70 UCINLR 651

(Cite as: 70 U. Cin. L. Rev. 651)

University of Cincinnati Law Review

Winter, 2002

Comments

*651 THE CONSTITUTIONALITY OF THE SONNY BONO COPYRIGHT TERM EXTENSION ACT OF

1998

Patrick H. Haggerty [FNa1]

Copyright © 2002 University of Cincinnati; Patrick H. Haggerty

The woods are lovely, dark and deep.
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.

-Stopping by Woods on a Snowy Evening, by Robert Frost [FN1]

I. Introduction

Robert Frost wrote Stopping by Woods on a Snowy Evening in the summer of 1922. [FN2] At the time he wrote it, he would have assumed that his work would be protected under the copyright law for an initial period of twenty- eight years, renewable for twenty-eight more years. [FN3] Thus, when he went to sell his new work, he and his publisher would have believed that the right to copy and use the work could potentially produce a constant income stream for a maximum of fifty-six years. In 1923, both Frost and his publisher would have assumed that the work would belong to the public no later than 1979, when anyone would be free to reproduce the work. [FN4] However, in 1976, Congress extended the term of protection for unexpired works to a maximum of seventy- five years, therefore delaying the entrance of Stopping by Woods on a Snowy Evening into the public domain until January 1, 1999. [FN5] Under the Sonny Bono *652 Copyright Term Extension Act of 1998 (CTEA), [FN6] which extended the grant for an additional twenty years, the work will not enter the public domain until January 1, 2019, at the earliest. [FN7] The combined extensions grant thirty-nine extra years of income to the copyright holder, a financial windfall that could not have been anticipated by Frost or the publisher who bought his work.

The historical progression of copyright legislation has resulted in ever- longer copyright terms. [FN8] The maximum fifty-six year term under the 1909 Act has prospectively yielded to a term of life of the author plus fifty years under the 1976 Act. [FN9] On October 27, 1998, President Clinton signed the CTEA into law, yet again exhibiting the dramatic expansion of the term of copyright. [FN10] The CTEA extends the term of copyright protection both prospectively-from the life of the author plus fifty years to the life of the author plus seventy years, or in the case of works made for hire, from seventy- five to ninety-five years-and retrospectively-to works subsisting under copyright, extending their *653 term to a maximum of ninety-five years. [FN11] Thus, numerous works that would have otherwise entered the public domain are now protected for an additional twenty years. [FN12]

This Comment argues that the CTEA's retrospective application is an improper exercise of congressional power under the Copyright Clause. [FN13] Also, this Comment argues that the CTEA violates the First Amendment. Part II of this Comment addresses the relevant history of copyright legislation in the United States, as well as the provisions, purposes, and arguments for and against the CTEA. Further, Part II discusses the textual limitations of the Copyright Clause and the public domain concept. Part III examines both the district and circuit court opinions in Eldred v. Ashcroft [FN14] regarding the constitutionality of the CTEA. In Part IV, this Comment argues that it is necessary to differentiate between the prospective and retrospective portions of the CTEA. Once the constitutional limits are properly understood, it becomes evident that the CTEA's retrospective term extensions violate the Copyright Clause. Further, Part IV argues that CTEA retrospective and prospective extensions are a type of content-neutral speech regulation that should be subject to rigorous "intermediate scrutiny" under the Turner I [FN15] test when facially challenged. The retrospective *654 extensions burden more speech than is essential to further copyright's underlying constitutionally defined purpose-"[t]o promote the Progress of Science and useful Arts." [FN16] Finally, Part V concludes that the Supreme Court should hear this case to define the scope of congressional power under the Copyright Clause and resolve the growing conflict between free speech and copyright law.

II. Background

A. A Brief Review of United States Copyright Legislation

A brief review of the history of copyright term protection in the United States is a necessary prerequisite to fully comprehending the provisions of the CTEA. Article I, Section 8, Clause 8 of the Constitution empowers Congress "[t]o 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." [FN17] Although the clause was passed unanimously, the Framers provided little guidance as to what the clause means. [FN18] The first U.S. Copyright Act, the Act of 1790, [FN19] initiated the pattern of measuring copyright from *655 an event other than the author's life. [FN20] This pattern was broken 186 years later in the 1976 Act. [FN21]

1. The 1790 Act

The copyright protection term set forth in the 1790 Act was derived from the 1710 English Statute of Anne [FN22] and provided for an initial copyright term of fourteen years, with a possible renewal period of fourteen years. [FN23] The 1790 Act provided for a two-term system of copyright duration, which would serve as a model for subsequent copyright legislation. [FN24] If the author died during the initial copyright term, the work fell into the public domain at the expiration of that term. [FN25] Also, if the author lived until the renewal term, but failed to renew, the work fell into the public domain. [FN26] Furthermore, the two-term structure gave the authors "a second bite at the apple" if their works achieved popularity during their initial term by providing for a renewal period for these commercially viable works. [FN27] The 1790 Act was entitled "[a]n Act for the encouragement of learning," and itgave an author "the sole right and liberty of printing, reprinting, publishing and vending" his "map, chart, book or books" for the duration of the copyright term. [FN28]

