Supreme Court of the United States

Eric ELDRED, et al., Petitioners,


John D. ASHCROFT, Attorney General.

No. 01-618

537 U.S. 186


Decided Jan. 15, 2003.

 GINSBURG, J., delivered the opinion of the Court, in which  REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined.  STEVENS, J., and BREYER, J., filed dissenting opinions.

 Lawrence Lessig, for petitioners.

 Theodore B. Olson, Great Falls, VA, for respondent.

     Justice GINSBURG delivered the opinion of the Court.

 This case concerns the authority the Constitution assigns to Congress to prescribe the duration of copyrights.  The Copyright and Patent Clause of the Constitution, Art. I, §  8, cl. 8, provides as to copyrights:  "Congress shall have   Power ... [t]o promote the Progress of Science ... by securing [to Authors] for limited Times ... the exclusive Right to their ... Writings."  In 1998, in the measure here under inspection, Congress enlarged the duration of copyrights by 20 years.  Copyright Term Extension Act (CTEA), Pub.L. 105-298, § §  102(b) and (d), 112 Stat. 2827-2828 (amending 17 U.S.C. § §  302, 304).  *  As in the case of prior extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.

 Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain.  They seek a determination that the CTEA fails constitutional review under both the Copyright Clause's "limited Times" prescription and the First Amendment's free speech guarantee.  Under the 1976 Copyright Act, copyright protection generally lasted from the work's creation until 50 years after the author's death. Pub.L. 94-553, §  302(a), 90 Stat. 2572 (1976 Act).  Under the CTEA, most copyrights now run from creation until 70 years after the author's death. 17 U.S.C. §  302(a).  Petitioners do not challenge the "life-plus-70-years" timespan itself.  "Whether 50 years is enough, or 70 years too much," they acknowledge, "is not a judgment meet for this Court."    Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights.  The "limited Tim[e]" in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend.    As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspection   under the heightened judicial scrutiny appropriate for such regulations.

  In accord with the District Court and the Court of Appeals, we reject petitioners' challenges to the CTEA. In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity.  In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.

* * *


 Petitioners' suit challenges the CTEA's constitutionality under both the Copyright Clause and the First Amendment.  On cross-motions for judgment on the pleadings, the District Court entered judgment for the Attorney General (respondent here).  74 F.Supp.2d 1 (D.D.C.1999).  The court held that the CTEA does not violate the "limited Times" restriction of the Copyright Clause because the CTEA's terms, though   longer than the 1976 Act's terms, are still limited, not perpetual, *  and therefore fit within Congress' discretion.  The court also held that "there are no First Amendment rights to use the copyrighted works of others." 

 The Court of Appeals for the District of Columbia Circuit affirmed.    In that court's unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), foreclosed petitioners' First Amendment challenge to the CTEA.  Copyright, the court reasoned, does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression;  it does not shield any idea or fact contained in the copyrighted work, and it allows for "fair use" even of the expression itself.

 A majority of the Court of Appeals also upheld the CTEA against petitioners' contention that the measure exceeds Congress' power under the Copyright Clause.

* * *

 We granted certiorari to address two questions:  whether the CTEA's extension of existing copyrights exceeds Congress' power under the Copyright Clause;  and whether the CTEA's extension of existing *  and future copyrights violates the First Amendment.  534 U.S. 1126 and 1160, 122 S.Ct. 1062 and 1170, 151 L.Ed.2d 966 and 152 L.Ed.2d 115 (2002).  We now answer those two questions in the negative and affirm.



   We address first the determination of the courts below that Congress has authority under the Copyright Clause to extend the terms of existing copyrights.  Text, history, and precedent, we conclude, confirm that the Copyright Clause empowers Congress to prescribe "limited Times" for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future.

 The CTEA's baseline term of life plus 70 years, petitioners concede, qualifies as a "limited Tim[e]" as applied to future copyrights.  Petitioners contend, however, that existing copyrights extended to endure for that same term are not "limited."  Petitioners' argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever "fixed" or "inalterable."  The word "limited," however, does not convey a meaning so constricted.  At the time of the Framing, that word meant what it means today:  "confine[d] within certain bounds," "restrain[ed]," or "circumscribe[d]."  S. Johnson, A Dictionary of the English Language (7th ed. 1785);  see T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) ("confine[d] within certain bounds");  Webster's Third New International Dictionary 1312 (1976) ("confined within limits";  "restricted in extent, number, or duration").  Thus understood, a timespan appropriately "limited" as applied to future copyrights does not automatically cease to be "limited" when applied to existing copyrights.  And as we observe, infra, at 783, there is no cause to suspect that a   purpose to evade the "limited Times" prescription prompted Congress to adopt the CTEA.

