No. 01-618

IN THE

Supreme Court of the United States

ERIC ELDRED, et al.,Petitioners,

v.

JOHN D. ASHCROFT, In his official capacityas Attorney General,

Respondent.

On Writ of Certiorari to the United StatesCourt of Appeals for the

District of Columbia Circuit

Brief Amicus Curiae of theFree Software Foundationin Support of Petitioners

EBEN MOGLENCounsel of record

435 West 116th StreetNew York, NY 10027(212) 854-8382Counsel for Amicus Curiae

QUESTION PRESENTED

1. Did the Court of Appeals err in holding that, underthe Copyright Clause, Congress may indefinitelyextend the term of existing copyrights by seriatimadoption of nominally “limited” extensions?

i

TABLE OF CONTENTS

ii

TABLE OF AUTHORITIES

Cases

Abrams v. United States, 250 U.S. 616 (1919) . . . . . . . . . 10Darcy v. Allen, (The Case of Monopolies),

11 Co. Rep. 84 (1603) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Eldred v. Reno, 239 F.3d 372 (CADC 2001) . . . . . 7, passimFeist Publications, Inc. v. Rural Telephone

Service, Co., Inc., 499 U.S. 340 (1991) . . . . . . . . . . 7,11,12Goldstein v. California, 412 U.S. 546 (1973) . . . . . . . . . . .12Harper & Row, Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . 9Hawaii Housing Authority v.

Midkiff, 467 U.S. 229 (1984) . . . . . . . . . . . . . . . . . . . . . . . 14New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . 10Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10San Francisco Arts & Athletics, Inc. v.

United States Olympic Committee,483 U.S. 522 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Schnapper v. Foley, 667 F.2d 102 (CADC 1981) . . . . . . . 11Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) .11Trademark Cases, 100 U.S. 82 (1879) . . . . . . . . . . . . . . . . . 11West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitutions, Statutes, and Regulations

U.S. Const. Art. I, §8, cl. 8 . . . . . . . . . . . . . . . . . . . . . 3, passimU.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . 7, passimU.S. Const. Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14

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Copyright Act of 1709 (Statute of Anne),8 Anne, c. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Copyright Act of 1790, 1 Stat. 124 . . . . . . . . . . . . . . . . . . . . . 6Sonny Bono Copyright Term

Extension Act, Pub. L. No. 105-298,Title I, 112 Stat. 2827 . . . . . . . . . . . . . . . . . . . . . . . . 3, passim

Statute of Monopolies, 21 Jac. I, c. 3 . . . . . . . . . . . . . . . . . . . 5

Other Materials

Yochai Benkler, Free as the Air to CommonUse: First Amendment Constraints onEnclosure of the Public Domain,74 N.Y.U.L. Rev. 354 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 8

William Blackstone, Commentaries onthe Laws of England (1769) . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Charter and General Laws of the Colonyand Province of Massachusetts Bay (Boston, 1814) . . 6

144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998) . . . . . . . . . 3Thomas I. Emerson, The System of Freedom

of Expression (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Max Farrand, The Records of the Federal

Convention of 1787 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . 6George Lee Haskins, Law and Authority

in Early Massachusetts (1960) . . . . . . . . . . . . . . . . . . . . . . 6Melville B. Nimmer, Does Copyright Abridge

the First Amendment Guaranties of Free Speechand the Press?, 17 UCLA L. Rev. 1180 (1970) . . . . . . . . 8

Mark Rose, Authors and Owners:The Invention of Copyright (1993) . . . . . . . . . . . . . . . . . . 6

Cecily Violet Wedgwood, The King’s Peace (1955) . . . . 5

iv

No. 01-618

IN THE

Supreme Court of the United States

ERIC ELDRED, et al.,Petitioners,

v.

JOHN D. ASHCROFT, In his official capacityas Attorney General,

Respondent.

