msgid "" "FSF's Brief Amicus Curiae, Eldred v. Ashcroft - GNU Project - Free Software " "Foundation" msgstr "" #. type: Attribute 'content' of: <meta> msgid "" "GNU, FSF, Free Software Foundation, GNU, Linux, freedom, software, power, " "rights, copyright, extension, opinion, eldred, ashcroft, mickey mouse, law, " "disney, sonny bono, retroactive, perpetual" msgstr "" #. type: Content of: <div><h2> msgid "FSF's Brief Amicus Curiae, Eldred v. Ashcroft" msgstr "" #. type: Content of: <div><div><p> msgid "" "[This document is also available in <a " "href=\"/philosophy/eldred-amicus.ps\">PostScript</a> and <a " "href=\"/philosophy/eldred-amicus.pdf\">PDF</a> formats.]" msgstr "" #. type: Content of: <div><div><p> msgid "No. 01-618" msgstr "" #. type: Content of: <div><div><p> msgid "I<small>N </small>T<small>HE</small>" msgstr "" #. type: Content of: <div><div><p> msgid "<b>Supreme Court of the United States</b>" msgstr "" #. type: Content of: <div><div><p> msgid "E<small>RIC </small>E<small>LDRED</small>, <i>et al.</i>," msgstr "" #. type: Content of: <div><div><p> msgid "<i>Petitioners,</i>" msgstr "" #. type: Content of: <div><div><p> msgid "v." msgstr "" #. type: Content of: <div><div><p> msgid "J<small>OHN </small>D. A<small>SHCROFT</small>, In his official capacity" msgstr "" #. type: Content of: <div><div><p> msgid "as Attorney General," msgstr "" #. type: Content of: <div><div><p> msgid "<i>Respondent.</i>" msgstr "" #. type: Content of: <div><div><p><b> msgid "<b>On Writ of Certiorari to the United States" msgstr "" #. type: Content of: <div><div><p><b> msgid "Court of Appeals for the" msgstr "" #. type: Content of: <div><div><p> msgid "District of Columbia Circuit</b>" msgstr "" #. type: Content of: <div><div><p><b> msgid "<b>Brief <i>Amicus Curiae</i> of the" msgstr "" #. type: Content of: <div><div><p><b> msgid "Free Software Foundation" msgstr "" #. type: Content of: <div><div><p> msgid "in Support of Petitioners</b>" msgstr "" #. type: Content of: <div><div><address> msgid "E<small>BEN </small>M<small>OGLEN</small>" msgstr "" #. type: Content of: <div><div><address> msgid "<i>Counsel of record</i>" msgstr "" #. type: Content of: <div><div><address> msgid "435 West 116th Street" msgstr "" #. type: Content of: <div><div><address> msgid "New York, NY 10027" msgstr "" #. type: Content of: <div><div><address> msgid "(212) 854-8382" msgstr "" #. type: Content of: <div><div><address> msgid "Counsel for <i>Amicus Curiae</i>" msgstr "" #. type: Content of: <div><div><h3> msgid "Question Presented" msgstr "" #. type: Content of: <div><div><ol><li> msgid "" "Did the Court of Appeals err in holding that, under the Copyright Clause, " "Congress may indefinitely extend the term of existing copyrights by " "<i>seriatim</i> adoption of nominally “limited” extensions?" msgstr "" #. type: Content of: <div><div><h3> msgid "Contents" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html16\" href=\"#SECTION01000000000000000000\">Question " "Presented</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "<a id=\"tex2html17\" href=\"#SECTION02000000000000000000\">Contents</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html18\" href=\"#SECTION03000000000000000000\">Table of " "Authorities</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html19\" href=\"#SECTION04000000000000000000\">Interest of " "<i>Amicus Curiae</i></a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html20\" href=\"#SECTION05000000000000000000\">Summary of " "Argument</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "<a id=\"tex2html21\" href=\"#SECTION06000000000000000000\">Argument</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li> msgid "" "<a id=\"tex2html22\" href=\"#SECTION06010000000000000000\">I. The Framers " "Intended Copyright to Be a Statutory Monopoly Awarded to Works of Authorship " "For A Strictly Limited Time</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li> msgid "" "<a id=\"tex2html23\" href=\"#SECTION06020000000000000000\">II. The " "Historical Policy Embodied in the Copyright Clause is Absolutely Essential " "to Reconcile the Copyright Monopoly with the System of Free Expression</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li><ul><li> msgid "" "<a id=\"tex2html24\" href=\"#SECTION06021000000000000000\">A. Indefinite " "Extension of the Term of Monopoly on Existing Works of Authorship is " "Incompatible with Both the Copyright Clause and the First Amendment</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li><ul><li> msgid "" "<a id=\"tex2html25\" href=\"#SECTION06022000000000000000\">B. The Fifth " "Amendment Prohibits Legislative Action Such as This With Respect to Physical " "Property Rights, and There Is No Constitutional Justification for Permitting " "What Cannot Be Done with Mere Property to be Done with Free Expression</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li> msgid "" "<a id=\"tex2html26\" href=\"#SECTION06030000000000000000\">III. Particular " "Dangers of Abuse and Corruption Justify Strict Constitutional Scrutiny When " "the Term of Statutory Monopolies is Extended</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "<a id=\"tex2html27\" href=\"#SECTION07000000000000000000\">Conclusion</a>" msgstr "" #. type: Content of: <div><div><h3> msgid "Table of Authorities" msgstr "" #. type: Content of: <div><div><div><h4> msgid "<i>Cases</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Abrams v. United States, 250 U.S. 616 (1919) 10" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Darcy v. Allen, (The Case of Monopolies)," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "11 Co. Rep. 84 (1603) 5" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Eldred v. Reno, 239 F.3d 372 (CADC 2001) 7, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Feist Publications, Inc. v. Rural Telephone" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Service, Co., Inc., 499 U.S. 340 (1991) 7,11,12" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Goldstein v. California, 412 U.S. 546 (1973) 12" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Harper & Row, Publishers, Inc. v. Nation" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Enterprises, 471 U.S. 539 (1985) 9" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Hawaii Housing Authority v." msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Midkiff, 467 U.S. 229 (1984) 14" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 10" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Reno v. American Civil Liberties Union," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "521 U.S. 844 (1997) 10" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "San Francisco Arts & Athletics, Inc. v." msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "United States Olympic Committee," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "483 U.S. 522 (1987) 9" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Schnapper v. Foley, 667 F.2d 102 (CADC 1981) 11" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) 11" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Trademark Cases, 100 U.S. 82 (1879) 11" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "West Virginia Board of Education v. Barnette," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "319 U.S. 624 (1943) 10" msgstr "" #. type: Content of: <div><div><div><h4> msgid "<i>Constitutions, Statutes, and Regulations</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "U.S. Const. Art. I, §8, cl. 8 3, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "U.S. Const. Amend. I 7, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "U.S. Const. Amend. V 13,14" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Copyright Act of 1709 (Statute of Anne)," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "8 Anne, c. 19 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Copyright Act of 1790, 1 Stat. 124 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Sonny Bono Copyright Term" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Extension Act, Pub. L. No. 105-298," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Title I, 112 Stat. 2827 3, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Statute of Monopolies, 21 Jac. I, c. 3 5" msgstr "" #. type: Content of: <div><div><div><h4> msgid "<i>Other Materials</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Yochai Benkler, Free as the Air to Common" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Use: First Amendment Constraints on" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Enclosure of the Public Domain," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "74 N.Y.U.L. Rev. 354 (1999) 8" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "William Blackstone, Commentaries on" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "the Laws of England (1769) 5" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "The Charter and General Laws of the Colony" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "and Province of Massachusetts Bay (Boston, 1814) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998) 3" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Thomas I. Emerson, The System of Freedom" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "of Expression (1970) 9" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Max Farrand, The Records of the Federal" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Convention of 1787 (1937) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "George Lee Haskins, Law and Authority" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "in Early Massachusetts (1960) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Melville B. Nimmer, Does Copyright Abridge" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "the First Amendment Guaranties of Free Speech" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "and the Press?, 17 UCLA L. Rev. 1180 (1970) 8" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Mark Rose, Authors and Owners:" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "The Invention of Copyright (1993) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Cecily Violet Wedgwood, The King's Peace (1955) 5" msgstr "" #. type: Content of: <div><h3> msgid "Interest of <i>Amicus Curiae</i>" msgstr "" #. type: Content of: <div><p> msgid "" "This brief is filed on behalf of the Free Software Foundation, a charitable " "corporation with its main offices in Boston, Massachusetts.