformity of terms. Ante, at 4, 14–15.
Although it can be helpful to look to international norms
and legal experience in understanding American law, cf.
Printz v. U. S., 521 U. S. 898, 977 (1997) (BREYER, J.,
dissenting), in this case the justification based upon for-
eign rules is surprisingly weak. Those who claim that
significant copyright-related benefits flow from greater
international uniformity of terms point to the fact that the
nations of the European Union have adopted a system of
copyright terms uniform among themselves. And the
extension before this Court implements a term of life plus
70 years that appears to conform with the European
standard. But how does “uniformity” help to justify this
statute?
Despite appearances, the statute does not create a uni-
form American-European term with respect to the lion’s
share of the economically significant works that it af-
Cite as: 537 U. S. ____ (2003)
17
BREYER, J., dissenting
fects—all works made “for hire” and all existing works
created prior to 1978. See Appendix, Part B, infra. With
respect to those works the American statute produces an
extended term of 95 years while comparable European
rights in “for hire” works last for periods that vary from 50
years to 70 years to life plus 70 years. Compare 17
U.
S.
C. §§302(c), 304(a)–(b) with Council Directive
93/98/EEC of 29 October 1993 Harmonizing the Term of
Protection of Copyright and Certain Related Rights, Arts.
1–3, 1993 Official J. Eur. Cmty. 290 (hereinafter EU
Council Directive 93/98). Neither does the statute create
uniformity with respect to anonymous or pseudonymous
works. Compare 17 U. S. C. §§302(c), 304(a)–(b) with EU
Council Directive 93/98, Art. 1.
The statute does produce uniformity with respect to
copyrights in new, post-1977 works attributed to natural
persons. Compare 17 U. S. C. §302(a) with EU Council
Directive 93/98, Art. 1(1). But these works constitute only
a subset (likely a minority) of works that retain commer-
cial value after 75 years. See Appendix, Part B, infra.
And the fact that uniformity comes so late, if at all, means
that bringing American law into conformity with this
particular aspect of European law will neither encourage
creation nor benefit the long-dead author in any other
important way.
What benefit, then, might this partial future uniformity
achieve? The majority refers to “greater incentive for
American and other authors to create and disseminate
their work in the United States,” and cites a law review
article suggesting a need to “‘avoid competitive disadvan-
tages.’ ” Ante, at 15. The Solicitor General elaborates on
this theme, postulating that because uncorrected disuni-
formity would permit Europe, not the United States, to
hold out the prospect of protection lasting for “life plus 70
years” (instead of “life plus 50 years”), a potential author
might decide to publish initially in Europe, delaying
18
ELDRED v. ASHCROFT
BREYER, J., dissenting
American publication. Brief for Respondent 38. And the
statute, by creating a uniformly longer term, corrects for
the disincentive that this disuniformity might otherwise
produce.
That disincentive, however, could not possibly bring
about serious harm of the sort that the Court, the Solicitor
General, or the law review author fears. For one thing, it
is unclear just who will be hurt and how, should American
publication come second—for the Berne Convention still
offers full protection as long as a second publication is
delayed by 30 days. See Berne Conv. Arts. 3(4), 5(4). For
another, few, if any, potential authors would turn a
“where to publish” decision upon this particular difference
in the length of the copyright term. As we have seen, the
present commercial value of any such difference amounts
at most to comparative pennies. See supra, at 13–14. And
a commercial decision that turned upon such a difference
would have had to have rested previously upon a knife
edge so fine as to be invisible. A rational legislature could
not give major weight to an invisible, likely nonexistent
incentive-related effect.