On Writ of Certiorari to the United StatesCourt of Appeals for the

District of Columbia Circuit

Brief Amicus Curiae of theFree Software Foundationin Support of Petitioners

INTEREST OF Amicus Curiae

This brief is filed on behalf of the Free Software Foun-dation, a charitable corporation with its main offices inBoston, Massachusetts.1 The Foundation believes that

1Counsel for both parties have consented to the filing of thisbrief, and those consents have been filed with the Clerk of this

1

people should be free to study, share and improve allthe software they use, as they are free to share and im-prove all the recipes they cook with, and that this rightis an essential aspect of the system of free expression ina technological society. The Foundation has been work-ing to achieve this goal since 1985 by directly develop-ing and distributing, and by helping others to developand distribute, software that is licensed on terms thatpermit all users to copy, modify and redistribute theworks, so long as they give others the same freedomsto use, modify and redistribute in turn. The Founda-tion is the largest single contributor to the GNU oper-ating system (used widely today in its GNU/Linux vari-ant for computers from PCs to supercomputer clusters).The Foundation’s GNU General Public License is themost widely used “free software” license, covering ma-jor components of the GNU operating system and tensof thousands of other computer programs used on tensof millions of computers around the world. The Foun-dation is strongly interested in the use and developmentof copyright law to encourage sharing, and to protect therights of users and the public domain.

Court. No counsel for either party had any role in authoring thisbrief, and no person other than the amicus and its counsel made anymonetary contribution to its preparation and submission.

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SUMMARY OF ARGUMENT

“Actually, Sonny [Bono] wanted the termof copyright protection to last forever.”

—Rep. Mary Bono144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)

If the late Representative Bono believed that was pos-sible, he was mistaken. The Court of Appeals erred inholding that Congressmen sharing his object can achievewhat the Constitution expressly forbids, simply becausethey do so in a series of enactments rather than a singlestatute.

No one seriously contends that Congress may achievean expressly unauthorized end by dividing the meansof its achievement into multiple statutes. Yet the Courtof Appeals held that, so long as each individual statutestates a precise numerical increment, Congress can ex-tend the life of existing copyrights indefinitely. Thisconclusion is in direct conflict with the language ofthe Copyright Clause, Article I, §8, cl. 8, in its natu-ral sense. The constitutional history of England andBritish North America, moreover, is unambiguous aboutthe importance of “limited Times” in the control of allstate-awarded monopolies, of which genus copyrightand patent are species. The very evils that led Englishand British North American constitutional lawyers to in-sist on the strictly limited term of royal and statutory mo-nopolies, and to embody that requirement in the Copy-right Clause of Article I, are present in the retroactive ex-tension of existing copyrights by the Sonny Bono Copy-right Term Extension Act (CTEA), Pub. L. No. 105-298,Title I, 112 Stat. 2827, at issue in this case.

In the sphere of copyright, the limited time require-ment protects the public domain, by providing for its

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constant enrichment. The public domain is an essentialresource of our constitutional system of free expression.As this Court has previously recognized, several as-pects of the copyright system represent constitutionally-required limitations on the nature of the monopolyCongress is empowered to grant. The limited term is notonly a particularly important constitutional limitation onCongressional power by virtue of its presence in the textitself—which goes beyond the textually-implicit limita-tions of fair use and the idea-expression dichotomy—butalso in the function it serves: the protection of the com-mon resource of the public domain.

The CTEA unconstitutionally imperils the commonsof the public domain by flouting the clear intention ofthe limited term requirement. If Congress had acted uni-laterally to reduce copyright terms, as the Solicitor Gen-eral seems to believe it may, forcing some material intothe public domain decades ahead of current schedule, nodoubt the copyright industries would attack the legisla-tion as a taking. If, on the other hand, Congress actedto extend every 50-year lease by the federal governmentfor an additional 99 years at the government’s currentrent, there is no question that compensation would berequired. Congress should not be permitted to take thepublic’s reversionary interest in the public domain, anymore than it can take a portion of the copyright holder’soriginal term or of any leasehold interest in real prop-erty. The constitutional system of free expression, thelanguage of the Copyright Clause, and the history of ourtradition demand no less.

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ARGUMENT

I. The Framers Intended Copyright to Be a StatutoryMonopoly Awarded to Works of Authorship For AStrictly Limited Time

The words “for limited Times” appear in the Copy-right Clause, Article I, §8, cl. 8 as the result of long andbitter experience with the constitutional evil of state-awarded monopolies. From the seventeenth century,the requirement of limitation in time was a basic con-stitutional mechanism for dealing with the potentialfor abuse of power inherent in the royal or statutorymonopoly. The use by Queen Elizabeth of letters patentmonopolizing certain trades as a means of raising moneyfrom bidders for monopoly profits gave rise to the caseof Darcy v. Allen, (The Case of Monopolies), 11 Co. Rep. 84(1603), in which a royal patent monopoly on the makingand distribution of playing cards was held void. Par-liament followed in 1624 with the Statute of Monop-olies, 21 Jac. I, c. 3, which declared that only Parlia-ment might grant statutory monopolies, limited to newinventions, for a period not to exceed fourteen years.See 4 William Blackstone, Commentaries on the Laws ofEngland *159 (1769). This constitutional limitation wasevaded by Charles I during his period of despotic per-sonal rule; the resulting royal monopolies formed a sig-nificant grievance in the years leading up to the EnglishCivil War. See Cecily Violet Wedgwood, The King’s Peace156-62 (1955).