<a " "id=\"tex2html1\" href=\"#foot151\"><strong>[1]</strong></a> The Foundation " "believes that people should be free to study, share and improve all the " "software they use, as they are free to share and improve all the recipes " "they cook with, and that this right is an essential aspect of the system of " "free expression in a technological society. The Foundation has been working " "to achieve this goal since 1985 by directly developing and distributing, and " "by helping others to develop and distribute, software that is licensed on " "terms that permit all users to copy, modify and redistribute the works, so " "long as they give others the same freedoms to use, modify and redistribute " "in turn. The Foundation is the largest single contributor to the GNU " "operating system (used widely today in its GNU/Linux variant for computers " "from PCs to supercomputer clusters). The Foundation's GNU General Public " "License is the most widely used “free software” license, " "covering major components of the GNU operating system and tens of thousands " "of other computer programs used on tens of millions of computers around the " "world. The Foundation is strongly interested in the use and development of " "copyright law to encourage sharing, and to protect the rights of users and " "the public domain." msgstr "" #. type: Content of: <div><h3> msgid "Summary of Argument" msgstr "" #. type: Content of: <div><blockquote><p> msgid "" "Actually, Sonny [Bono] wanted the term of copyright protection to last " "forever." msgstr "" #. type: Content of: <div><blockquote><p> msgid "--Rep. Mary Bono" msgstr "" #. type: Content of: <div><blockquote><p> msgid "144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)" msgstr "" #. type: Content of: <div><p> msgid "" "If the late Representative Bono believed that was possible, he was " "mistaken. The Court of Appeals erred in holding that Congressmen sharing " "his object can achieve what the Constitution expressly forbids, simply " "because they do so in a series of enactments rather than a single statute." msgstr "" #. type: Content of: <div><p> msgid "" "No one seriously contends that Congress may achieve an expressly " "unauthorized end by dividing the means of its achievement into multiple " "statutes. Yet the Court of Appeals held that, so long as each individual " "statute states a precise numerical increment, Congress can extend the life " "of existing copyrights indefinitely. This conclusion is in direct conflict " "with the language of the Copyright Clause, Article I, §8, cl. 8, " "in its natural sense. The constitutional history of England and British " "North America, moreover, is unambiguous about the importance of " "“limited Times” in the control of all state-awarded monopolies, " "of which genus copyright and patent are species. The very evils that led " "English and British North American constitutional lawyers to insist on the " "strictly limited term of royal and statutory monopolies, and to embody that " "requirement in the Copyright Clause of Article I, are present in the " "retroactive extension of existing copyrights by the Sonny Bono Copyright " "Term Extension Act (CTEA), Pub. L. No. 105-298, Title I, 112 " "Stat. 2827, at issue in this case." msgstr "" #. type: Content of: <div><p> msgid "" "In the sphere of copyright, the limited time requirement protects the public " "domain, by providing for its constant enrichment. The public domain is an " "essential resource of our constitutional system of free expression. As this " "Court has previously recognized, several aspects of the copyright system " "represent constitutionally-required limitations on the nature of the " "monopoly Congress is empowered to grant. The limited term is not only a " "particularly important constitutional limitation on Congressional power by " "virtue of its presence in the text itself—which goes beyond the " "textually-implicit limitations of fair use and the idea-expression " "dichotomy—but also in the function it serves: the protection of the " "common resource of the public domain." msgstr "" #. type: Content of: <div><p> msgid "" "The CTEA unconstitutionally imperils the commons of the public domain by " "flouting the clear intention of the limited term requirement. If Congress " "had acted unilaterally to reduce copyright terms, as the Solicitor General " "seems to believe it may, forcing some material into the public domain " "decades ahead of current schedule, no doubt the copyright industries would " "attack the legislation as a taking. If, on the other hand, Congress acted " "to extend every 50-year lease by the federal government for an additional 99 " "years at the government's current rent, there is no question that " "compensation would be required. Congress should not be permitted to take " "the public's reversionary interest in the public domain, any more than it " "can take a portion of the copyright holder's original term or of any " "leasehold interest in real property. The constitutional system of free " "expression, the language of the Copyright Clause, and the history of our " "tradition demand no less." msgstr "" #. type: Content of: <div><h3> msgid "Argument" msgstr "" #. type: Content of: <div><h4> msgid "" "I. The Framers Intended Copyright to Be a Statutory Monopoly Awarded to " "Works of Authorship For A Strictly Limited Time" msgstr "" #. type: Content of: <div><p> msgid "" "The words “for limited Times” appear in the Copyright Clause, " "Article I, §8, cl. 8 as the result of long and bitter experience " "with the constitutional evil of state-awarded monopolies. From the " "seventeenth century, the requirement of limitation in time was a basic " "constitutional mechanism for dealing with the potential for abuse of power " "inherent in the royal or statutory monopoly. The use by Queen Elizabeth of " "letters patent monopolizing certain trades as a means of raising money from " "bidders for monopoly profits gave rise to the case of <i>Darcy</i> " "v. <i>Allen</i>, (<i>The Case of Monopolies</i>), 11 Co. Rep. 84 (1603), in " "which a royal patent monopoly on the making and distribution of playing " "cards was held void. Parliament followed in 1624 with the Statute of " "Monopolies, 21 Jac. I, c. 3, which declared that only Parliament " "might grant statutory monopolies, limited to new inventions, for a period " "not to exceed fourteen years. <i>See</i> 4 William Blackstone, " "<i>Commentaries on the Laws of England</i> *159 (1769). This constitutional " "limitation was evaded by Charles I during his period of despotic personal " "rule; the resulting royal monopolies formed a significant grievance in the " "years leading up to the English Civil War. <i>See</i> Cecily Violet " "Wedgwood, <i>The King's Peace</i> 156-62 (1955)." msgstr "" #. type: Content of: <div><p> msgid "" "American colonists at odds with the government of Charles I perceived the " "evil of governmental monopolies; in the Massachusetts Bay Colony as early as " "1641, the Colony's General Court decreed that “there shall be no " "monopolies granted or allowed amongst us, but of such new inventions that " "are profitable to the country, and that for a short time.” <i>The " "Charter and General Laws of the Colony and Province of Massachusetts Bay</i> " "170 (Boston, 1814); see also George Lee Haskins, <i>Law and Authority in " "Early Massachusetts</i> 130 (1960)." msgstr "" #. type: Content of: <div><p> msgid "" "When the Copyright Act of 1709, the famous “Statute of Anne,” " "was framed, the drafters insisted on a limited term far more stringent than " "authors, including John Locke, had proposed; they adopted the fourteen-year " "limit from the Statute of Monopolies. <i>See</i> Mark Rose, <i>Authors and " "Owners: The Invention of Copyright</i> 44-47 (1993). The term provided by " "the Statute of Anne, fourteen years with a renewal of fourteen years if the " "author survived the first term, was adopted by First Congress in the " "Copyright Act of 1790. <i>See</i> Copyright Act of 1709, 8 Anne, " "c. 19; Act of May 31, 1790, 1 Stat. 124-25." msgstr "" #. type: Content of: <div><p> msgid "" "The Framers of the Constitution unanimously accepted the idea of the limited " "term for copyrights in the drafting of Article I, without substantial " "discussion. <i>See</i> 2 Max Farrand, <i>The Records of the Federal " "Convention of 1787</i>, at 321-325, 505-510, 570, 595 (1937).<a " "id=\"tex2html2\" href=\"#foot152\"><strong>[2]</strong></a> In doing so, as " "the subsequent employment in the Copyright Act of 1790 of the term of years " "from the Statute of Monopolies shows, the Framers and the First Congress " "acted in full awareness of the long history of attempts to control the harm " "done by statutory monopolies by limiting their term." msgstr "" #. type: Content of: <div><p> msgid "" "The constitutional importance of the “limited Times” restriction " "cannot be vitiated, as the Court of Appeals' reasoning would do, by " "affording Congress the opportunity to create perpetuities on the installment " "plan, any more than Congress can eliminate the constitutional requirement of " "originality. <i>Feist Publications, Inc.</i> v. <i>Rural Telephone Service, " "Co., Inc.