  To comprehend the scope of Congress' power under the Copyright Clause, "a page of history is worth a volume of logic."  New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921) (Holmes, J.).  History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.  As earlier recounted, see supra, at 775, the First Congress accorded the protections of the Nation's first federal copyright statute to existing and future works alike.  1790 Act §  1. [FN5] Since then, Congress has regularly*  applied   duration extensions to both existing and future copyrights. 1831 Act § §  1, 16;  1909 Act § §  23-24;  1976 Act § §  302-303;  17 U.S.C. § §  302-304.

 FN5. This approach comported with English practice at the time.

* * *

  Because the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.  We count it significant that early Congresses extended the duration of numerous individual patents as well as copyrights.  The courts saw no "limited Times" impediment to such extensions; renewed or extended terms were upheld in the early days, for example, by Chief Justice Marshall and Justice Story sitting as circuit justices. 

  Further, although prior to the instant case this Court did not have occasion to decide whether extending the duration of *  existing copyrights complies with the "limited Times" prescription, the Court has found no constitutional barrier to the legislative expansion of existing patents.   McClurg v.  Kingsland, 1 How. 202, 11 L.Ed. 102 (1843), is the pathsetting precedent.  The patentee in that case was unprotected under the law in force when the patent issued because he had allowed his employer briefly to practice the invention before he obtained the patent.  Only upon enactment, two years later, of an exemption for such allowances did the patent become valid, retroactive to the time it issued.  McClurg upheld retroactive application of the new law.  The Court explained that the legal regime governing a particular patent "depend[s] on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be retrospective in their operation, that is not a sound objection to their validity."   Neither is it a sound   objection to the validity of a copyright term extension, enacted pursuant to the same constitutional grant of authority, that the enlarged term covers existing copyrights.

  Congress' consistent historical practice of applying newly enacted copyright terms to future and existing copyrights reflects a judgment stated concisely by Representative Huntington at the time of the 1831 Act:  "[J]ustice, policy, and equity alike forb[id]" that an "author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the] act."  ("[S]ince 1790, it has indeed been Congress's policy that the author of yesterday's *  work should not get a lesser reward than the author of tomorrow's work just because Congress passed a statute lengthening the term today.").  The CTEA follows this historical practice by keeping the duration provisions of the 1976 Act largely in place and simply adding 20 years to each of them.  Guided by text, history, and precedent, we cannot agree with petitioners' submission that extending the duration of existing copyrights is categorically beyond Congress' authority under the Copyright Clause.

    Satisfied that the CTEA complies with the "limited Times" prescription, we turn now to whether it is a rational exercise of the legislative authority conferred by the Copyright Clause.  On that point, we defer substantially to Congress.  ("[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors ... in order to give the public appropriate access to their work product.").

  The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain.  As respondent describes, a key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years.  Consistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term.    By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive   the same copyright protection in Europe as their European counterparts.  The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States.  ("[M]atching th[e] level of [copyright] protection in the United States [to that in the EU] can ensure stronger protection *  for U.S. works abroad and avoid competitive disadvantages vis-à-vis foreign rightholders.");  see also id., at 332 (the United States could not "play a leadership role" in the give-and-take evolution of the international copyright system, indeed it would "lose all flexibility," "if the only way to promote the progress of science were to provide incentives to create new works").

  In addition to international concerns, Congress passed the CTEA in light of demographic, economic, and technological   changes, and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works.

    In sum, we find that the CTEA is a rational enactment;  we are not at liberty *  to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA--which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes--is an impermissible exercise of Congress' power under the Copyright Clause.


 Petitioners' Copyright Clause arguments rely on several novel readings of the Clause.  We next address these arguments and explain why we find them unpersuasive.


 Petitioners contend that even if the CTEA's 20-year term extension is literally a "limited Tim[e]," permitting Congress to extend existing copyrights allows it to evade the "limited Times" constraint by creating effectively perpetual copyrights through repeated extensions.  We disagree.

