LONG? [FNa1]

Jane C. Ginsburg [FNaa1]

Wendy J. Gordon [FNaaa1]

Arthur R. Miller [FNaaaa1]

William F. Patry [FNaaaaa1]

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act. [FN1]

During the considerations of Sonny's bill on the floor of the House, Mary Bono, Sonny Bono's widow and successor--referring *652 both to his copyrights and his Congressional seat--observed that Sonny favored perpetual protection, [FN2] putting him in the Mark Twain category [FN3]--although, at least on that issue, not for literary merit. Mary Bono had been tipped off by her staff that there was some kind of funny issue of constitutionality about perpetual protection, so she spoke rather warmly about a trial balloon that had been floated by one of Washington's premier lobbyists, Jack Valenti of the Motion Picture Association of America. [FN4] Mr. Valenti had proposed that there be a term of perpetuity less one day; however, he never stated what fixed date that actually was.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, [FN5] the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. [FN6] The bill retroactively provides ninety-five years of protection for 1909 Act works. [FN7] This legislation has been challenged in a complaint filed in the District of Columbia on January 11, 1999, in Eldred v. Reno. [FN8] One of our speakers is actually involved in this challenge. I *653 will quickly introduce all of the speakers, and then set out the structure of the debate.

Next will be the silver fox himself, Arthur Miller, who is in town to catch a performance of his perpetually successful play, "Death of a Salesman," and to put the finishing touches on the story of his torrid 1956 marriage to Marilyn Monroe. Some of you, though, may know him as the charismatic Bruce Bromley Professor of Law at Harvard Law School, co-author of a famous treatise on federal practice and procedure. [FN9] Additionally, he is the author of an apparently widely-pirated series of tapes on Civil Procedure, [FN10] and is known from his occasional television appearances as well. Copyright lawyers, however, know him from his work in the late 1970s on CONTU, the National Commission on New Technological Uses of Copyrighted Works [FN11]--one of the transformative experiences in his professional life, he has told us--when he was transformed, or some might say "transmogrified," depending upon your view tonight, from being a low protectionist, á la Professor Ben Kaplan, to a high protectionist, á la Cher's former husband. Professor Miller has submitted an amicus brief in the Eldred v. Reno case on behalf of a group of organizations and companies who support the legislation. [FN12] He will, therefore, speak in favor of the *654 Sonny Bono Copyright Term Extension Act.

In the critical clean-up position, we have five-time MVP--that's most vaunted professor--award-winning Professor Jane Ginsburg, the Morton L. Janklow Professor of Literary and Artistic Property Law of Columbia University. She comes from a family of notorious under-achievers. She has, however, through hard work and her native brilliance, risen above her upbringing to become a true scholar of copyright and trademark. I've known Professor Ginsburg for fifteen years, not nearly as long as Professor Miller has known her, but it has been a while. I met her when she was an Associate at the illustrious firm of Cowan, Leibowitz and Latman in New York, when she co-wrote a column for the New York Law Journal with Professor Alan Latman, one of the legendary figures in copyright. [FN13] Since then, of course, she has created an ouvre second to none. In the field, she has written extensively on comparative law, conflicts of law, and, certainly, fact works. [FN14] One of the best articles ever written on fact works was her article on the Hoehling case, [FN15] written by the late Judge Kaufman here on the Second Circuit. [FN16] Professor Ginsburg, in addition to being not only a brilliant scholar, has the unique feature, I think, of being the voice of reason and moderation. She is a frequent witness before Congress, and, when I worked for the House Judiciary Committee, we enjoyed getting her advice whenever she was gracious enough to give it to us.

*655 Eldred v. Reno [FN17]

E. The government's argument that the history of past copyright term extensions justifies the CTEA is misplaced. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), stands only for the proposition that legislation enacted when the Constitution's framers sat in Congress is entitled to great weight. But the first copyright term extension occurred in 1831, when none of the framers still sat in Congress. And the government is incorrect in suggesting that the CTEA was the fulfillment of some earlier "promise" made by Congress because none of the pre-CTEA copyright laws contained any such promise.

II. A. The CTEA should be tested under the standard of First Amendment intermediate scrutiny set forth in United States v. O'Brien, 391 U.S. 367 (1968) and Turner Broadcasting System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997). The Supreme Court clearly held in Turner II that restrictions on speech are always subject to heightened scrutiny.

C. It is a different matter whether a copyright's duration impinges upon the First Amendment. Turner II requires the government to show that the CTEA's restrictions on speech serve an "important government interest"--which, in the case of copyright, can only be "the general benefits derived by the public from the labors of authors," Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)--without "unduly burdening" speech. The CTEA's extension of copyright terms does not increase the benefits to the public from the labors of authors because it gives no real present incentive to authors. By removing from the public domain for another *660 twenty years a massive body of works, the CTEA dramatically limits access to the public commons.

D. The government wrongly characterizes Appellants' position as one that is in effect a claim to a "First Amendment right to express themselves using the copyrighted materials of others." In fact, Appellants argue that the CTEA cannot constitutionally confer these copyrights in the first place. United Video, Inc. v. FCC, 890 F.2d 1173, 1190 (D.C. Cir. 1989), and Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) do not, as the government urges, stand for the sweeping proposition that copyright statutes cannot be challenged under the First Amendment. Instead, both stand for the unremarkable principle that a copyright infringer cannot claim that his infringement is privileged under the First Amendment.

E. Appellants have standing to challenge the prospective features of the CTEA under United Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152 (D.C. Cir. 1987), and other authorities.