</i>, 499 U.S. 340, 346-347 (1991). The Court of Appeals erred " "fundamentally in its conclusion that there is “nothing in text or in " "history that suggests that a term of years for a copyright is not a " "‘limited Time’ if it may later be extended for another " "‘limited Time.’” <i>Eldred</i> v. <i>Reno</i>, 239 F.3d " "372, 379 (CADC 2001). In this regard, the CTEA should not be judged in " "isolation. The question is whether there is anything in text or history " "rendering constitutionally objectionable the eleven extensions of the " "monopoly term in the last forty years, resulting in a virtual cessation of " "enlargements to the public domain, capped by the statute before the Court, " "which postpones the reversion on every single existing copyright for " "decades." msgstr "" #. type: Content of: <div><h4> msgid "" "II. The Historical Policy Embodied in the Copyright Clause is Absolutely " "Essential to Reconcile the Copyright Monopoly with the System of Free " "Expression" msgstr "" #. type: Content of: <div><p> msgid "" "As important as the principle of limited time is in the general restraint of " "the harms that flow from statutory monopolies, in the area of copyright it " "has an even more crucial purpose to serve. The limited term of copyright " "ensures the steady replenishment of the public domain, the vast repository " "of the common culture of humankind. The public domain is the springboard of " "societal creativity, the zone of free reproduction and exchange that makes " "innovation possible. As Yochai Benkler has elegantly shown, the existence " "of a vital and expanding public domain reconciles the exclusive rights of " "the copyright system with the underlying goals of the system of free " "expression protected by the First Amendment. <i>See</i> Yochai Benkler, " "<i>Free as the Air to Common Use: First Amendment Constraints on Enclosure " "of the Public Domain</i>, 74 N.Y.U.L. Rev. 354, 386-394 (1999). The Court " "below erred in its facile dismissal of petitioners' First Amendment " "concerns. That Court first held in its opinion that the First Amendment's " "requirements are “categorically” satisfied by the distinction " "between expression and idea, and then that any material covered by copyright " "but subject to the defense of fair use is therefore so copiously protected " "for purposes of free expression that no First Amendment claim can possibly " "lie. 239 F.3d, at 375-376." msgstr "" #. type: Content of: <div><p> msgid "" "This position simply cannot be right. The Court below conceded that an " "attempt by Congress to make copyright perpetual <i>in haec verba</i> would " "be prohibited by the language of the Copyright Clause. <i>Id.</i>, at 377. " "But even if the subterfuge of achieving perpetuity piecemeal, by repeated " "retroactive extensions, somehow evades the plain command of the Copyright " "Clause, it does not thus render impotent the First Amendment. As the great " "copyright scholar Melville Nimmer asked:" msgstr "" #. type: Content of: <div><blockquote><p> msgid "" "If I may own Blackacre in perpetuity, why not also <i>Black Beauty</i>? The " "answer lies in the first amendment. There is no countervailing speech " "interest which must be balanced against perpetual ownership of tangible real " "and personal property. There is such a speech interest, with respect to " "literary property, or copyright." msgstr "" #. type: Content of: <div><p> msgid "" "Melville B. Nimmer, <i>Does Copyright Abridge the First Amendment Guaranties " "of Free Speech and the Press?</i>, 17 UCLA L. Rev. 1180, 1193 (1970)." msgstr "" #. type: Content of: <div><p> msgid "" "Nor has the Court of Appeals' position any support in the holdings of this " "Court. On the contrary, as this Court's cases make clear, copyright and " "related statutory monopolies in expression must conform like any other " "regulation of speech to the requirements of the First Amendment. In " "<i>Harper & Row, Publishers, Inc.</i> v. <i>Nation Enterprises</i>, 471 " "U.S. 539 (1985), this Court rejected what it characterized as “a " "public figure exception to copyright,” because it found sufficient " "“the First Amendment protections already embodied in the Copyright " "Act's distinction between … facts and ideas, and the latitude for " "scholarship and comment traditionally afforded by fair use.” " "<i>Id.</i>, at 560. Thus, the Court said, it found “no warrant” " "for a further expansion of the doctrine of fair use. <i>Id.</i> This by no " "means implies, as the Court of Appeals somehow concluded, that <i>Harper " "& Row</i> stands as an “insuperable” bar to all First " "Amendment challenges to all subsequent copyright statutes. <i>See</i> 239 " "F.3d, at 375. In <i>San Francisco Arts & Athletics, Inc.</i> " "v. <i>United States Olympic Committee</i>, 483 U.S. 522 (1987), this Court " "applied standard First Amendment analysis to a statute conveying special " "quasi-trademark protection to the word “Olympic,” asking " "“whether the incidental restrictions on First Amendment freedoms are " "greater than necessary to further a substantial government interest.” " "<i>Id.</i>, at 537 (citation omitted)." msgstr "" #. type: Content of: <div><p> msgid "" "The First Amendment abhors the vacuum of limited expression. The making of " "new works by the criticism, imitation, revision, and rearrangement of " "existing material is the hallmark of literate culture in all the arts and " "sciences. The First Amendment establishes not merely a series of " "independent doctrines, but a “system of free expression.” " "<i>See</i> Thomas I. Emerson, <i>The System of Freedom of Expression</i> " "(1970). Our constitutional commitments to an “uninhibited, robust, " "and wide-open” public debate, <i>New York Times Co.</i> " "v. <i>Sullivan</i>, 376 U.S. 254, 270 (1964), a “marketplace of " "ideas,” <i>Reno</i> v. <i>American Civil Liberties Union</i>, 521 " "U.S. 844, 885 (1997); <i>cf.</i> <i>Abrams</i> v. <i>United States</i>, 250 " "U.S. 616, 630 (1919), where there shall be no power to “prescribe what " "shall be orthodox” <i>West Virginia Board of Education</i> " "v. <i>Barnette</i>, 319 U.S. 624, 642 (1943), require us to view with great " "skepticism all restrictions on the formation and expression of ideas. Laws " "tending to establish monopolies in the expression of ideas must pass the " "exacting scrutiny that protects our most fundamental freedoms. The " "Copyright Clause does not exempt the legislation enacted under it from such " "scrutiny, but rather establishes principles that enable statutory monopolies " "and freedom of expression to coexist. Of these, the principle of limitation " "in time is far from the least important. By refusing to consider the effect " "of the instant legislation in the broader context of a Congressional policy " "of piecemeal, indefinite, wholesale extension of copyrights, and in relation " "to the purposes established by the Copyright Clause itself, the Court of " "Appeals failed in its duty to protect the invaluable interests of the system " "of free expression." msgstr "" #. type: Content of: <div><h5> msgid "" "A. Indefinite Extension of the Term of Monopoly on Existing Works of " "Authorship is Incompatible with Both the Copyright Clause and the First " "Amendment" msgstr "" #. type: Content of: <div><p> msgid "" "Precisely because the creation of exclusive rights in expressions inevitably " "involves some danger of the monopolization of ideas, it is crucial to the " "coexistence of copyright and the First Amendment that all exclusive rights " "over expressions are limited in time. At some specific moment, all " "exclusionary rights must end. Under our Constitution, the reversion of " "every work of authorship is irrevocably vested in the public." msgstr "" #. type: Content of: <div><p> msgid "" "This reversion is not constitutionally optional. In the context of patents, " "this Court has described the reversion as a “condition” that the " "work subject to temporary statutory monopoly will pass into the public " "domain upon the patent's expiration. <i>Singer Mfg. Co.</i> v. <i>June " "Mfg. Co.</i>, 163 U.S. 169, 185 (1896)." msgstr "" #. type: Content of: <div><p> msgid "" "Notwithstanding this evident constitutional principle, the Court of Appeals " "held that Congress may create a perpetuity in copyrights so long as it does " "so sequentially, by repeatedly extending all existing copyrights for " "nominally “limited” terms. This holding contradicts the spirit " "of both the Copyright Clause and the First Amendment. The Court of Appeals " "erroneously held, following its own precedent, <i>see</i> <i>Schnapper</i> " "v. <i>Foley</i>, 667 F.2d 102, 112 (1981), that the single phrase comprising " "the Copyright Clause, empowering Congress “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,” imposes no substantive limitation on Congress through " "its declaration of purpose. But the Court of Appeals acknowledged, as it " "must, that this Court's cases show clearly that Congressional power is " "indeed limited by the Copyright Clause, and so its effort is bent to the " "disintegration of a single phrase of twenty-seven words, directed at showing " "that the first nine are somehow constitutionally irrelevant." msgstr "" #. type: Content of: <div><p> msgid "" "This Court first held in the <i>Trademark Cases</i>, 100 U.S. 82 (1879), and " "reaffirmed in <i>Feist, supra</i>, 499 U.S., at 346-47, that Congress cannot " "constitutionally dilute the requirement of originality, by extending " "copyright coverage to works of authorship that make use of expressions " "already in existence, or in which the author's effort in collection and " "arrangement of existing information does not establish that “modicum " "of creativity” the Constitution requires. According to the Court of " "Appeals, however, the principle of originality emerges solely from the words " "“Writing” and “Author,” taking not the slightest " "support from the declaration of purpose that begins the Copyright Clause." msgstr "" #. type: Content of: <div><p> msgid "" "The Copyright Clause is unique among the enumerations of legislative power " "in Article I, §8 in containing a declaration of purpose; it alone " "“describes both the objective which Congress may seek and the means to " "achieve it.” <i>Goldstein</i> v. <i>California</i>, 412 U.S. 546, 555 " "(1973). Adopting a reading of the clause that denies legal effect to the " "words the drafters specifically and atypically included is an implausible " "style of constitutional construction." msgstr "" #. type: Content of: <div><p> msgid "" "Even without reference to the beginning of the clause, however, this Court's " "prior opinions show that the Court of 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 " "interlocking extensions beginning in 1962, holding substantially all works " "with otherwise-expiring copyrights out of the public domain for a " "generation—the CTEA's extension of existing terms for another twenty " "years raises no substantive constitutional question because the new " "twenty-year extension period is numerically definite. The same formal, " "anti-contextual approach to the words would result, however, in the result " "rejected by this Court in <i>Feist</i>: telephone directories are undeniably " "“writings” in the same crabbed sense that the term extension " "contained in the CTEA is “limited.”" msgstr "" #. type: Content of: <div><h5> msgid "" "B. The Fifth Amendment Prohibits Legislative Action Such as This With " "Respect to Physical Property Rights, and There Is No Constitutional " "Justification for Permitting What Cannot Be Done with Mere Property to be " "Done with Free Expression" msgstr "" #. type: Content of: <div><p> msgid "" "On the logic of the Court of Appeals' holding, which is apparently supported " "in this Court by the Solicitor General, Congress could pass a statute " "shortening the term of existing copyrights, reallocating a large body of " "currently-covered works to the public domain. If the statute simply " "provided that the term of copyright be reduced to fourteen years, according " "to the Court of Appeals, that would satisfy the requirement of " "“limited Times,” and there would be no occasion for the Courts " "to inquire into whether such a change promoted the progress of science and " "the useful arts, though copyright holders could well be expected to contend " "that such an alteration of the duration of existing copyrights deprived them " "of the benefit that the “copyright bargain” supposedly " "“secures” them." msgstr "" #. type: Content of: <div><p> msgid "" "But the copyright bargain faces two ways: “securing” authors " "their limited monopoly in return for the reversion to the public. " "Increasing the reversionary interest at the expense of the first estate is " "conceptually no different than increasing the copyright holder's monopoly at " "the expense of the reversionary interest, which is that of the whole society " "and the system of free expression. Shrinking or eliminating the public " "domain in order to increase the benefit to the monopolists, whose works have " "already been created in reliance on the previous allocation of rights, " "neither promotes the progress of knowledge nor respects the " "critically-important free speech interest in the health of the public " "domain.<a id=\"tex2html3\" href=\"#foot138\"><strong>[3]</strong></a>" msgstr "" #. type: Content of: <div><p> msgid "" "Nor would the Takings Clause of the Fifth Amendment permit such " "uncompensated legislative adjustment of the terms of interest in real " "property. Copyright—not surprisingly in view of its common law " "origins—adopts an essentially familiar structure of " "“estates” in works of authorship, beginning with a conveyance " "for term of years or a life interest plus a term of years, with a reversion " "to the public domain. This Court has held that legislative alteration of " "such estates that destroys or limits the reversionary interest in real " "property in order to achieve redistribution between private parties is " "“public use” within the meaning of the Takings Clause, and is " "constitutional if compensated. <i>Hawaii Housing Authority</i> " "v. <i>Midkiff</i>, 467 U.S. 229 (1984). But it has never been suggested " "that Congress or a state legislature could achieve a similarly vast wealth " "transfer to present lessees through the extension of the terms of all " "existing leases, extinguishing or indefinitely postponing the reversionary " "interest, without paying compensation." msgstr "" #. type: Content of: <div><p> msgid "" "What the Fifth Amendment prohibits with respect to interference with " "existing rights in real property should not be permissible where the rights " "being destroyed by legislative changes in property rules are rights to the " "freedom of speech and publication. The Court of Appeals dismissively viewed " "petitioners as seeking to enforce rights to use the copyrighted works of " "others. 239 F.3d, at 376. On the contrary, petitioners claim only their " "constitutional entitlement to use the works that would have entered the " "public domain, as required by the law in effect at the time the particular " "statutory monopolies at issue were granted, had it not been for " "unconstitutional Congressional interference." msgstr "" #. type: Content of: <div><h4> msgid "" "III. Particular Dangers of Abuse and Corruption Justify Strict " "Constitutional Scrutiny When the Term of Statutory Monopolies is Extended" msgstr "" #. type: Content of: <div><p> msgid "" "During the first century of our Republic, the term of copyright was extended " "once. During the next seventy years, it was extended once more. Since " "1962, copyright terms have been extended regularly, in increments ranging " "from one year to twenty years, and the flow of US-copyrighted works into the " "public domain has nearly ceased. The statute before this Court postpones " "rights in material protected by the First Amendment to any but the holders " "of statutory monopolies for an additional generation." msgstr "" #. type: Content of: <div><p> msgid "" "No pattern of legislation could more clearly indicate the presence of the " "very evils against which the Framers of the Constitution and their forebears " "contended, and which gave rise to the Copyright Clause and its requirement " "for “limited Times.” When our predecessors in the struggle for " "constitutional liberty perceived a danger from corruption in the grant of " "monopolies, the danger they apprehended was from the executive, which might " "use its power to grant such monopolies to raise money independent of the " "legislature. In our time the risk is that the legislature, which is granted " "the power to create such monopolies by Article I, §8, will use that " "power to benefit copyright holders at the expense of the public domain. " "Such a purpose—to turn the system of free expression into a series of " "private fiefdoms for the benefit of monopolists, who may choose to rebate a " "small portion of the monopoly rents thus extracted from the population in " "the form of campaign contributions—is forbidden to Congress by the " "plain wording of the Copyright Clause and by the First Amendment. The use " "of repeated interim extensions to achieve the effect of a perpetuity is not " "less dangerous than the single enactment that all parties concede would be " "unconstitutional. On the contrary, such a legislative practice increases " "the dangers of corruption without reducing the harm to the public domain." msgstr "" #. type: Content of: <div><h3> msgid "Conclusion" msgstr "" #. type: Content of: <div><p> msgid "" "Perhaps the late Representative Bono did indeed believe that copyright " "should last forever. That any legislator could hold that view suggests the " "degree of danger to a fundamental part of the system of free expression into " "which we have drifted. This Court should hold that the extension of " "existing copyright terms in the CTEA violates the requirements of the " "Copyright Clause and the First Amendment. The decision of the Court of " "Appeals should be reversed." msgstr "" #. type: Content of: <div><p> msgid "Respectfully submitted." msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"foot151\" href=\"#tex2html1\"><sup>1</sup></a> Counsel for both " "parties have consented to the filing of this brief, and those consents have " "been filed with the Clerk of this Court. No counsel for either party had " "any role in authoring this brief, and no person other than the <i>amicus</i> " "and its counsel made any monetary contribution to its preparation and " "submission." msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"foot152\" href=\"#tex2html2\"><sup>2</sup></a> The only amendment " "made was in the replacement of the phrase originally suggested by Charles " "Pinckney of South Carolina, that monopolies be granted for a " "“certain” time. <i>See</i> 3 <i>id.</i>, at 122." msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"foot138\" href=\"#tex2html3\"><sup>3</sup></a> The Court of Appeals " "minimized the importance of the impoverishment of the public domain when it " "maintained that “[p]reserving access to works that would otherwise " "disappear—not enter the public domain but " "disappear—‘promotes Progress’ as surely as does " "stimulating the creation of new works.” 239 F.3d, at 379. This is an " "apparent reference to claims made by copyright holders in the legislative " "process that certain classes of works, particularly films, would not be " "physically preserved unless the copyright monopoly were extended. It is " "sufficient to point out that such a principle for the award of copyright " "monopolies conflicts with the constitutionally mandated requirement of " "originality: Congress cannot elect to preserve books, films, or music by " "conveying to the conservator a statutory monopoly of copying and " "distribution lasting decades." msgstr "" #. TRANSLATORS: Use space (SPC) as msgstr if you don't have notes. #. type: Content of: <div> msgid "*GNUN-SLOT: TRANSLATOR'S NOTES*" msgstr "" #. type: Content of: <div><div><p> msgid "" "Please send general FSF & GNU inquiries to <a " "href=\"mailto:gnu@gnu.org\"><gnu@gnu.org></a>. There are also <a " "href=\"/contact/\">other ways to contact</a> the FSF. Broken links and " "other corrections or suggestions can be sent to <a " "href=\"mailto:webmasters@gnu.org\"><webmasters@gnu.org></a>." msgstr "" #. TRANSLATORS: Ignore the original text in this paragraph, #. replace it with the translation of these two: # #. We work hard and do our best to provide accurate, good quality #. translations. However, we are not exempt from imperfection. #. Please send your comments and general suggestions in this regard #. to <a href="mailto:web-translators@gnu.org"> # #. <web-translators@gnu.org></a>.</p> # #. <p>For information on coordinating and contributing translations of #. our web pages, see <a #. href="/server/standards/README.translations.html">Translations #. README</a>. #. type: Content of: <div><div><p> msgid "" "Please see the <a " "href=\"/server/standards/README.translations.html\">Translations README</a> " "for information on coordinating and contributing translations of this " "article." msgstr "" #. type: Content of: <div><p> msgid "Copyright © 2002 Eben Moglen" msgstr "" #. type: Content of: <div><p> msgid "" "Verbatim copying and distribution of this entire article are permitted " "worldwide, without royalty, in any medium, provided this notice, and the " "copyright notice, are preserved." msgstr "" #. TRANSLATORS: Use space (SPC) as msgstr if you don't want credits. #. type: Content of: <div><div> msgid "*GNUN-SLOT: TRANSLATOR'S CREDITS*" msgstr "" #. timestamp start #. type: Content of: <div><p> msgid "Updated:" msgstr ""