But if there is no incentive-related benefit, what is the
benefit of the future uniformity that the statute only
partially achieves? Unlike the Copyright Act of 1976, this
statute does not constitute part of an American effort to
conform to an important international treaty like the
Berne Convention. See H. R. Rep. No. 94–1476, pp. 135–
136 (1976) (The 1976 Act’s life-plus-50 term was “required
for adherence to the Berne Convention”); S. Rep. No. 94–
473, p. 118 (1975) (same). Nor does European acceptance
of the longer term seem to reflect more than special Euro-
pean institutional considerations, i.e., the needs of, and
the international politics surrounding, the development of
the European Union. House Hearings 230 (statement of
the Register of Copyrights); id., at 396–398 (statement of
J. Reichman). European and American copyright law
Cite as: 537 U. S. ____ (2003)
19
BREYER, J., dissenting
have long coexisted despite important differences, includ-
ing Europe’s traditional respect for authors’ “moral rights”
and the absence in Europe of constitutional restraints that
restrict copyrights to “limited Times.” See, e.g., Kwall,
Copyright and the Moral Right: Is an American Marriage
Possible? 38 Vand. L. Rev. 1, 1–3 (1985) (moral rights);
House Hearings 187 (testimony of the Register of Copy-
rights) (“limited [T]imes”).
In sum, the partial, future uniformity that the 1998 Act
promises cannot reasonably be said to justify extension of
the copyright term for new works. And concerns with
uniformity cannot possibly justify the extension of the new
term to older works, for the statute there creates no uni-
formity at all.
Third, several publishers and filmmakers argue that the
statute provides incentives to those who act as publishers
to republish and to redistribute older copyrighted works.
This claim cannot justify this statute, however, because
the rationale is inconsistent with the basic purpose of the
Copyright Clause—as understood by the Framers and by
this Court. The Clause assumes an initial grant of mo-
nopoly, designed primarily to encourage creation, followed
by termination of the monopoly grant in order to promote
dissemination of already-created works. It assumes that it
is the disappearance of the monopoly grant, not its per-
petuation, that will, on balance, promote the dissemina-
tion of works already in existence. This view of the Clause
does not deny the empirical possibility that grant of a
copyright monopoly to the heirs or successors of a long-
dead author could on occasion help publishers resurrect
the work, say, of a long-lost Shakespeare. But it does deny
Congress the Copyright Clause power to base its actions
primarily upon that empirical possibility—lest copyright
grants become perpetual, lest on balance they restrict
dissemination, lest too often they seek to bestow benefits
that are solely retroactive.
20
ELDRED v. ASHCROFT
BREYER, J., dissenting
This view of the Clause finds strong support in the
writings of Madison, in the antimonopoly environment in
which the Framers wrote the Clause, and in the history of
the Clause’s English antecedent, the Statute of Anne—a
statute which sought to break up a publishers’ monopoly
by offering, as an alternative, an author’s monopoly of
limited duration. See Patterson, Understanding the Copy-
right Clause, 47 J. Copyright Society 365, 379 (2000)
(Statute of Anne); L. Patterson, Copyright in Historical
Perspective 144–147 (1968) (same); Madison on Monopo-
lies 756–757; Papers of Thomas Jefferson 442–443; The
Constitutional Convention and the Formation of the Union
334, 338 (W. Solberg 2d ed. 1990); see also supra, at 5.
This view finds virtually conclusive support in the
Court’s own precedents. See Sony, 464 U. S., at 429 (The
Copyright Clause is “intended . . . to allow the public
access . . . after the limited period of exclusive control”);
Stewart, 495 U. S., at 228 (The copyright term is limited to
avoid “permanently depriv[ing]” the public of “the fruits of
an artist’s labors”); see also supra, at 4.
This view also finds textual support in the Copyright
Clause’s word “limited.” Cf. J. Story, Commentaries on
the Constitution §558, p. 402 (R. Rotunda & J. Nowak eds.
1987) (The Copyright Clause benefits the public in part
because it “admit[s] the people at large, after a short
interval, to the full possession and enjoyment of all writ-
ings . . . without restraint” (emphasis added)). It finds
added textual support in the word “Authors,” which is
difficult to reconcile with a rationale that rests entirely
upon incentives given to publishers perhaps long after the
death of the work’s creator. Cf. Feist Publications, Inc. v.
