ELDRED v. ASHCROFT


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Opinion

ERIC ELDRED, et al. , PETITIONERS v. JOHN D. ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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), 112Stat. 2827–2828 (amending 17 U. S. C. §§302). 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), 90Stat. 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” time span itself. “Whether 50 years is enough, or 70 years too much,” they acknowledge, “is not a judgment meet for this Court.” Brief for Petitioners 14. 1 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 con- stitutional boundary, a clear line beyond the power of Congress to extend. See ibid. 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.

I

A

We evaluate petitioners’ challenge to the constitutionality of the CTEA against the backdrop of Congress’ previous exercises of its authority under the Copyright Clause. The Nation’s first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Act of May 31, 1790, ch. 15, §1, 1Stat. 124 (1790 Act). The 1790 Act’s renewable 14-year term applied to existing works ( i.e. , works already published and works created but not yet published) and future works alike. Ibid. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Act of Feb. 3, 1831, ch. 16, §§1, 16, 4Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909, ch. 320, §§23–24, 35Stat. 1080–1081 (1909 Act). Both times, Congress applied the new copyright term to existing and future works, 1831 Act §§1, 16; 1909 Act §§23–24; to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective, 1831 Act §§1, 16.

In 1976, Congress altered the method for computing federal copyright terms. 1976 Act §§302–304. For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. §302(a). In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. See H. R. Rep. No. 94–1476, p. 135 (1976). For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first. §302(c).

These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. §§302–303. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, §304(a) and (b), a 19-year increase over the 56-year term applicable under the 1909 Act.

The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights. 2 Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author’s death. 17 U. S. C. §302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 Official J. Eur. Cmty. 290 (EU Council Directive 93/98). For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U. S. C. §302(c).

Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the term to 95 years from publication. §304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA’s new terms apply to both future and existing copyrights. 3

B

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 (DC 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. Id., at 3. The court also held that “there are no First Amendment rights to use the copyrighted works of others.” Ibid.

The Court of Appeals for the District of Columbia Circuit affirmed. 239 F. 3d 372 (2001). In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 (1985) , foreclosed petitioners’ First Amendment challenge to the CTEA. 239 F. 3d, at 375. 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. Id., at 375–376.

A majority of the Court of Appeals also upheld the CTEA against petitioners’ contention that the measure exceeds Congress’ power under the Copyright Clause. Specifically, the court rejected petitioners’ plea for interpretation of the “limited Times” prescription not discretely but with a view to the “preambular statement of purpose” contained in the Copyright Clause: “To promote the Progress of Science.” Id., at 377–378. Circuit precedent, Schnapper v. Foley , 667 F. 2d 102 (CADC 1981), the court determined, precluded that plea. In this regard, the court took into account petitioners’ acknowledgment that the preamble itself places no substantive limit on Congress’ legislative power. 239 F. 3d, at 378.

The appeals court found nothing in the constitutional text or its history to suggest that “a term of years for a copyright is not a ‘limited Time’ if it may later be extended for another ‘limited Time.’ ” Id., at 379. The court recounted that “the First Congress made the Copyright Act of 1790 applicable to subsisting copyrights arising under the copyright laws of the several states.” Ibid. That construction of Congress’ authority under the Copyright Clause “by [those] contemporary with [the Constitution’s] formation,” the court said, merited “very great” and in this case “almost conclusive” weight. Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884) ). As early as McClurg v. Kingsland, 1 How. 202 (1843), the Court of Appeals added, this Court had made it “plain” that the same Clause permits Congress to “amplify the terms of an existing patent.” 239 F. 3d, at 380. The appeals court recognized that this Court has been similarly deferential to the judgment of Congress in the realm of copyright. Ibid. (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984) ; Stewart v. Abend, 495 U. S. 207 (1990) ).

Concerning petitioners’ assertion that Congress might evade the limitation on its authority by stringing together “an unlimited number of ‘limited Times,’ ” the Court of Appeals stated that such legislative misbehavior “clearly is not the situation before us.” 239 F. 3d, at 379. Rather, the court noted, the CTEA “matches” the baseline term for “United States copyrights [with] the terms of copyrights granted by the European Union.” Ibid. “[I]n an era of multinational publishers and instantaneous electronic transmission,” the court said, “harmonization in this regard has obvious practical benefits” and is “a ‘necessary and proper’ measure to meet contemporary circumstances rather than a step on the way to making copyrights perpetual.” Ibid.

Judge Sentelle dissented in part. He concluded that Congress lacks power under the Copyright Clause to expand the copyright terms of existing works. Id., at 380–384. The Court of Appeals subsequently denied rehearing and rehearing en banc. 255 F. 3d 849 (2001).

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 (2002). We now answer those two questions in the negative and affirm.

II

A

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. 4 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 time span 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 18, 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 (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 3, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1. 5 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. 6

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. See, e.g. , Act of Jan. 7, 1808, ch. 6, 6Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Society 19 (2001). 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. See Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent is not controverted. A renewed patent … confers the same rights, with an original.”), aff’d, 9 Cranch 199 (1815); Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to enact a 14-year patent extension that “operates retrospectively”); see also Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclusive right … to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging” it.). 7

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. 8 McClurg v. Kingsland, 1 How. 202 (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.” Id., at 206. 9 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.” 7 Cong. Deb. 424 (1831); accord Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[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. Sony , 464 U. S., at 429 (“[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.”). 10

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, see Brief for Respondent 37–38, 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. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377–S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). 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. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). 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. 11 The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) (“[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”). 12

In addition to international concerns, 13 Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25–26, 33, and nn. 23 and 24, 14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34–37; see H. R. Rep. No. 105–452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”). 15

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.

B

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

1

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.

As the Court of Appeals observed, a regime of perpetual copyrights “clearly is not the situation before us.” 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. 16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. See supra , at 3–5; Austin, supra , n. 13, at 56 (“If extending copyright protection to works already in existence is constitutionally suspect,” so is “extending the protections of U. S copyright law to works by foreign authors that had already been created and even first published when the federal rights attached.”). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. 17

2

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,” id., at 345, 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,” id., at 359. 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.” Id., at 346–347. 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. See 239 F. 3d, at 378 (Petitioners acknowledge that “the preamble of the Copyright Clause is not a substantive limit on Congress’ legislative power.” (internal quotation marks omitted)). 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,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966) , and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist , 499 U. S., at 349. 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.” Graham , 383 U. S., at 6. 18

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. See Stewart v. Abend, 495 U. S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces … . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony , 464 U. S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham , 383 U. S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra , at 14–17, 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. 19 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.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., at 57. 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.” Myers v. United States, 272 U. S. 52, 175 (1926) . 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.” 20

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.” Brief for Petitioners 23. 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.” Brief for Petitioners 16; see Mazer v. Stein, 347 U. S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ ”). 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. 21 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. See Brief for Respondent 31–32.

Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , is to the contrary. In both cases, we invalidated the application of certain state laws as inconsistent with the federal patent regime. Sears , 376 U. S., at 231–233; Bonito , 489 U. S., at 152. Describing Congress’ constitutional authority to confer patents, Bonito Boats noted: “The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ” Id., at 146. Sears similarly stated that “[p]atents are not given as favors … but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention.” 376 U. S., at 229. Neither case concerned the extension of a patent’s duration. Nor did either suggest that such an extension might be constitutionally infirm. Rather, Bonito Boats reiterated the Court’s unclouded understanding: “It is for Congress to determine if the present system” effectuates the goals of the Copyright and Patent Clause. 489 U. S., at 168. And as we have documented, see supra , at 10–13, Congress has many times sought to effectuate those goals by extending existing patents.

We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context. See, e.g. , J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 142 (2001) (“The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” (quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484 (1974) )); Bonito Boats , 489 U. S., at 161 (“the quid pro quo of substantial creative effort required by the federal [patent] statute”); Brenner v. Manson, 383 U. S. 519, 534 (1966) (“The basic quid pro quo … for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an invention is already commonly known and used when the patent is sought, “there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right,” given the absence of a “ quid pro quo .”). 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. See J. E. M. Ag Supply , 534 U. S., at 142. 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. See 1976 Act §302(a); 17 U. S. C. §302(a).

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 (CA2 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 require- ment stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity. 22

3

As an alternative to their various arguments that extending existing copyrights violates the Copyright Clause per se , petitioners urge heightened judicial review of such extensions to ensure that they appropriately pursue the purposes of the Clause. See Brief for Petitioners 31–32. Specifically, petitioners ask us to apply the “congruence and proportionality” standard described in cases evaluating exercises of Congress’ power under §5 of the Fourteenth Amendment. See, e.g. , City of Boerne v. Flores, 521 U. S. 507 (1997) . But we have never applied that standard outside the §5 context; it does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization.

Section 5 authorizes Congress to enforce commands contained in and incorporated into the Fourteenth Amendment. Amdt. 14, §5 (“The Congress shall have power to enforce , by appropriate legislation, the provisions of this article.” (emphasis added)). The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham , 383 U. S., at 6. It would be no more appropriate for us to subject the CTEA to “congruence and proportionality” review under the Copyright Clause than it would be for us to hold the Act unconstitutional per se .

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

III

Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. 23 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. Indeed, copyright’s purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U. S., at 558.

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id. , at 560. 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 (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.

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,” Harper & Row , 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

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. 17 U. S. C. §108(h); see Brief for Respondent 36. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities. 17 U. S. C. §110(5)(B); see Brief for Representative F. James Sensenbrenner, Jr., et al. as Amici Curiae 5–6, n. 3.

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) , bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Id., at 641.

The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row , 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987) . 24

IV

If petitioners’ vision of the Copyright Clause held sway, it would do more than render the CTEA’s duration extensions unconstitutional as to existing works. Indeed, petitioners’ assertion that the provisions of the CTEA are not severable would make the CTEA’s enlarged terms invalid even as to tomorrow’s work. The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.

As we read the Framers’ instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause. See Graham , 383 U. S., at 6 (Congress may “implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second guess. 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.


Notes

1 Justice Breyer’s dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. See, e.g., post, at 1, 13–19, 23–25. Under his reasoning, the CTEA’s 20-year extension is globally unconstitutional.

2 Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress’ traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87–668, 76Stat. 555; Pub. L. 89–142, 79Stat. 581; Pub. L. 90–141, 81Stat. 464; Pub. L. 90–416, 82Stat. 397; Pub. L. 91–147, 83Stat. 360; Pub. L. 91–555, 84Stat. 1441; Pub. L. 92–170, 85Stat. 490; Pub. L. 92–566, 86Stat. 1181; Pub. L. 93–573, Title I, 88Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.

3 Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. Reply Brief 3–7. The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. See Brief for Petitioners 28–30; Brief for Respondent 17, n. 9; Reply Brief 3–7. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.

4 We note again that Justice Breyer makes no such concession. See supra, at 2, n. 1. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties’ presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress’ entire product as irrational.

5 This approach comported with English practice at the time. The Statute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to books not yet composed or published, books already composed but not yet published, and books already composed and published. See ibid. (“[T]he author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer.”); ibid. (“[T]he author of any book or books already printed … or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.”). Justice Stevens stresses the rejection of a proposed amendment to the Statute of Anne that would have extended the term of existing copyrights, and reports that opponents of the extension feared it would perpetuate the monopoly position enjoyed by English booksellers. Post, at 12, and n. 9. But the English Parliament confronted a situation that never existed in the United States. Through the late 17th century, a government-sanctioned printing monopoly was held by the Stationers’ Company, “the ancient London guild of printers and booksellers.” M. Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L. Patterson, Copyright in Historical Perspective ch. 3 (1968). Although that legal monopoly ended in 1695, concerns about monopolistic practices remained, and the 18th century English Parliament was resistant to any enhancement of booksellers’ and publishers’ entrenched position. See Rose, supra, at 52–56. In this country, in contrast, competition among publishers, printers, and booksellers was “intens[e]” at the time of the founding, and “there was not even a rough analog to the Stationers’ Company on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in “Authors.” Justice Stevens does not even attempt to explain how Parliament’s response to England’s experience with a publishing monopoly may be construed to impose a constitutional limitation on Congress’ power to extend copyrights granted to “Authors.”

6 Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work’s publication, renewable for an additional 14 years if the author survived and applied for an additional term. §1. Congress retained that approach in subsequent statutes. See Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copyright statute in this country, the copyright term of ownership has been split between an original term and a renewal term.”). Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant. See 1976 Act §302(a); 17 U. S. C. §302(a).

7 Justice Stevens would sweep away these decisions, asserting that Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , “flatly contradicts” them. Post, at 17. Nothing but wishful thinking underpins that assertion. The controversy in Graham involved no patent extension. Graham addressed an invention’s very eligibility for patent protection, and spent no words on Congress’ power to enlarge a patent’s duration.

8 Justice Stevens recites words from Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , supporting the uncontroversial proposition that a State may not “extend the life of a patent beyond its expiration date,” id., at 231, then boldly asserts that for the same reasons Congress may not do so either. See post, at 1, 5. But Sears placed no reins on Congress’ authority to extend a patent’s life. The full sentence in Sears, from which Justice Stevens extracts words, reads: “Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents.” 376 U. S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. Ibid. (“[A] State cannot encroach upon the federal patent laws directly … [and] cannot … give protection of a kind that clashes with the objectives of the federal patent laws.”). A decision thus rooted in the Supremacy Clause cannot be turned around to shrink congressional choices. Also unavailing is Justice Stevens’ appeal to language found in a private letter written by James Madison. Post, at 9, n. 6; see also dissenting opinion of Breyer, J., post, at 5, 20. Respondent points to a better “demonstrat[ion],” post, at 5, n. 3 (Stevens, J., dissenting), of Madison’s and other Framers’ understanding of the scope of Congress’ power to extend patents: “[T]hen-President Thomas Jefferson—the first administrator of the patent system, and perhaps the Founder with the narrowest view of the copyright and patent powers—signed the 1808 and 1809 patent term extensions into law; … James Madison, who drafted the Constitution’s ‘limited Times’ language, issued the extended patents under those laws as Secretary of State; and … Madison as President signed another patent term extension in 1815.” Brief for Respondent 15.

9 Justice Stevens reads McClurg to convey that “Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee.” Post, at 19. But McClurg concerned no such change. To the contrary, as Justice Stevens acknowledges, McClurg held that use of an invention by the patentee’s employer did not invalidate the inventor’s 1834 patent, “even if it might have had that effect prior to the amendment of the patent statute in 1836.” Post, at 18. In other words, McClurg evaluated the patentee’s rights not simply in light of the patent law in force at the time the patent issued, but also in light of “such changes as ha[d] been since made.” 1 How., at 206. It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.

10 Justice Breyer would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 3. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms “apparent[ly]” fails to achieve “significant” uniformity. Post, at 23. But see infra, at 15. The novelty of the “rational basis” approach he presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 383 (2001) (Breyer, J., dissenting) (“Rational-basis review—with its presumptions favoring constitutionality—is ‘a paradigm of judicial restraint.’ ”) (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) ). Rather than subjecting Congress’ legislative choices in the copyright area to heightened judicial scrutiny, we have stressed that “it is not our role to alter the delicate balance Congress has labored to achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984) . Congress’ exercise of its Copyright Clause authority must be rational, but Justice Breyer’s stringent version of rationality is unknown to our literary property jurisprudence.

11 Responding to an inquiry whether copyrights could be extended “forever,” Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: “There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. However, our Constitution says limited times, but there really isn’t a very good indication on what limited times is. The reason why you’re going to life-plus-70 today is because Europe has gone that way . . . .” Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al. before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House Hearings).