# LANGUAGE translation of https://www.gnu.org/philosophy/eldred-amicus.html # Copyright (C) YEAR Free Software Foundation, Inc. # This file is distributed under the same license as the original article. # FIRST AUTHOR , YEAR. # #, fuzzy msgid "" msgstr "" "Project-Id-Version: eldred-amicus.html\n" "POT-Creation-Date: 2021-09-04 09:55+0000\n" "PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n" "Last-Translator: FULL NAME \n" "Language-Team: LANGUAGE \n" "Language: \n" "MIME-Version: 1.0\n" "Content-Type: text/plain; charset=CHARSET\n" "Content-Transfer-Encoding: 8bit\n" #. type: Content of: msgid "" "FSF's Brief Amicus Curiae, Eldred v. Ashcroft - GNU Project - Free Software " "Foundation" msgstr "" #. type: Attribute 'content' of: <meta> msgid "" "GNU, FSF, Free Software Foundation, GNU, Linux, freedom, software, power, " "rights, copyright, extension, opinion, eldred, ashcroft, mickey mouse, law, " "disney, sonny bono, retroactive, perpetual" msgstr "" #. type: Content of: <div><h2> msgid "FSF's Brief Amicus Curiae, Eldred v. Ashcroft" msgstr "" #. type: Content of: <div><div><p> msgid "" "[This document is also available in <a " "href=\"/philosophy/eldred-amicus.ps\">PostScript</a> and <a " "href=\"/philosophy/eldred-amicus.pdf\">PDF</a> formats.]" msgstr "" #. type: Content of: <div><div><p> msgid "No. 01-618" msgstr "" #. type: Content of: <div><div><p> msgid "I<small>N </small>T<small>HE</small>" msgstr "" #. type: Content of: <div><div><p> msgid "<b>Supreme Court of the United States</b>" msgstr "" #. type: Content of: <div><div><p> msgid "E<small>RIC </small>E<small>LDRED</small>, <i>et al.</i>," msgstr "" #. type: Content of: <div><div><p> msgid "<i>Petitioners,</i>" msgstr "" #. type: Content of: <div><div><p> msgid "v." msgstr "" #. type: Content of: <div><div><p> msgid "J<small>OHN </small>D. A<small>SHCROFT</small>, In his official capacity" msgstr "" #. type: Content of: <div><div><p> msgid "as Attorney General," msgstr "" #. type: Content of: <div><div><p> msgid "<i>Respondent.</i>" msgstr "" #. type: Content of: <div><div><p><b> msgid "<b>On Writ of Certiorari to the United States" msgstr "" #. type: Content of: <div><div><p><b> msgid "Court of Appeals for the" msgstr "" #. type: Content of: <div><div><p> msgid "District of Columbia Circuit</b>" msgstr "" #. type: Content of: <div><div><p><b> msgid "<b>Brief <i>Amicus Curiae</i> of the" msgstr "" #. type: Content of: <div><div><p><b> msgid "Free Software Foundation" msgstr "" #. type: Content of: <div><div><p> msgid "in Support of Petitioners</b>" msgstr "" #. type: Content of: <div><div><address> msgid "E<small>BEN </small>M<small>OGLEN</small>" msgstr "" #. type: Content of: <div><div><address> msgid "<i>Counsel of record</i>" msgstr "" #. type: Content of: <div><div><address> msgid "435 West 116th Street" msgstr "" #. type: Content of: <div><div><address> msgid "New York, NY 10027" msgstr "" #. type: Content of: <div><div><address> msgid "(212) 854-8382" msgstr "" #. type: Content of: <div><div><address> msgid "Counsel for <i>Amicus Curiae</i>" msgstr "" #. type: Content of: <div><div><h3> msgid "Question Presented" msgstr "" #. type: Content of: <div><div><ol><li> msgid "" "Did the Court of Appeals err in holding that, under the Copyright Clause, " "Congress may indefinitely extend the term of existing copyrights by " "<i>seriatim</i> adoption of nominally “limited” extensions?" msgstr "" #. type: Content of: <div><div><h3> msgid "Contents" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html16\" href=\"#SECTION01000000000000000000\">Question " "Presented</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "<a id=\"tex2html17\" href=\"#SECTION02000000000000000000\">Contents</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html18\" href=\"#SECTION03000000000000000000\">Table of " "Authorities</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html19\" href=\"#SECTION04000000000000000000\">Interest of " "<i>Amicus Curiae</i></a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"tex2html20\" href=\"#SECTION05000000000000000000\">Summary of " "Argument</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "<a id=\"tex2html21\" href=\"#SECTION06000000000000000000\">Argument</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li> msgid "" "<a id=\"tex2html22\" href=\"#SECTION06010000000000000000\">I. The Framers " "Intended Copyright to Be a Statutory Monopoly Awarded to Works of Authorship " "For A Strictly Limited Time</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li> msgid "" "<a id=\"tex2html23\" href=\"#SECTION06020000000000000000\">II. The " "Historical Policy Embodied in the Copyright Clause is Absolutely Essential " "to Reconcile the Copyright Monopoly with the System of Free Expression</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li><ul><li> msgid "" "<a id=\"tex2html24\" href=\"#SECTION06021000000000000000\">A. Indefinite " "Extension of the Term of Monopoly on Existing Works of Authorship is " "Incompatible with Both the Copyright Clause and the First Amendment</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li><ul><li> msgid "" "<a id=\"tex2html25\" href=\"#SECTION06022000000000000000\">B. The Fifth " "Amendment Prohibits Legislative Action Such as This With Respect to Physical " "Property Rights, and There Is No Constitutional Justification for Permitting " "What Cannot Be Done with Mere Property to be Done with Free Expression</a>" msgstr "" #. type: Content of: <div><div><ul><li><ul><li> msgid "" "<a id=\"tex2html26\" href=\"#SECTION06030000000000000000\">III. Particular " "Dangers of Abuse and Corruption Justify Strict Constitutional Scrutiny When " "the Term of Statutory Monopolies is Extended</a>" msgstr "" #. type: Content of: <div><div><ul><li> msgid "<a id=\"tex2html27\" href=\"#SECTION07000000000000000000\">Conclusion</a>" msgstr "" #. type: Content of: <div><div><h3> msgid "Table of Authorities" msgstr "" #. type: Content of: <div><div><div><h4> msgid "<i>Cases</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Abrams v. United States, 250 U.S. 616 (1919) 10" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Darcy v. Allen, (The Case of Monopolies)," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "11 Co. Rep. 84 (1603) 5" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Eldred v. Reno, 239 F.3d 372 (CADC 2001) 7, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Feist Publications, Inc. v. Rural Telephone" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Service, Co., Inc., 499 U.S. 340 (1991) 7,11,12" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Goldstein v. California, 412 U.S. 546 (1973) 12" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Harper & Row, Publishers, Inc. v. Nation" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Enterprises, 471 U.S. 539 (1985) 9" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Hawaii Housing Authority v." msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Midkiff, 467 U.S. 229 (1984) 14" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 10" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Reno v. American Civil Liberties Union," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "521 U.S. 844 (1997) 10" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "San Francisco Arts & Athletics, Inc. v." msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "United States Olympic Committee," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "483 U.S. 522 (1987) 9" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Schnapper v. Foley, 667 F.2d 102 (CADC 1981) 11" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169 (1896) 11" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Trademark Cases, 100 U.S. 82 (1879) 11" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "West Virginia Board of Education v. Barnette," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "319 U.S. 624 (1943) 10" msgstr "" #. type: Content of: <div><div><div><h4> msgid "<i>Constitutions, Statutes, and Regulations</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "U.S. Const. Art. I, §8, cl. 8 3, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "U.S. Const. Amend. I 7, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "U.S. Const. Amend. V 13,14" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Copyright Act of 1709 (Statute of Anne)," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "8 Anne, c. 19 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Copyright Act of 1790, 1 Stat. 124 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Sonny Bono Copyright Term" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Extension Act, Pub. L. No. 105-298," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Title I, 112 Stat. 2827 3, <i>passim</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Statute of Monopolies, 21 Jac. I, c. 3 5" msgstr "" #. type: Content of: <div><div><div><h4> msgid "<i>Other Materials</i>" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Yochai Benkler, Free as the Air to Common" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Use: First Amendment Constraints on" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Enclosure of the Public Domain," msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "74 N.Y.U.L. Rev. 354 (1999) 8" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "William Blackstone, Commentaries on" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "the Laws of England (1769) 5" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "The Charter and General Laws of the Colony" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "and Province of Massachusetts Bay (Boston, 1814) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998) 3" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Thomas I. Emerson, The System of Freedom" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "of Expression (1970) 9" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Max Farrand, The Records of the Federal" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Convention of 1787 (1937) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "George Lee Haskins, Law and Authority" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "in Early Massachusetts (1960) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Melville B. Nimmer, Does Copyright Abridge" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "the First Amendment Guaranties of Free Speech" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "and the Press?, 17 UCLA L. Rev. 1180 (1970) 8" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Mark Rose, Authors and Owners:" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "The Invention of Copyright (1993) 6" msgstr "" #. type: Content of: <div><div><div><ul><li> msgid "Cecily Violet Wedgwood, The King's Peace (1955) 5" msgstr "" #. type: Content of: <div><h3> msgid "Interest of <i>Amicus Curiae</i>" msgstr "" #. type: Content of: <div><p> msgid "" "This brief is filed on behalf of the Free Software Foundation, a charitable " "corporation with its main offices in Boston, Massachusetts.