Rural Telephone Service Co., 499 U. S. 340, 346–347 (1991).
It finds empirical support in sources that underscore the
wisdom of the Framers’ judgment. See CRS Report 3
(“[N]ew, cheaper editions can be expected when works
come out of copyright”); see also Part II–B, supra. And it
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21
BREYER, J., dissenting
draws logical support from the endlessly self-perpetuating
nature of the publishers’ claim and the difficulty of finding
any kind of logical stopping place were this Court to accept
such a uniquely publisher-related rationale. (Would it
justify continuing to extend copyrights indefinitely, say,
for those granted to F. Scott Fitzgerald or his lesser known
contemporaries? Would it not, in principle, justify contin-
ued protection of the works of Shakespeare, Melville,
Mozart, or perhaps Salieri, Mozart’s currently less popular
contemporary? Could it justify yet further extension of the
copyright on the song Happy Birthday to You (melody first
published in 1893, song copyrighted after litigation in
1935), still in effect and currently owned by a subsidiary of
AOL Time Warner? See Profitable “Happy Birthday,”
Times of London, Aug. 5, 2000, p. 6.)
Given this support, it is difficult to accept the conflicting
rationale that the publishers advance, namely that exten-
sion, rather than limitation, of the grant will, by reward-
ing publishers with a form of monopoly, promote, rather
than retard, the dissemination of works already in exis-
tence. Indeed, given these considerations, this rationale
seems constitutionally perverse—unable, constitutionally
speaking, to justify the blanket extension here at issue.
Cf. ante, at 20 (STEVENS, J., dissenting).
Fourth, the statute’s legislative history suggests another
possible justification. That history refers frequently to the
financial assistance the statute will bring the entertain-
ment industry, particularly through the promotion of
exports. See, e.g., S. Rep. No. 104–315, p. 3 (1996) (“The
purpose of this bill is to ensure adequate copyright protec-
tion for American works in foreign nations and the contin-
ued economic benefits of a healthy surplus balance of
trade”); 144 Cong. Rec., at H9951 (statement of Rep.
Foley) (noting “the importance of this issue to America’s
creative community,” “[w]hether it is Sony, BMI, Disney”
or other companies). I recognize that Congress has some-
22
ELDRED v. ASHCROFT
BREYER, J., dissenting
times found that suppression of competition will help
Americans sell abroad—though it has simultaneously
taken care to protect American buyers from higher domes-
tic prices. See, e.g., Webb-Pomerene Act (Export Trade),
40 Stat. 516, as amended, 15 U. S. C. §§61–65; see also IA
P. Areeda & H. Hovenkamp, Antitrust Law ¶251a, pp.
134–137 (2d ed. 2000) (criticizing export cartels). In doing
so, however, Congress has exercised its commerce, not its
copyright, power. I can find nothing in the Copyright
Clause that would authorize Congress to enhance the
copyright grant’s monopoly power, likely leading to higher
prices both at home and abroad, solely in order to produce
higher foreign earnings. That objective is not a copyright
objective. Nor, standing alone, is it related to any other
objective more closely tied to the Clause itself. Neither
can higher corporate profits alone justify the grant’s en-
hancement. The Clause seeks public, not private, benefits.