*656 2. The 1831 Act

In 1831, Congress extended the initial copyright period to twenty-eight years but left the renewal period at fourteen years. [FN29] The purpose of this extension was "[c]hiefly to enlarge the period for the enjoyment of copyright, and thereby to place authors in this country more nearly upon an equality with authors in other countries." [FN30] The two-term structure of the initial period and the renewal period provided benefits to the author and to the general public [FN31] by allowing works that were not profitable to enter the public domain at the end of the initial twenty-eight year period. [FN32] Also of importance, the 1831 Act eliminated the author's ability to make contingent assignments of the entire renewal rights concurrently with assignment of the initial term, and it provided security for families of an author who died during the initial term by granting the renewal right to the surviving spouse or children. [FN33]

3. The 1909 Act

The next major change in the law of copyright occurred with the passage of the 1909 Copyright Act. [FN34] Many authors complained to Congress that the existing protection term was inadequate because the authors were outliving the protection, thereby denying them the proper fruits of their labor. [FN35] Congress reacted to these complaints by extending the renewal period to twenty- eight years, making protection possible for a total of fifty-six years. [FN36] Many authors [FN37] advocated the adoption of a term equal to the life of the author plus fifty years. [FN38] However, Congress refused to abandon the two-term system because of the belief that works with little commercial value would pass into the public domain at the end of the initial period of protection, thereby stimulating *657 further creativity. [FN39] Furthermore, only profitable works would warrant an additional period of protection and be worth filing for a renewal term. [FN40]

4. The 1976 Act

The 1976 Act resulted from twenty years of congressional research. [FN41] With the extraordinary developments in technology and communications, [FN42] the 1909 Copyright Act was inadequate for the needs of the modern society. [FN43] The 1976 Act made the most sweeping changes in copyright law since the ratification of the Constitution more than 200 years earlier and formed the foundation of current copyright law. [FN44] The two-term structure of a fixed term followed by a renewal term was eliminated. [FN45] In place of the fixed terms, the 1976 Act established a single term for all copyrights created after January 1, 1978. [FN46] The term was the life of the author plus fifty years. [FN47] Works published or registered prior to January 1, 1978 were protected for a maximum of seventy-five years from the date of publication or 100 years from the *658 date of creation, whichever was less. [FN48] This was accomplished by setting the renewal term for pre-1978 works at forty-seven years, giving them a total of seventy-five years of protection. [FN49] In addition, the 1976 Act provided a term of seventy-five years from first publication or 100 years from creation, whichever was shorter, for anonymous works, pseudonymous works, and works for hire. [FN50]

The shift from the two-term structure to a term of life plus fifty years was premised on three rationales. First, the renewal system had proven difficult for authors: [FN51] it was unclear and highly technical, resulting in both a substantial burden and expense to the author. [FN52] Second, increased life expectancy in the United States [FN53] made shorter terms unable "to insure an author and his dependents the fair economic benefits from his works." [FN54] Finally, and most significantly, it became necessary for the United States to join the Berne Convention, the oldest international copyright agreement in existence. [FN55] The main priority of the Berne Convention is uniform international copyright protection. [FN56] To join the Berne Convention, a country is required to provide a minimum term of copyright protection of life of the author plus fifty years. [FN57] Thus, the 1976 Act represented a dramatic shift away from the promotion of arts and sciences toward the promotion of authors' rights, a concept more commonly recognized in European and international *659 copyright law. [FN58] However, Congress and numerous private interests were not finished extending the copyright terms.

5. The Sonny Bono Copyright Term Extension Act of 1998

On October 27, 1998, President Clinton signed the Sonny Bono Copyright Term Extension Act into law. [FN59] The CTEA amended the 1976 Act to provide an additional twenty years of protection for all works copyrighted in the United States. [FN60] The CTEA applies both prospectively and retrospectively. Therefore, all works created after January 1, 1978, remain protected for the life of the author plus seventy years. [FN61] Also, the term for anonymous works, pseudonymous works, and works made for hire was extended to ninety-five years from first publication or 120 years from creation. [FN62] Finally, the CTEA granted a term of ninety-five years from the date the copyright was originally secured for copyrights that were in their renewal term at the time the Act became effective. [FN63]

a. Proponents' Arguments For the CTEA

The passage of the CTEA was based on four rationales. First, proponents believed that the United States's copyright term needed *660 harmonization with the European Union's copyright term, [FN64] which is the life of the author plus seventy years. [FN65] The European Council Directive (EC Directive) contains a provision known as the "rule of the shorter term," mandating that member states recognize copyrights in foreign works for only as long as the work would be protected in its own country, or the European Community term, whichever is shorter. [FN66] Proponents of the Act argued that without the passage of the CTEA, American authors would receive twenty years fewer protection in Europe, therefore costing American authors vast amounts of revenue. [FN67]