* * *


   Petitioners dominantly advance a series of arguments all premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author.  They pursue this main theme under three headings.  Petitioners contend that the CTEA's extension of existing copyrights (1) overlooks the requirement of "originality," (2) fails to "promote the Progress of Science," and (3) ignores copyright's quid pro quo.

   Petitioners' "originality" argument draws on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).  In Feist, we observed that "[t]he sine qua non of copyright is originality," and held that copyright protection is unavailable to "a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent,"  Relying on Feist, petitioners urge that even if a work is sufficiently "original" to qualify for copyright protection in the first instance, any extension of the copyright's duration is impermissible because, once published, a work is no longer original.

 Feist, however, did not touch on the duration of copyright protection.  Rather, the decision addressed the core question of copyrightability, i.e., the "creative spark" a work must have to be eligible for copyright protection at all.  Explaining the originality requirement, Feist trained on the Copyright Clause words "Authors" and "Writings."    The decision did not construe the "limited Times" for which a work may be protected, and the originality requirement has no bearing on that prescription.

 More forcibly, petitioners contend that the CTEA's extension of existing copyrights does not "promote the Progress of Science" as contemplated by the preambular language of the Copyright Clause.  Art. I, §  8, cl. 8. To sustain this objection, petitioners do not argue that the Clause's preamble is an independently enforceable limit on Congress' power.    Rather, they maintain that the preambular language identifies the sole end to which Congress may legislate;  accordingly, they conclude, the meaning of "limited Times" must be "determined in light of that specified end."  Brief for Petitioners 19.  The CTEA's extension of existing copyrights categorically fails to "promote the Progress of Science," petitioners argue, because it does not stimulate the   creation of new works but merely adds value to works already created.

 As petitioners point out, we have described the Copyright Clause as "both a grant of power and a limitation,", and have said that "[t]he primary objective of copyright" is "[t]o promote the Progress *  of Science,"  The "constitutional command," we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science."

  We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.    The justifications we earlier set out for Congress' enactment of the CTEA, supra, at 781-782, provide a rational basis for the conclusion that the CTEA "promote[s] the Progress of Science."

 On the issue of copyright duration, Congress, from the start, has routinely applied new definitions or adjustments of the copyright term to both future works and existing works not yet in the public domain.  Such consistent congressional practice is entitled to "very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive."    Indeed, "[t]his Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution's] provisions."    Congress' unbroken practice since the founding generation *    thus overwhelms petitioners' argument that the CTEA's extension of existing copyrights fails per se to "promote the Progress of Science."

  Closely related to petitioners' preambular argument, or a variant of it, is their assertion that the Copyright Clause "imbeds a quid pro quo."  They contend, in this regard, that Congress may grant to an "Autho[r]" an "exclusive Right" for a "limited Tim[e]," but only in exchange for a "Writin[g]."  Congress' power to confer copyright protection, petitioners argue, is thus contingent upon an exchange:  The author of an original work receives an "exclusive Right" for a "limited Tim[e]" in exchange for a dedication to the public thereafter.  Extending an existing copyright without demanding additional consideration, petitioners maintain, bestows an unpaid-for benefit on copyright holders and their heirs, in violation of the quid pro quo requirement.

 We can demur to petitioners' description of the Copyright Clause as a grant of legislative authority empowering Congress "to secure a bargain--this for that." But the legislative evolution earlier recalled demonstrates what the bargain entails.  Given the consistent placement of existing copyright   holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the "this" offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. [FN21]  Congress could rationally seek to "promote ... Progress" by including in every copyright statute an express guarantee that authors would receive the benefit of any later legislative extension of the copyright term.  Nothing in the Copyright Clause bars Congress from creating the same incentive by adopting the same position as a matter of unbroken practice.

 FN21. Standard copyright assignment agreements reflect this expectation.  See, e.g., A. Kohn & B. Kohn, Music Licensing 471 (3d ed.1992-2002) (short form copyright assignment for musical composition, under which assignor conveys all rights to the work, "including the copyrights and proprietary rights therein and in any and all versions of said musical composition(s), and any renewals and extensions thereof (whether presently available or subsequently available as a result of intervening legislation)" (emphasis added));  5 M. Nimmer & D. Nimmer, Copyright §  21.11[B], p. 21-305 (2002) (short form copyright assignment under which assignor conveys all assets relating to the work, "including without limitation, copyrights and renewals and/or extensions thereof");  6 id., §  30.04[B] , p. 30-325 (form composer-producer agreement under which composer "assigns to Producer all rights (copyrights, rights under copyright and otherwise, whether now or hereafter known) and all renewals and extensions (as may now or hereafter exist)").