Finally, the Court mentions as possible justifications
“demographic, economic, and technological changes”—by
which the Court apparently means the facts that today
people communicate with the help of modern technology,
live longer, and have children at a later age. Ante, at 16,
and n. 14. The first fact seems to argue not for, but in-
stead against, extension. See Part II–B, supra. The
second fact seems already corrected for by the 1976 Act’s
life-plus-50 term, which automatically grows with
lifespans. Cf. Department of Health and Human Services,
Centers for Disease Control and Prevention, Deaths: Final
Data for 2000 (2002) (Table 8) (reporting a 4-year increase
in expected lifespan between 1976 and 1998). And the
third fact—that adults are having children later in life—is
a makeweight at best, providing no explanation of why the
1976 Act’s term of 50 years after an author’s death—a
longer term than was available to authors themselves for
most of our Nation’s history—is an insufficient potential
bequest. The weakness of these final rationales simply
Cite as: 537 U. S. ____ (2003)
23
BREYER, J., dissenting
underscores the conclusion that emerges from considera-
tion of earlier attempts at justification: There is no le-
gitimate, serious copyright-related justification for this
statute.
III
The Court is concerned that our holding in this case not
inhibit the broad decisionmaking leeway that the Copy-
right Clause grants Congress. Ante, at 13–14, 17, 31–32.
It is concerned about the implications of today’s decision
for the Copyright Act of 1976—an Act that changed copy-
right’s basic term from 56 years (assuming renewal) to life
of the author plus 50 years, ante, at 3. Ante, at 31. It is
concerned about having to determine just how many years
of copyright is too many—a determination that it fears
would require it to find the “right” constitutional number,
a task for which the Court is not well suited. See ante, at
32; but cf. ante, at 19, n. 17.
I share the Court’s initial concern, about intrusion upon
the decisionmaking authority of Congress. See ante, at 14,
n. 10. But I do not believe it intrudes upon that authority
to find the statute unconstitutional on the basis of (1) a
legal analysis of the Copyright Clause’s objectives, see
supra, at 4–6, 19–21; (2) the total implausibility of any
incentive effect, see supra, at 13–16; and (3) the statute’s
apparent failure to provide significant international uni-
formity, see supra, at 16–19. Nor does it intrude upon
congressional authority to consider rationality in light of
the expressive values underlying the Copyright Clause,
related as it is to the First Amendment, and given the
constitutional importance of correctly drawing the rele-
vant Clause/Amendment boundary. Supra, at 2–4. We
cannot avoid the need to examine the statute carefully by
saying that “Congress has not altered the traditional
contours of copyright protection,” ante, at 31, for the sen-
tence points to the question, rather than the answer. Nor
24
ELDRED v. ASHCROFT
BREYER, J., dissenting
should we avoid that examination here. That degree of
judicial vigilance—at the far outer boundaries of the
Clause—is warranted if we are to avoid the monopolies
and consequent restrictions of expression that the Clause,
read consistently with the First Amendment, seeks to
preclude. And that vigilance is all the more necessary in a
new Century that will see intellectual property rights and
the forms of expression that underlie them play an ever
more important role in the Nation’s economy and the lives
of its citizens.
I do not share the Court’s concern that my view of the
1998 Act could automatically doom the 1976 Act. Unlike
the present statute, the 1976 Act thoroughly revised copy-
right law and enabled the United States to join the Berne
Convention—an international treaty that requires the
1976 Act’s basic life-plus-50 term as a condition for sub-
stantive protections from a copyright’s very inception,
Berne Conv. Art. 7(1). Consequently, the balance of copy-
right-related harms and benefits there is far less one-
sided. The same is true of the 1909 and 1831 Acts, which,
in any event, provided for maximum terms of 56 years or
42 years while requiring renewal after 28 years, with most
copyrighted works falling into the public domain after that
28-year period, well before the putative maximum terms
had elapsed. See ante, at 3; Statistical History 956–957.
Regardless, the law provides means to protect those who
have reasonably relied upon prior copyright statutes. See
Heckler v. Mathews, 465 U. S. 728, 746 (1984). And, in any
event, we are not here considering, and we need not con-
sider, the constitutionality of other copyright statutes.
Neither do I share the Court’s aversion to line-drawing
in this case. Even if it is difficult to draw a single clear
bright line, the Court could easily decide (as I would de-
cide) that this particular statute simply goes too far. And
such examples—of what goes too far—sometimes offer
better constitutional guidance than more absolute-
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25
BREYER, J., dissenting
sounding rules. In any event, “this Court sits” in part to
decide when a statute exceeds a constitutional boundary.