12 The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA’s enactment Associate Register for Policy and International Affairs, United States Copyright Office.

13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum.–VLA J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with … America’s international copyright relations over the last hundred or so years”).

14 Members of Congress expressed the view that, as a result of increases in human longevity and in parents’ average age when their children are born, the pre-CTEA term did not adequately secure “the right to profit from licensing one’s work during one’s lifetime andto take pride and comfort in knowing that one’s children—and per-haps their children—might also benefit from one’s posthumous popularity.” 141 Cong. Rec. 6553 (1995) (statement of Sen. Feinstein); see 144 Cong. Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) (“Among the main developments [compelling reconsideration of the 1976 Act’s term] is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs.”). Also cited was “the failure of the U. S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media.” Ibid. (statement of Sen. Hatch); cf. Sony, 464 U. S., at 430–431 (“From its beginning, the law of copyright has developed in response to significant changes in technology… . [A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”).

15 Justice Breyer urges that the economic incentives accompanying copyright term extension are too insignificant to “mov[e]” any author with a “rational economic perspective.” Post, at 14; see post, at 13–16. Calibrating rational economic incentives, however, like “fashion[ing] … new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system’s assurance of fair compensation for themselves and their heirs was an incentive to create. See, e.g., House Hearings 233–239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearings before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55–56 (1995) (statement of Bob Dylan); id., at 56–57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as Justice Breyer acknowledges, reflects general “propositions about the value of incentives” that are “undeniably true.” Post, at 14. Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works “could … provide additional income that would finance the production and distribution of new works.” House Hearings 158. “Authors would not be able to continue to create,” the Register explained, “unless they earned income on their finished works. The public benefits not only from an author’s original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary.” Id., at 165.

16 Justice Breyer agrees that “Congress did not intend to act unconstitutionally” when it enacted the CTEA, post, at 15, yet in his very next breath, he seems to make just that accusation, ibid. What else is one to glean from his selection of scattered statements from individual members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, Justice Breyer’s selections are not the sort to which this Court accords high value: “In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those [members of Congress] involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S. 168, 186 (1969) ). The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution “clearly precludes Congress from granting unlimited protection for copyrighted works,” S. Rep. No. 104–315, p. 11 (1996), and disclaimed any intent to contravene that prohibition, ibid. Members of Congress instrumental in the CTEA’s passage spoke to similar effect. See, e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright protection should be for a limited time only” and that “[p]erpetual protection does not benefit society”). Justice Breyer nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” Post, at 1. Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. Post, at 13–15. If Justice Breyer’s calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for—under the same assumptions he indulges—the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. Justice Breyer several times places the Founding Fathers on his side. See, e.g., post, at 5, 20. It is doubtful, however, that those architects of our Nation, in framing the “limited Times” prescription, thought in terms of the calculator rather than the calendar.

17 Respondent notes that the CTEA’s life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term “resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities.” Brief for Respondent 27, n. 18. Whether such referents mark the outer boundary of “limited Times” is not before us today. Justice Breyer suggests that the CTEA’s baseline term extends beyond that typically permitted by the traditional rule against perpetuities. Post, at 15–16. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.

18 Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U. S. 201, 219 (1954) . Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge… . The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

19 As we have noted, see supra, at 5, n. 3, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus “promote[d] … Progress.” See Brief for Petitioners 28–31. This account of the 1790 Act simply confirms, however, thatthe First Congress understood it could “promote … Progress” by extending copyright protection to existing works. Every subsequent adjustment of copyright’s duration, including the CTEA, reflects a similar understanding.

20 Justice Stevens, post, at 15, refers to the “legislative veto” held unconstitutional in INS v. Chadha, 462 U. S. 919 (1983) , and observes that we reached that decision despite its impact on federal laws geared to our “contemporary political system,” id., at 967 (White, J., dissenting). Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. See supra, at 3–5.

21 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][1], 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)”).

22 The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our “limited Times” analysis by Congress’ repeated extensions of existing patents. See supra, at 10–13. If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extensions of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.

23 Petitioners originally framed this argument as implicating the CTEA’s extension of both existing and future copyrights. See Pet. for Cert. i. Now, however, they train on the CTEA’s extension of existing copyrights and urge against consideration of the CTEA’s First Amendment validity as applied to future copyrights. See Brief for Petitioners 39–48; Reply Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider petitioners’ argument as so limited. We note, however, that petitioners do not explain how their First Amendment argument is moored to the prospective/retrospective line they urge us to draw, nor do they say whether or how their free speech argument applies to copyright duration but not to other aspects of copyright protection, notably scope.

24 We are not persuaded by petitioners’ attempt to distinguish Harper & Row on the ground that it involved an infringement suit rather than a declaratory action of the kind here presented. As respondent observes, the same legal question can arise in either posture. See Brief for Respondent 42. In both postures, it is appropriate to construe copyright’s internal safeguards to accommodate First Amendment concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) (“It is … incumbent upon us to read the statute to eliminate [serious constitutional] doubts so long as such a reading is not plainly contrary to the intent of Congress.”).


TOP

Opinion

ERIC ELDRED, et al. , PETITIONERS v. JOHN D. ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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), 112Stat. 2827–2828 (amending 17 U. S. C. §§302). 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), 90Stat. 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” time span itself. “Whether 50 years is enough, or 70 years too much,” they acknowledge, “is not a judgment meet for this Court.” Brief for Petitioners 14. 1 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 con- stitutional boundary, a clear line beyond the power of Congress to extend. See ibid. 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.

I

A

We evaluate petitioners’ challenge to the constitutionality of the CTEA against the backdrop of Congress’ previous exercises of its authority under the Copyright Clause. The Nation’s first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Act of May 31, 1790, ch. 15, §1, 1Stat. 124 (1790 Act). The 1790 Act’s renewable 14-year term applied to existing works ( i.e. , works already published and works created but not yet published) and future works alike. Ibid. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Act of Feb. 3, 1831, ch. 16, §§1, 16, 4Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909, ch. 320, §§23–24, 35Stat. 1080–1081 (1909 Act). Both times, Congress applied the new copyright term to existing and future works, 1831 Act §§1, 16; 1909 Act §§23–24; to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective, 1831 Act §§1, 16.

In 1976, Congress altered the method for computing federal copyright terms. 1976 Act §§302–304. For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. §302(a). In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. See H. R. Rep. No. 94–1476, p. 135 (1976). For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first. §302(c).

These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. §§302–303. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, §304(a) and (b), a 19-year increase over the 56-year term applicable under the 1909 Act.

The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights. 2 Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author’s death. 17 U. S. C. §302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 Official J. Eur. Cmty. 290 (EU Council Directive 93/98). For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U. S. C. §302(c).

Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the term to 95 years from publication. §304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA’s new terms apply to both future and existing copyrights. 3

B

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 (DC 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. Id., at 3. The court also held that “there are no First Amendment rights to use the copyrighted works of others.” Ibid.

The Court of Appeals for the District of Columbia Circuit affirmed. 239 F. 3d 372 (2001). In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 (1985) , foreclosed petitioners’ First Amendment challenge to the CTEA. 239 F. 3d, at 375. 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. Id., at 375–376.

A majority of the Court of Appeals also upheld the CTEA against petitioners’ contention that the measure exceeds Congress’ power under the Copyright Clause. Specifically, the court rejected petitioners’ plea for interpretation of the “limited Times” prescription not discretely but with a view to the “preambular statement of purpose” contained in the Copyright Clause: “To promote the Progress of Science.” Id., at 377–378. Circuit precedent, Schnapper v. Foley , 667 F. 2d 102 (CADC 1981), the court determined, precluded that plea. In this regard, the court took into account petitioners’ acknowledgment that the preamble itself places no substantive limit on Congress’ legislative power. 239 F. 3d, at 378.

The appeals court found nothing in the constitutional text or its history to suggest that “a term of years for a copyright is not a ‘limited Time’ if it may later be extended for another ‘limited Time.’ ” Id., at 379. The court recounted that “the First Congress made the Copyright Act of 1790 applicable to subsisting copyrights arising under the copyright laws of the several states.” Ibid. That construction of Congress’ authority under the Copyright Clause “by [those] contemporary with [the Constitution’s] formation,” the court said, merited “very great” and in this case “almost conclusive” weight. Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884) ). As early as McClurg v. Kingsland, 1 How. 202 (1843), the Court of Appeals added, this Court had made it “plain” that the same Clause permits Congress to “amplify the terms of an existing patent.” 239 F. 3d, at 380. The appeals court recognized that this Court has been similarly deferential to the judgment of Congress in the realm of copyright. Ibid. (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984) ; Stewart v. Abend, 495 U. S. 207 (1990) ).

Concerning petitioners’ assertion that Congress might evade the limitation on its authority by stringing together “an unlimited number of ‘limited Times,’ ” the Court of Appeals stated that such legislative misbehavior “clearly is not the situation before us.” 239 F. 3d, at 379. Rather, the court noted, the CTEA “matches” the baseline term for “United States copyrights [with] the terms of copyrights granted by the European Union.” Ibid. “[I]n an era of multinational publishers and instantaneous electronic transmission,” the court said, “harmonization in this regard has obvious practical benefits” and is “a ‘necessary and proper’ measure to meet contemporary circumstances rather than a step on the way to making copyrights perpetual.” Ibid.

Judge Sentelle dissented in part. He concluded that Congress lacks power under the Copyright Clause to expand the copyright terms of existing works. Id., at 380–384. The Court of Appeals subsequently denied rehearing and rehearing en banc. 255 F. 3d 849 (2001).

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 (2002). We now answer those two questions in the negative and affirm.

II

A

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. 4 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 time span 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 18, 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 (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 3, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1. 5 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. 6

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. See, e.g. , Act of Jan. 7, 1808, ch. 6, 6Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Society 19 (2001). 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. See Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent is not controverted. A renewed patent … confers the same rights, with an original.”), aff’d, 9 Cranch 199 (1815); Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to enact a 14-year patent extension that “operates retrospectively”); see also Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclusive right … to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging” it.). 7

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. 8 McClurg v. Kingsland, 1 How. 202 (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.” Id., at 206. 9 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.” 7 Cong. Deb. 424 (1831); accord Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[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. Sony , 464 U. S., at 429 (“[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.”). 10

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, see Brief for Respondent 37–38, 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. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377–S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). 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. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). 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. 11 The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) (“[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”). 12

In addition to international concerns, 13 Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25–26, 33, and nn. 23 and 24, 14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34–37; see H. R. Rep. No. 105–452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”). 15

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.

B

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

1

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.

As the Court of Appeals observed, a regime of perpetual copyrights “clearly is not the situation before us.” 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. 16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. See supra , at 3–5; Austin, supra , n. 13, at 56 (“If extending copyright protection to works already in existence is constitutionally suspect,” so is “extending the protections of U. S copyright law to works by foreign authors that had already been created and even first published when the federal rights attached.”). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. 17

2

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,” id., at 345, 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,” id., at 359. 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.” Id., at 346–347. 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. See 239 F. 3d, at 378 (Petitioners acknowledge that “the preamble of the Copyright Clause is not a substantive limit on Congress’ legislative power.” (internal quotation marks omitted)). 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,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966) , and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist , 499 U. S., at 349. 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.” Graham , 383 U. S., at 6. 18

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. See Stewart v. Abend, 495 U. S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces … . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony , 464 U. S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham , 383 U. S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra , at 14–17, 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. 19 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.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., at 57. 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.” Myers v. United States, 272 U. S. 52, 175 (1926) . 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.” 20

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.” Brief for Petitioners 23. 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.” Brief for Petitioners 16; see Mazer v. Stein, 347 U. S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ ”). 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. 21 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. See Brief for Respondent 31–32.

Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , is to the contrary. In both cases, we invalidated the application of certain state laws as inconsistent with the federal patent regime. Sears , 376 U. S., at 231–233; Bonito , 489 U. S., at 152. Describing Congress’ constitutional authority to confer patents, Bonito Boats noted: “The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ” Id., at 146. Sears similarly stated that “[p]atents are not given as favors … but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention.” 376 U. S., at 229. Neither case concerned the extension of a patent’s duration. Nor did either suggest that such an extension might be constitutionally infirm. Rather, Bonito Boats reiterated the Court’s unclouded understanding: “It is for Congress to determine if the present system” effectuates the goals of the Copyright and Patent Clause. 489 U. S., at 168. And as we have documented, see supra , at 10–13, Congress has many times sought to effectuate those goals by extending existing patents.

We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context. See, e.g. , J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 142 (2001) (“The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” (quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484 (1974) )); Bonito Boats , 489 U. S., at 161 (“the quid pro quo of substantial creative effort required by the federal [patent] statute”); Brenner v. Manson, 383 U. S. 519, 534 (1966) (“The basic quid pro quo … for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an invention is already commonly known and used when the patent is sought, “there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right,” given the absence of a “ quid pro quo .”). 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. See J. E. M. Ag Supply , 534 U. S., at 142. 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. See 1976 Act §302(a); 17 U. S. C. §302(a).

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 (CA2 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 require- ment stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity. 22

3

As an alternative to their various arguments that extending existing copyrights violates the Copyright Clause per se , petitioners urge heightened judicial review of such extensions to ensure that they appropriately pursue the purposes of the Clause. See Brief for Petitioners 31–32. Specifically, petitioners ask us to apply the “congruence and proportionality” standard described in cases evaluating exercises of Congress’ power under §5 of the Fourteenth Amendment. See, e.g. , City of Boerne v. Flores, 521 U. S. 507 (1997) . But we have never applied that standard outside the §5 context; it does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization.

Section 5 authorizes Congress to enforce commands contained in and incorporated into the Fourteenth Amendment. Amdt. 14, §5 (“The Congress shall have power to enforce , by appropriate legislation, the provisions of this article.” (emphasis added)). The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham , 383 U. S., at 6. It would be no more appropriate for us to subject the CTEA to “congruence and proportionality” review under the Copyright Clause than it would be for us to hold the Act unconstitutional per se .

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

III

Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. 23 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. Indeed, copyright’s purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U. S., at 558.

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id. , at 560. 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 (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.

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,” Harper & Row , 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

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. 17 U. S. C. §108(h); see Brief for Respondent 36. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities. 17 U. S. C. §110(5)(B); see Brief for Representative F. James Sensenbrenner, Jr., et al. as Amici Curiae 5–6, n. 3.

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) , bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Id., at 641.

The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row , 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987) . 24

IV

If petitioners’ vision of the Copyright Clause held sway, it would do more than render the CTEA’s duration extensions unconstitutional as to existing works. Indeed, petitioners’ assertion that the provisions of the CTEA are not severable would make the CTEA’s enlarged terms invalid even as to tomorrow’s work. The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.

As we read the Framers’ instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause. See Graham , 383 U. S., at 6 (Congress may “implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second guess. 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.


Notes

1 Justice Breyer’s dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. See, e.g., post, at 1, 13–19, 23–25. Under his reasoning, the CTEA’s 20-year extension is globally unconstitutional.

2 Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress’ traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87–668, 76Stat. 555; Pub. L. 89–142, 79Stat. 581; Pub. L. 90–141, 81Stat. 464; Pub. L. 90–416, 82Stat. 397; Pub. L. 91–147, 83Stat. 360; Pub. L. 91–555, 84Stat. 1441; Pub. L. 92–170, 85Stat. 490; Pub. L. 92–566, 86Stat. 1181; Pub. L. 93–573, Title I, 88Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.

3 Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. Reply Brief 3–7. The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. See Brief for Petitioners 28–30; Brief for Respondent 17, n. 9; Reply Brief 3–7. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.