* * *

[P]atents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context.    This is understandable, given that immediate disclosure is not the objective of, but is exacted from, the patentee.  It is the price paid for the exclusivity secured.    For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright.    Indeed, since the 1976 Act, copyright has run from creation, not publication. 

 Further distinguishing the two kinds of intellectual property, copyright gives the holder no monopoly on any knowledge.  A reader of an author's writing may make full use of any fact or idea she acquires from her reading.  See §  102(b).  The grant of a patent, on the other hand, does prevent full use by others of the inventor's knowledge.  See Brief for Respondent 22;  Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 103, n. 16 (C.A.2 1951) (The monopoly granted by a copyright "is not a monopoly of knowledge.  The grant of a patent does prevent full use being made of knowledge, but the reader of a book is not by the copyright laws prevented from making full use of any information he may acquire from his reading." (quoting W. Copinger, Law of Copyright 2 (7th ed.1936))).  In light of these distinctions, one cannot extract from language in our patent decisions--language not trained on a grant's duration--genuine support for petitioners' bold view.  Accordingly, we reject the proposition that a quid pro quo requirement stops Congress from expanding copyright's term in a manner that puts *  existing and future copyrights in parity.


* * *

For the several reasons stated, we find no Copyright Clause impediment to the CTEA's extension of existing copyrights.


   Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. [FN23]  We reject petitioners'   plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards.  The Copyright Clause and First Amendment were adopted close in time.  This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. 

* * *

  In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.    First, it distinguishes between ideas and expression and makes only the latter *  eligible for copyright protection. Specifically, 17 U.S.C. §  102(b) provides:  "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."  As we said in Harper & Row, this "idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."  471 U.S., at 556, 105 S.Ct. 2218 (internal quotation marks omitted).  Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.  See Feist, 499 U.S., at 349-350, 111 S.Ct. 1282.

 Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.  Codified at 17 U.S.C. §  107, the defense provides: "[T]he fair use of a   copyrighted work, including such use by reproduction in copies ..., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."  The fair use defense affords considerable "latitude for scholarship and comment," and even for parody.

 The CTEA itself supplements these traditional First Amendment safeguards.  First, it allows libraries, archives, and similar institutions to "reproduce" and "distribute, display, or perform in facsimile or digital form" copies of certain published works "during the last 20 years of any term of copyright ... for purposes of preservation, scholarship, or research" if the work is not already being exploited commercially and further copies are unavailable at a reasonable price. 

* * *

Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals.

 It is so ordered.

   Justice STEVENS, dissenting.

 Writing for a unanimous Court in 1964, Justice Black stated that it is obvious that a State could not "extend the life of a patent beyond its expiration date," Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 (1964).  As I shall explain, the reasons why a State may not extend the life of a patent apply to Congress as well.  If Congress may not expand the scope of a patent monopoly, it also may not extend   the life of a copyright beyond its expiration date.  Accordingly, insofar as the 1998 Sonny Bono Copyright Term Extension Act, 112 Stat. 2827, purported to extend the life of unexpired copyrights, it is invalid.  Because the majority's contrary conclusion rests on the mistaken premise that this Court has virtually no role in reviewing congressional grants of monopoly privileges to authors, inventors, and their successors, I respectfully dissent.

     *  I

 The authority to issue copyrights stems from the same Clause in the Constitution that created the patent power.  It provides:

"Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  Art. I, §  8, cl. 8.

 It is well settled that the Clause is "both a grant of power and a limitation" and that Congress "may not overreach the restraints imposed by the stated constitutional purpose."    As we have made clear in the patent context, that purpose has two dimensions.  Most obviously the grant of exclusive rights to their respective writings and discoveries is intended to encourage the creativity of "Authors and Inventors."  But the requirement that those exclusive grants be for "limited Times" serves the ultimate purpose of promoting the "Progress of Science and useful Arts" by guaranteeing that those innovations will enter the public domain as soon as the period of exclusivity expires:

* * *

 The issuance of a patent is appropriately regarded as a quid pro quo--the grant of a limited right for the inventor's disclosure and subsequent contribution to the public domain.    It would be manifestly unfair if, after issuing a patent, the Government as a representative of the public sought to modify the bargain by shortening the term of the patent in order to accelerate public access to the invention.  The fairness considerations that underlie the constitutional protections against ex post facto laws and laws impairing the obligation of contracts would presumably disable Congress from making such a retroactive change in the public's bargain with an inventor without providing compensation for the taking.  Those same considerations should protect members of the public who make plans to exploit an invention as soon as it enters the public domain from a retroactive modification of the bargain that extends the term of the patent monopoly. 