See Panhandle Oil, 277 U. S., at 223 (Holmes, J., dissent-
ing). In my view, “[t]ext, history, and precedent,” ante, at
7–8, support both the need to draw lines in general and
the need to draw the line here short of this statute. See
supra, at 1–6, 19–21. But see ante, at 8, n. 4.
Finally, the Court complains that I have not “re-
strained” my argument or “train[ed my] fire, as petitioners
do, on Congress’ choice to place existing and future copy-
rights in parity.” Ante, at 2, n. 1, and 8, n. 4. The reason
that I have not so limited my argument is my willingness
to accept, for purposes of this opinion, the Court’s under-
standing that, for reasons of “[j]ustice, policy, and eq-
uity”—as well as established historical practice—it is not
“categorically beyond Congress’ authority” to “exten[d] the
duration of existing copyrights” to achieve such parity.
Ante, at 13 (internal quotation marks omitted). I have
accepted this view, however, only for argument’s sake—
putting to the side, for the present, JUSTICE STEVENS’ per-
suasive arguments to the contrary, ante, at 5–22 (dis-
senting opinion). And I make this assumption only to
emphasize the lack of rational justification for the present
statute. A desire for “parity” between A (old copyrights)
and B (new copyrights) cannot justify extending A when
there is no rational justification for extending B. At the
very least, (if I put aside my rationality characterization)
to ask B to support A here is like asking Tom Thumb to
support Paul Bunyan’s ox. Where the case for extending
new copyrights is itself so weak, what “justice,” what
“policy,” what “equity” can warrant the tolls and barriers
that extension of existing copyrights imposes?
IV
This statute will cause serious expression-related harm.
It will likely restrict traditional dissemination of copy-
26
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BREYER, J., dissenting
righted works. It will likely inhibit new forms of dissemi-
nation through the use of new technology. It threatens to
interfere with efforts to preserve our Nation’s historical
and cultural heritage and efforts to use that heritage, say,
to educate our Nation’s children. It is easy to understand
how the statute might benefit the private financial inter-
ests of corporations or heirs who own existing copyrights.
But I cannot find any constitutionally legitimate, copy-
right-related way in which the statute will benefit the
public. Indeed, in respect to existing works, the serious
public harm and the virtually nonexistent public benefit
could not be more clear.
I have set forth the analysis upon which I rest these
judgments. This analysis leads inexorably to the conclu-
sion that the statute cannot be understood rationally to
advance a constitutionally legitimate interest. The statute
falls outside the scope of legislative power that the Copy-
right Clause, read in light of the First Amendment, grants
to Congress. I would hold the statute unconstitutional.
I respectfully dissent.
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27
Appendix to opinion of BREYER, J.
APPENDIX TO OPINION OF BREYER, J.
A
The text’s estimates of the economic value of 1998 Act
copyrights relative to the economic value of a perpetual
copyright, supra, at 14–15, as well as the incremental
value of a 20-year extension of a 75-year term, supra, at
13–14, rest upon the conservative future value and dis-
count rate assumptions set forth in the brief of economist
amici. Brief for George A. Akerlof et al. as Amici Curiae
5–7. Under these assumptions, if an author expects to live
30 years after writing a book, the copyright extension (by
increasing the copyright term from “life of the author plus
50 years” to “life of the author plus 70 years”) increases
the author’s expected income from that book—i.e., the
economic incentive to write—by no more than about
0.33%. Id., at 6.