4 We note again that Justice Breyer makes no such concession. See supra, at 2, n. 1. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties’ presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress’ entire product as irrational.

5 This approach comported with English practice at the time. The Statute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to books not yet composed or published, books already composed but not yet published, and books already composed and published. See ibid. (“[T]he author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer.”); ibid. (“[T]he author of any book or books already printed … or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.”). Justice Stevens stresses the rejection of a proposed amendment to the Statute of Anne that would have extended the term of existing copyrights, and reports that opponents of the extension feared it would perpetuate the monopoly position enjoyed by English booksellers. Post, at 12, and n. 9. But the English Parliament confronted a situation that never existed in the United States. Through the late 17th century, a government-sanctioned printing monopoly was held by the Stationers’ Company, “the ancient London guild of printers and booksellers.” M. Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L. Patterson, Copyright in Historical Perspective ch. 3 (1968). Although that legal monopoly ended in 1695, concerns about monopolistic practices remained, and the 18th century English Parliament was resistant to any enhancement of booksellers’ and publishers’ entrenched position. See Rose, supra, at 52–56. In this country, in contrast, competition among publishers, printers, and booksellers was “intens[e]” at the time of the founding, and “there was not even a rough analog to the Stationers’ Company on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in “Authors.” Justice Stevens does not even attempt to explain how Parliament’s response to England’s experience with a publishing monopoly may be construed to impose a constitutional limitation on Congress’ power to extend copyrights granted to “Authors.”

6 Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work’s publication, renewable for an additional 14 years if the author survived and applied for an additional term. §1. Congress retained that approach in subsequent statutes. See Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copyright statute in this country, the copyright term of ownership has been split between an original term and a renewal term.”). Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant. See 1976 Act §302(a); 17 U. S. C. §302(a).

7 Justice Stevens would sweep away these decisions, asserting that Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , “flatly contradicts” them. Post, at 17. Nothing but wishful thinking underpins that assertion. The controversy in Graham involved no patent extension. Graham addressed an invention’s very eligibility for patent protection, and spent no words on Congress’ power to enlarge a patent’s duration.

8 Justice Stevens recites words from Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , supporting the uncontroversial proposition that a State may not “extend the life of a patent beyond its expiration date,” id., at 231, then boldly asserts that for the same reasons Congress may not do so either. See post, at 1, 5. But Sears placed no reins on Congress’ authority to extend a patent’s life. The full sentence in Sears, from which Justice Stevens extracts words, reads: “Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents.” 376 U. S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. Ibid. (“[A] State cannot encroach upon the federal patent laws directly … [and] cannot … give protection of a kind that clashes with the objectives of the federal patent laws.”). A decision thus rooted in the Supremacy Clause cannot be turned around to shrink congressional choices. Also unavailing is Justice Stevens’ appeal to language found in a private letter written by James Madison. Post, at 9, n. 6; see also dissenting opinion of Breyer, J., post, at 5, 20. Respondent points to a better “demonstrat[ion],” post, at 5, n. 3 (Stevens, J., dissenting), of Madison’s and other Framers’ understanding of the scope of Congress’ power to extend patents: “[T]hen-President Thomas Jefferson—the first administrator of the patent system, and perhaps the Founder with the narrowest view of the copyright and patent powers—signed the 1808 and 1809 patent term extensions into law; … James Madison, who drafted the Constitution’s ‘limited Times’ language, issued the extended patents under those laws as Secretary of State; and … Madison as President signed another patent term extension in 1815.” Brief for Respondent 15.

9 Justice Stevens reads McClurg to convey that “Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee.” Post, at 19. But McClurg concerned no such change. To the contrary, as Justice Stevens acknowledges, McClurg held that use of an invention by the patentee’s employer did not invalidate the inventor’s 1834 patent, “even if it might have had that effect prior to the amendment of the patent statute in 1836.” Post, at 18. In other words, McClurg evaluated the patentee’s rights not simply in light of the patent law in force at the time the patent issued, but also in light of “such changes as ha[d] been since made.” 1 How., at 206. It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.

10 Justice Breyer would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 3. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms “apparent[ly]” fails to achieve “significant” uniformity. Post, at 23. But see infra, at 15. The novelty of the “rational basis” approach he presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 383 (2001) (Breyer, J., dissenting) (“Rational-basis review—with its presumptions favoring constitutionality—is ‘a paradigm of judicial restraint.’ ”) (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) ). Rather than subjecting Congress’ legislative choices in the copyright area to heightened judicial scrutiny, we have stressed that “it is not our role to alter the delicate balance Congress has labored to achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984) . Congress’ exercise of its Copyright Clause authority must be rational, but Justice Breyer’s stringent version of rationality is unknown to our literary property jurisprudence.

11 Responding to an inquiry whether copyrights could be extended “forever,” Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: “There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. However, our Constitution says limited times, but there really isn’t a very good indication on what limited times is. The reason why you’re going to life-plus-70 today is because Europe has gone that way . . . .” Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al. before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House Hearings).

12 The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA’s enactment Associate Register for Policy and International Affairs, United States Copyright Office.

13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum.–VLA J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with … America’s international copyright relations over the last hundred or so years”).

14 Members of Congress expressed the view that, as a result of increases in human longevity and in parents’ average age when their children are born, the pre-CTEA term did not adequately secure “the right to profit from licensing one’s work during one’s lifetime andto take pride and comfort in knowing that one’s children—and per-haps their children—might also benefit from one’s posthumous popularity.” 141 Cong. Rec. 6553 (1995) (statement of Sen. Feinstein); see 144 Cong. Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) (“Among the main developments [compelling reconsideration of the 1976 Act’s term] is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs.”). Also cited was “the failure of the U. S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media.” Ibid. (statement of Sen. Hatch); cf. Sony, 464 U. S., at 430–431 (“From its beginning, the law of copyright has developed in response to significant changes in technology… . [A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”).

15 Justice Breyer urges that the economic incentives accompanying copyright term extension are too insignificant to “mov[e]” any author with a “rational economic perspective.” Post, at 14; see post, at 13–16. Calibrating rational economic incentives, however, like “fashion[ing] … new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system’s assurance of fair compensation for themselves and their heirs was an incentive to create. See, e.g., House Hearings 233–239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearings before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55–56 (1995) (statement of Bob Dylan); id., at 56–57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as Justice Breyer acknowledges, reflects general “propositions about the value of incentives” that are “undeniably true.” Post, at 14. Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works “could … provide additional income that would finance the production and distribution of new works.” House Hearings 158. “Authors would not be able to continue to create,” the Register explained, “unless they earned income on their finished works. The public benefits not only from an author’s original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary.” Id., at 165.

16 Justice Breyer agrees that “Congress did not intend to act unconstitutionally” when it enacted the CTEA, post, at 15, yet in his very next breath, he seems to make just that accusation, ibid. What else is one to glean from his selection of scattered statements from individual members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, Justice Breyer’s selections are not the sort to which this Court accords high value: “In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those [members of Congress] involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S. 168, 186 (1969) ). The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution “clearly precludes Congress from granting unlimited protection for copyrighted works,” S. Rep. No. 104–315, p. 11 (1996), and disclaimed any intent to contravene that prohibition, ibid. Members of Congress instrumental in the CTEA’s passage spoke to similar effect. See, e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright protection should be for a limited time only” and that “[p]erpetual protection does not benefit society”). Justice Breyer nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” Post, at 1. Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. Post, at 13–15. If Justice Breyer’s calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for—under the same assumptions he indulges—the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. Justice Breyer several times places the Founding Fathers on his side. See, e.g., post, at 5, 20. It is doubtful, however, that those architects of our Nation, in framing the “limited Times” prescription, thought in terms of the calculator rather than the calendar.

17 Respondent notes that the CTEA’s life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term “resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities.” Brief for Respondent 27, n. 18. Whether such referents mark the outer boundary of “limited Times” is not before us today. Justice Breyer suggests that the CTEA’s baseline term extends beyond that typically permitted by the traditional rule against perpetuities. Post, at 15–16. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.

18 Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U. S. 201, 219 (1954) . Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge… . The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

19 As we have noted, see supra, at 5, n. 3, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus “promote[d] … Progress.” See Brief for Petitioners 28–31. This account of the 1790 Act simply confirms, however, thatthe First Congress understood it could “promote … Progress” by extending copyright protection to existing works. Every subsequent adjustment of copyright’s duration, including the CTEA, reflects a similar understanding.

20 Justice Stevens, post, at 15, refers to the “legislative veto” held unconstitutional in INS v. Chadha, 462 U. S. 919 (1983) , and observes that we reached that decision despite its impact on federal laws geared to our “contemporary political system,” id., at 967 (White, J., dissenting). Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. See supra, at 3–5.

21 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][1], 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)”).

22 The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our “limited Times” analysis by Congress’ repeated extensions of existing patents. See supra, at 10–13. If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extensions of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.

23 Petitioners originally framed this argument as implicating the CTEA’s extension of both existing and future copyrights. See Pet. for Cert. i. Now, however, they train on the CTEA’s extension of existing copyrights and urge against consideration of the CTEA’s First Amendment validity as applied to future copyrights. See Brief for Petitioners 39–48; Reply Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider petitioners’ argument as so limited. We note, however, that petitioners do not explain how their First Amendment argument is moored to the prospective/retrospective line they urge us to draw, nor do they say whether or how their free speech argument applies to copyright duration but not to other aspects of copyright protection, notably scope.

24 We are not persuaded by petitioners’ attempt to distinguish Harper & Row on the ground that it involved an infringement suit rather than a declaratory action of the kind here presented. As respondent observes, the same legal question can arise in either posture. See Brief for Respondent 42. In both postures, it is appropriate to construe copyright’s internal safeguards to accommodate First Amendment concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) (“It is … incumbent upon us to read the statute to eliminate [serious constitutional] doubts so long as such a reading is not plainly contrary to the intent of Congress.”).


TOP

Opinion

ERIC ELDRED, et al. , PETITIONERS v. JOHN D. ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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), 112Stat. 2827–2828 (amending 17 U. S. C. §§302). 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), 90Stat. 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” time span itself. “Whether 50 years is enough, or 70 years too much,” they acknowledge, “is not a judgment meet for this Court.” Brief for Petitioners 14. 1 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 con- stitutional boundary, a clear line beyond the power of Congress to extend. See ibid. 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.

I

A

We evaluate petitioners’ challenge to the constitutionality of the CTEA against the backdrop of Congress’ previous exercises of its authority under the Copyright Clause. The Nation’s first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Act of May 31, 1790, ch. 15, §1, 1Stat. 124 (1790 Act). The 1790 Act’s renewable 14-year term applied to existing works ( i.e. , works already published and works created but not yet published) and future works alike. Ibid. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Act of Feb. 3, 1831, ch. 16, §§1, 16, 4Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909, ch. 320, §§23–24, 35Stat. 1080–1081 (1909 Act). Both times, Congress applied the new copyright term to existing and future works, 1831 Act §§1, 16; 1909 Act §§23–24; to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective, 1831 Act §§1, 16.

In 1976, Congress altered the method for computing federal copyright terms. 1976 Act §§302–304. For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. §302(a). In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. See H. R. Rep. No. 94–1476, p. 135 (1976). For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first. §302(c).

These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. §§302–303. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, §304(a) and (b), a 19-year increase over the 56-year term applicable under the 1909 Act.

The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights. 2 Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author’s death. 17 U. S. C. §302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 Official J. Eur. Cmty. 290 (EU Council Directive 93/98). For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U. S. C. §302(c).

Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the term to 95 years from publication. §304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA’s new terms apply to both future and existing copyrights. 3

B

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 (DC 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. Id., at 3. The court also held that “there are no First Amendment rights to use the copyrighted works of others.” Ibid.

The Court of Appeals for the District of Columbia Circuit affirmed. 239 F. 3d 372 (2001). In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 (1985) , foreclosed petitioners’ First Amendment challenge to the CTEA. 239 F. 3d, at 375. 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. Id., at 375–376.

A majority of the Court of Appeals also upheld the CTEA against petitioners’ contention that the measure exceeds Congress’ power under the Copyright Clause. Specifically, the court rejected petitioners’ plea for interpretation of the “limited Times” prescription not discretely but with a view to the “preambular statement of purpose” contained in the Copyright Clause: “To promote the Progress of Science.” Id., at 377–378. Circuit precedent, Schnapper v. Foley , 667 F. 2d 102 (CADC 1981), the court determined, precluded that plea. In this regard, the court took into account petitioners’ acknowledgment that the preamble itself places no substantive limit on Congress’ legislative power. 239 F. 3d, at 378.

The appeals court found nothing in the constitutional text or its history to suggest that “a term of years for a copyright is not a ‘limited Time’ if it may later be extended for another ‘limited Time.’ ” Id., at 379. The court recounted that “the First Congress made the Copyright Act of 1790 applicable to subsisting copyrights arising under the copyright laws of the several states.” Ibid. That construction of Congress’ authority under the Copyright Clause “by [those] contemporary with [the Constitution’s] formation,” the court said, merited “very great” and in this case “almost conclusive” weight. Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884) ). As early as McClurg v. Kingsland, 1 How. 202 (1843), the Court of Appeals added, this Court had made it “plain” that the same Clause permits Congress to “amplify the terms of an existing patent.” 239 F. 3d, at 380. The appeals court recognized that this Court has been similarly deferential to the judgment of Congress in the realm of copyright. Ibid. (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984) ; Stewart v. Abend, 495 U. S. 207 (1990) ).

Concerning petitioners’ assertion that Congress might evade the limitation on its authority by stringing together “an unlimited number of ‘limited Times,’ ” the Court of Appeals stated that such legislative misbehavior “clearly is not the situation before us.” 239 F. 3d, at 379. Rather, the court noted, the CTEA “matches” the baseline term for “United States copyrights [with] the terms of copyrights granted by the European Union.” Ibid. “[I]n an era of multinational publishers and instantaneous electronic transmission,” the court said, “harmonization in this regard has obvious practical benefits” and is “a ‘necessary and proper’ measure to meet contemporary circumstances rather than a step on the way to making copyrights perpetual.” Ibid.

Judge Sentelle dissented in part. He concluded that Congress lacks power under the Copyright Clause to expand the copyright terms of existing works. Id., at 380–384. The Court of Appeals subsequently denied rehearing and rehearing en banc. 255 F. 3d 849 (2001).

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 (2002). We now answer those two questions in the negative and affirm.

II

A

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. 4 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 time span 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 18, 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 (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 3, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1. 5 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. 6

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. See, e.g. , Act of Jan. 7, 1808, ch. 6, 6Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Society 19 (2001). 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. See Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent is not controverted. A renewed patent … confers the same rights, with an original.”), aff’d, 9 Cranch 199 (1815); Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to enact a 14-year patent extension that “operates retrospectively”); see also Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclusive right … to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging” it.). 7

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. 8 McClurg v. Kingsland, 1 How. 202 (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.” Id., at 206. 9 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.” 7 Cong. Deb. 424 (1831); accord Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[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. Sony , 464 U. S., at 429 (“[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.”). 10

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, see Brief for Respondent 37–38, 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. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377–S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). 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. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). 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. 11 The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) (“[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”). 12

In addition to international concerns, 13 Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25–26, 33, and nn. 23 and 24, 14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34–37; see H. R. Rep. No. 105–452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”). 15

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.

B

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

1

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.