The Supreme Court has consistently limited copyright to those works that are "original." Most recently in Feist, but originally in The Trade-Mark Cases, the Court denied copyright protection for works that did not add to the sum of useful knowledge even though a grant of copyright protection to such works might be said rationally to advance a copyright-related interest. See *661Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). In Feist, the issue was not whether granting copyrights to unoriginal listings of telephone directories would satisfy a "rational basis" requirement (which it clearly would). Instead, the question was whether granting copyrights to ordinary telephone listings--i.e., facts--was consistent with the express limitation of the Copyright Act, namely, that the copyright "promote the progress." Feist, 499 U.S. at 347. This requirement of "originality," the Court held, "is a constitutional requirement." Id. at 346.

The government concedes much of this point by acknowledging that the extension of a copyright to a work in the public domain would not satisfy the originality requirement. (Gov't Br. at 35, 41.) See Graham v. John Deere Co., 383 U.S. 1, 6 (1996); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989). Even though the works at stake would initially have been "original" for purposes of the Copyright Clause, the government admits that the works' passage into the public domain would render them no longer capable of being protected through copyright.

While the government does not explain the grounds for this concession, the explanation is not hard to find: the essence of Congress's power under the Copyright and Patent Clause is to create a monopoly to "promote the Progress of Science and useful Arts." [FN18] *662 Where a work already has been produced, however, there is no justification for monopoly, especially a monopoly that affects speech. As the Supreme Court said, where the monopoly will not "add to the sum of useful knowledge," Graham, 383 U.S. at 6, or where the monopoly is simply "the adoption of something already in existence," In re Trade-Mark Cases, 100 U.S. 82, 94 (1880), the justification for a copyright disappears. And there is no meaningful distinction, in logic or in the Copyright and Patent Clause, between extending a monopoly for a subsisting copyright or for a copyright of work in the public domain. [FN19]

The government and amici wrongly urge that the standard by which the CTEAshould be tested is one of "rational basis" review. *663 (Gov't Br. at 21-22; Amici Br. at 10-11.) We pointed out in our main brief, of course, that the CTEA independently must be tested under the First Amendment standards of United States v. O'Brien, 391 U.S. 367 (1968), and Turner Broadcasting System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997). See (App. Br. at 33). But even beyond this, the government's arguments are misplaced.

The government cites Stewart v. Abend, 495 U.S. 207, 230 (1990), and this Court's decision in Schnapper Public Affairs Press v. Foley, 667 F.2d 102, 111 (D.C. Cir. 1981), for the proposition that courts should defer to Congress's copyright enactments and, presumably, afford them deferential review. But Stewart contains no such holding: the language from Stewart the government quotes does not even rise to the level of dicta and, in all events, is quoted out of context. Similarly, Schnapper does not support the government's arguments. As we read Schnapper, it holds that that the preamble to the Copyright and Patent Clause is not a substantive limitation upon the Clause's scope and that a court has only a limited role in reviewing general challenges to Congress's power under Article I. Id.

Our opening brief argued that the CTEA's extension of the life of subsisting copyrights also violated the "limited times" term of the Copyright and Patent Clause. Although no court before now *664 has had to interpret the words "limited times," the Supreme Court's method for interpreting the other terms within the Copyright Clause has been consistent. As with "Writings," (Trade-Mark Cases, 100 U.S. at 94) and "Authors" (Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)), the question is not what the term "limited times" means in the abstract. Instead, it is what the term mean in light of the express purpose of the clause, namely "to promote Progress."

First, both the government and the amici rely upon Burrow-Giles Lithographic Co. v. Sarony as authority for this claim that, since there have been several extensions of subsisting copyright terms, *667 the constitutionality of the practice is therefore "almost conclusive." Burrow- Giles, 111 U.S. at 58. This is simply a misreading of authority. What the Supreme Court said in Burrow-Giles was that when there was an interpretation "by the men who were contemporary with its formation, many of whom were members of the convention which framed it" then that interpretation is "entitled to very great weight." Id. (emphasis added).

Burrow-Giles was speaking of statutes passed in 1790 and 1802, when a significant portion of the Congress would have been framers. But in this case, we have no instance of an interpretation by the framers of the Constitution that would suffice to validate the CTEA. The First Congress's ratification of existing copyrights in 1790 is fully understandable under a Supremacy Clause analysis: the objective was to unify copyright law nationally, and in the transition to a federal state, there was a need to clarify which law (state or federal) would govern these copyrights. After that initial case, the next arguable "authority" for Congress's CTEA was 1831. But by 1831, only one of the framers--James Madison--was still alive and he had long since retired from Congress. [FN20] The view of the Congress in 1831 (much less the view of the Congress that passed the CTEA) cannot be said to be the view of the framers.

Second, it is absurd to argue (Gov't Br. at 16-17), that there is a "national tradition" of extending copyright terms that somehow "promotes progress," or that the CTEA represents Congress's fulfillment of some earlier "promise." (Id. at 25.) The government's argument seems to be that, since subsisting copyrights have been given term extensions from time to time over the years, authors have been motivated all along not just by the present incentive of the copyright term given in the existing copyright statute, but also by the prospect of unspecified, yet-to-come retroactive copyright term extensions. As we pointed out in our opening brief, the present value of any such extensions is too negligible to be a meaningful incentive. (App. Br. at 39-40). Moreover, the sheer randomness of any congressional copyright term extension is such [that] it cannot constitute a meaningful present incentive. [FN21]

The government has made no attempt to show that the CTEA can survive heightened scrutiny. (App. Br. 37-40.) Instead, it contends that First Amendment analysis is irrelevant because, as the government puts it, "Plaintiffs have no First Amendment right to reproduce the copyrighted works of others." (Gov't Br. at 53-59.) In other words, so long as copyright protects expression rather than ideas, the government argues that no First Amendment challenge to a copyright statute can be allowed. [FN22]