American colonists at odds with the government ofCharles I perceived the evil of governmental monopo-lies; in the Massachusetts Bay Colony as early as 1641,the Colony’s General Court decreed that “there shall be

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no monopolies granted or allowed amongst us, but ofsuch new inventions that are profitable to the country,and that for a short time.” The Charter and General Laws ofthe Colony and Province of Massachusetts Bay 170 (Boston,1814); see also George Lee Haskins, Law and Authority inEarly Massachusetts 130 (1960).

When the Copyright Act of 1709, the famous “Statuteof Anne,” was framed, the drafters insisted on a lim-ited term far more stringent than authors, including JohnLocke, had proposed; they adopted the fourteen-yearlimit from the Statute of Monopolies. See Mark Rose, Au-thors and Owners: The Invention of Copyright 44-47 (1993).The term provided by the Statute of Anne, fourteen yearswith a renewal of fourteen years if the author survivedthe first term, was adopted by First Congress in theCopyright Act of 1790. See Copyright Act of 1709, 8Anne, c. 19; Act of May 31, 1790, 1 Stat. 124-25.

The Framers of the Constitution unanimously ac-cepted the idea of the limited term for copyrights in thedrafting of Article I, without substantial discussion. See 2Max Farrand, The Records of the Federal Convention of 1787,at 321-325, 505-510, 570, 595 (1937).2 In doing so, as thesubsequent employment in the Copyright Act of 1790 ofthe term of years from the Statute of Monopolies shows,the Framers and the First Congress acted in full aware-ness of the long history of attempts to control the harmdone by statutory monopolies by limiting their term.

The constitutional importance of the “limited Times”restriction cannot be vitiated, as the Court of Appeals’reasoning would do, by affording Congress the oppor-tunity to create perpetuities on the installment plan, any

2The only amendment made was in the replacement of thephrase originally suggested by Charles Pinckney of South Carolina,that monopolies be granted for a “certain” time. See 3 id., at 122.

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more than Congress can eliminate the constitutional re-quirement of originality. Feist Publications, Inc. v. RuralTelephone Service, Co., Inc., 499 U.S. 340, 346-347 (1991).The Court of Appeals erred fundamentally in its conclu-sion that there is “nothing in text or in history that sug-gests that a term of years for a copyright is not a ‘lim-ited Time’ if it may later be extended for another ‘limitedTime.’ ” Eldred v. Reno, 239 F.3d 372, 379 (CADC 2001). Inthis regard, the CTEA should not be judged in isolation.The question is whether there is anything in text or his-tory rendering constitutionally objectionable the elevenextensions of the monopoly term in the last forty years,resulting in a virtual cessation of enlargements to thepublic domain, capped by the statute before the Court,which postpones the reversion on every single existingcopyright for decades.

II. The Historical Policy Embodied in the CopyrightClause is Absolutely Essential to Reconcile theCopyright Monopoly with the System of Free Ex-pression

As important as the principle of limited time is inthe general restraint of the harms that flow from statu-tory monopolies, in the area of copyright it has an evenmore crucial purpose to serve. The limited term of copy-right ensures the steady replenishment of the public do-main, the vast repository of the common culture of hu-mankind. The public domain is the springboard of so-cietal creativity, the zone of free reproduction and ex-change that makes innovation possible. As Yochai Ben-kler has elegantly shown, the existence of a vital and ex-panding public domain reconciles the exclusive rights ofthe copyright system with the underlying goals of thesystem of free expression protected by the First Amend-

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ment. See Yochai Benkler, Free as the Air to Common Use:First Amendment Constraints on Enclosure of the Public Do-main, 74 N.Y.U.L. Rev. 354, 386-394 (1999). The Courtbelow erred in its facile dismissal of petitioners’ FirstAmendment concerns. That Court first held in its opin-ion that the First Amendment’s requirements are “cate-gorically” satisfied by the distinction between expressionand idea, and then that any material covered by copy-right but subject to the defense of fair use is therefore socopiously protected for purposes of free expression thatno First Amendment claim can possibly lie. 239 F.3d, at375-376.