As the Court of Appeals observed, a regime of perpetual copyrights “clearly is not the situation before us.” 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. 16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. See supra , at 3–5; Austin, supra , n. 13, at 56 (“If extending copyright protection to works already in existence is constitutionally suspect,” so is “extending the protections of U. S copyright law to works by foreign authors that had already been created and even first published when the federal rights attached.”). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. 17

2

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,” id., at 345, 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,” id., at 359. 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.” Id., at 346–347. 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. See 239 F. 3d, at 378 (Petitioners acknowledge that “the preamble of the Copyright Clause is not a substantive limit on Congress’ legislative power.” (internal quotation marks omitted)). 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,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966) , and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist , 499 U. S., at 349. 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.” Graham , 383 U. S., at 6. 18

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. See Stewart v. Abend, 495 U. S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces … . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony , 464 U. S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham , 383 U. S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra , at 14–17, 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. 19 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.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., at 57. 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.” Myers v. United States, 272 U. S. 52, 175 (1926) . 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.” 20

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.” Brief for Petitioners 23. 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.” Brief for Petitioners 16; see Mazer v. Stein, 347 U. S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ ”). 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. 21 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. See Brief for Respondent 31–32.

Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , is to the contrary. In both cases, we invalidated the application of certain state laws as inconsistent with the federal patent regime. Sears , 376 U. S., at 231–233; Bonito , 489 U. S., at 152. Describing Congress’ constitutional authority to confer patents, Bonito Boats noted: “The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ” Id., at 146. Sears similarly stated that “[p]atents are not given as favors … but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention.” 376 U. S., at 229. Neither case concerned the extension of a patent’s duration. Nor did either suggest that such an extension might be constitutionally infirm. Rather, Bonito Boats reiterated the Court’s unclouded understanding: “It is for Congress to determine if the present system” effectuates the goals of the Copyright and Patent Clause. 489 U. S., at 168. And as we have documented, see supra , at 10–13, Congress has many times sought to effectuate those goals by extending existing patents.

We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context. See, e.g. , J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 142 (2001) (“The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” (quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484 (1974) )); Bonito Boats , 489 U. S., at 161 (“the quid pro quo of substantial creative effort required by the federal [patent] statute”); Brenner v. Manson, 383 U. S. 519, 534 (1966) (“The basic quid pro quo … for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an invention is already commonly known and used when the patent is sought, “there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right,” given the absence of a “ quid pro quo .”). 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. See J. E. M. Ag Supply , 534 U. S., at 142. 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. See 1976 Act §302(a); 17 U. S. C. §302(a).

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 (CA2 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 require- ment stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity. 22

3

As an alternative to their various arguments that extending existing copyrights violates the Copyright Clause per se , petitioners urge heightened judicial review of such extensions to ensure that they appropriately pursue the purposes of the Clause. See Brief for Petitioners 31–32. Specifically, petitioners ask us to apply the “congruence and proportionality” standard described in cases evaluating exercises of Congress’ power under §5 of the Fourteenth Amendment. See, e.g. , City of Boerne v. Flores, 521 U. S. 507 (1997) . But we have never applied that standard outside the §5 context; it does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization.

Section 5 authorizes Congress to enforce commands contained in and incorporated into the Fourteenth Amendment. Amdt. 14, §5 (“The Congress shall have power to enforce , by appropriate legislation, the provisions of this article.” (emphasis added)). The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham , 383 U. S., at 6. It would be no more appropriate for us to subject the CTEA to “congruence and proportionality” review under the Copyright Clause than it would be for us to hold the Act unconstitutional per se .

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

III

Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. 23 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. Indeed, copyright’s purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U. S., at 558.

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id. , at 560. 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 (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.

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,” Harper & Row , 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

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. 17 U. S. C. §108(h); see Brief for Respondent 36. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities. 17 U. S. C. §110(5)(B); see Brief for Representative F. James Sensenbrenner, Jr., et al. as Amici Curiae 5–6, n. 3.

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) , bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Id., at 641.

The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row , 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987) . 24

IV

If petitioners’ vision of the Copyright Clause held sway, it would do more than render the CTEA’s duration extensions unconstitutional as to existing works. Indeed, petitioners’ assertion that the provisions of the CTEA are not severable would make the CTEA’s enlarged terms invalid even as to tomorrow’s work. The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.

As we read the Framers’ instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause. See Graham , 383 U. S., at 6 (Congress may “implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second guess. 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.


Notes

1 Justice Breyer’s dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. See, e.g., post, at 1, 13–19, 23–25. Under his reasoning, the CTEA’s 20-year extension is globally unconstitutional.

2 Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress’ traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87–668, 76Stat. 555; Pub. L. 89–142, 79Stat. 581; Pub. L. 90–141, 81Stat. 464; Pub. L. 90–416, 82Stat. 397; Pub. L. 91–147, 83Stat. 360; Pub. L. 91–555, 84Stat. 1441; Pub. L. 92–170, 85Stat. 490; Pub. L. 92–566, 86Stat. 1181; Pub. L. 93–573, Title I, 88Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.

3 Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. Reply Brief 3–7. The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. See Brief for Petitioners 28–30; Brief for Respondent 17, n. 9; Reply Brief 3–7. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.

4 We note again that Justice Breyer makes no such concession. See supra, at 2, n. 1. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties’ presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress’ entire product as irrational.

5 This approach comported with English practice at the time. The Statute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to books not yet composed or published, books already composed but not yet published, and books already composed and published. See ibid. (“[T]he author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer.”); ibid. (“[T]he author of any book or books already printed … or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.”). Justice Stevens stresses the rejection of a proposed amendment to the Statute of Anne that would have extended the term of existing copyrights, and reports that opponents of the extension feared it would perpetuate the monopoly position enjoyed by English booksellers. Post, at 12, and n. 9. But the English Parliament confronted a situation that never existed in the United States. Through the late 17th century, a government-sanctioned printing monopoly was held by the Stationers’ Company, “the ancient London guild of printers and booksellers.” M. Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L. Patterson, Copyright in Historical Perspective ch. 3 (1968). Although that legal monopoly ended in 1695, concerns about monopolistic practices remained, and the 18th century English Parliament was resistant to any enhancement of booksellers’ and publishers’ entrenched position. See Rose, supra, at 52–56. In this country, in contrast, competition among publishers, printers, and booksellers was “intens[e]” at the time of the founding, and “there was not even a rough analog to the Stationers’ Company on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in “Authors.” Justice Stevens does not even attempt to explain how Parliament’s response to England’s experience with a publishing monopoly may be construed to impose a constitutional limitation on Congress’ power to extend copyrights granted to “Authors.”

6 Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work’s publication, renewable for an additional 14 years if the author survived and applied for an additional term. §1. Congress retained that approach in subsequent statutes. See Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copyright statute in this country, the copyright term of ownership has been split between an original term and a renewal term.”). Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant. See 1976 Act §302(a); 17 U. S. C. §302(a).

7 Justice Stevens would sweep away these decisions, asserting that Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , “flatly contradicts” them. Post, at 17. Nothing but wishful thinking underpins that assertion. The controversy in Graham involved no patent extension. Graham addressed an invention’s very eligibility for patent protection, and spent no words on Congress’ power to enlarge a patent’s duration.

8 Justice Stevens recites words from Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , supporting the uncontroversial proposition that a State may not “extend the life of a patent beyond its expiration date,” id., at 231, then boldly asserts that for the same reasons Congress may not do so either. See post, at 1, 5. But Sears placed no reins on Congress’ authority to extend a patent’s life. The full sentence in Sears, from which Justice Stevens extracts words, reads: “Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents.” 376 U. S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. Ibid. (“[A] State cannot encroach upon the federal patent laws directly … [and] cannot … give protection of a kind that clashes with the objectives of the federal patent laws.”). A decision thus rooted in the Supremacy Clause cannot be turned around to shrink congressional choices. Also unavailing is Justice Stevens’ appeal to language found in a private letter written by James Madison. Post, at 9, n. 6; see also dissenting opinion of Breyer, J., post, at 5, 20. Respondent points to a better “demonstrat[ion],” post, at 5, n. 3 (Stevens, J., dissenting), of Madison’s and other Framers’ understanding of the scope of Congress’ power to extend patents: “[T]hen-President Thomas Jefferson—the first administrator of the patent system, and perhaps the Founder with the narrowest view of the copyright and patent powers—signed the 1808 and 1809 patent term extensions into law; … James Madison, who drafted the Constitution’s ‘limited Times’ language, issued the extended patents under those laws as Secretary of State; and … Madison as President signed another patent term extension in 1815.” Brief for Respondent 15.

9 Justice Stevens reads McClurg to convey that “Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee.” Post, at 19. But McClurg concerned no such change. To the contrary, as Justice Stevens acknowledges, McClurg held that use of an invention by the patentee’s employer did not invalidate the inventor’s 1834 patent, “even if it might have had that effect prior to the amendment of the patent statute in 1836.” Post, at 18. In other words, McClurg evaluated the patentee’s rights not simply in light of the patent law in force at the time the patent issued, but also in light of “such changes as ha[d] been since made.” 1 How., at 206. It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.

10 Justice Breyer would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 3. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms “apparent[ly]” fails to achieve “significant” uniformity. Post, at 23. But see infra, at 15. The novelty of the “rational basis” approach he presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 383 (2001) (Breyer, J., dissenting) (“Rational-basis review—with its presumptions favoring constitutionality—is ‘a paradigm of judicial restraint.’ ”) (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) ). Rather than subjecting Congress’ legislative choices in the copyright area to heightened judicial scrutiny, we have stressed that “it is not our role to alter the delicate balance Congress has labored to achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984) . Congress’ exercise of its Copyright Clause authority must be rational, but Justice Breyer’s stringent version of rationality is unknown to our literary property jurisprudence.

11 Responding to an inquiry whether copyrights could be extended “forever,” Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: “There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. However, our Constitution says limited times, but there really isn’t a very good indication on what limited times is. The reason why you’re going to life-plus-70 today is because Europe has gone that way . . . .” Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al. before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House Hearings).

12 The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA’s enactment Associate Register for Policy and International Affairs, United States Copyright Office.

13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum.–VLA J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with … America’s international copyright relations over the last hundred or so years”).

14 Members of Congress expressed the view that, as a result of increases in human longevity and in parents’ average age when their children are born, the pre-CTEA term did not adequately secure “the right to profit from licensing one’s work during one’s lifetime andto take pride and comfort in knowing that one’s children—and per-haps their children—might also benefit from one’s posthumous popularity.” 141 Cong. Rec. 6553 (1995) (statement of Sen. Feinstein); see 144 Cong. Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) (“Among the main developments [compelling reconsideration of the 1976 Act’s term] is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs.”). Also cited was “the failure of the U. S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media.” Ibid. (statement of Sen. Hatch); cf. Sony, 464 U. S., at 430–431 (“From its beginning, the law of copyright has developed in response to significant changes in technology… . [A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”).

15 Justice Breyer urges that the economic incentives accompanying copyright term extension are too insignificant to “mov[e]” any author with a “rational economic perspective.” Post, at 14; see post, at 13–16. Calibrating rational economic incentives, however, like “fashion[ing] … new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system’s assurance of fair compensation for themselves and their heirs was an incentive to create. See, e.g., House Hearings 233–239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearings before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55–56 (1995) (statement of Bob Dylan); id., at 56–57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as Justice Breyer acknowledges, reflects general “propositions about the value of incentives” that are “undeniably true.” Post, at 14. Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works “could … provide additional income that would finance the production and distribution of new works.” House Hearings 158. “Authors would not be able to continue to create,” the Register explained, “unless they earned income on their finished works. The public benefits not only from an author’s original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary.” Id., at 165.

16 Justice Breyer agrees that “Congress did not intend to act unconstitutionally” when it enacted the CTEA, post, at 15, yet in his very next breath, he seems to make just that accusation, ibid. What else is one to glean from his selection of scattered statements from individual members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, Justice Breyer’s selections are not the sort to which this Court accords high value: “In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those [members of Congress] involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S. 168, 186 (1969) ). The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution “clearly precludes Congress from granting unlimited protection for copyrighted works,” S. Rep. No. 104–315, p. 11 (1996), and disclaimed any intent to contravene that prohibition, ibid. Members of Congress instrumental in the CTEA’s passage spoke to similar effect. See, e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright protection should be for a limited time only” and that “[p]erpetual protection does not benefit society”). Justice Breyer nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” Post, at 1. Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. Post, at 13–15. If Justice Breyer’s calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for—under the same assumptions he indulges—the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. Justice Breyer several times places the Founding Fathers on his side. See, e.g., post, at 5, 20. It is doubtful, however, that those architects of our Nation, in framing the “limited Times” prescription, thought in terms of the calculator rather than the calendar.

17 Respondent notes that the CTEA’s life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term “resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities.” Brief for Respondent 27, n. 18. Whether such referents mark the outer boundary of “limited Times” is not before us today. Justice Breyer suggests that the CTEA’s baseline term extends beyond that typically permitted by the traditional rule against perpetuities. Post, at 15–16. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.

18 Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U. S. 201, 219 (1954) . Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge… . The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

19 As we have noted, see supra, at 5, n. 3, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus “promote[d] … Progress.” See Brief for Petitioners 28–31. This account of the 1790 Act simply confirms, however, thatthe First Congress understood it could “promote … Progress” by extending copyright protection to existing works. Every subsequent adjustment of copyright’s duration, including the CTEA, reflects a similar understanding.

20 Justice Stevens, post, at 15, refers to the “legislative veto” held unconstitutional in INS v. Chadha, 462 U. S. 919 (1983) , and observes that we reached that decision despite its impact on federal laws geared to our “contemporary political system,” id., at 967 (White, J., dissenting). Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. See supra, at 3–5.

21 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][1], 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)”).

22 The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our “limited Times” analysis by Congress’ repeated extensions of existing patents. See supra, at 10–13. If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extensions of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.

23 Petitioners originally framed this argument as implicating the CTEA’s extension of both existing and future copyrights. See Pet. for Cert. i. Now, however, they train on the CTEA’s extension of existing copyrights and urge against consideration of the CTEA’s First Amendment validity as applied to future copyrights. See Brief for Petitioners 39–48; Reply Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider petitioners’ argument as so limited. We note, however, that petitioners do not explain how their First Amendment argument is moored to the prospective/retrospective line they urge us to draw, nor do they say whether or how their free speech argument applies to copyright duration but not to other aspects of copyright protection, notably scope.

24 We are not persuaded by petitioners’ attempt to distinguish Harper & Row on the ground that it involved an infringement suit rather than a declaratory action of the kind here presented. As respondent observes, the same legal question can arise in either posture. See Brief for Respondent 42. In both postures, it is appropriate to construe copyright’s internal safeguards to accommodate First Amendment concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) (“It is … incumbent upon us to read the statute to eliminate [serious constitutional] doubts so long as such a reading is not plainly contrary to the intent of Congress.”).


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Opinion

ERIC ELDRED, et al. , PETITIONERS v. JOHN D. ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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), 112Stat. 2827–2828 (amending 17 U. S. C. §§302). 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), 90Stat. 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” time span itself. “Whether 50 years is enough, or 70 years too much,” they acknowledge, “is not a judgment meet for this Court.” Brief for Petitioners 14. 1 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 con- stitutional boundary, a clear line beyond the power of Congress to extend. See ibid. 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.

I

A

We evaluate petitioners’ challenge to the constitutionality of the CTEA against the backdrop of Congress’ previous exercises of its authority under the Copyright Clause. The Nation’s first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Act of May 31, 1790, ch. 15, §1, 1Stat. 124 (1790 Act). The 1790 Act’s renewable 14-year term applied to existing works ( i.e. , works already published and works created but not yet published) and future works alike. Ibid. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Act of Feb. 3, 1831, ch. 16, §§1, 16, 4Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909, ch. 320, §§23–24, 35Stat. 1080–1081 (1909 Act). Both times, Congress applied the new copyright term to existing and future works, 1831 Act §§1, 16; 1909 Act §§23–24; to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective, 1831 Act §§1, 16.