The Supreme Court has stated that "laws that single out the press, or certain elements thereof are always subject to at least some degree of heightened First Amendment scrutiny." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 640-41 (1994) (emphasis added). It is essentially undisputed that the CTEA is a regulation of speech: as a copyright statute, it regulates who can say what. By extending for twenty years the term of all subsisting and future copyrights, it increases the burdens the government imposes upon speech. As such, the CTEA must be tested under the ordinary analysis of the First Amendment. See, e.g., San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536 (1987) (intermediate scrutiny for assignment of term "Olympic"); Regan v. Time, Inc., 468 U.S. 641, 655-56 (1984) (intermediate scrutiny for regulation about copying currency). A content-neutral regulation of speech such as the CTEA can survive a First Amendment challenge *669 only "if it advances important governmental interests unrelated to the suppression of free speech" and "does not burden substantially more speech than necessary to further those interests." Turner II, 520 U.S. at 189.

Our argument is a simple one. It is that the authority the government relies upon does not stand for the sweeping proposition the government claims. Instead, these authorities are restricted solely to the narrow case where a litigant demands a right to use otherwise legitimately copyrighted material. In every case that the government relies upon, the question was whether there is a "[F]irst [A]mendment defense . . . to a copyright claim." United Video, Inc. v. FCC, 890 F.2d 1173, 1190 (D.C. Cir. 1989) (Wald, C.J.). [FN23] The claim in these cases is not that a certain work cannot *670 be copyrighted, but instead that, although a work is properly copyrighted, these particular claimants have a First Amendment right to use that work. See United Video, 890 F.2d at 1191, and Harper, 471 U.S. at 567. Such claims are analogous to cases where a party raise a First Amendment defense to a trespass action. See, e.g., Hudgens v. NLRB, 424 U.S. 507 (1976). In such cases, even though there is a legitimate property right at stake, the petitioner claimed that the First Amendment should give it the right to trespass.

But cases alleging First Amendment review of the use of a property interest are plainly distinct from First Amendment challenges to the constitutionality of the statute granting a property right in the first instance. Whether or not the use of a copyright is free of First Amendment review, the statute that grants the copyright obviously remains subject to ordinary First Amendment analysis. As we pointed out before, a statute that granted copyrights to "decent" works only, cf. Reno v. ACLU, 521 U.S. 844 (1997), or denied copyright to works by convicted felons, cf. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board, 502 U.S. 105 (1991), or that purported to copyright the American Flag would each raise a First Amendment issue that was not exhausted by the claim that the copyright protected expression only.

This is precisely the claim made here. Appellants do not argue that the First Amendment gives anyone the right to use otherwise legitimately copyrighted material from 1923. Appellants instead argue that material from 1923 cannot legitimately be given a further copyright term. No case relied upon by the government speaks beyond the narrow class of cases that we have identified. And both the government and the amici have completely ignored the Second Circuit's decision in *671Authors League of America v. Oman, 790 F.2d 220 (2d Cir. 1986), which considered on the merits a First Amendment challenge to the Manufacturing Clause of the Copyright Act, despite the alleged copyright exception to the First Amendment that the government relies upon. (See App. Br. at 54.) The government has not, in short, given any reason why this Court should not apply ordinary First Amendment review to the CTEA.

The government disputes that a First Amendment challenge to a copyright's duration should be treated any differently from a First Amendment challenge to a copyright's scope. (Gov't Br. at 56-57.) [FN24] In fact, the Supreme Court has distinguished duration from scope (e.g., "[t]he limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution . . ." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)), but the question this Court must resolve is whether the duration of a copyright affects First Amendment interests in the same way that the scope of a copyright affects First Amendment interests.

They plainly do, and this is shown by the reasoning that the Supreme Court has used to explain why copyright law (a regulation of speech and the press by Congress) is compatible with the First Amendment (a right limiting the regulation of speech and the press by Congress). In Harper, 471 U.S. at 558, the Supreme Court explained this compatibility in direct terms: Copyright law is consistent with the First Amendment because ordinarily copyright law functions as "an engine of free expression." Without giving authors the limited monopoly of copyright, less "original" work would be produced than with the limited monopoly of copyright. Copyright therefore does not "abridge" speech; copyright instead enhances speech, by "promoting Progress of Science." See Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, Boston College Law Review (forthcoming September, 2000).

This is the insight behind the Court's dicta (embraced by the government) (Gov't Br. at 18-19) suggesting that a copyright law that protected ideas as well as expression would be inconsistent with the First Amendment. See, e.g., Lee v. Runge, 404 U.S. 887, 892 (1971) (Douglas, J., dissenting from denial of certiorari). Cf. New York Times Co. v. United States, 403 U.S. 713, 726, n.# [sic] (1971) (Brennan, J., concurring) (copyright laws are not restrictions on freedom of speech because copyright "protect[s] only form of expression and not the ideas expressed"). While protecting ideas may well create greater incentives to produce ideas, the constraint on free expression that such a regime would create would outweigh any increase in incentives. A regime where ideas could be copyrighted would function, in the language of Harper, not as an engine of free expression, but as a brake. Copyright therefore cannot, consistent with the First Amendment, protect ideas. Harper, 471 U.S. at 556.

But this is not the only way in which increasing protections might render copyright a restraint on free expression. Changes in the duration of copyright are, in fact, the clearest example. When Congress extends copyright retrospectively, it increases the constraints on speech (to the extent that more speech is within the control of the law), without producing any greater incentive to create. [FN25] Causation is prospective. Thus retrospective increases in duration increase restrictions on speech without any compensating speech productive benefit.