This position simply cannot be right. The Court belowconceded that an attempt by Congress to make copyrightperpetual in haec verba would be prohibited by the lan-guage of the Copyright Clause. Id., at 377. But even ifthe subterfuge of achieving perpetuity piecemeal, by re-peated retroactive extensions, somehow evades the plaincommand of the Copyright Clause, it does not thus ren-der impotent the First Amendment. As the great copy-right scholar Melville Nimmer asked:

If I may own Blackacre in perpetuity, whynot also Black Beauty? The answer lies in thefirst amendment. There is no countervail-ing speech interest which must be balancedagainst perpetual ownership of tangible realand personal property. There is such a speechinterest, with respect to literary property, orcopyright.

Melville B. Nimmer, Does Copyright Abridge the FirstAmendment Guaranties of Free Speech and the Press?, 17UCLA L. Rev. 1180, 1193 (1970).

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Nor has the Court of Appeals’ position any supportin the holdings of this Court. On the contrary, as thisCourt’s cases make clear, copyright and related statu-tory monopolies in expression must conform like anyother regulation of speech to the requirements of theFirst Amendment. In Harper & Row, Publishers, Inc. v.Nation Enterprises, 471 U.S. 539 (1985), this Court re-jected what it characterized as “a public figure excep-tion to copyright,” because it found sufficient “the FirstAmendment protections already embodied in the Copy-right Act’s distinction between ... facts and ideas, andthe latitude for scholarship and comment traditionallyafforded by fair use.” Id., at 560. Thus, the Court said, itfound “no warrant” for a further expansion of the doc-trine of fair use. Id. This by no means implies, as theCourt of Appeals somehow concluded, that Harper &Row stands as an “insuperable” bar to all First Amend-ment challenges to all subsequent copyright statutes. See239 F.3d, at 375. In San Francisco Arts & Athletics, Inc. v.United States Olympic Committee, 483 U.S. 522 (1987), thisCourt applied standard First Amendment analysis to astatute conveying special quasi-trademark protection tothe word “Olympic,” asking “whether the incidental re-strictions on First Amendment freedoms are greater thannecessary to further a substantial government interest.”Id., at 537 (citation omitted).

The First Amendment abhors the vacuum of limitedexpression. The making of new works by the criticism,imitation, revision, and rearrangement of existing mate-rial is the hallmark of literate culture in all the arts andsciences. The First Amendment establishes not merely aseries of independent doctrines, but a “system of free ex-pression.” See Thomas I. Emerson, The System of Freedomof Expression (1970). Our constitutional commitments toan “uninhibited, robust, and wide-open” public debate,

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New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),a “marketplace of ideas,” Reno v. American Civil LibertiesUnion, 521 U.S. 844, 885 (1997); cf. Abrams v. United States,250 U.S. 616, 630 (1919), where there shall be no powerto “prescribe what shall be orthodox” West Virginia Boardof Education v. Barnette, 319 U.S. 624, 642 (1943), requireus to view with great skepticism all restrictions on theformation and expression of ideas. Laws tending to es-tablish monopolies in the expression of ideas must passthe exacting scrutiny that protects our most fundamen-tal freedoms. The Copyright Clause does not exemptthe legislation enacted under it from such scrutiny, butrather establishes principles that enable statutory mo-nopolies and freedom of expression to coexist. Of these,the principle of limitation in time is far from the least im-portant. By refusing to consider the effect of the instantlegislation in the broader context of a Congressional pol-icy of piecemeal, indefinite, wholesale extension of copy-rights, and in relation to the purposes established by theCopyright Clause itself, the Court of Appeals failed in itsduty to protect the invaluable interests of the system offree expression.

A. INDEFINITE EXTENSION OF THE TERM OFMONOPOLY ON EXISTING WORKS OF AUTHORSHIPIS INCOMPATIBLE WITH BOTH THE COPYRIGHTCLAUSE AND THE FIRST AMENDMENT

Precisely because the creation of exclusive rights in ex-pressions inevitably involves some danger of the mo-nopolization of ideas, it is crucial to the coexistence ofcopyright and the First Amendment that all exclusiverights over expressions are limited in time. At some spe-cific moment, all exclusionary rights must end. Under

10

our Constitution, the reversion of every work of author-ship is irrevocably vested in the public.