In 1976, Congress altered the method for computing federal copyright terms. 1976 Act §§302–304. For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. §302(a). In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. See H. R. Rep. No. 94–1476, p. 135 (1976). For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first. §302(c).

These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. §§302–303. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, §304(a) and (b), a 19-year increase over the 56-year term applicable under the 1909 Act.

The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights. 2 Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author’s death. 17 U. S. C. §302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 Official J. Eur. Cmty. 290 (EU Council Directive 93/98). For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U. S. C. §302(c).

Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the term to 95 years from publication. §304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA’s new terms apply to both future and existing copyrights. 3

B

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 (DC 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. Id., at 3. The court also held that “there are no First Amendment rights to use the copyrighted works of others.” Ibid.

The Court of Appeals for the District of Columbia Circuit affirmed. 239 F. 3d 372 (2001). In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 (1985) , foreclosed petitioners’ First Amendment challenge to the CTEA. 239 F. 3d, at 375. 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. Id., at 375–376.

A majority of the Court of Appeals also upheld the CTEA against petitioners’ contention that the measure exceeds Congress’ power under the Copyright Clause. Specifically, the court rejected petitioners’ plea for interpretation of the “limited Times” prescription not discretely but with a view to the “preambular statement of purpose” contained in the Copyright Clause: “To promote the Progress of Science.” Id., at 377–378. Circuit precedent, Schnapper v. Foley , 667 F. 2d 102 (CADC 1981), the court determined, precluded that plea. In this regard, the court took into account petitioners’ acknowledgment that the preamble itself places no substantive limit on Congress’ legislative power. 239 F. 3d, at 378.

The appeals court found nothing in the constitutional text or its history to suggest that “a term of years for a copyright is not a ‘limited Time’ if it may later be extended for another ‘limited Time.’ ” Id., at 379. The court recounted that “the First Congress made the Copyright Act of 1790 applicable to subsisting copyrights arising under the copyright laws of the several states.” Ibid. That construction of Congress’ authority under the Copyright Clause “by [those] contemporary with [the Constitution’s] formation,” the court said, merited “very great” and in this case “almost conclusive” weight. Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884) ). As early as McClurg v. Kingsland, 1 How. 202 (1843), the Court of Appeals added, this Court had made it “plain” that the same Clause permits Congress to “amplify the terms of an existing patent.” 239 F. 3d, at 380. The appeals court recognized that this Court has been similarly deferential to the judgment of Congress in the realm of copyright. Ibid. (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984) ; Stewart v. Abend, 495 U. S. 207 (1990) ).

Concerning petitioners’ assertion that Congress might evade the limitation on its authority by stringing together “an unlimited number of ‘limited Times,’ ” the Court of Appeals stated that such legislative misbehavior “clearly is not the situation before us.” 239 F. 3d, at 379. Rather, the court noted, the CTEA “matches” the baseline term for “United States copyrights [with] the terms of copyrights granted by the European Union.” Ibid. “[I]n an era of multinational publishers and instantaneous electronic transmission,” the court said, “harmonization in this regard has obvious practical benefits” and is “a ‘necessary and proper’ measure to meet contemporary circumstances rather than a step on the way to making copyrights perpetual.” Ibid.

Judge Sentelle dissented in part. He concluded that Congress lacks power under the Copyright Clause to expand the copyright terms of existing works. Id., at 380–384. The Court of Appeals subsequently denied rehearing and rehearing en banc. 255 F. 3d 849 (2001).

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 (2002). We now answer those two questions in the negative and affirm.

II

A

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. 4 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 time span 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 18, 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 (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 3, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1. 5 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. 6

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. See, e.g. , Act of Jan. 7, 1808, ch. 6, 6Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Society 19 (2001). 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. See Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent is not controverted. A renewed patent … confers the same rights, with an original.”), aff’d, 9 Cranch 199 (1815); Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to enact a 14-year patent extension that “operates retrospectively”); see also Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclusive right … to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging” it.). 7

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. 8 McClurg v. Kingsland, 1 How. 202 (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.” Id., at 206. 9 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.” 7 Cong. Deb. 424 (1831); accord Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[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. Sony , 464 U. S., at 429 (“[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.”). 10

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, see Brief for Respondent 37–38, 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. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377–S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). 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. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). 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. 11 The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) (“[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”). 12

In addition to international concerns, 13 Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25–26, 33, and nn. 23 and 24, 14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34–37; see H. R. Rep. No. 105–452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”). 15

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.

B

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

1

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.

As the Court of Appeals observed, a regime of perpetual copyrights “clearly is not the situation before us.” 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. 16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. See supra , at 3–5; Austin, supra , n. 13, at 56 (“If extending copyright protection to works already in existence is constitutionally suspect,” so is “extending the protections of U. S copyright law to works by foreign authors that had already been created and even first published when the federal rights attached.”). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. 17

2

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,” id., at 345, 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,” id., at 359. 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.” Id., at 346–347. 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. See 239 F. 3d, at 378 (Petitioners acknowledge that “the preamble of the Copyright Clause is not a substantive limit on Congress’ legislative power.” (internal quotation marks omitted)). 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,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966) , and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist , 499 U. S., at 349. 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.” Graham , 383 U. S., at 6. 18

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. See Stewart v. Abend, 495 U. S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces … . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony , 464 U. S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham , 383 U. S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra , at 14–17, 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. 19 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.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., at 57. 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.” Myers v. United States, 272 U. S. 52, 175 (1926) . 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.” 20

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.” Brief for Petitioners 23. 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.” Brief for Petitioners 16; see Mazer v. Stein, 347 U. S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ ”). 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. 21 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. See Brief for Respondent 31–32.

Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , is to the contrary. In both cases, we invalidated the application of certain state laws as inconsistent with the federal patent regime. Sears , 376 U. S., at 231–233; Bonito , 489 U. S., at 152. Describing Congress’ constitutional authority to confer patents, Bonito Boats noted: “The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ” Id., at 146. Sears similarly stated that “[p]atents are not given as favors … but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention.” 376 U. S., at 229. Neither case concerned the extension of a patent’s duration. Nor did either suggest that such an extension might be constitutionally infirm. Rather, Bonito Boats reiterated the Court’s unclouded understanding: “It is for Congress to determine if the present system” effectuates the goals of the Copyright and Patent Clause. 489 U. S., at 168. And as we have documented, see supra , at 10–13, Congress has many times sought to effectuate those goals by extending existing patents.

We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context. See, e.g. , J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 142 (2001) (“The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” (quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484 (1974) )); Bonito Boats , 489 U. S., at 161 (“the quid pro quo of substantial creative effort required by the federal [patent] statute”); Brenner v. Manson, 383 U. S. 519, 534 (1966) (“The basic quid pro quo … for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an invention is already commonly known and used when the patent is sought, “there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right,” given the absence of a “ quid pro quo .”). 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. See J. E. M. Ag Supply , 534 U. S., at 142. 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. See 1976 Act §302(a); 17 U. S. C. §302(a).

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 (CA2 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 require- ment stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity. 22

3

As an alternative to their various arguments that extending existing copyrights violates the Copyright Clause per se , petitioners urge heightened judicial review of such extensions to ensure that they appropriately pursue the purposes of the Clause. See Brief for Petitioners 31–32. Specifically, petitioners ask us to apply the “congruence and proportionality” standard described in cases evaluating exercises of Congress’ power under §5 of the Fourteenth Amendment. See, e.g. , City of Boerne v. Flores, 521 U. S. 507 (1997) . But we have never applied that standard outside the §5 context; it does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization.

Section 5 authorizes Congress to enforce commands contained in and incorporated into the Fourteenth Amendment. Amdt. 14, §5 (“The Congress shall have power to enforce , by appropriate legislation, the provisions of this article.” (emphasis added)). The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham , 383 U. S., at 6. It would be no more appropriate for us to subject the CTEA to “congruence and proportionality” review under the Copyright Clause than it would be for us to hold the Act unconstitutional per se .

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

III

Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. 23 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. Indeed, copyright’s purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U. S., at 558.

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id. , at 560. 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 (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.

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,” Harper & Row , 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

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. 17 U. S. C. §108(h); see Brief for Respondent 36. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities. 17 U. S. C. §110(5)(B); see Brief for Representative F. James Sensenbrenner, Jr., et al. as Amici Curiae 5–6, n. 3.

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) , bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Id., at 641.

The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row , 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987) . 24

IV

If petitioners’ vision of the Copyright Clause held sway, it would do more than render the CTEA’s duration extensions unconstitutional as to existing works. Indeed, petitioners’ assertion that the provisions of the CTEA are not severable would make the CTEA’s enlarged terms invalid even as to tomorrow’s work. The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.

As we read the Framers’ instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause. See Graham , 383 U. S., at 6 (Congress may “implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second guess. 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.


Notes

1 Justice Breyer’s dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. See, e.g., post, at 1, 13–19, 23–25. Under his reasoning, the CTEA’s 20-year extension is globally unconstitutional.

2 Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress’ traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87–668, 76Stat. 555; Pub. L. 89–142, 79Stat. 581; Pub. L. 90–141, 81Stat. 464; Pub. L. 90–416, 82Stat. 397; Pub. L. 91–147, 83Stat. 360; Pub. L. 91–555, 84Stat. 1441; Pub. L. 92–170, 85Stat. 490; Pub. L. 92–566, 86Stat. 1181; Pub. L. 93–573, Title I, 88Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.

3 Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. Reply Brief 3–7. The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. See Brief for Petitioners 28–30; Brief for Respondent 17, n. 9; Reply Brief 3–7. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.

4 We note again that Justice Breyer makes no such concession. See supra, at 2, n. 1. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties’ presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress’ entire product as irrational.

5 This approach comported with English practice at the time. The Statute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to books not yet composed or published, books already composed but not yet published, and books already composed and published. See ibid. (“[T]he author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer.”); ibid. (“[T]he author of any book or books already printed … or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.”). Justice Stevens stresses the rejection of a proposed amendment to the Statute of Anne that would have extended the term of existing copyrights, and reports that opponents of the extension feared it would perpetuate the monopoly position enjoyed by English booksellers. Post, at 12, and n. 9. But the English Parliament confronted a situation that never existed in the United States. Through the late 17th century, a government-sanctioned printing monopoly was held by the Stationers’ Company, “the ancient London guild of printers and booksellers.” M. Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L. Patterson, Copyright in Historical Perspective ch. 3 (1968). Although that legal monopoly ended in 1695, concerns about monopolistic practices remained, and the 18th century English Parliament was resistant to any enhancement of booksellers’ and publishers’ entrenched position. See Rose, supra, at 52–56. In this country, in contrast, competition among publishers, printers, and booksellers was “intens[e]” at the time of the founding, and “there was not even a rough analog to the Stationers’ Company on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in “Authors.” Justice Stevens does not even attempt to explain how Parliament’s response to England’s experience with a publishing monopoly may be construed to impose a constitutional limitation on Congress’ power to extend copyrights granted to “Authors.”

6 Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work’s publication, renewable for an additional 14 years if the author survived and applied for an additional term. §1. Congress retained that approach in subsequent statutes. See Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copyright statute in this country, the copyright term of ownership has been split between an original term and a renewal term.”). Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant. See 1976 Act §302(a); 17 U. S. C. §302(a).

7 Justice Stevens would sweep away these decisions, asserting that Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , “flatly contradicts” them. Post, at 17. Nothing but wishful thinking underpins that assertion. The controversy in Graham involved no patent extension. Graham addressed an invention’s very eligibility for patent protection, and spent no words on Congress’ power to enlarge a patent’s duration.

8 Justice Stevens recites words from Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , supporting the uncontroversial proposition that a State may not “extend the life of a patent beyond its expiration date,” id., at 231, then boldly asserts that for the same reasons Congress may not do so either. See post, at 1, 5. But Sears placed no reins on Congress’ authority to extend a patent’s life. The full sentence in Sears, from which Justice Stevens extracts words, reads: “Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents.” 376 U. S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. Ibid. (“[A] State cannot encroach upon the federal patent laws directly … [and] cannot … give protection of a kind that clashes with the objectives of the federal patent laws.”). A decision thus rooted in the Supremacy Clause cannot be turned around to shrink congressional choices. Also unavailing is Justice Stevens’ appeal to language found in a private letter written by James Madison. Post, at 9, n. 6; see also dissenting opinion of Breyer, J., post, at 5, 20. Respondent points to a better “demonstrat[ion],” post, at 5, n. 3 (Stevens, J., dissenting), of Madison’s and other Framers’ understanding of the scope of Congress’ power to extend patents: “[T]hen-President Thomas Jefferson—the first administrator of the patent system, and perhaps the Founder with the narrowest view of the copyright and patent powers—signed the 1808 and 1809 patent term extensions into law; … James Madison, who drafted the Constitution’s ‘limited Times’ language, issued the extended patents under those laws as Secretary of State; and … Madison as President signed another patent term extension in 1815.” Brief for Respondent 15.

9 Justice Stevens reads McClurg to convey that “Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee.” Post, at 19. But McClurg concerned no such change. To the contrary, as Justice Stevens acknowledges, McClurg held that use of an invention by the patentee’s employer did not invalidate the inventor’s 1834 patent, “even if it might have had that effect prior to the amendment of the patent statute in 1836.” Post, at 18. In other words, McClurg evaluated the patentee’s rights not simply in light of the patent law in force at the time the patent issued, but also in light of “such changes as ha[d] been since made.” 1 How., at 206. It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.

10 Justice Breyer would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 3. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms “apparent[ly]” fails to achieve “significant” uniformity. Post, at 23. But see infra, at 15. The novelty of the “rational basis” approach he presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 383 (2001) (Breyer, J., dissenting) (“Rational-basis review—with its presumptions favoring constitutionality—is ‘a paradigm of judicial restraint.’ ”) (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) ). Rather than subjecting Congress’ legislative choices in the copyright area to heightened judicial scrutiny, we have stressed that “it is not our role to alter the delicate balance Congress has labored to achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984) . Congress’ exercise of its Copyright Clause authority must be rational, but Justice Breyer’s stringent version of rationality is unknown to our literary property jurisprudence.

11 Responding to an inquiry whether copyrights could be extended “forever,” Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: “There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. However, our Constitution says limited times, but there really isn’t a very good indication on what limited times is. The reason why you’re going to life-plus-70 today is because Europe has gone that way . . . .” Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al. before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House Hearings).

12 The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA’s enactment Associate Register for Policy and International Affairs, United States Copyright Office.

13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum.–VLA J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with … America’s international copyright relations over the last hundred or so years”).

14 Members of Congress expressed the view that, as a result of increases in human longevity and in parents’ average age when their children are born, the pre-CTEA term did not adequately secure “the right to profit from licensing one’s work during one’s lifetime andto take pride and comfort in knowing that one’s children—and per-haps their children—might also benefit from one’s posthumous popularity.” 141 Cong. Rec. 6553 (1995) (statement of Sen. Feinstein); see 144 Cong. Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) (“Among the main developments [compelling reconsideration of the 1976 Act’s term] is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs.”). Also cited was “the failure of the U. S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media.” Ibid. (statement of Sen. Hatch); cf. Sony, 464 U. S., at 430–431 (“From its beginning, the law of copyright has developed in response to significant changes in technology… . [A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”).