* * *

  Neither the purpose of encouraging new inventions nor the overriding interest in advancing progress by adding knowledge to the public domain is served by retroactively increasing the inventor's compensation for a completed invention and frustrating the legitimate expectations of *  members of the public who want to make use of it in a free   market.  Because those twin purposes provide the only avenue for congressional action under the Copyright/Patent Clause of the Constitution, any other action is manifestly unconstitutional.


 We have recognized that these twin purposes of encouraging new works and adding to the public domain apply to copyrights as well as patents.  Thus, with regard to copyrights on motion pictures, we have clearly identified the overriding interest in the "release to the public of the products of [the author's] creative genius."    And, as with patents, we have emphasized that the overriding purpose of providing a reward for authors' creative activity is to motivate that activity and "to allow the public access to the products of their genius after the limited period of exclusive control has expired."  .  Ex post facto extensions of copyrights result in a gratuitous transfer of wealth from the public to authors, publishers, and their successors in interest.  Such retroactive extensions do not even arguably serve either of the purposes of the Copyright/Patent Clause.  The reasons why such extensions of the patent monopoly are unconstitutional apply to copyrights as well.

* * *


 Respondent also argues that the Act promotes the useful arts by providing incentives to restore old movies.  For at least three reasons, the interest in preserving perishable copies of old copyrighted films does not justify a wholesale extension of existing copyrights.  First, such restoration and preservation will not even arguably promote any new works by authors or inventors.  And, of course, any original expression in the restoration and preservation of movies will receive new copyright protection. Second, however strong   the justification for preserving such works may be, that justification applies equally to works whose copyrights have already expired.  Yet no one seriously contends that the Copyright/Patent Clause would authorize the grant of monopoly privileges for works already in the *  public domain solely to encourage their restoration.  Finally, even if this concern with aging movies would permit congressional protection, the remedy offered--a blanket extension of all copyrights--simply bears no relationship to the alleged harm.

* * *

 I respectfully dissent.

  Justice BREYER, dissenting.

* * *

Although the Copyright Clause grants broad legislative power to Congress, that grant has limits.  And in my view this statute falls outside them.


 The "monopoly privileges" that the Copyright Clause confers "are neither unlimited nor primarily designed to provide a special private benefit."  This Court has made clear that the Clause's limitations are judicially enforceable. E.g., Trade-Mark Cases, 100 U.S. 82, 93-94, 25 L.Ed. 550 (1879).  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," the second assuring that government throws up no *  obstacle to its dissemination.  At the same time, a particular statute that exceeds proper Copyright Clause bounds may set Clause and Amendment at cross-purposes, thereby depriving the public of the speech-related benefits that the Founders, through both, have promised.

 Consequently, I would review plausible claims that a copyright statute seriously, and unjustifiably, restricts the dissemination of speech somewhat more carefully than reference to this Court's traditional Copyright Clause jurisprudence might suggest.  There is no need in this case to characterize that review as a search for " 'congruence and proportionality,' " ante, at 788, 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, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (applying intermediate scrutiny to a variant of normal trademark protection).  Cf. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402-403, 120 S.Ct. 897, 145 L.Ed.2d 886 (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 rationality--though less hard than precedent might justify.

 Thus, I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public;  (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies;  and (3) if it cannot find justification in any significant Clause-related objective.  Where, after examination of the statute, it becomes difficult, if not impossible, even to dispute these characterizations, Congress' "choice is clearly wrong."



 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."  Why? What constitutional purposes does the "bounty" serve?