Appellants have properly pleaded their standing to challenge the CTEA's prospective elements. [Internal citation omitted.] They are injured not only by the fact that works from 1923 which would have entered the public domain in 1999 were kept out but also by the fact that, for every subsequent year, works that would have entered the public domain will be kept out for an additional twenty years. Regardless of whether the works were copyrighted in 1997 (and thus fall under the CTEA's retrospective section) or were copyrighted in 1999 (and so are covered by the CTEA's prospective section), Appellants face the same injury: they are forced to wait an additional twenty years before they may legally copy, distribute or perform works that otherwise would have been in the public domain. See United Christian Scientists v. Christian Science Bd. of Dirs., 829 F.2d 1152, 1157 (D.C. Cir. 1987); see also Redden v. Interstate Commerce Comm'n, 956 F.2d 302, 306 (D.C. Cir. 1992). Nor is standing disturbed by the fact that copyrights on new works will outlive the individual Appellants, since most Appellants are business entities who intend to continue their businesses infinitely. [Internal citation omitted.] See, e.g., Campbell v. Louisiana, 523 U.S. 392, 397 (1998). Otherwise, Congress's extension of copyright terms beyond the human life span would take the statute outside the review of the courts. See, e.g., Ramer v. Saxbe, 522 F.2d 695, 704 (D.C. Cir. 1975).

For the foregoing reasons, the district court's decision should be reversed, the Copyright Term Extension Act declared unconstitutional, the enforcement of the No Electronic Theft Act against persons whose infringement of a copyright would not have happened but for the CTEA's amendment of 17 U.S.C. § 304(b) enjoined, *674 and the Appellants awarded costs of this action, including reasonable attorneys' fees.

Under a life plus seventy rule, the copyright of that piece of *675 1931 music would not expire until the year 2040. [FN26] At that point, the composer's grandchildren would be in their nineties, if they were alive at all, and those grandchildren would have adult grandchildren and great-grandchildren of their own. Therefore, a cultural and musical fixture, which was created under a series of influences from the very early twentieth century, and which in turn influenced the growth and development of the twentieth century, will have copyright protection through a good part of the twenty-first.

By contrast, an instrumentalist policy focuses on economic incentives or other societal effects of granting copyright. Instrumentalism is concerned with the producer, too, but views her as one person among many who may be affected by a change in law. Instrumentalism looks forward, rather than back. Its proponents ask: How best can the law encourage authors to produce new work in the future, and do so in a such a way that the value of new works so induced exceeds the costs of the system? [FN27] The answer to that question is not always ownership.

Most of you know that our Constitution's Copyright and Patent Clause is instrumentalist in wording. Congress is given the power to grant exclusive rights to authors and inventors "to promote the Progress of Science and the useful Arts." [FN28] Yet, when James Madison defended the Clause in the Federalist Papers, he did so on the grounds that granting copyrights and patents was one of the few places where the public interest coincided with private claims of right. [FN29] This convergence of private and public perspectives--analogous to authors' rights and instrumentalism--occurs often. Our law tends to be most stable and least contested when such convergence occurs.

One area where the two kinds of policies would likely converge is in the giving of copyright in the first instance. [FN30] To extend the term of copyright from zero years to ten years, for instance, would greatly increase the incentives of authors, and simultaneously honor their ties to their work. And the resulting incentives would outweigh the monopoly restraints on access that copyright also brings. Therefore, both perspectives would give a "thumbs up" if the question were increasing a copyright term from zero years to ten. Increasing the term of copyright from ten years to, let's say, thirty years or fifty years might also gain support from instrumentalists, as well as authors' rights advocates.

Under life plus fifty, our imaginary New York composer would have had eighty- nine years of copyright in her 1931 composition. Under something like the Bono Act's life plus seventy, she would have 109 years of copyright in the composition. Perhaps a sleepy author could be dragged to an early worktable by the thought of making his grandchildren better off. [FN31] But under the law prior to the Bono Act, that generation was already protected. Is the slugabed author likely to stir any earlier at the thought of increasing the wealth of his grandchildren's grandchildren--or the great-great-grandchildren of the publisher to whom the copyright is assigned?

If not, an instrumentalist would oppose the extension. It provides twenty more years of making works expensive and difficult to access, without giving a compensating gain in incentives. [FN32] As Lord Macaulay said of a piece of legislation that would have increased copyright term to a length less than that granted by the Bono Act, "it leaves the advantages nearly what they are at present, and increases the disadvantages at least four fold." [FN33] Someone who believes the goal of law is the instrumental one of being "beneficial for mankind" [FN34] is thus highly unlikely to favor the extension.

For example, we might all agree it is laudable to "reward authors." But how much reward is appropriate? For another example, some authors' rights advocates speak of "giving every cow its calf." But unlike calves and kids, a new intangible can have many mothers and look like none of them. So how should the cow-calf relationship be defined? Or sometimes authors' rights advocates take refuge in the notion that "reaping without sowing" is an evil that should be prohibited. [FN35] But to oppose "reaping without sowing" is profoundly antisocial. From Ben Kaplan [FN36] and John Dawson [FN37] back through time, students of society have realized that we all obtain benefits that we did not earn, simply by being born into human society. To learn is to reap more than we sow. [FN38] If we could not use the tools that make up our culture without the permission of the descendants of whoever initially created that culture, many bad results would follow. One result, I think, is that we would end up with a feeling that we do not really belong to the same community, which could have some bad effects for legitimacy, willingness to obey the law, and general civility. Reaping without sowing is hardly something that deserves broad condemnation.