15 Justice Breyer urges that the economic incentives accompanying copyright term extension are too insignificant to “mov[e]” any author with a “rational economic perspective.” Post, at 14; see post, at 13–16. Calibrating rational economic incentives, however, like “fashion[ing] … new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system’s assurance of fair compensation for themselves and their heirs was an incentive to create. See, e.g., House Hearings 233–239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearings before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55–56 (1995) (statement of Bob Dylan); id., at 56–57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as Justice Breyer acknowledges, reflects general “propositions about the value of incentives” that are “undeniably true.” Post, at 14. Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works “could … provide additional income that would finance the production and distribution of new works.” House Hearings 158. “Authors would not be able to continue to create,” the Register explained, “unless they earned income on their finished works. The public benefits not only from an author’s original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary.” Id., at 165.

16 Justice Breyer agrees that “Congress did not intend to act unconstitutionally” when it enacted the CTEA, post, at 15, yet in his very next breath, he seems to make just that accusation, ibid. What else is one to glean from his selection of scattered statements from individual members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, Justice Breyer’s selections are not the sort to which this Court accords high value: “In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those [members of Congress] involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S. 168, 186 (1969) ). The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution “clearly precludes Congress from granting unlimited protection for copyrighted works,” S. Rep. No. 104–315, p. 11 (1996), and disclaimed any intent to contravene that prohibition, ibid. Members of Congress instrumental in the CTEA’s passage spoke to similar effect. See, e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright protection should be for a limited time only” and that “[p]erpetual protection does not benefit society”). Justice Breyer nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” Post, at 1. Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. Post, at 13–15. If Justice Breyer’s calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for—under the same assumptions he indulges—the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. Justice Breyer several times places the Founding Fathers on his side. See, e.g., post, at 5, 20. It is doubtful, however, that those architects of our Nation, in framing the “limited Times” prescription, thought in terms of the calculator rather than the calendar.

17 Respondent notes that the CTEA’s life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term “resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities.” Brief for Respondent 27, n. 18. Whether such referents mark the outer boundary of “limited Times” is not before us today. Justice Breyer suggests that the CTEA’s baseline term extends beyond that typically permitted by the traditional rule against perpetuities. Post, at 15–16. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.

18 Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U. S. 201, 219 (1954) . Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge… . The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

19 As we have noted, see supra, at 5, n. 3, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus “promote[d] … Progress.” See Brief for Petitioners 28–31. This account of the 1790 Act simply confirms, however, thatthe First Congress understood it could “promote … Progress” by extending copyright protection to existing works. Every subsequent adjustment of copyright’s duration, including the CTEA, reflects a similar understanding.

20 Justice Stevens, post, at 15, refers to the “legislative veto” held unconstitutional in INS v. Chadha, 462 U. S. 919 (1983) , and observes that we reached that decision despite its impact on federal laws geared to our “contemporary political system,” id., at 967 (White, J., dissenting). Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. See supra, at 3–5.

21 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][1], 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)”).

22 The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our “limited Times” analysis by Congress’ repeated extensions of existing patents. See supra, at 10–13. If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extensions of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.

23 Petitioners originally framed this argument as implicating the CTEA’s extension of both existing and future copyrights. See Pet. for Cert. i. Now, however, they train on the CTEA’s extension of existing copyrights and urge against consideration of the CTEA’s First Amendment validity as applied to future copyrights. See Brief for Petitioners 39–48; Reply Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider petitioners’ argument as so limited. We note, however, that petitioners do not explain how their First Amendment argument is moored to the prospective/retrospective line they urge us to draw, nor do they say whether or how their free speech argument applies to copyright duration but not to other aspects of copyright protection, notably scope.

24 We are not persuaded by petitioners’ attempt to distinguish Harper & Row on the ground that it involved an infringement suit rather than a declaratory action of the kind here presented. As respondent observes, the same legal question can arise in either posture. See Brief for Respondent 42. In both postures, it is appropriate to construe copyright’s internal safeguards to accommodate First Amendment concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) (“It is … incumbent upon us to read the statute to eliminate [serious constitutional] doubts so long as such a reading is not plainly contrary to the intent of Congress.”).


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Opinion

ERIC ELDRED, et al. , PETITIONERS v. JOHN D. ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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), 112Stat. 2827–2828 (amending 17 U. S. C. §§302). 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), 90Stat. 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” time span itself. “Whether 50 years is enough, or 70 years too much,” they acknowledge, “is not a judgment meet for this Court.” Brief for Petitioners 14. 1 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 con- stitutional boundary, a clear line beyond the power of Congress to extend. See ibid. 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.

I

A

We evaluate petitioners’ challenge to the constitutionality of the CTEA against the backdrop of Congress’ previous exercises of its authority under the Copyright Clause. The Nation’s first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Act of May 31, 1790, ch. 15, §1, 1Stat. 124 (1790 Act). The 1790 Act’s renewable 14-year term applied to existing works ( i.e. , works already published and works created but not yet published) and future works alike. Ibid. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Act of Feb. 3, 1831, ch. 16, §§1, 16, 4Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909, ch. 320, §§23–24, 35Stat. 1080–1081 (1909 Act). Both times, Congress applied the new copyright term to existing and future works, 1831 Act §§1, 16; 1909 Act §§23–24; to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective, 1831 Act §§1, 16.

In 1976, Congress altered the method for computing federal copyright terms. 1976 Act §§302–304. For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. §302(a). In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. See H. R. Rep. No. 94–1476, p. 135 (1976). For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first. §302(c).

These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. §§302–303. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, §304(a) and (b), a 19-year increase over the 56-year term applicable under the 1909 Act.

The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights. 2 Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author’s death. 17 U. S. C. §302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 Official J. Eur. Cmty. 290 (EU Council Directive 93/98). For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U. S. C. §302(c).

Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the term to 95 years from publication. §304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA’s new terms apply to both future and existing copyrights. 3

B

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 (DC 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. Id., at 3. The court also held that “there are no First Amendment rights to use the copyrighted works of others.” Ibid.

The Court of Appeals for the District of Columbia Circuit affirmed. 239 F. 3d 372 (2001). In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 (1985) , foreclosed petitioners’ First Amendment challenge to the CTEA. 239 F. 3d, at 375. 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. Id., at 375–376.

A majority of the Court of Appeals also upheld the CTEA against petitioners’ contention that the measure exceeds Congress’ power under the Copyright Clause. Specifically, the court rejected petitioners’ plea for interpretation of the “limited Times” prescription not discretely but with a view to the “preambular statement of purpose” contained in the Copyright Clause: “To promote the Progress of Science.” Id., at 377–378. Circuit precedent, Schnapper v. Foley , 667 F. 2d 102 (CADC 1981), the court determined, precluded that plea. In this regard, the court took into account petitioners’ acknowledgment that the preamble itself places no substantive limit on Congress’ legislative power. 239 F. 3d, at 378.

The appeals court found nothing in the constitutional text or its history to suggest that “a term of years for a copyright is not a ‘limited Time’ if it may later be extended for another ‘limited Time.’ ” Id., at 379. The court recounted that “the First Congress made the Copyright Act of 1790 applicable to subsisting copyrights arising under the copyright laws of the several states.” Ibid. That construction of Congress’ authority under the Copyright Clause “by [those] contemporary with [the Constitution’s] formation,” the court said, merited “very great” and in this case “almost conclusive” weight. Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884) ). As early as McClurg v. Kingsland, 1 How. 202 (1843), the Court of Appeals added, this Court had made it “plain” that the same Clause permits Congress to “amplify the terms of an existing patent.” 239 F. 3d, at 380. The appeals court recognized that this Court has been similarly deferential to the judgment of Congress in the realm of copyright. Ibid. (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984) ; Stewart v. Abend, 495 U. S. 207 (1990) ).

Concerning petitioners’ assertion that Congress might evade the limitation on its authority by stringing together “an unlimited number of ‘limited Times,’ ” the Court of Appeals stated that such legislative misbehavior “clearly is not the situation before us.” 239 F. 3d, at 379. Rather, the court noted, the CTEA “matches” the baseline term for “United States copyrights [with] the terms of copyrights granted by the European Union.” Ibid. “[I]n an era of multinational publishers and instantaneous electronic transmission,” the court said, “harmonization in this regard has obvious practical benefits” and is “a ‘necessary and proper’ measure to meet contemporary circumstances rather than a step on the way to making copyrights perpetual.” Ibid.

Judge Sentelle dissented in part. He concluded that Congress lacks power under the Copyright Clause to expand the copyright terms of existing works. Id., at 380–384. The Court of Appeals subsequently denied rehearing and rehearing en banc. 255 F. 3d 849 (2001).

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 (2002). We now answer those two questions in the negative and affirm.

II

A

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. 4 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 time span 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 18, 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 (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 3, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1. 5 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. 6

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. See, e.g. , Act of Jan. 7, 1808, ch. 6, 6Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Society 19 (2001). 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. See Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent is not controverted. A renewed patent … confers the same rights, with an original.”), aff’d, 9 Cranch 199 (1815); Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to enact a 14-year patent extension that “operates retrospectively”); see also Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclusive right … to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging” it.). 7

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. 8 McClurg v. Kingsland, 1 How. 202 (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.” Id., at 206. 9 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.” 7 Cong. Deb. 424 (1831); accord Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[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. Sony , 464 U. S., at 429 (“[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.”). 10

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, see Brief for Respondent 37–38, 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. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377–S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). 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. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). 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. 11 The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) (“[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”). 12

In addition to international concerns, 13 Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25–26, 33, and nn. 23 and 24, 14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34–37; see H. R. Rep. No. 105–452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”). 15

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.

B

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

1

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.

As the Court of Appeals observed, a regime of perpetual copyrights “clearly is not the situation before us.” 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. 16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. See supra , at 3–5; Austin, supra , n. 13, at 56 (“If extending copyright protection to works already in existence is constitutionally suspect,” so is “extending the protections of U. S copyright law to works by foreign authors that had already been created and even first published when the federal rights attached.”). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. 17

2

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,” id., at 345, 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,” id., at 359. 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.” Id., at 346–347. 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. See 239 F. 3d, at 378 (Petitioners acknowledge that “the preamble of the Copyright Clause is not a substantive limit on Congress’ legislative power.” (internal quotation marks omitted)). 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,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966) , and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist , 499 U. S., at 349. 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.” Graham , 383 U. S., at 6. 18

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. See Stewart v. Abend, 495 U. S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces … . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony , 464 U. S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham , 383 U. S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra , at 14–17, 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. 19 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.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., at 57. 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.” Myers v. United States, 272 U. S. 52, 175 (1926) . 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.” 20

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.” Brief for Petitioners 23. 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.” Brief for Petitioners 16; see Mazer v. Stein, 347 U. S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ ”). 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. 21 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. See Brief for Respondent 31–32.

Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , is to the contrary. In both cases, we invalidated the application of certain state laws as inconsistent with the federal patent regime. Sears , 376 U. S., at 231–233; Bonito , 489 U. S., at 152. Describing Congress’ constitutional authority to confer patents, Bonito Boats noted: “The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ” Id., at 146. Sears similarly stated that “[p]atents are not given as favors … but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention.” 376 U. S., at 229. Neither case concerned the extension of a patent’s duration. Nor did either suggest that such an extension might be constitutionally infirm. Rather, Bonito Boats reiterated the Court’s unclouded understanding: “It is for Congress to determine if the present system” effectuates the goals of the Copyright and Patent Clause. 489 U. S., at 168. And as we have documented, see supra , at 10–13, Congress has many times sought to effectuate those goals by extending existing patents.

We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context. See, e.g. , J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 142 (2001) (“The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” (quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484 (1974) )); Bonito Boats , 489 U. S., at 161 (“the quid pro quo of substantial creative effort required by the federal [patent] statute”); Brenner v. Manson, 383 U. S. 519, 534 (1966) (“The basic quid pro quo … for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an invention is already commonly known and used when the patent is sought, “there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right,” given the absence of a “ quid pro quo .”). 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. See J. E. M. Ag Supply , 534 U. S., at 142. 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. See 1976 Act §302(a); 17 U. S. C. §302(a).

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 (CA2 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 require- ment stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity. 22

3

As an alternative to their various arguments that extending existing copyrights violates the Copyright Clause per se , petitioners urge heightened judicial review of such extensions to ensure that they appropriately pursue the purposes of the Clause. See Brief for Petitioners 31–32. Specifically, petitioners ask us to apply the “congruence and proportionality” standard described in cases evaluating exercises of Congress’ power under §5 of the Fourteenth Amendment. See, e.g. , City of Boerne v. Flores, 521 U. S. 507 (1997) . But we have never applied that standard outside the §5 context; it does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization.

Section 5 authorizes Congress to enforce commands contained in and incorporated into the Fourteenth Amendment. Amdt. 14, §5 (“The Congress shall have power to enforce , by appropriate legislation, the provisions of this article.” (emphasis added)). The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham , 383 U. S., at 6. It would be no more appropriate for us to subject the CTEA to “congruence and proportionality” review under the Copyright Clause than it would be for us to hold the Act unconstitutional per se .

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

III

Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. 23 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. Indeed, copyright’s purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U. S., at 558.

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id. , at 560. 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 (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.

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,” Harper & Row , 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

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. 17 U. S. C. §108(h); see Brief for Respondent 36. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities. 17 U. S. C. §110(5)(B); see Brief for Representative F. James Sensenbrenner, Jr., et al. as Amici Curiae 5–6, n. 3.

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) , bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Id., at 641.

The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row , 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987) . 24

IV

If petitioners’ vision of the Copyright Clause held sway, it would do more than render the CTEA’s duration extensions unconstitutional as to existing works. Indeed, petitioners’ assertion that the provisions of the CTEA are not severable would make the CTEA’s enlarged terms invalid even as to tomorrow’s work. The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.

As we read the Framers’ instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause. See Graham , 383 U. S., at 6 (Congress may “implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second guess. 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.


Notes

1 Justice Breyer’s dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. See, e.g., post, at 1, 13–19, 23–25. Under his reasoning, the CTEA’s 20-year extension is globally unconstitutional.

2 Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress’ traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87–668, 76Stat. 555; Pub. L. 89–142, 79Stat. 581; Pub. L. 90–141, 81Stat. 464; Pub. L. 90–416, 82Stat. 397; Pub. L. 91–147, 83Stat. 360; Pub. L. 91–555, 84Stat. 1441; Pub. L. 92–170, 85Stat. 490; Pub. L. 92–566, 86Stat. 1181; Pub. L. 93–573, Title I, 88Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.

3 Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. Reply Brief 3–7. The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. See Brief for Petitioners 28–30; Brief for Respondent 17, n. 9; Reply Brief 3–7. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.

4 We note again that Justice Breyer makes no such concession. See supra, at 2, n. 1. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties’ presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress’ entire product as irrational.

5 This approach comported with English practice at the time. The Statute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to books not yet composed or published, books already composed but not yet published, and books already composed and published. See ibid. (“[T]he author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer.”); ibid. (“[T]he author of any book or books already printed … or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.”). Justice Stevens stresses the rejection of a proposed amendment to the Statute of Anne that would have extended the term of existing copyrights, and reports that opponents of the extension feared it would perpetuate the monopoly position enjoyed by English booksellers. Post, at 12, and n. 9. But the English Parliament confronted a situation that never existed in the United States. Through the late 17th century, a government-sanctioned printing monopoly was held by the Stationers’ Company, “the ancient London guild of printers and booksellers.” M. Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L. Patterson, Copyright in Historical Perspective ch. 3 (1968). Although that legal monopoly ended in 1695, concerns about monopolistic practices remained, and the 18th century English Parliament was resistant to any enhancement of booksellers’ and publishers’ entrenched position. See Rose, supra, at 52–56. In this country, in contrast, competition among publishers, printers, and booksellers was “intens[e]” at the time of the founding, and “there was not even a rough analog to the Stationers’ Company on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in “Authors.” Justice Stevens does not even attempt to explain how Parliament’s response to England’s experience with a publishing monopoly may be construed to impose a constitutional limitation on Congress’ power to extend copyrights granted to “Authors.”