 The Constitution itself describes the basic Clause objective as one of "promot [ing] the Progress of Science," i.e., knowledge and learning.  The Clause exists not to "provide a special private benefit," but "to stimulate artistic creativity for the general public good,"  It does so by "motivat[ing] the creative activity of authors" through "the provision of a special reward."    The "reward" is a means, not an end.  And that is   why the copyright term is limited.  It is limited so that its beneficiaries--the public--"will not be permanently deprived of the fruits of an artist's labors."  *

* * *

 Madison, like Jefferson and others in the founding generation, warned against the dangers of monopolies.    Madison noted that the Constitution had "limited them to two cases, the authors of Books, and of useful inventions."  Madison on Monopolies 756.  He thought that in those two cases monopoly is justified because it amounts to "compensation for" an actual community "benefit" and because the monopoly is "temporary"--the term originally being 14 years (once renewable).  Madison concluded that "under that limitation a sufficient recompence and encouragement may be given."  But   he warned in general that monopolies must be "guarded with strictness agst abuse."

 Many Members of the Legislative Branch have expressed themselves similarly.  Those who wrote the House Report on the landmark Copyright Act of 1909, for example, said that copyright was not designed "primarily" to "benefit" the "author" or "any particular class of citizens, however worthy."    Rather, under the Constitution, copyright was designed "primarily for the benefit of the public," for "the benefit of the great body of people, in that it will stimulate writing and invention."  And were a copyright statute not "believed, in fact, to accomplish" the basic constitutional objective of advancing learning, that statute "would be beyond the power of Congress" to enact. Similarly, those who wrote the House Report on legislation that implemented the Berne Convention for the Protection of Literary and Artistic Works said that "[t]he constitutional purpose of copyright is to facilitate the flow of ideas in the interest of learning."  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 incentive to create, the public benefits in two ways:  when the original expression is created and ... when the limited term ... expires and the creation is added to the public domain."

 For present purposes, then, we should take the following as well established:  that copyright statutes must serve public, not private, ends;  that they must seek "to promote the Progress" of knowledge and learning;  and that they must do so both by creating incentives for authors to produce *  and by removing the related restrictions on dissemination after   expiration of a copyright's "limited Tim[e]"--a time that (like "a limited monarch") is "restrain[ed]" and "circumscribe[d]," "not [left] at large,"  I would examine the statute's effects in light of these well-established constitutional purposes.


 This statute, like virtually every copyright statute, imposes upon the public certain expression-related costs in the form of (1) royalties that may be higher than necessary to evoke creation of the relevant work, and (2) a requirement that one seeking to reproduce a copyrighted work must obtain the copyright holder's permission.  The first of these costs translates into higher prices that will potentially restrict a work's dissemination.  The second means search costs that themselves may prevent reproduction even where the author has no objection.  Although these costs are, in a sense, inevitable concomitants of copyright protection, there are special reasons for thinking them especially 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.    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.    But books, songs, and movies of that vintage still earn about $400 million per year in royalties. one might conservatively estimate that 20 extra years of copyright protection will mean the transfer of several billion extra royalty dollars to holders of existing copyrights--copyrights that, together, already will have earned many billions of dollars in royalty "reward."

 The extra royalty payments will not come from thin air.  Rather, they ultimately come from those who wish to read or see or hear those classic books or films or recordings that have survived.  Even the $500,000 that United Airlines has had to pay for the right to play George Gershwin's 1924 classic Rhapsody in Blue represents a cost of doing business, potentially reflected in the ticket prices of those who fly.  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 disobedience of the law)--not just in theory but in practice. 

 A second, equally important, cause for concern arises out of the fact that copyright extension imposes a "permissions" requirement--not only upon potential users of "classic" works that still retain commercial value, but also upon potential users of any other work still in copyright.  Again using CRS estimates, one can estimate that, by 2018, the number of such *  works 75 years of age or older will be about 350,000.  Because the Copyright Act of 1976 abolished the requirement that an owner must renew a   copyright, such still-in-copyright works (of little or no commercial value) will eventually number in the millions..

 The potential users of such works include not only movie buffs and aging jazz fans, but also historians, scholars, teachers, writers, artists, database operators, and researchers of all kinds--those who want to make the past accessible for their own use or for that of others.  The permissions requirement can inhibit their ability to accomplish that task.  Indeed, in an age where computer-accessible databases promise to facilitate research and learning, the permissions requirement can stand as a significant obstacle to realization of that technological hope.