There are many views of authors' rights. The most popular links authors' rights to the natural rights of property, as explicated in John Locke's second treatise. [FN39] Current thinkers, including myself, are not the only ones who find Locke congenial--so did the *679 Framers. John Locke was one of the most influential of the philosophers read by the group who wrote our Constitution--including the Copyright and Patent Clause. [FN40]

Locke's second treatise says that originally we all owned the earth in common. [FN41] He explains this common ownership by reference to God's gift and God's intent. For secular readers of today, the explanation lies in a belief in equality that was still questioned in Locke's time. In fact, fostering an increase in equality was integral to Locke's main goal: [FN42] he wrote in opposition to the divine right of kings. [FN43] Locke sought to justify a right to government that serves the people's interest by reference to this original common ownership of the earth. Therefore he posited that in a state of nature we would all be equally entitled to the fruits of the earth, whether they be fish in the sea or nuts and apples in the forest. [FN44]

Now, to understand how Locke's property theory fits with his theory of government, we need to recall the arguments of Sir Robert Filmer, another philosopher of the period. Filmer supported the divine right of kings. [FN45]

Filmer belittled the notion of common ownership. He argued that if everybody owned the earth the common, then no one person could ever take even a walnut from a walnut tree, without getting the consent of everyone else. [FN46] That would be an insuperable barrier to ever creating private property. Therefore, Filmer concluded that the only way for private property to come into being--this institution that we see all around us and which is so beneficial-- was to have a king. A king does not have to create a consensus of the whole every time somebody gets hungry and wants to eat a walnut. [FN47] A king can declare who owns what.

Locke's response was that common ownership of property does not necessarily give every co-owner a right to be consulted whenever it is used. [FN48] Rather, all the co-owners have a right not to be harmed by its use. [FN49] Locke believed that if someone's private use *680 or consumption has not harmed strangers, the strangers' only interest in challenging it would come from motives not worth respecting, such as covetousness, envy, and laziness.

But if, by contrast, strangers are harmed by someone's taking a bite out of the common property for private property, then they have a legitimate right to complain. From this comes a fairly famous axiom of Locke's: The laborer owns whatever from the common he has intermixed with his labor, so long as "enough, and as good," is left for everyone else. Locke reasoned that if enough and as good is left, then there is no ground for complaint. [FN50]

This seems reasonable. If many of us are on a desert trek and running out of water, and one happens upon a small pool of fresh water, we would think that person acts wrongfully if he tries to exclude all the rest of us, or if, after filling his own water bottle, he uses the pool as a latrine so it becomes unsuitable for drinking. But if all of us find springs or pools of fresh water sufficient for our needs, we would not think any of us wrongful if we kept our own spring to ourselves, and used it for any purpose we desired. That rightful exclusive use is the key to what we call "property." [FN51] Thus, the "enough and as good" condition is crucial to Locke's justification of a natural right of property.

Unless the stranger has some physical disability that prevents him from picking his own fruit, it is clear the stranger is acting that way solely to take advantage of the laborer's pains. [FN52] If using the other gatherer's labor did not motivate him, he would have picked his own apples, which would have been equally good. [FN53] The stranger *681 is acting wrongfully to so favor his own interest over another's. He is using the other's labor as a means toward his own ends, violating the very tenets of equality. [FN54] He is harming the laborer by taking her labor, which is now inextricably tied to the apples that she gathered. Because he is acting wrongfully to take the laborer's pile, she has a right to exclude him from using the apples. She has a form of property in the apples.

Locke says the earth was given to us for the benefit of the industrious and rational, not for the benefit of those who are covetous. [FN55] What does it mean to covet in Lockean terms? I think it is something that we, in secular terms, can understand. It means to want what someone else has created; to choose one's self over the other who has invested his effort in it; to disregard that person's efforts and take the thing to one's self. If you want to use deontological language, it is a primary violation of the right of equal treatment.

The application of this theory to intellectual property is obvious. So obvious, in fact, that Locke has sometimes been misdescribed as if he himself created an explicit defense of intellectual property. [FN56] But, though that was not part of his project, applying Locke's property theory to the labor of the mind is intuitive and appealing: A creator takes something out of the common heritage--language, myth, artistic forms, ideas. With this she mixes something of her own: intellectual labor, artistry, taste, and judgment. The result is an intangible--a song, a story, a computer program--in which both common and individual elements are mixed. If, in taking from the common heritage, she left "enough and as good" there for others to use, she would seem entitled to exclude strangers from what she has made. Similarly, she would seem entitled to demand compensation as a price for their using it. If so, she has a justifiable form of "property."

We have, under this view of Locke's, no right to another's pains, except if we are in great need. Aside from those extreme situations, strangers owe us no duties to improve our lot. This is a norm quite unlike that of the pure economic or utilitarian perspective, which seems to say that all persons should be enlisted in creating the greatest net social product. The Lockean approach says "no" to such instrumentalism. The consuming public does not have a right to the biggest and best. The public's right is preserved in its ability to make use of the common heritage. [FN57] That entitlement is enshrined in the "enough and as good" principle, which prevents new property from forming if the assertion of property rights would leave the public worse off in its use of that heritage. The public also has a right to act toward the created object in ways that do not take the creative person's labor.

I want to suggest that if you take the Lockean perspective seriously, you end up not with an unlimited right, but rather, with a very limited one. The example of Mark Twain will suggest that an unlimited right is an impossibility if we are going to have a culture at all. Twain is sometimes referred to as an advocate of extreme and perpetual copyright. But really, he could not have been. After all, in writing A Connecticut Yankee in King Arthur's Court, [FN58] he borrowed from the many bards who had told King Arthur's tales in prior years. If Twain was going to be able to use images and stories that he learned through somebody else's efforts, and if he felt rightful in doing so, he must have had a conception of boundaries on those prior writers' initial rights. There are many such possible boundaries--perhaps ownership could subsist in expression and not ideas, or perhaps there could be some type of time limit on the ownership of expressions. But if there is to be more than one generation of author, some limitations on the claims of the initial generation are mandatory.