Second, the CTEA would protect the United States's favorable trade balance of intellectual property. Because a large percentage of our intellectual property exports is to Europe, the United States must conform to the copyright term mandated by the European Community to maintain a dominant position in the global intellectual property market. [FN68] Congress viewed the potential loss of twenty years of income, at a time when the United States was at the height of the world intellectual property market, as particularly detrimental. [FN69]

Third, advocates of the CTEA contend that copyright terms should be long enough to protect the author and two succeeding generations of heirs. [FN70] As life expectancy increases, the children and grandchildren of *661 authors will outlive the term consisting of life of the author plus fifty years. Further, recent technological advancements have extended the commercial longevity of works. [FN71] Therefore, the amount of time new works may be exploited is longer. [FN72] Authors assert that allowing works to fall into the public domain when their use is still commercially viable causes great hardship to themselves and their families. [FN73]

Fourth, proponents claim that a longer term of protection would serve as a greater incentive for authors to create more works. [FN74] Proponents argue that if the grant of a limited monopoly were incentive to create, then expansion of the monopoly for a longer period of time would make creation more appealing for the author and therefore increase creativity. [FN75]

b. Opponents' Arguments Against the CTEA

Opponents of the CTEA disagree with each of the above arguments in favor of extending copyright protection. First, opponents of the CTEA argue that harmonization of international laws is an unattainable goal. [FN76] In fact, opponents argue that the CTEA creates disharmony. [FN77] For example, the CTEA increases the copyright period for anonymous, pseudonymous, and works for hire to ninety-five years or 120 years from creation, whichever is shorter, whereas the European Union now offers these authors seventy years of protection. [FN78] Also, the CTEA is not reciprocal. [FN79] For example, a Japanese author would enjoy a term of life of the author plus seventy years in the United States, while an American *662 author would only enjoy a term of life of the author plus fifty years in Japan. [FN80] Furthermore, Europe follows the natural rights philosophy of copyright law, [FN81] while the United States does not recognize an author's natural right in his or her works after first publication. [FN82] Finally, Europe does not recognize the "fair use" doctrine that exists in the United States. [FN83]

Second, opponents argue that the balance of trade argument is nothing more than rhetoric. [FN84] The favorable balance of trade the United States has obtained was achieved by adhering to the system of copyright laid out in the U.S. Constitution. [FN85] Furthermore, opponents of the CTEA argue that the United States's dominance in the world market is because of its current products of authorship, all of which were possible because of a rich public domain. [FN86]

Third, opponents argue that the proposition that copyright was intended to support the author and two succeeding generations is inaccurate. [FN87] The protection of two generations of heirs has never been the goal of U.S. copyright law. [FN88] Opponents argue the true goal of U.S. copyright law is "to promote the progress of science and useful arts by *663 securing a monetary reward sufficient, but no greater than necessary, to encourage authors to create works for the public good." [FN89] Further, opponents claim that the increase in life expectancies argument is nonsense. [FN90] With an increase in life expectancies, the current law is adequate because it protects copyrights for life of the author plus fifty years. [FN91] Therefore, as life expectancies increase, the author will live longer, therefore allowing for longer terms of protection. [FN92]

Fourth, opponents claim that the incentive for creativity argument is fundamentally flawed. There is no way that the twenty-year extension for works already in existence can serve as an incentive to create something that has already been created. [FN93] Furthermore, there is no evidence that extending the term by twenty years will encourage authors to produce a work they would not have produced had there not been a twenty-year extension. [FN94] Assuming that there is a marginal increase in the incentive to create works, this marginal increase is clearly outweighed by the harm to the public "in the form of higher royalties and an impoverished public domain." [FN95]

B. Copyright Clause Textual Limitations

A textual analysis of the Copyright Clause of the U.S. Constitution provides insight into how it should be interpreted. The clause can be broken down into two sections: (1) "[t]o promote the Progress of Science and useful Arts," and (2) "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [FN96] The Copyright Clause contains three explicit and implicit underlying policies. First, copyright law must promote learning; second, copyright law must enhance the public domain; and third, copyright law must encourage the creation and distribution of the works by protecting the author. [FN97] From this order, it logically flows that *664 protecting the author is an instrument for achieving a public domain and promoting learning.