This reversion is not constitutionally optional. In thecontext of patents, this Court has described the rever-sion as a “condition” that the work subject to tempo-rary statutory monopoly will pass into the public do-main upon the patent’s expiration. Singer Mfg. Co. v.June Mfg. Co., 163 U.S. 169, 185 (1896).

Notwithstanding this evident constitutional principle,the Court of Appeals held that Congress may create aperpetuity in copyrights so long as it does so sequen-tially, by repeatedly extending all existing copyrights fornominally “limited” terms. This holding contradicts thespirit of both the Copyright Clause and the First Amend-ment. The Court of Appeals erroneously held, followingits own precedent, see Schnapper v. Foley, 667 F.2d 102, 112(1981), that the single phrase comprising the CopyrightClause, empowering Congress “To promote the Progressof Science and useful Arts, by securing for limited Timesto Authors and Inventors the exclusive Right to theirrespective Writings and Discoveries,” imposes no sub-stantive limitation on Congress through its declarationof purpose. But the Court of Appeals acknowledged, asit must, that this Court’s cases show clearly that Congres-sional power is indeed limited by the Copyright Clause,and so its effort is bent to the disintegration of a singlephrase of twenty-seven words, directed at showing thatthe first nine are somehow constitutionally irrelevant.

This Court first held in the Trademark Cases, 100 U.S.82 (1879), and reaffirmed in Feist, supra, 499 U.S., at 346-47, that Congress cannot constitutionally dilute the re-quirement of originality, by extending copyright cover-age to works of authorship that make use of expressionsalready in existence, or in which the author’s effort incollection and arrangement of existing information does

11

not establish that “modicum of creativity” the Constitu-tion requires. According to the Court of Appeals, how-ever, the principle of originality emerges solely from thewords “Writing” and “Author,” taking not the slightestsupport from the declaration of purpose that begins theCopyright Clause.

The Copyright Clause is unique among the enumer-ations of legislative power in Article I, §8 in contain-ing a declaration of purpose; it alone ”describes boththe objective which Congress may seek and the meansto achieve it.” Goldstein v. California, 412 U.S. 546, 555(1973). Adopting a reading of the clause that denies le-gal effect to the words the drafters specifically and atyp-ically included is an implausible style of constitutionalconstruction.

Even without reference to the beginning of the clause,however, this Court’s prior opinions show that the Courtof Appeals has misperceived the task of construction.The Court of Appeals treats the words “limited Times”in purely formal terms, so that—after ten previous in-terlocking extensions beginning in 1962, holding sub-stantially all works with otherwise-expiring copyrightsout of the public domain for a generation—the CTEA’sextension of existing terms for another twenty yearsraises no substantive constitutional question because thenew twenty-year extension period is numerically defi-nite. The same formal, anti-contextual approach to thewords would result, however, in the result rejected bythis Court in Feist: telephone directories are undeniably“writings” in the same crabbed sense that the term ex-tension contained in the CTEA is “limited.”

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B. THE FIFTH AMENDMENT PROHIBITS LEGISLA-TIVE ACTION SUCH AS THIS WITH RESPECT TOPHYSICAL PROPERTY RIGHTS, AND THERE IS NOCONSTITUTIONAL JUSTIFICATION FOR PERMITTINGWHAT CANNOT BE DONE WITH MERE PROPERTYTO BE DONE WITH FREE EXPRESSION

On the logic of the Court of Appeals’ holding, whichis apparently supported in this Court by the SolicitorGeneral, Congress could pass a statute shortening theterm of existing copyrights, reallocating a large body ofcurrently-covered works to the public domain. If thestatute simply provided that the term of copyright be re-duced to fourteen years, according to the Court of Ap-peals, that would satisfy the requirement of “limitedTimes,” and there would be no occasion for the Courtsto inquire into whether such a change promoted theprogress of science and the useful arts, though copyrightholders could well be expected to contend that such analteration of the duration of existing copyrights deprivedthem of the benefit that the “copyright bargain” suppos-edly “secures” them.