At the end of this talk I am going to suggest a conclusion that I defend at more length elsewhere: [FN59] that our current copyright law gives authors more than they would get under Lockean natural rights. Sometimes the assertion of United States copyright law leaves the public worse off than it otherwise would have been in its ability to use the preexisting heritage, and the law sometimes gives *683 property rights far broader than are justified by the laborer's initial investment. Current copyright law gives more than a thoughtful authors' rights framework would justify.

The first such candidate is the extreme right over derivative works. [FN60] Right now, a copyright owner can control any substantial use of his or her authorship, even if the second person is a creative individual who is doing something with the work that the original author never in a million years could have done themselves. [FN61] In that case, a derivative work author causes the creator no harm at all, interferes in no way with the creator's initial plans, and may even give the creator new publicity and, therefore, new funds. There is no taking of the initial investment or interference with the creative person's foreseeable range of goals. Nevertheless, current copyright law imposes liability on this person who--unlike the stranger who stole the apples--is causing no harm. There may be practical reasons for such a choice, but it nevertheless goes much further than a Lockean analysis would justify.

I stand before you as the troglodyte on the panel and, in terms of those who oppose the term extension, I guess I stand before you as the unconstitutional lawyer. I'm reminded as I listen to the speakers today of the almost-Justice Robert Bork, and how he believed in following the original intent of the Framers. [FN62] Ultimately, Bork may have failed to gain a seat on the United States Supreme Court because he believed too fervently in original intent. [FN63] What I have heard here is that not only should we stick with original intent and find out what the Framers thought, but that we really should determine what the Framers' favorite philosopher thought because that is original intent.

Now, look at the Copyright Clause. To paraphrase, the Clause says that Congress shall have the power to promote the progress of science and the useful arts by granting to authors and inventors limited time monopolies. [FN64] Notice the words, "Congress shall have the power." Congress shall have the power. Not courts. Congress. The Congress is empowered to grant limited time monopolies. [FN65] Limited times. The Clause does not say limited fixed times; it does not say limited times coextensive with the life of a human being. It says limited times. Congress shall have the power to promote the progress of science and the useful arts by creating limited time monopolies.

When the founding fathers got together and wrote that in Philadelphia, it was against the background of common law copyright in the colonies. Common law copyright was perpetual. [FN66] So when the Framers wrote the words "for limited times," one might argue, to the undying hisses and boos of human kind-- at least, *687 according to some--that "limited times" meant something short of perpetual because Congress was not empowered by the Copyright Clause to replicate the common law system of perpetual copyright.In point of fact, parts of American statutory copyright law remained perpetual until 1976/1978, when the base law that we currently function under was enacted. [FN67] Until then, if you wrote something and did not publish it, you maintained a common law perpetual copyright. [FN68]

Under doctrines we now giggle at, but which were dominant in the nineteenth century and through the first half of the twentieth century, this notion of unpublished perpetual copyright embraced such art forms as music, theater, speech, and perhaps phonograph records--because, under the doctrine, phonographic records did not produce copies. [FN69] Because they did not produce copies, they were not published. [FN70] And because they were not published, they enjoyed perpetual protection. [FN71] Now along came the 1976/1978 Copyright Act, which wiped that out, marked time from creation, and gave protection for life plus fifty years, which has now *688 become life plus seventy. [FN72]

There has, indeed, been increasingly frenetic legislative activity in the copyright field. Copyright was not a major intellectual interest in this country among lawmakers until the modern communications and mass media and multimedia developments occurred. That is why Congress did not legislate much on copyright after 1790. Copyright hit the books again in 1831; [FN73] then Congress basically ignored it until in 1909. [FN74] Then it lay quiet until 1976. Now, it is the cat's meow, because so much of modern life turns on information, communication, and expression. Congress has gotten hyperactive about copyright, and has adjusted the term, in part, to take account of such things as the abolition of perpetual common law copyright, the increased longevity of people, and the fact that the United States has been a laggard in the world community in terms of duration. [FN75] Over the vast expanse of our history, we have--by and large, as judged by global standards--under- protected authors in terms of duration. We were catching up in 1909, catching up in 1976, and catching up in 1999 with the Sonny Bono Copyright Term Extension Act. [FN76] The notion that somehow we are a bunch of primitives running loose in the forest, granting incredibly long monopolies while the rest of the civilized world is awarding two-week monopolies, turns the world and history on its head.

The folks that brought the Eldred case view the constitutional Clause as having one function. The function of the Clause, according to the Eldred folk, is that it must create an incentive for an author to produce the next work. And we know Hawthorne is dead. And even Sonny Bono won't get much more out of him. And we know Locke is dead, so copyright protection won't incentivize him. But that is not what the Clause says. The Clause says, "to promote the progress of science and the useful arts." The Clause does not say, "to create an economic incentive to produce the next work." The Clause gives Congress the power, in its infinite wisdom, to decide *689 how to promote the progress of science and the useful arts by giving creators limited time monopolies. [FN77] It has not been the history of American copyright law to accept the notion that copyright is unavailable unless one can demonstrate that the particular awarding of a particular copyright toa particular author promotes the progress of the sciences or the useful arts. Rather, American copyright law looks holistically at what Congress has done. In other words: Is there a legitimate legislative purpose for a Congressional determination as to duration that a court can say is rational? It is not for courts to substitute their judgment for Congress's judgment once Congress has passed that low threshold of rationality. It is not for courts to say, "Life plus seventy, no." A court cannot say, "I will buy life plus sixty-two and six months, but not life plus seventy." That is not what courts are in business to do. Courts are not super-legislatures.