 The reason is that the permissions requirement can inhibit or prevent the use of old works (particularly those without commercial value):  (1) because it may prove expensive to track down or to contract with the copyright holder, (2) because the holder may prove impossible to find, or (3) because the holder when found may deny permission either outright or through misinformed efforts to bargain.  The CRS, for example, has found that the cost of seeking permission "can be prohibitive."

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 As I have said, to some extent costs of this kind accompany any copyright law, regardless of the length of the copyright term.  But to extend that term, preventing works from the 1920's and 1930's from falling into the public domain, will dramatically increase the size of the costs just as--perversely-- the likely benefits from protection diminish. 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.  The costs to the users of nonprofit databases, now numbering in the low millions, will multiply as the use of those computer-assisted databases becomes more prevalent.  And the qualitative costs to education, learning, and research will multiply as our children become ever more dependent for the content of their knowledge upon computer-accessible databases--thereby condemning that which is not so accessible, say, the cultural content of early 20th-century history, to a kind of intellectual purgatory from which it will not easily emerge.

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   Because this subsection concerns only costs, not countervailing benefits, I shall simply note here that, with respect to films as with respect to other works, extension does cause substantial harm to efforts to preserve and to disseminate works that were created long ago.  And I shall turn to the second half of the equation:  Could Congress reasonably have found that the extension's toll-related and permissions-related harms are justified by extension's countervailing preservationist incentives or in other ways?


 What copyright-related benefits might justify the statute's extension of copyright protection?  First, no one could reasonably conclude that copyright's traditional economic rationale applies here.  The extension will not act as an economic spur encouraging authors to create new works.  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.    And any remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them.  Using assumptions about the time value of money provided us by a group of economists (including five   Nobel prize winners), 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.

 What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum?  What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?  The Court itself finds no evidence to the contrary.  It refers to testimony before Congress (1) that the copyright system's incentives encourage creation, and (2) (referring to Noah Webster) that income earned from one work can help support an artist who " ' continue[s] to create.' "  But the first of these amounts to no more than a set of undeniably true propositions about the value of incentives in general.  And the applicability of the second to this Act is mysterious.  How will extension help today's Noah Webster create new works 50 years after his death?  Or is that hypothetical Webster supposed to support himself with the extension's present discounted value, i.e., a few pennies?  Or (to change the metaphor) is the argument that Dumas fils *  would have written more books had Dumas pére' s  Three Musketeers earned more royalties?

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 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 792-793 (STEVENS, J., dissenting).

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 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 monopoly, designed primarily to encourage creation, followed by termination of the monopoly grant in order to promote dissemination of already-created works.  It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.  This view of the Clause does not deny the empirical possibility that grant of a copyright monopoly to the heirs or successors of a long-dead author could on occasion help publishers resurrect the work, say, of a long-lost Shakespeare.  But it does deny Congress the Copyright Clause power to base its actions primarily upon that empirical possibility--lest copyright grants become perpetual, lest on balance they restrict dissemination, lest too often they seek to bestow benefits that are solely retroactive.

 This view of the Clause finds strong support in the writings of Madison, in the antimonopoly environment in which the Framers wrote the Clause, and in the history of the Clause's English antecedent, the Statute of Anne--a statute which sought to break up a publishers' monopoly by offering, as an alternative, an author's monopoly of limited duration.  .

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 This view also finds textual support in the Copyright Clause's word  "limited."  .  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.

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 Given this support, it is difficult to accept the conflicting rationale that the publishers advance, namely, that extension, rather than limitation, of the grant will, by rewarding publishers with a form of monopoly, promote, rather than retard, the dissemination of works already in existence.  Indeed, given these considerations, this rationale seems constitutionally perverse--unable, constitutionally speaking, to justify the blanket extension here at issue. Cf. ante, at 799-800 (STEVENS, J., dissenting).

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 This statute will cause serious expression-related harm.  It will likely restrict traditional dissemination of copyrighted works.  It will likely inhibit new forms of dissemination through the use of new technology.  It threatens to interfere with efforts to preserve our Nation's historical and cultural heritage and efforts to use that heritage, say, to educate our Nation's children.  It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights.  But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public.  Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.

 I have set forth the analysis upon which I rest these judgments.  This analysis leads inexorably to the conclusion that the statute cannot be understood rationally to advance a constitutionally legitimate interest.  The statute falls outside   the scope of legislative power that the Copyright *  Clause, read in light of the First Amendment, grants to Congress.  I would hold the statute unconstitutional.

 I respectfully dissent.