6 Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work’s publication, renewable for an additional 14 years if the author survived and applied for an additional term. §1. Congress retained that approach in subsequent statutes. See Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copyright statute in this country, the copyright term of ownership has been split between an original term and a renewal term.”). Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant. See 1976 Act §302(a); 17 U. S. C. §302(a).

7 Justice Stevens would sweep away these decisions, asserting that Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , “flatly contradicts” them. Post, at 17. Nothing but wishful thinking underpins that assertion. The controversy in Graham involved no patent extension. Graham addressed an invention’s very eligibility for patent protection, and spent no words on Congress’ power to enlarge a patent’s duration.

8 Justice Stevens recites words from Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964) , supporting the uncontroversial proposition that a State may not “extend the life of a patent beyond its expiration date,” id., at 231, then boldly asserts that for the same reasons Congress may not do so either. See post, at 1, 5. But Sears placed no reins on Congress’ authority to extend a patent’s life. The full sentence in Sears, from which Justice Stevens extracts words, reads: “Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents.” 376 U. S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. Ibid. (“[A] State cannot encroach upon the federal patent laws directly … [and] cannot … give protection of a kind that clashes with the objectives of the federal patent laws.”). A decision thus rooted in the Supremacy Clause cannot be turned around to shrink congressional choices. Also unavailing is Justice Stevens’ appeal to language found in a private letter written by James Madison. Post, at 9, n. 6; see also dissenting opinion of Breyer, J., post, at 5, 20. Respondent points to a better “demonstrat[ion],” post, at 5, n. 3 (Stevens, J., dissenting), of Madison’s and other Framers’ understanding of the scope of Congress’ power to extend patents: “[T]hen-President Thomas Jefferson—the first administrator of the patent system, and perhaps the Founder with the narrowest view of the copyright and patent powers—signed the 1808 and 1809 patent term extensions into law; … James Madison, who drafted the Constitution’s ‘limited Times’ language, issued the extended patents under those laws as Secretary of State; and … Madison as President signed another patent term extension in 1815.” Brief for Respondent 15.

9 Justice Stevens reads McClurg to convey that “Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee.” Post, at 19. But McClurg concerned no such change. To the contrary, as Justice Stevens acknowledges, McClurg held that use of an invention by the patentee’s employer did not invalidate the inventor’s 1834 patent, “even if it might have had that effect prior to the amendment of the patent statute in 1836.” Post, at 18. In other words, McClurg evaluated the patentee’s rights not simply in light of the patent law in force at the time the patent issued, but also in light of “such changes as ha[d] been since made.” 1 How., at 206. It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.

10 Justice Breyer would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 3. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms “apparent[ly]” fails to achieve “significant” uniformity. Post, at 23. But see infra, at 15. The novelty of the “rational basis” approach he presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 383 (2001) (Breyer, J., dissenting) (“Rational-basis review—with its presumptions favoring constitutionality—is ‘a paradigm of judicial restraint.’ ”) (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) ). Rather than subjecting Congress’ legislative choices in the copyright area to heightened judicial scrutiny, we have stressed that “it is not our role to alter the delicate balance Congress has labored to achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984) . Congress’ exercise of its Copyright Clause authority must be rational, but Justice Breyer’s stringent version of rationality is unknown to our literary property jurisprudence.

11 Responding to an inquiry whether copyrights could be extended “forever,” Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: “There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. However, our Constitution says limited times, but there really isn’t a very good indication on what limited times is. The reason why you’re going to life-plus-70 today is because Europe has gone that way . . . .” Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al. before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House Hearings).

12 The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA’s enactment Associate Register for Policy and International Affairs, United States Copyright Office.

13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum.–VLA J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with … America’s international copyright relations over the last hundred or so years”).

14 Members of Congress expressed the view that, as a result of increases in human longevity and in parents’ average age when their children are born, the pre-CTEA term did not adequately secure “the right to profit from licensing one’s work during one’s lifetime andto take pride and comfort in knowing that one’s children—and per-haps their children—might also benefit from one’s posthumous popularity.” 141 Cong. Rec. 6553 (1995) (statement of Sen. Feinstein); see 144 Cong. Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) (“Among the main developments [compelling reconsideration of the 1976 Act’s term] is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs.”). Also cited was “the failure of the U. S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media.” Ibid. (statement of Sen. Hatch); cf. Sony, 464 U. S., at 430–431 (“From its beginning, the law of copyright has developed in response to significant changes in technology… . [A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.”).

15 Justice Breyer urges that the economic incentives accompanying copyright term extension are too insignificant to “mov[e]” any author with a “rational economic perspective.” Post, at 14; see post, at 13–16. Calibrating rational economic incentives, however, like “fashion[ing] … new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system’s assurance of fair compensation for themselves and their heirs was an incentive to create. See, e.g., House Hearings 233–239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearings before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55–56 (1995) (statement of Bob Dylan); id., at 56–57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as Justice Breyer acknowledges, reflects general “propositions about the value of incentives” that are “undeniably true.” Post, at 14. Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works “could … provide additional income that would finance the production and distribution of new works.” House Hearings 158. “Authors would not be able to continue to create,” the Register explained, “unless they earned income on their finished works. The public benefits not only from an author’s original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary.” Id., at 165.

16 Justice Breyer agrees that “Congress did not intend to act unconstitutionally” when it enacted the CTEA, post, at 15, yet in his very next breath, he seems to make just that accusation, ibid. What else is one to glean from his selection of scattered statements from individual members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, Justice Breyer’s selections are not the sort to which this Court accords high value: “In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those [members of Congress] involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S. 168, 186 (1969) ). The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution “clearly precludes Congress from granting unlimited protection for copyrighted works,” S. Rep. No. 104–315, p. 11 (1996), and disclaimed any intent to contravene that prohibition, ibid. Members of Congress instrumental in the CTEA’s passage spoke to similar effect. See, e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright protection should be for a limited time only” and that “[p]erpetual protection does not benefit society”). Justice Breyer nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” Post, at 1. Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. Post, at 13–15. If Justice Breyer’s calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for—under the same assumptions he indulges—the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerloff et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. Justice Breyer several times places the Founding Fathers on his side. See, e.g., post, at 5, 20. It is doubtful, however, that those architects of our Nation, in framing the “limited Times” prescription, thought in terms of the calculator rather than the calendar.

17 Respondent notes that the CTEA’s life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term “resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities.” Brief for Respondent 27, n. 18. Whether such referents mark the outer boundary of “limited Times” is not before us today. Justice Breyer suggests that the CTEA’s baseline term extends beyond that typically permitted by the traditional rule against perpetuities. Post, at 15–16. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.

18 Justice Stevens’ characterization of reward to the author as “a secondary consideration” of copyright law, post, at 6, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Mazer v. Stein, 347 U. S. 201, 219 (1954) . Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge… . The profit motive is the engine that ensures the progress of science.” American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides … with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion that “copyright statutes must serve public, not private, ends” post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

19 As we have noted, see supra, at 5, n. 3, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus “promote[d] … Progress.” See Brief for Petitioners 28–31. This account of the 1790 Act simply confirms, however, thatthe First Congress understood it could “promote … Progress” by extending copyright protection to existing works. Every subsequent adjustment of copyright’s duration, including the CTEA, reflects a similar understanding.

20 Justice Stevens, post, at 15, refers to the “legislative veto” held unconstitutional in INS v. Chadha, 462 U. S. 919 (1983) , and observes that we reached that decision despite its impact on federal laws geared to our “contemporary political system,” id., at 967 (White, J., dissenting). Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. See supra, at 3–5.

21 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][1], 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)”).

22 The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our “limited Times” analysis by Congress’ repeated extensions of existing patents. See supra, at 10–13. If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extensions of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.

23 Petitioners originally framed this argument as implicating the CTEA’s extension of both existing and future copyrights. See Pet. for Cert. i. Now, however, they train on the CTEA’s extension of existing copyrights and urge against consideration of the CTEA’s First Amendment validity as applied to future copyrights. See Brief for Petitioners 39–48; Reply Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider petitioners’ argument as so limited. We note, however, that petitioners do not explain how their First Amendment argument is moored to the prospective/retrospective line they urge us to draw, nor do they say whether or how their free speech argument applies to copyright duration but not to other aspects of copyright protection, notably scope.

24 We are not persuaded by petitioners’ attempt to distinguish Harper & Row on the ground that it involved an infringement suit rather than a declaratory action of the kind here presented. As respondent observes, the same legal question can arise in either posture. See Brief for Respondent 42. In both postures, it is appropriate to construe copyright’s internal safeguards to accommodate First Amendment concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) (“It is … incumbent upon us to read the statute to eliminate [serious constitutional] doubts so long as such a reading is not plainly contrary to the intent of Congress.”).


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Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a), which states that “the brief [on the merits] may not raise additional questions or change the substance of the questions already presented in” the petition for certiorari.

9 “A LETTER to a Member of Parliament concerning the Bill now depending . . . for making more effectual an Act in the 8th year of the Reign of Queen Anne, entituled, An Act for the Encouragement of Learning by … Vesting the Copies of Printed Books in the Authors or Purchasers.” Document reproduced in Goldsmiths’—Kress Library of Economic Literature, Segment 1: Printed Books Through 1800, Microfilm No. 7300 (reel 460).

10 See, e.g., ch. 74, 6Stat. 458 (patent had expired for three months); ch. 113, 6Stat. 467 (patent had expired for over two years); ch. 213, 6Stat. 589 (patent had expired for five months); ch. 158, 9Stat. 734 (patent had expired for over two years); ch. 72, 14Stat. 621 (patent had expired nearly four years); ch. 175, 15Stat. 461 (patent had expired for over two years); ch. 15, 16Stat. 613 (patent had expired for six years); ch. 317, 16Stat. 659 (patent had expired for nearly four years); ch. 508, 17Stat. 689 (patent had expired for over two years).

11 In the period before our decision in Wheaton, the pre-emptive effect of the Patent/Copyright Clause was also a matter of serious debate within the legal profession. Indeed, in their argument in this Court in Gibbons v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant of a 30-year monopoly on the passenger trade between New Jersey and Manhattan argued that the Clause actually should be interpreted as confirming the State’s authority to grant monopoly privileges that supplemented any federal grant. That argument is, of course, flatly inconsistent with our recent unanimous decision in Bonito Boats v. Thundercraft Boats, Inc., 489 U. S 141 (1989). Although Attorney General Wirt had urged the Court to endorse our present interpretation of the Clause, its implicit limitations were unsettled when the 1831 Copyright Act was passed.

12 It is true, as the majority points out, ante at 11, n. 5, that Graham did not expressly overrule those earlier cases because Graham did not address the issue whether Congress could revive expired patents. That observation does not even arguably justify reliance on a set of old circuit court cases to support a proposition that is inconsistent with our present understanding of the limits imposed by the Copyright/Patent Clause. After all, a unanimous Court recently endorsed the precise analysis that the majority now seeks to characterize as “wishful thinking.” Ante, at 11, n. 5. See Bonito Boats, 489 U. S., at 146 (“Congress may not create patent monopolies of unlimited duration, nor may it ‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available’ ” (quoting Graham, 383 U. S., at 6 )).

13 Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a “documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes” and an “[a]ll-new introduction by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD includes “[t]wo feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich” and a “gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia” in addition to a 2-hour documentary. Disc cover text.

14 Similarly, the validity of earlier retroactive extensions of copyright protection is not at issue in this case. To decide the question now presented, we need not consider whether the reliance and expectation interests that have been established by prior extensions passed years ago would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time”). Those interests are not at issue now, because the act under review in this case was passed only four years ago and has been under challenge in court since shortly after its enactment.


TOP

Dissent

ERIC ELDRED, et al. , PETITIONERS v. JOHN D.
ASHCROFT, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the district of columbia circuit


[January 15, 2003]

Justice 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) . 1 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, 112Stat. 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.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6 (1966) . 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:

“Once the patent issues, it is strictly construed, United States v. Masonite Corp. , 316 U. S. 265, 280 (1942) , it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co. , 314 U. S. 488, 492 (1942) , … and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article—including the right to make it in precisely the shape it carried when patented—passes to the public. Kellogg Co. v. National Biscuit Co. , 305 U. S. 111, 120–122 (1938) ; Singer Mfg. Co. v. June Mfg. Co. , 163 U. S. 169, 185 (1896) .” Sears, Roebuck & Co. , 376 U. S., at 230.

It is that ultimate purpose that explains why a patent may not issue unless it discloses the invention in such detail that one skilled in the art may copy it. See, e.g., Grant v. Raymond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third section [of the 1793 Act] requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent”). Complete disclosure as a precondition to the issuance of a patent is part of the quid pro quo that justifies the limited monopoly for the inventor as consideration for full and immediate access by the public when the limited time expires. 2

Almost two centuries ago the Court plainly stated that public access to inventions at the earliest possible date was the essential purpose of the Clause:

“While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was ‘to promote the progress of science and useful arts;’ and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those, who should be least prompt to communicate their discoveries.” Pennock v. Dialogue , 2 Pet. 1, 18 (1829).

Pennock held that an inventor could not extend the period of patent protection by postponing his application for the patent while exploiting the invention commercially. As we recently explained, “implicit in the Patent Clause itself” is the understanding “that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception. Moreover, the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141, 151 (1989) .

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. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63 (1998) (“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time”). 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. As I discuss below, the few historical exceptions to this rule do not undermine the constitutional analysis. For quite plainly, the limitations “implicit in the Patent Clause itself,” 489 U. S., at 151, adequately explain why neither a State nor Congress may “extend the life of a patent beyond its expiration date,” Sears, Roebuck & Co., 376 U. S., at 231. 3

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.

II

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.” United States v. Paramount Pictures, Inc. , 334 U. S. 131, 158 (1948) . 4 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.” Sony Corp. of America v. Universal City Studios, Inc. , 464 U. S. 417, 429 (1984) . 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, however, advances four arguments in support of the constitutionality of such retroactive extensions: (1) the first Copyright Act enacted shortly after the Constitution was ratified applied to works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; and (4) as a matter of equity, whenever Congress provides a longer term as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights. None of these arguments is persuasive.

III

Congress first enacted legislation under the Copyright/Patent Clause in 1790 when it passed bills creating federal patent and copyright protection. Because the content of that first legislation, the debate that accompanied it, and the differences between the initial versions and the bills that ultimately passed provide strong evidence of early Congresses’ understanding of the constitutional limits of the Copyright/Patent Clause, I examine both the initial copyright and patent statutes.

Congress first considered intellectual property statutes in its inaugural session in 1789. The bill debated, House Resolution 10—“a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries,” 3 Documentary History of the First Federal Congress of the United States of America, March 4, 1789–March 3, 1791, p. 94 (L. DePauw, C. Bickford, & L. Hauptman, eds., 1977)—provided both copyright and patent protection for similar terms. 5 The first Congress did not pass H. R. 10, though a similar version was reintroduced in the second Congress in 1790. After minimal debate, however, the House of Representatives began consideration of two separate bills, one covering patents and the other copyrights. Because, as the majority recognizes, “congressional practice with respect to patents informs our inquiry,” ante , at 9, I consider the history of both patent and copyright legislation.