Thus, the question is: Did the sadness over Sonny Bono's death so blind the Congress of the United States that they did a totally irrational and unjustifiable thing? That is, I submit, the question we should ask the judge who will hear the Eldred case. [FN78] What one should do is take a look at the legislative history of the Sonny Bono Copyright Term Extension Act and see what it was that Congress did. [FN79] Mr. Eldred, in an interview at the Boston Globe, said, in effect, that no one ever said anything and that there was no legislative history. [FN80] He created that false image. That is not true. There was legislative history. [FN81]

*690 Reason number one found in the legislative history is harmonization. [FN82] Harmonization can be explained as the movement towards a worldwide understanding about copyrights and their protection. The United States was an outlying country until 1989. [FN83] We were the only major country that, for a century, did not join the world community of copyright. We did join in 1989. Throughout most of our history, however, as I have said before, we lagged behind with regard to the length of the copyright term. Indeed, with regard to the 1909 Act, even though the Europeans had gone to life plus fifty, we only went to twenty-eight plus twenty-eight. [FN84] People in Congress worried that America, the great leader, was a laggard in terms of intellectual protection and that we were totally out of synch with the world community. We started to get into synch with the world community with the 1976 statute. [FN85] We continued that process when we joined Berne in 1989. [FN86]

During the legislative process, Congress found out that the world community was going to life plus seventy. [FN87] The Register of Copyrights testified that there is now a global market place for copyrighted works, and it would facilitate America's involvement in the global market place if we harmonized our law with that of other copyright-protecting nations. [FN88] It also is true that when Europe went to life plus seventy, they adopted what is called the "rule of the shorter term." This meant that, for example, if France gave its people life plus seventy, and an American copyright wandered into Paris-- remember, intellectual property is our number one export, so you can not think about this without also thinking about *691 trade policy--it would not get life plus seventy the way a French copyright would get life plus seventy. [FN89] It would only get life plus fifty, because that is all the protection that United States copyright law provided. [FN90] The law of the shorter term would, therefore, emasculate the American copyright twenty years before the French copyright, thus depriving the royalty flow not only into the author's pocket or the copyright exporter's pocket, but into the American economy's pocket. So, harmonization was a major motivating factor for Congress. I also submit to you that harmonization with the international copyright community in the Internet world--remember that those little messages you type on that machine can be picked up anywhere in the world--is equally imperative. We must simplify our ability to transact internationally, and harmonization promotes simplification of the purchasing and selling of copyrighted works. That is a legitimate Congressional policy that promotes the progress of science and the useful arts, because it promotes dissemination, it promotes economic reward, and it promotes the ability to transact on a global scale.

Second, look to the scope of copyrights in 1790--maps, books, and charts? Roll your minds back to 1790. Do you know how limited the universe of communication was in 1790? Or the universe of expressing yourself in 1790? Of course American copyright law has broadened substantially in the two centuries since 1790. I wish I were alive at Antietam during the Civil War to watch Matthew Brady take photographs and listen to the nineteenth-century Eldreds say, "My God, my God, the sky is falling. Copyright will never be the same. Now every human being with a Kodak Brownie can take a photograph and it will be copyrighted and subjected to governmental regulation, and it will eviscerate our freedom." [FN91] Now *692 there was nobody at Antietam as smart as the people making the arguments in the Eldred case today. If there were, that argument would have been made about the photograph, it would have been made about radio, it would have been made about the motion picture. It would have been made about the phonograph record. It would have been made about television. It would have been made about the computer. And today, of course, it is made about the Internet.

You must attract capital into the copyright industries or you will not achieve the purposes of the Copyright Clause. You must attract capital by making sure that those industries can have a rate of return. It is not simply Hawthorne sitting at his desk with a quill. We have to provide incentives for a whole raft of people and industries to invest capital in order to promote the progress of science and the useful arts. That was the second reason Congress gave for moving American copyright law to what it believed would be the forefront of copyright policy making, and there is a legislative finding on this issue. [FN92] Congress believed the United States was going to become, and had already in part become, the global standard. [FN93]

Third, Hawthorne is dead. I feel badly about it, very badly. However, the notion that there is something in the Clause that prevents Congress from developing a term that exceeds the life of the author is bizarre. From the 1790 Act to this day, the Congress of the United States, including those characters in the first Congress who were also the draftspeople of the Constitution--and who the United States Supreme Court says we should give great deference to in interpreting the Constitution (because they were the same cast, by and large)--has taken the position that it is good public policy to provide intergenerational incentives. I have children. I have grandchildren. It certainly is important to me that my productivity provides something for them. That has been United States policy from the first Copyright Act to the current Copyright Act. There was considerable testimony before Congress on the Sonny Bono Copyright Term Extension Act that the term extension was important to those who create. [FN94] Now, who knows--in the *694 Olympian or public policy sense, maybe I should be working at McDonald's. Maybe I would be more socially useful at McDonald's than writing the neuralgic and technical stuff that I write. But that is not a judgment a court makes. It is a judgment that Congress has made--by providing intergenerational incentives, you promote the progress of science and the useful arts. [FN95]

That leads to the fourth point. Obviously, what I wrote yesterday was not affected or promoted by a copyright extension enacted today or tomorrow. But two facts should be noted. First, creators of works of expression have longevity. If you provide the proper incentives today, it will not enhance my productivity in the past, but it may promote my productivity in the future. In other words, I may stay and continue to write or do my scholarly thing today because, yesterday, Congress enacted a statute that enhances my reward. Second, since 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. [FN96] That has always been a rule of equity that Congress has followed since 1790.