<a " "id=\"tex2html1\" href=\"#foot151\"><strong>[1]</strong></a> The Foundation " "believes that people should be free to study, share and improve all the " "software they use, as they are free to share and improve all the recipes " "they cook with, and that this right is an essential aspect of the system of " "free expression in a technological society. The Foundation has been working " "to achieve this goal since 1985 by directly developing and distributing, and " "by helping others to develop and distribute, software that is licensed on " "terms that permit all users to copy, modify and redistribute the works, so " "long as they give others the same freedoms to use, modify and redistribute " "in turn. The Foundation is the largest single contributor to the GNU " "operating system (used widely today in its GNU/Linux variant for computers " "from PCs to supercomputer clusters). The Foundation's GNU General Public " "License is the most widely used “free software” license, " "covering major components of the GNU operating system and tens of thousands " "of other computer programs used on tens of millions of computers around the " "world. The Foundation is strongly interested in the use and development of " "copyright law to encourage sharing, and to protect the rights of users and " "the public domain." msgstr "" #. type: Content of: <div><h3> msgid "Summary of Argument" msgstr "" #. type: Content of: <div><blockquote><p> msgid "" "Actually, Sonny [Bono] wanted the term of copyright protection to last " "forever." msgstr "" #. type: Content of: <div><blockquote><p> msgid "--Rep. Mary Bono" msgstr "" #. type: Content of: <div><blockquote><p> msgid "144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)" msgstr "" #. type: Content of: <div><p> msgid "" "If the late Representative Bono believed that was possible, he was " "mistaken. The Court of Appeals erred in holding that Congressmen sharing " "his object can achieve what the Constitution expressly forbids, simply " "because they do so in a series of enactments rather than a single statute." msgstr "" #. type: Content of: <div><p> msgid "" "No one seriously contends that Congress may achieve an expressly " "unauthorized end by dividing the means of its achievement into multiple " "statutes. Yet the Court of Appeals held that, so long as each individual " "statute states a precise numerical increment, Congress can extend the life " "of existing copyrights indefinitely. This conclusion is in direct conflict " "with the language of the Copyright Clause, Article I, §8, cl. 8, " "in its natural sense. The constitutional history of England and British " "North America, moreover, is unambiguous about the importance of " "“limited Times” in the control of all state-awarded monopolies, " "of which genus copyright and patent are species. The very evils that led " "English and British North American constitutional lawyers to insist on the " "strictly limited term of royal and statutory monopolies, and to embody that " "requirement in the Copyright Clause of Article I, are present in the " "retroactive extension of existing copyrights by the Sonny Bono Copyright " "Term Extension Act (CTEA), Pub. L. No. 105-298, Title I, 112 " "Stat. 2827, at issue in this case." msgstr "" #. type: Content of: <div><p> msgid "" "In the sphere of copyright, the limited time requirement protects the public " "domain, by providing for its constant enrichment. The public domain is an " "essential resource of our constitutional system of free expression. As this " "Court has previously recognized, several aspects of the copyright system " "represent constitutionally-required limitations on the nature of the " "monopoly Congress is empowered to grant. The limited term is not only a " "particularly important constitutional limitation on Congressional power by " "virtue of its presence in the text itself—which goes beyond the " "textually-implicit limitations of fair use and the idea-expression " "dichotomy—but also in the function it serves: the protection of the " "common resource of the public domain." msgstr "" #. type: Content of: <div><p> msgid "" "The CTEA unconstitutionally imperils the commons of the public domain by " "flouting the clear intention of the limited term requirement. If Congress " "had acted unilaterally to reduce copyright terms, as the Solicitor General " "seems to believe it may, forcing some material into the public domain " "decades ahead of current schedule, no doubt the copyright industries would " "attack the legislation as a taking. If, on the other hand, Congress acted " "to extend every 50-year lease by the federal government for an additional 99 " "years at the government's current rent, there is no question that " "compensation would be required. Congress should not be permitted to take " "the public's reversionary interest in the public domain, any more than it " "can take a portion of the copyright holder's original term or of any " "leasehold interest in real property. The constitutional system of free " "expression, the language of the Copyright Clause, and the history of our " "tradition demand no less." msgstr "" #. type: Content of: <div><h3> msgid "Argument" msgstr "" #. type: Content of: <div><h4> msgid "" "I. The Framers Intended Copyright to Be a Statutory Monopoly Awarded to " "Works of Authorship For A Strictly Limited Time" msgstr "" #. type: Content of: <div><p> msgid "" "The words “for limited Times” appear in the Copyright Clause, " "Article I, §8, cl. 8 as the result of long and bitter experience " "with the constitutional evil of state-awarded monopolies. From the " "seventeenth century, the requirement of limitation in time was a basic " "constitutional mechanism for dealing with the potential for abuse of power " "inherent in the royal or statutory monopoly. The use by Queen Elizabeth of " "letters patent monopolizing certain trades as a means of raising money from " "bidders for monopoly profits gave rise to the case of <i>Darcy</i> " "v. <i>Allen</i>, (<i>The Case of Monopolies</i>), 11 Co. Rep. 84 (1603), in " "which a royal patent monopoly on the making and distribution of playing " "cards was held void. Parliament followed in 1624 with the Statute of " "Monopolies, 21 Jac. I, c. 3, which declared that only Parliament " "might grant statutory monopolies, limited to new inventions, for a period " "not to exceed fourteen years. <i>See</i> 4 William Blackstone, " "<i>Commentaries on the Laws of England</i> *159 (1769). This constitutional " "limitation was evaded by Charles I during his period of despotic personal " "rule; the resulting royal monopolies formed a significant grievance in the " "years leading up to the English Civil War. <i>See</i> Cecily Violet " "Wedgwood, <i>The King's Peace</i> 156-62 (1955)." msgstr "" #. type: Content of: <div><p> msgid "" "American colonists at odds with the government of Charles I perceived the " "evil of governmental monopolies; in the Massachusetts Bay Colony as early as " "1641, the Colony's General Court decreed that “there shall be no " "monopolies granted or allowed amongst us, but of such new inventions that " "are profitable to the country, and that for a short time.” <i>The " "Charter and General Laws of the Colony and Province of Massachusetts Bay</i> " "170 (Boston, 1814); see also George Lee Haskins, <i>Law and Authority in " "Early Massachusetts</i> 130 (1960)." msgstr "" #. type: Content of: <div><p> msgid "" "When the Copyright Act of 1709, the famous “Statute of Anne,” " "was framed, the drafters insisted on a limited term far more stringent than " "authors, including John Locke, had proposed; they adopted the fourteen-year " "limit from the Statute of Monopolies. <i>See</i> Mark Rose, <i>Authors and " "Owners: The Invention of Copyright</i> 44-47 (1993). The term provided by " "the Statute of Anne, fourteen years with a renewal of fourteen years if the " "author survived the first term, was adopted by First Congress in the " "Copyright Act of 1790. <i>See</i> Copyright Act of 1709, 8 Anne, " "c. 19; Act of May 31, 1790, 1 Stat. 124-25." msgstr "" #. type: Content of: <div><p> msgid "" "The Framers of the Constitution unanimously accepted the idea of the limited " "term for copyrights in the drafting of Article I, without substantial " "discussion. <i>See</i> 2 Max Farrand, <i>The Records of the Federal " "Convention of 1787</i>, at 321-325, 505-510, 570, 595 (1937).<a " "id=\"tex2html2\" href=\"#foot152\"><strong>[2]</strong></a> In doing so, as " "the subsequent employment in the Copyright Act of 1790 of the term of years " "from the Statute of Monopolies shows, the Framers and the First Congress " "acted in full awareness of the long history of attempts to control the harm " "done by statutory monopolies by limiting their term." msgstr "" #. type: Content of: <div><p> msgid "" "The constitutional importance of the “limited Times” restriction " "cannot be vitiated, as the Court of Appeals' reasoning would do, by " "affording Congress the opportunity to create perpetuities on the installment " "plan, any more than Congress can eliminate the constitutional requirement of " "originality. <i>Feist Publications, Inc.</i> v. <i>Rural Telephone Service, " "Co., Inc.