The text assumes that the extension creates a term of 95
years (the term corresponding to works made for hire and
for all existing pre-1978 copyrights). Under the econo-
mists’ conservative assumptions, the value of a 95-year
copyright is slightly more than 99.8% of the value of a
perpetual copyright. See also Tr. of Oral Arg. 50 (Peti-
tioners’ statement of the 99.8% figure). If a “life plus 70”
term applies, and if an author lives 78 years after creation
of a work (as with Irving Berlin and Alexander’s Ragtime
Band), the same assumptions yield a figure of 99.996%.
The most unrealistically conservative aspect of these
assumptions, i.e., the aspect most unrealistically favorable
to the majority, is the assumption of a constant future
income stream. In fact, as noted in the text, supra, at 7,
uncontested data indicate that no author could rationally
expect that a stream of copyright royalties will be constant
forever. Indeed, only about 2% of copyrights can be ex-
28
ELDRED v. ASHCROFT
Appendix to opinion of BREYER, J.
pected to retain commercial value at the end of 55 to 75
years. Ibid. Thus, in the overwhelming majority of cases,
the ultimate value of the extension to copyright holders
will be zero, and the economic difference between the
extended copyright and a perpetual copyright will be zero.
Nonetheless, there remains a small 2% or so chance that
a given work will remain profitable. The CRS Report
suggests a way to take account of both that likelihood and
the related “decay” in a work’s commercial viability: Find
the annual decay rate that corresponds to the percentage
of works that become commercially unavailable in any
given year, and then discount the revenue for each succes-
sive year accordingly. See CRS Report 7. Following this
approach, if one estimates, conservatively, that a full 2%
of all works survives at the end of 75 years, the corre-
sponding annual decay rate is about 5%. I instead (and
again conservatively) use the 3.8% decay rate the CRS has
applied in the case of books whose copyrights were re-
newed between 1950 and 1970. Ibid. Using this 3.8%
decay rate and the economist amici’s proposed 7% dis-
count rate, the value of a 95-year copyright is more realis-
tically estimated not as 99.8%, but as 99.996% of the value
of a perpetual copyright. The comparable “Irving Berlin”
figure is 99.99999%. (With a 5% decay rate, the figures
are 99.999% and 99.999998%, respectively.) Even these
figures seem likely to be underestimates in the sense that
they assume that, if a work is still commercially avail-
able, it earns as much as it did in a year shortly after its
creation.
B
Conclusions regarding the economic significance of
“works made for hire” are judgmental because statistical
information about the ratio of “for hire” works to all works
is scarce. Cf. Community for Creative Non-Violence v. Reid,
490 U. S. 730, 737–738, n. 4 (1989). But we know that, as
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29
Appendix to opinion of BREYER, J.
of 1955, copyrights on “for hire” works accounted for 40%
of newly registered copyrights. Varmer, Works Made for
Hire and on Commission, Study No. 13, in Copyright Law
Revision Studies Nos. 1–19, prepared for the Subcommit-
tee on Patents, Trademarks, and Copyrights of the Senate
Committee on the Judiciary, 86th Cong., 2d Sess., 139, n.
49 (Comm. Print 1960). We also know that copyrights on
works typically made for hire—feature-length movies—
were renewed, and since the 1930’s apparently have re-
mained commercially viable, at a higher than average
rate. CRS Report 13–14. Further, we know that “har-
monization” looks to benefit United States exports, see,
e.g., H. R. Rep. No. 105–452, p. 4 (1998), and that films
and sound recordings account for the dominant share of
export revenues earned by new copyrighted works of
potential lasting commercial value (i.e., works other than
computer software), S. Siwek, Copyright Industries in the
U. S. Economy: The 2002 Report 17. It also appears gen-
erally accepted that, in these categories, “for hire” works
predominate. E.g., House Hearings 176 (testimony of the
Register of Copyrights) (“[A]udiovisual works are gener-
ally works made for hire”). Taken together, these circum-
stances support the conclusion in the text that the exten-
sion fails to create uniformity where it would appear to be
most important—pre-1978 copyrighted works nearing the
end of their pre-extension terms, and works made for hire.