But the copyright bargain faces two ways: “securing”authors their limited monopoly in return for the rever-sion to the public. Increasing the reversionary interest atthe expense of the first estate is conceptually no differentthan increasing the copyright holder’s monopoly at theexpense of the reversionary interest, which is that of thewhole society and the system of free expression. Shrink-ing or eliminating the public domain in order to increasethe benefit to the monopolists, whose works have al-ready been created in reliance on the previous allocationof rights, neither promotes the progress of knowledgenor respects the critically-important free speech interest

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in the health of the public domain.3

Nor would the Takings Clause of the Fifth Amend-ment permit such uncompensated legislative adjustmentof the terms of interest in real property. Copyright—notsurprisingly in view of its common law origins—adoptsan essentially familiar structure of “estates” in worksof authorship, beginning with a conveyance for term ofyears or a life interest plus a term of years, with a re-version to the public domain. This Court has held thatlegislative alteration of such estates that destroys or lim-its the reversionary interest in real property in order toachieve redistribution between private parties is “pub-lic use” within the meaning of the Takings Clause, andis constitutional if compensated. Hawaii Housing Au-thority v. Midkiff, 467 U.S. 229 (1984). But it has neverbeen suggested that Congress or a state legislature couldachieve a similarly vast wealth transfer to present lesseesthrough the extension of the terms of all existing leases,extinguishing or indefinitely postponing the reversion-ary interest, without paying compensation.

What the Fifth Amendment prohibits with respect tointerference with existing rights in real property shouldnot be permissible where the rights being destroyed by

3The Court of Appeals minimized the importance of the im-poverishment of the public domain when it maintained that“[p]reserving access to works that would otherwise disappear—notenter the public domain but disappear—‘promotes Progress’ assurely as does stimulating the creation of new works.” 239 F.3d,at 379. This is an apparent reference to claims made by copyrightholders in the legislative process that certain classes of works, par-ticularly films, would not be physically preserved unless the copy-right monopoly were extended. It is sufficient to point out that sucha principle for the award of copyright monopolies conflicts with theconstitutionally mandated requirement of originality: Congress can-not elect to preserve books, films, or music by conveying to the con-servator a statutory monopoly of copying and distribution lastingdecades.

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legislative changes in property rules are rights to thefreedom of speech and publication. The Court of Ap-peals dismissively viewed petitioners as seeking to en-force rights to use the copyrighted works of others. 239F.3d, at 376. On the contrary, petitioners claim only theirconstitutional entitlement to use the works that wouldhave entered the public domain, as required by the lawin effect at the time the particular statutory monopoliesat issue were granted, had it not been for unconstitu-tional Congressional interference.

III. Particular Dangers of Abuse and Corruption Jus-tify Strict Constitutional Scrutiny When the Termof Statutory Monopolies is Extended

During the first century of our Republic, the term ofcopyright was extended once. During the next seventyyears, it was extended once more. Since 1962, copyrightterms have been extended regularly, in increments rang-ing from one year to twenty years, and the flow of US-copyrighted works into the public domain has nearlyceased. The statute before this Court postpones rightsin material protected by the First Amendment to anybut the holders of statutory monopolies for an additionalgeneration.

No pattern of legislation could more clearly indicatethe presence of the very evils against which the Framersof the Constitution and their forebears contended, andwhich gave rise to the Copyright Clause and its require-ment for “limited Times.” When our predecessors inthe struggle for constitutional liberty perceived a dangerfrom corruption in the grant of monopolies, the dangerthey apprehended was from the executive, which mightuse its power to grant such monopolies to raise money

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independent of the legislature. In our time the risk isthat the legislature, which is granted the power to cre-ate such monopolies by Article I, §8, will use that powerto benefit copyright holders at the expense of the publicdomain. Such a purpose—to turn the system of free ex-pression into a series of private fiefdoms for the benefitof monopolists, who may choose to rebate a small por-tion of the monopoly rents thus extracted from the pop-ulation in the form of campaign contributions—is forbid-den to Congress by the plain wording of the CopyrightClause and by the First Amendment. The use of repeatedinterim extensions to achieve the effect of a perpetuityis not less dangerous than the single enactment that allparties concede would be unconstitutional. On the con-trary, such a legislative practice increases the dangers ofcorruption without reducing the harm to the public do-main.

CONCLUSION

Perhaps the late Representative Bono did indeed be-lieve that copyright should last forever. That any legisla-tor could hold that view suggests the degree of danger toa fundamental part of the system of free expression intowhich we have drifted. This Court should hold that theextension of existing copyright terms in the CTEA vio-lates the requirements of the Copyright Clause and theFirst Amendment. The decision of the Court of Appealsshould be reversed.

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Respectfully submitted.

EBEN MOGLENCounsel of record

435 West 116th StreetNew York, NY 10027(212) 854-8382Counsel for Amicus Curiae

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