</i>, 499 U.S. 340, 346-347 (1991). The Court of Appeals erred " "fundamentally in its conclusion that there is “nothing in text or in " "history that suggests that a term of years for a copyright is not a " "‘limited Time’ if it may later be extended for another " "‘limited Time.’” <i>Eldred</i> v. <i>Reno</i>, 239 F.3d " "372, 379 (CADC 2001). In this regard, the CTEA should not be judged in " "isolation. The question is whether there is anything in text or history " "rendering constitutionally objectionable the eleven extensions of the " "monopoly term in the last forty years, resulting in a virtual cessation of " "enlargements to the public domain, capped by the statute before the Court, " "which postpones the reversion on every single existing copyright for " "decades." msgstr "" #. type: Content of: <div><h4> msgid "" "II. The Historical Policy Embodied in the Copyright Clause is Absolutely " "Essential to Reconcile the Copyright Monopoly with the System of Free " "Expression" msgstr "" #. type: Content of: <div><p> msgid "" "As important as the principle of limited time is in the general restraint of " "the harms that flow from statutory monopolies, in the area of copyright it " "has an even more crucial purpose to serve. The limited term of copyright " "ensures the steady replenishment of the public domain, the vast repository " "of the common culture of humankind. The public domain is the springboard of " "societal creativity, the zone of free reproduction and exchange that makes " "innovation possible. As Yochai Benkler has elegantly shown, the existence " "of a vital and expanding public domain reconciles the exclusive rights of " "the copyright system with the underlying goals of the system of free " "expression protected by the First Amendment. <i>See</i> Yochai Benkler, " "<i>Free as the Air to Common Use: First Amendment Constraints on Enclosure " "of the Public Domain</i>, 74 N.Y.U.L. Rev. 354, 386-394 (1999). The Court " "below erred in its facile dismissal of petitioners' First Amendment " "concerns. That Court first held in its opinion that the First Amendment's " "requirements are “categorically” satisfied by the distinction " "between expression and idea, and then that any material covered by copyright " "but subject to the defense of fair use is therefore so copiously protected " "for purposes of free expression that no First Amendment claim can possibly " "lie. 239 F.3d, at 375-376." msgstr "" #. type: Content of: <div><p> msgid "" "This position simply cannot be right. The Court below conceded that an " "attempt by Congress to make copyright perpetual <i>in haec verba</i> would " "be prohibited by the language of the Copyright Clause. <i>Id.</i>, at 377. " "But even if the subterfuge of achieving perpetuity piecemeal, by repeated " "retroactive extensions, somehow evades the plain command of the Copyright " "Clause, it does not thus render impotent the First Amendment. As the great " "copyright scholar Melville Nimmer asked:" msgstr "" #. type: Content of: <div><blockquote><p> msgid "" "If I may own Blackacre in perpetuity, why not also <i>Black Beauty</i>? The " "answer lies in the first amendment. There is no countervailing speech " "interest which must be balanced against perpetual ownership of tangible real " "and personal property. There is such a speech interest, with respect to " "literary property, or copyright." msgstr "" #. type: Content of: <div><p> msgid "" "Melville B. Nimmer, <i>Does Copyright Abridge the First Amendment Guaranties " "of Free Speech and the Press?</i>, 17 UCLA L. Rev. 1180, 1193 (1970)." msgstr "" #. type: Content of: <div><p> msgid "" "Nor has the Court of Appeals' position any support in the holdings of this " "Court. On the contrary, as this Court's cases make clear, copyright and " "related statutory monopolies in expression must conform like any other " "regulation of speech to the requirements of the First Amendment. In " "<i>Harper & Row, Publishers, Inc.</i> v. <i>Nation Enterprises</i>, 471 " "U.S. 539 (1985), this Court rejected what it characterized as “a " "public figure exception to copyright,” because it found sufficient " "“the First Amendment protections already embodied in the Copyright " "Act's distinction between … facts and ideas, and the latitude for " "scholarship and comment traditionally afforded by fair use.” " "<i>Id.</i>, at 560. Thus, the Court said, it found “no warrant” " "for a further expansion of the doctrine of fair use. <i>Id.</i> This by no " "means implies, as the Court of Appeals somehow concluded, that <i>Harper " "& Row</i> stands as an “insuperable” bar to all First " "Amendment challenges to all subsequent copyright statutes. <i>See</i> 239 " "F.3d, at 375. In <i>San Francisco Arts & Athletics, Inc.</i> " "v. <i>United States Olympic Committee</i>, 483 U.S. 522 (1987), this Court " "applied standard First Amendment analysis to a statute conveying special " "quasi-trademark protection to the word “Olympic,” asking " "“whether the incidental restrictions on First Amendment freedoms are " "greater than necessary to further a substantial government interest.” " "<i>Id.</i>, at 537 (citation omitted)." msgstr "" #. type: Content of: <div><p> msgid "" "The First Amendment abhors the vacuum of limited expression. The making of " "new works by the criticism, imitation, revision, and rearrangement of " "existing material is the hallmark of literate culture in all the arts and " "sciences. The First Amendment establishes not merely a series of " "independent doctrines, but a “system of free expression.” " "<i>See</i> Thomas I. Emerson, <i>The System of Freedom of Expression</i> " "(1970). Our constitutional commitments to an “uninhibited, robust, " "and wide-open” public debate, <i>New York Times Co.</i> " "v. <i>Sullivan</i>, 376 U.S. 254, 270 (1964), a “marketplace of " "ideas,” <i>Reno</i> v. <i>American Civil Liberties Union</i>, 521 " "U.S. 844, 885 (1997); <i>cf.</i> <i>Abrams</i> v. <i>United States</i>, 250 " "U.S. 616, 630 (1919), where there shall be no power to “prescribe what " "shall be orthodox” <i>West Virginia Board of Education</i> " "v. <i>Barnette</i>, 319 U.S. 624, 642 (1943), require us to view with great " "skepticism all restrictions on the formation and expression of ideas. Laws " "tending to establish monopolies in the expression of ideas must pass the " "exacting scrutiny that protects our most fundamental freedoms. The " "Copyright Clause does not exempt the legislation enacted under it from such " "scrutiny, but rather establishes principles that enable statutory monopolies " "and freedom of expression to coexist. Of these, the principle of limitation " "in time is far from the least important. By refusing to consider the effect " "of the instant legislation in the broader context of a Congressional policy " "of piecemeal, indefinite, wholesale extension of copyrights, and in relation " "to the purposes established by the Copyright Clause itself, the Court of " "Appeals failed in its duty to protect the invaluable interests of the system " "of free expression." msgstr "" #. type: Content of: <div><h5> msgid "" "A. Indefinite Extension of the Term of Monopoly on Existing Works of " "Authorship is Incompatible with Both the Copyright Clause and the First " "Amendment" msgstr "" #. type: Content of: <div><p> msgid "" "Precisely because the creation of exclusive rights in expressions inevitably " "involves some danger of the monopolization of ideas, it is crucial to the " "coexistence of copyright and the First Amendment that all exclusive rights " "over expressions are limited in time. At some specific moment, all " "exclusionary rights must end. Under our Constitution, the reversion of " "every work of authorship is irrevocably vested in the public." msgstr "" #. type: Content of: <div><p> msgid "" "This reversion is not constitutionally optional. In the context of patents, " "this Court has described the reversion as a “condition” that the " "work subject to temporary statutory monopoly will pass into the public " "domain upon the patent's expiration. <i>Singer Mfg. Co.</i> v. <i>June " "Mfg. Co.</i>, 163 U.S. 169, 185 (1896)." msgstr "" #. type: Content of: <div><p> msgid "" "Notwithstanding this evident constitutional principle, the Court of Appeals " "held that Congress may create a perpetuity in copyrights so long as it does " "so sequentially, by repeatedly extending all existing copyrights for " "nominally “limited” terms. This holding contradicts the spirit " "of both the Copyright Clause and the First Amendment. The Court of Appeals " "erroneously held, following its own precedent, <i>see</i> <i>Schnapper</i> " "v. <i>Foley</i>, 667 F.2d 102, 112 (1981), that the single phrase comprising " "the Copyright Clause, empowering Congress “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,” imposes no substantive limitation on Congress through " "its declaration of purpose. But the Court of Appeals acknowledged, as it " "must, that this Court's cases show clearly that Congressional power is " "indeed limited by the Copyright Clause, and so its effort is bent to the " "disintegration of a single phrase of twenty-seven words, directed at showing " "that the first nine are somehow constitutionally irrelevant." msgstr "" #. type: Content of: <div><p> msgid "" "This Court first held in the <i>Trademark Cases</i>, 100 U.S. 82 (1879), and " "reaffirmed in <i>Feist, supra</i>, 499 U.S., at 346-47, that Congress cannot " "constitutionally dilute the requirement of originality, by extending " "copyright coverage to works of authorship that make use of expressions " "already in existence, or in which the author's effort in collection and " "arrangement of existing information does not establish that “modicum " "of creativity” the Constitution requires. According to the Court of " "Appeals, however, the principle of originality emerges solely from the words " "“Writing” and “Author,” taking not the slightest " "support from the declaration of purpose that begins the Copyright Clause." msgstr "" #. type: Content of: <div><p> msgid "" "The Copyright Clause is unique among the enumerations of legislative power " "in Article I, §8 in containing a declaration of purpose; it alone " "“describes both the objective which Congress may seek and the means to " "achieve it.” <i>Goldstein</i> v. <i>California</i>, 412 U.S. 546, 555 " "(1973). Adopting a reading of the clause that denies legal effect to the " "words the drafters specifically and atypically included is an implausible " "style of constitutional construction." msgstr "" #. type: Content of: <div><p> msgid "" "Even without reference to the beginning of the clause, however, this Court's " "prior opinions show that the Court of 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 " "interlocking extensions beginning in 1962, holding substantially all works " "with otherwise-expiring copyrights out of the public domain for a " "generation—the CTEA's extension of existing terms for another twenty " "years raises no substantive constitutional question because the new " "twenty-year extension period is numerically definite. The same formal, " "anti-contextual approach to the words would result, however, in the result " "rejected by this Court in <i>Feist</i>: telephone directories are undeniably " "“writings” in the same crabbed sense that the term extension " "contained in the CTEA is “limited.”" msgstr "" #. type: Content of: <div><h5> msgid "" "B. The Fifth Amendment Prohibits Legislative Action Such as This With " "Respect to Physical Property Rights, and There Is No Constitutional " "Justification for Permitting What Cannot Be Done with Mere Property to be " "Done with Free Expression" msgstr "" #. type: Content of: <div><p> msgid "" "On the logic of the Court of Appeals' holding, which is apparently supported " "in this Court by the Solicitor General, Congress could pass a statute " "shortening the term of existing copyrights, reallocating a large body of " "currently-covered works to the public domain. If the statute simply " "provided that the term of copyright be reduced to fourteen years, according " "to the Court of Appeals, that would satisfy the requirement of " "“limited Times,” and there would be no occasion for the Courts " "to inquire into whether such a change promoted the progress of science and " "the useful arts, though copyright holders could well be expected to contend " "that such an alteration of the duration of existing copyrights deprived them " "of the benefit that the “copyright bargain” supposedly " "“secures” them." msgstr "" #. type: Content of: <div><p> msgid "" "But the copyright bargain faces two ways: “securing” authors " "their limited monopoly in return for the reversion to the public. " "Increasing the reversionary interest at the expense of the first estate is " "conceptually no different than increasing the copyright holder's monopoly at " "the expense of the reversionary interest, which is that of the whole society " "and the system of free expression. Shrinking or eliminating the public " "domain in order to increase the benefit to the monopolists, whose works have " "already been created in reliance on the previous allocation of rights, " "neither promotes the progress of knowledge nor respects the " "critically-important free speech interest in the health of the public " "domain.<a id=\"tex2html3\" href=\"#foot138\"><strong>[3]</strong></a>" msgstr "" #. type: Content of: <div><p> msgid "" "Nor would the Takings Clause of the Fifth Amendment permit such " "uncompensated legislative adjustment of the terms of interest in real " "property. Copyright—not surprisingly in view of its common law " "origins—adopts an essentially familiar structure of " "“estates” in works of authorship, beginning with a conveyance " "for term of years or a life interest plus a term of years, with a reversion " "to the public domain. This Court has held that legislative alteration of " "such estates that destroys or limits the reversionary interest in real " "property in order to achieve redistribution between private parties is " "“public use” within the meaning of the Takings Clause, and is " "constitutional if compensated. <i>Hawaii Housing Authority</i> " "v. <i>Midkiff</i>, 467 U.S. 229 (1984). But it has never been suggested " "that Congress or a state legislature could achieve a similarly vast wealth " "transfer to present lessees through the extension of the terms of all " "existing leases, extinguishing or indefinitely postponing the reversionary " "interest, without paying compensation." msgstr "" #. type: Content of: <div><p> msgid "" "What the Fifth Amendment prohibits with respect to interference with " "existing rights in real property should not be permissible where the rights " "being destroyed by legislative changes in property rules are rights to the " "freedom of speech and publication. The Court of Appeals dismissively viewed " "petitioners as seeking to enforce rights to use the copyrighted works of " "others. 239 F.3d, at 376. On the contrary, petitioners claim only their " "constitutional entitlement to use the works that would have entered the " "public domain, as required by the law in effect at the time the particular " "statutory monopolies at issue were granted, had it not been for " "unconstitutional Congressional interference." msgstr "" #. type: Content of: <div><h4> msgid "" "III. Particular Dangers of Abuse and Corruption Justify Strict " "Constitutional Scrutiny When the Term of Statutory Monopolies is Extended" msgstr "" #. type: Content of: <div><p> msgid "" "During the first century of our Republic, the term of copyright was extended " "once. During the next seventy years, it was extended once more. Since " "1962, copyright terms have been extended regularly, in increments ranging " "from one year to twenty years, and the flow of US-copyrighted works into the " "public domain has nearly ceased. The statute before this Court postpones " "rights in material protected by the First Amendment to any but the holders " "of statutory monopolies for an additional generation." msgstr "" #. type: Content of: <div><p> msgid "" "No pattern of legislation could more clearly indicate the presence of the " "very evils against which the Framers of the Constitution and their forebears " "contended, and which gave rise to the Copyright Clause and its requirement " "for “limited Times.” When our predecessors in the struggle for " "constitutional liberty perceived a danger from corruption in the grant of " "monopolies, the danger they apprehended was from the executive, which might " "use its power to grant such monopolies to raise money independent of the " "legislature. In our time the risk is that the legislature, which is granted " "the power to create such monopolies by Article I, §8, will use that " "power to benefit copyright holders at the expense of the public domain. " "Such a purpose—to turn the system of free expression into a series of " "private fiefdoms for the benefit of monopolists, who may choose to rebate a " "small portion of the monopoly rents thus extracted from the population in " "the form of campaign contributions—is forbidden to Congress by the " "plain wording of the Copyright Clause and by the First Amendment. The use " "of repeated interim extensions to achieve the effect of a perpetuity is not " "less dangerous than the single enactment that all parties concede would be " "unconstitutional. On the contrary, such a legislative practice increases " "the dangers of corruption without reducing the harm to the public domain." msgstr "" #. type: Content of: <div><h3> msgid "Conclusion" msgstr "" #. type: Content of: <div><p> msgid "" "Perhaps the late Representative Bono did indeed believe that copyright " "should last forever. That any legislator could hold that view suggests the " "degree of danger to a fundamental part of the system of free expression into " "which we have drifted. This Court should hold that the extension of " "existing copyright terms in the CTEA violates the requirements of the " "Copyright Clause and the First Amendment. The decision of the Court of " "Appeals should be reversed." msgstr "" #. type: Content of: <div><p> msgid "Respectfully submitted." msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"foot151\" href=\"#tex2html1\"><sup>1</sup></a> Counsel for both " "parties have consented to the filing of this brief, and those consents have " "been filed with the Clerk of this Court. No counsel for either party had " "any role in authoring this brief, and no person other than the <i>amicus</i> " "and its counsel made any monetary contribution to its preparation and " "submission." msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"foot152\" href=\"#tex2html2\"><sup>2</sup></a> The only amendment " "made was in the replacement of the phrase originally suggested by Charles " "Pinckney of South Carolina, that monopolies be granted for a " "“certain” time. <i>See</i> 3 <i>id.</i>, at 122." msgstr "" #. type: Content of: <div><div><ul><li> msgid "" "<a id=\"foot138\" href=\"#tex2html3\"><sup>3</sup></a> The Court of Appeals " "minimized the importance of the impoverishment of the public domain when it " "maintained that “[p]reserving access to works that would otherwise " "disappear—not enter the public domain but " "disappear—‘promotes Progress’ as surely as does " "stimulating the creation of new works.” 239 F.3d, at 379. This is an " "apparent reference to claims made by copyright holders in the legislative " "process that certain classes of works, particularly films, would not be " "physically preserved unless the copyright monopoly were extended. It is " "sufficient to point out that such a principle for the award of copyright " "monopolies conflicts with the constitutionally mandated requirement of " "originality: Congress cannot elect to preserve books, films, or music by " "conveying to the conservator a statutory monopoly of copying and " "distribution lasting decades." msgstr "" #. TRANSLATORS: Use space (SPC) as msgstr if you don't have notes. #. type: Content of: <div> msgid "*GNUN-SLOT: TRANSLATOR'S NOTES*" msgstr "" #. type: Content of: <div><div><p> msgid "" "Please send general FSF & GNU inquiries to <a " "href=\"mailto:gnu@gnu.org\"><gnu@gnu.org></a>. There are also <a " "href=\"/contact/\">other ways to contact</a> the FSF. Broken links and " "other corrections or suggestions can be sent to <a " "href=\"mailto:webmasters@gnu.org\"><webmasters@gnu.org></a>." msgstr "" #. TRANSLATORS: Ignore the original text in this paragraph, #. replace it with the translation of these two: # #. We work hard and do our best to provide accurate, good quality #. translations. However, we are not exempt from imperfection. #. Please send your comments and general suggestions in this regard #. to <a href="mailto:web-translators@gnu.org"> # #. <web-translators@gnu.org></a>.</p> # #. <p>For information on coordinating and contributing translations of #. our web pages, see <a #. href="/server/standards/README.translations.html">Translations #. README</a>. #. type: Content of: <div><div><p> msgid "" "Please see the <a " "href=\"/server/standards/README.translations.html\">Translations README</a> " "for information on coordinating and contributing translations of this " "article." msgstr "" #. type: Content of: <div><p> msgid "Copyright © 2002 Eben Moglen" msgstr "" #. type: Content of: <div><p> msgid "" "Verbatim copying and distribution of this entire article are permitted " "worldwide, without royalty, in any medium, provided this notice, and the " "copyright notice, are preserved." msgstr "" #. TRANSLATORS: Use space (SPC) as msgstr if you don't want credits. #. type: Content of: <div><div> msgid "*GNUN-SLOT: TRANSLATOR'S CREDITS*" msgstr "" #. timestamp start #. type: Content of: <div><p> msgid "Updated:" msgstr ""