Whether you look at the Act as purely prospective, or partially retrospective, because the twenty years of additional protection goes to existing works, there are good and valid Congressional judgments that have been made about these twenty years that have been tacked on to the copyright statute. As to the First Amendment argument, it is interesting. I will leave that by and large to Professor Ginsburg. The notion that copyright, ipsi dixit, ipso facto, suppresses speech, however, boggles my mind. Anyone can take my speech, take my ideas, and make fair use of it. Indeed, that is what the United States Supreme Court said in Harper & Row v. Nation Enterprises. [FN97] That is the critical balancing point. Anyone can do that--I just ask that they don't steal my expression. They *695 can use my ideas; but if they take my expression, please just give me a kopek or two.

The policies underlying U.S. copyright law, have vacillated between a natural rights view of copyright--although perhaps not quite the same view as Professor Gordon expressed, but a strong *696 property-urged view of copyright law nonetheless--and a more instrumentalist, incentive view. Both views are present in the constitutional Copyright Clause. "To promote the Progress of Science and useful Arts" [FN98] could be considered to be an instrumental objective. But Congress has also said "by securing for limited Times to Authors." [FN99] I do not understand the term "by securing" to mean to grant something that wasn't there before, but rather, to reinforce a pre- existing right. Indeed, that pre-existing right was acknowledged by Madison's justification for the Copyright Clause in Federalist 43, [FN100] when-- referring not to Donaldson v. Beckett [FN101] but to Millar v. Taylor [FN102] --Madison said that copyright had been adjudged in England as a right at common law. [FN103] It is true that Donaldson v. Beckett had, I think, already been decided when Madison made this declaration, but it seems that the news did not make it across the Atlantic by the time that Madison wrote his contribution to the Federalist papers. Thus, he was referring to the other traditional view of copyright law.

Nonetheless, I think it is also fair to say that the first copyright statute expresses an incentive rationale more than does the constitutional Copyright Clause. The statute identified three kinds of works to protect. [FN104] The works selected--maps, charts, and books--did not express the entire universe of creativity in the United States at the time. But they did express the kind of creativity for which the U.S. government sought to provide an incentive, particularly maps and marine charts for a largely unmapped new Republic. There was, I think, a definite cultural policy behind the 1790 Copyright Act.

Finally, in this overall picture, I think it is necessary to acknowledge that the international copyright system is based not only on Anglo-American ideas, but also on civilian ideas about copyright law, which are, perhaps, somewhat more property-oriented and humanistically-oriented. The incentive strain is somewhat muted on the other side of the Channel. Those tendencies in copyright law have shaped the major international convention, the Berne Convention, which enunciated the life plus fifty standard for duration. [FN105] Slowly, we found it in our best interest to join the community of copyright-protecting nations. The standards of the Berne Convention influenced the revision of the copyright law in 1976, so that, ultimately, we were able to join the Berne Convention belatedly in 1989. [FN106] (Belatedly, because the Berne Convention was first promulgated in 1886.) Those civilian ideas, perhaps alien to some of the Anglo-American tradition, have also permeated our copyright law as the years have gone by.

Arthur Miller helpfully reminded us that the federal copyright law did not, until 1978 (the effective date of the 1976 Act), define the entire landscape either of creativity or of economic value in the world of copyright, and that common law copyright, which covered unpublished works, in fact protected a very large zone of significant economic activity. The perpetual character of common law copyright certainly led to a lot of anomalies. One such anomaly was motion pictures, which, although viewed by millions of people, had not been distributed in copies and, thus, were technically unpublished. The 1976 Act therefore played a major role in harmonizing and, to some extent, curtailing the duration of copyright, at least with respect to that deceptively large class of unpublished works formerly protected by common law copyright. [FN107] Let us now turn to the matter at hand: The Sonny Bono Copyright Term Extension Act. [FN108]

The year of 1998 produced the pompously-named Digital Millennium *698 Copyright Act, [FN109] and the absurdly-named Sonny Bono Copyright Term Extension Act. I think that term extension was not a good idea. One can justify, or can attempt to justify, term extension on two bases. One is a copyright rationale and the other is an international trade rationale. I think Arthur Miller has given the international trade rationale quite effectively, so I address that argument only briefly. Moreover, that argument is the more persuasive of the two.

Since, however, I am not a fan of the work-for-hire doctrine, [FN110] and I think that the Constitution does say "Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors," not to assignees, the "exclusive Right to their respective Writings," [FN111] I think that one should look at what term extension does for authors. In the previous term extension instituted by the 1976 Copyright Act, Congress provided that, for new works, the term would be the life of the author plus fifty years, [FN112] thus aligning us with the world's standard. [FN113] Congress then harmonized the copyright term of works that had first been published under the 1909 Act, which had been protected for a term of twenty-eight years, renewable for another twenty-eight, *699 for a total of fifty-six. [FN114] Calculating that life plus fifty usually averages out to seventy-five years of protection, Congress added nineteen years to 1909 Act works so that they would be more or less coterminous with new Act works.

This concept of bringing old acts along was not unique to the 1976 Act. But the question then arose: Who gets the benefit of the extra nineteen years? Is it the author, the publisher-grantee? Congress split the difference by giving the authors, or their heirs, a termination right--the right to get their rights back from the transferees, despite their grant during the previous term of copyright. [FN115] One might therefore contend that the 1976 term extension went to authors in that, at least, it gave authors the chance to retrieve those rights.