The Patent Act

What eventually became the Patent Act of 1790 had its genesis in House Resolution 41, introduced on February 16, 1790. That resolution differed from H. R. 10 in one important respect. Whereas H. R. 10 would have extended patent protection to only those inventions that were “not before known or used,” H. R. 41, by contrast, added the phrase “within the United States” to that limitation and expressly authorized patent protection for “any person, who shall after the passing of this act, first import into the United States . . . any . . . device . . . not before used or known in the said States.” 6 Documentary History, supra , at 1626–1632. This change would have authorized patents of importation, providing United States patent protection for inventions already in use elsewhere. This change, however, was short lived and was removed by a floor amendment on March 5, 1789. Walterscheid 125. Though exact records of the floor debate are lost, correspondence from House members indicate that doubts about the constitutionality of such a provision led to its removal. Representative Thomas Fitzsimmons wrote to a leading industrialist that day stating that the section “‘allowing to Importers, was left out, the Constitutional power being Questionable.’ ” Id. , at 126 (quoting Letter from Rep. Thomas Fitzsimmons to Tench Coxe (March 5, 1790)). James Madison himself recognized this constitutional limitation on patents of importation, flatly stating that the constitution “forbids patents for that purpose.” 13 Papers of James Madison 128 (C. Hobson & R. Rutland, eds. 1981) (reprinting letter to Tench Coxe (March, 28 1790)). 6

The final version of the 1790 Patent Act, 1Stat. 109, did not contain the geographic qualifier and thus did not provide for patents of importation. This statutory omission, coupled with the contemporaneous statements by legislators, provides strong evidence that Congress recognized significant limitations on their constitutional authority under the Copyright/Patent Clause to extend protection to a class of intellectual properties. This recognition of a categorical constitutional limitation is fundamentally at odds with the majority’s reading of Article I, §8 to provide essentially no limit on congressional action under the Clause. If early congressional practice does, indeed, inform our analysis, as it should, then the majority’s judicial excision of these constitutional limits cannot be correct.

The Copyright Act

Congress also passed the first Copyright Act, 1Stat. 124, in 1790. At that time there were a number of maps, charts, and books that had already been printed, some of which were copyrighted under state laws and some of which were arguably entitled to perpetual protection under the common law. The federal statute applied to those works as well as to new works. In some cases the application of the new federal rule reduced the pre-existing protections, and in others it may have increased the protection. What is significant is that the statute provided a general rule creating new federal rights that supplanted the diverse state rights that previously existed. It did not extend or attach to any of those pre-existing state and common-law rights: “That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591, 661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932) (“As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one”). Congress set in place a federal structure governing certain types of intellectual property for the new Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

Respondent places great weight on this first congressional action, arguing that it proves that “Congress thus unquestionably understood that it had authority to apply a new, more favorable copyright term to existing works.” Brief for Respondent 12–13. That understanding, however, is not relevant to the question presented by this case—whether “Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Brief for Petitioners i. 8 Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right.

Moreover, members of Congress in 1790 were well aware of the distinction between the creation of new copyright regimes and the extension of existing copyrights. The 1790 Act was patterned, in many ways, after the Statute of Anne enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648 (1943) . The English statute, in addition to providing authors with copyrights on new works for a term of 14 years renewable for another 14-year term, also replaced the booksellers’ claimed perpetual rights in existing works with a single 21-year term. In 1735, the booksellers proposed an amendment that would have extended the terms of existing copyrights until 1756, but the amendment was defeated. Opponents of the amendment had argued that if the bill were to pass, it would “in Effect be establishing a perpetual Monopoly … only to increase the private Gain of the Booksellers … .” 9 The authors of the federal statute that used the Statute of Anne as a model were familiar with this history. Accordingly, this Court should be especially wary of relying on Congress’ creation of a new system to support the proposition that Congress unquestionably understood that it had constitutional authority to extend existing copyrights.

IV

Since the creation of federal patent and copyright protection in 1790, Congress has passed a variety of legislation, both providing specific relief for individual authors and inventors as well as changing the general statutes conferring patent and copyright privileges. Some of the changes did indeed, as the majority describes, extend existing protections retroactively. Other changes, however, did not do so. A more complete and comprehensive look at the history of congressional action under the Copyright/Patent Clause demonstrates that history, in this case, does not provide the “ ‘volume of logic,’ ” ante , at 9, necessary to sustain the Sonny Bono Act’s constitutionality.

Congress, aside from changing the process of applying for a patent in the 1793 Patent Act, did not significantly alter the basic patent and copyright systems for the next 40 years. During this time, however, Congress did consider many private bills. Respondent seeks support from “Congress’s historical practice of using its Copyright and Patent Clause authority to extend the terms of individual patents and copyrights.” Brief for Respondent 13. Carefully read, however, these private bills do not support respondent’s historical gloss, but rather significantly undermine the historical claim.

The first example relied upon by respondent, the extension of Oliver Evans’ patent in 1808, ch. 8, 6Stat. 70, demonstrates the pitfalls of relying on an incomplete historical analysis. Evans, an inventor who had developed several improvements in milling flour, received the third federal patent on January 7, 1791. See Federico, Patent Trials of Oliver Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year term provided by the 1790 Patent Act, this patent was to expire on January 7, 1805. Claiming that 14 years had not provided him a sufficient time to realize income from his invention and that the net profits were spent developing improvements on the steam engine, Evans first sought an extension of his patent in December 1804. Id., at 598; 14 Annals of Congress 1002. Unsuccessful in 1804, he tried again in 1805, and yet again in 1806, to persuade Congress to pass his private bill. Undaunted, Evans tried one last time to revive his expired patent after receiving an adverse judgment in an infringement action. See Evans v. Chambers , 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his effort at private legislation was successful and Congress passed a bill extending his patent for 14 years. See An Act for the relief of Oliver Evans, 6Stat. 70. This legislation, passed January 21, 1808, restored a patent monopoly for an invention that had been in the public domain for over four years. As such, this Act unquestionably exceeded Congress’ authority under the Copyright/Patent Clause: “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. … Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Graham, 383 U. S., at 5–6 (emphasis added).

This extension of patent protection to an expired patent was not an isolated incident. Congress passed private bills either directly extending patents or allowing otherwise untimely applicants to apply for patent extensions for approximately 75 patents between 1790 and 1875. Of these 75 patents, at least 56 had already fallen into the public domain. 10 The fact that this repeated practice was patently unconstitutional completely undermines the majority’s reliance on this history as “significant.” Ante , at 9.

Copyright legislation has a similar history. The federal Copyright Act was first amended in 1831. That amendment, like later amendments, not only authorized a longer term for new works, but also extended the terms of unexpired copyrights. Respondent argues that that historical practice effectively establishes the constitutionality of retroactive extensions of unexpired copyrights. Of course, the practice buttressess the presumption of validity that attaches to every Act of Congress. But, as our decision in INS v. Chadha, 462 U. S. 919 (1983) , demonstrates, the fact that Congress has repeatedly acted on a mistaken interpretation of the Constitution does not qualify our duty to invalidate an unconstitutional practice when it is finally challenged in an appropriate case. As Justice White pointed out in his dissent in Chadha , that case sounded the “death knell for nearly 200 other statutory provisions” in which Congress had exercised a “legislative veto.” Id., at 967. Regardless of the effect of unconstitutional enactments of Congress, the scope of “ ‘the constitutional power of Congress . . . is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’ ” United States v. Morrison, 529 U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). For, as this Court has long recognized, “[i]t is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) .

It would be particularly unwise to attach constitutional significance to the 1831 amendment because of the very different legal landscape against which it was enacted. Congress based its authority to pass the amendment on grounds shortly thereafter declared improper by the Court. The Judiciary Committee Report prepared for the House of Representatives asserted that “an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.” 7 Gales & Seaton, Register of Debates in Congress cxx (1831). The floor debate echoed this same sentiment. See, e.g., id. , at 423 (statement of Mr. Verplanck (rejecting the idea that copyright involved “an implied contract existing between an author and the public” for “[t]here was no contract; the work of an author was the result of his own labor” and copyright was “merely a legal provision for the protection of a natural right”)). This sweat-of-the-brow view of copyright, however, was emphatically rejected by this Court in 1834 in Wheaton v. Peters, 8 Pet., at 661 (“Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it”). No presumption of validity should attach to a statutory enactment that relied on a shortly thereafter discredited interpretation of the basis for congressional power. 11

In 1861, Congress amended the term of patents, from a 14-year term plus opportunity for 7-year extension to a flat 17 years with no extension permitted. Act of Mar. 2, 1861, ch. 88, §16, 12Stat. 249. This change was not retroactive, but rather only applied to “all patents hereafter granted.” Ibid. To be sure, Congress, at many times in its history, has retroactively extended the terms of existing copyrights and patents. This history, however, reveals a much more heterogeneous practice than respondent contends. It is replete with actions that were unquestionably unconstitutional. Though relevant, the history is not dispositive of the constitutionality of Sonny Bono Act.

The general presumption that historic practice illuminates the constitutionality of congressional action is not controlling in this case. That presumption is strongest when the earliest acts of Congress are considered, for the overlap of identity between those who created the Constitution and those who first constituted Congress provides “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888) . But that strong presumption does not attach to congressional action in 1831, because no member of the 1831 Congress had been a delegate to the framing convention 44 years earlier.

Moreover, judicial opinions relied upon by the majority interpreting early legislative enactments have either been implicitly overruled or do not support the proposition claimed. Graham flatly contradicts the cases relied on by the majority and respondent for support that “renewed or extended terms were upheld in the early days.” Ante , at 10. 12 Evans v. Jordan , 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.); Evans v. Robinson , 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813); and Blanchard v. Sprague , 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) all held that private bills passed by Congress extending previously expired patents rights were valid. Evans v. Jordan and Evans v. Robinson both considered Oliver Evans’ private bill discussed above while Blanchard involved ch. 213, 6Stat. 589, which extended Thomas Blanchard’s patent after it had been in the public domain for five months. Irrespective of what circuit courts held “in the early days,” ante , at 10, such holdings have been implicitly overruled by Graham and, therefore, provide no support for respondent in the present constitutional inquiry.

The majority’s reliance on the other patent case it cites is similarly misplaced. Contrary to the suggestion in the Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843), did not involve the “legislative expansion” of an existing patent. Ante , at 10–11. The question in that case was whether the former employer of the inventor, one James Harley, could be held liable as an infringer for continuing to use the process that Harley had invented in 1834 when he was in its employ. The Court first held that the employer’s use of the process before the patent issued was not a public use that would invalidate the patent, even if it might have had that effect prior to the amendment of the patent statute in 1836. 1 How., at 206–208. The Court then disposed of the case on the ground that a statute enacted in 1839 protected the alleged infringer’s right to continue to use the process after the patent issued. Id., at 209–211. Our opinion said nothing about the power of Congress to extend the life of an issued patent. It did note that Congress has plenary power to legislate on the subject of patents provided “that they do not take away the rights of property in existing patents.” Id., at 206. The fact that Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee is, of course, fully consistent with the view that it cannot enlarge the patent monopoly to the detriment of the public after a patent has issued.

The history of retroactive extensions of existing and expired copyrights and patents, though relevant, is not conclusive of the constitutionality of the Sonny Bono Act. The fact that the Court has not previously passed upon the constitutionality of retroactive copyright extensions does not insulate the present extension from constitutional challenge.

V

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. 13 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.

VI

Finally, respondent relies on concerns of equity to justify the retroactive extension. If Congress concludes that a longer period of exclusivity is necessary in order to provide an adequate incentive to authors to produce new works, respondent seems to believe that simple fairness requires that the same lengthened period be provided to authors whose works have already been completed and copyrighted. This is a classic non sequitur. The reason for increasing the inducement to create something new simply does not apply to an already-created work. To the contrary, the equity argument actually provides strong support for petitioners. Members of the public were entitled to rely on a promised access to copyrighted or patented works at the expiration of the terms specified when the exclusive privileges were granted. On the other hand, authors will receive the full benefit of the exclusive terms that were promised as an inducement to their creativity, and have no equitable claim to increased compensation for doing nothing more.

One must indulge in two untenable assumptions to find support in the equitable argument offered by respondent—that the public interest in free access to copyrighted works is entirely worthless and that authors, as a class, should receive a windfall solely based on completed creative activity. Indeed, Congress has apparently indulged in those assumptions for under the series of extensions to copyrights, only one year’s worth of creative work—that copyrighted in 1923—has fallen into the public domain during the last 80 years. But as our cases repeatedly and consistently emphasize, ultimate public access is the overriding purpose of the constitutional provision. See, e.g., Sony Corp., 464 U. S., at 429. Ex post facto extensions of existing copyrights, unsupported by any consideration of the public interest, frustrate the central purpose of the Clause.

VII

The express grant of a perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. 14 It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). We should discharge that responsibility as we did in Chadha.

I respectfully dissent.


Notes

1 Justice Harlan wrote a brief concurrence, but did not disagree with this statement. Justice Black’s statement echoed a portion of Attorney General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824): “The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States.”

2 Attorney General Wirt made this precise point in his argument in Gibbons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public.”

3 The Court acknowledges that this proposition is “uncontroversial” today, see ante, at 11, n. 6, but overlooks the fact that it was highly controversial in the early 1800’s. See n. 11, infra. The Court assumes that the Sears holding rested entirely on the pre-emptive effect of congressional statutes even though the opinion itself, like the opinions in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966) , and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989) , also relied on the pre-emptive effect of the constitutional provision. That at least some of the Framers recognized that the Constitution itself imposed a limitation even before Congress acted is demonstrated by Madison’s letter, quoted in n. 6, infra.

4 “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.” 334 U. S., at 158.

5 A copy of this bill specifically identified has not been found, though strong support exists for considering a bill from that session as H. R. 10. See E. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

6 “Your idea of appropriating a district of territory to the encouragement of imported inventions is new and worthy of consideration. I can not but apprehend however that the clause in the constitution which forbids patents for that purpose will lie equally in the way of your expedient. Congress seem to be tied down to the single mode of encouraging inventions by granting the exclusive benefit of them for a limited time, and therefore to have no more power to give a further encouragement out of a fund of land than a fund of money. This fetter on the National Legislature tho’ an unfortunate one, was a deliberate one. The Latitude of authority now wished for was strongly urged and expressly rejected.” Madison’s description of the Copyright/Patent Clause as a “fetter on the National Legislature” is fully consistent with this Court’s opinion in Graham.

7 Importantly, even this first Act required a quid pro quo in order to receive federal copyright protection. In order to receive protection under the Act, the author was first required to register the work: “That no person shall be entitled to the benefit of this act, in cases where any map, chart, book or books, hath or have been already printed and published, unless he shall first deposit, and in all other cases, unless he shall before publication deposit a printed copy of the title of such map, chart, book or books, in the clerk’s office of the district court where the author or proprietor shall reside.” §3, 1Stat. 124. This registration requirement in federal district court—a requirement obviously not required under the various state laws protecting written works—further illustrates that the 1790 Act created new rights, rather than extending existing rights.

8 Respondent’s reformulation of the questions presented by this case confuses this basic distinction. We granted certiorari to consider the question: “Did the D. C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?” Respondent’s reformulation of the first question presented—“Whether the 20-year extension of the terms of all unexpired copyrights . . . violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect”—significantly changes the substance of inquiry by changing the focus from the federal statute at issue to irrelevant common-law protections. Brief for Respondent I. Indeed, this reformul