1. "To Promote the Progress of Science and Useful Arts"

This section of the clause is known as the preamble. It explicitly sets out the legislative purpose for the power granted, making it the only grant of power in the Constitution to contain a purpose. The preamble specifies that the granting of rights be driven by the goal of benefiting the public, rather than rewarding the author or inventor. [FN98] If the preamble supports the public benefit rationale, as the Court has so often stated, [FN99] then this section of the Clause could be read to forbid Congress from granting "exclusive rights" that would be detrimental to the public good.

2. "By Securing for Limited Times to Authors and Inventors the Exclusive Rights

to Their Respective Writings and Discoveries"

The Copyright Clause explicitly states the means by which the promotion of progress may be achieved-by securing rights for limited times. This demonstrates the Framers' intentions that the best way to promote progress was to secure a limited monopoly for the author or inventor. The phrase "by securing for limited times" could be read as a limitation on congressional power to grant copyright protection. By limiting the protection, the Framers sought to ensure that the public would benefit through the entrance of works into the public domain. Congress has broad discretion in deciding the protection period; however, it is for the courts to decide whether this discretion has been abused.

3. Enhancement of the Public Domain

A work is either in the private domain (protected) or the public domain (unprotected). A creation can enter the public domain in a *665 myriad of ways. First, the material may not fall within the Copyright Clause of the Constitution. Conversely, the material may not fall under the intellectual property statutes, even though it is theoretically within the scope of constitutional protection. Congress may decide not to protect all the material it is constitutionally permitted to protect. In addition, the material may not be given protection for procedural or formal reasons. Finally, the material may be in the public domain because its term of protection has already expired, has been abandoned, or is invalid, thereby making it free to use.

Understanding the concept of public domain is vital to the comprehension of intellectual property law and the role of Congress in creating that law. [FN100] Professor Peter Jaszi of the American University's Washington College of Law described the public domain as "an informational commons which is free . . . to all users and all uses. Among other things, it is the source to which creators of each generation turn for the materials which they refashion into new-and newly valuable-works of imagination." [FN101] The addition of a creation to the public domain is an integral part of the social bargain inherent in intellectual property law. [FN102] It is one of the general benefits received by the public in return for providing protection to authors and inventors. It should not be viewed simply as a form of punishment imposed on authors and inventors when for some reason, such as failure to respect formalities, they lose control of their creations.

*666 III. Eldred v. Ashcroft

A. District Court's Opinion

In January 1999, Eric Eldred, creator of Eldritch Press, an Internet provider of public-domain works, filed a constitutional challenge to the CTEA. [FN103] Eldred alleged that the statute violated his First Amendment rights, and moreover, by retrospectively extending the term of copyright protection, it exceeded Congress's enumerated powers under the Copyright Clause of the Constitution. [FN104] Eldred also asserted that the constitutional purpose of "[p]romot[ing] the Progress of Science and useful Arts" would not be furthered by the CTEA's retrospective extension of copyright protection in existing works, particularly for deceased authors for whom the increased incentive to create would not be relevant. [FN105]

The U.S. District Court for the District of Columbia rejected Eldred's arguments and held that the CTEA was constitutional. [FN106] First, the court concluded that the plaintiffs' First Amendment claim was not supported by case law. [FN107] The court stated that the First Amendment does not provide a right to use the copyrighted works of others. [FN108] Second, the court held that the retrospective extension of copyright protection did not violate the "limited [t]imes" provision of the Copyright Clause, because Congress has the right to define the scope of *667 the copyright period and can enact laws retrospectively. [FN109] Finally, the court held that the CTEA did not violate the "to [a]uthors" language of the Copyright Clause, because an author may agree in advance to transfer future benefits that ultimately may be conferred by Congress. [FN110]

B. The D.C. Circuit's Majority Opinion

Judge Douglas H. Ginsburg, writing for the U.S. Court of Appeals for the District of Columbia Circuit, began his analysis by noting that the question of whether the First Amendment or the Copyright Clause imposes limits on the period of time for which Congress may grant copyright protection was an issue of first impression for a federal appellate court. [FN111] After an extensive analysis into the background of copyright term extension, the court addressed the First Amendment aspect of the plaintiffs' complaint. [FN112] Although the majority held that the plaintiffs had standing to challenge the CTEA, [FN113] the court summarily dismissed the plaintiffs' First Amendment claim. [FN114] The court stated that "copyrights are categorically immune from challenges under the First Amendment." [FN115] The plaintiffs argued that, although there was precedent limiting First Amendment protections where a litigant demands a right to use otherwise legitimately copyrighted material, the case at hand was "plainly distinct from [this] First Amendment challenge [ ] to the constitutionality of the statute granting a [copy]right in the first instance." [FN116] The court found this purported distinction illusory. [FN117] The majority disposed of the plaintiffs' First Amendment claim by stating that the plaintiffs have no First Amendment interest in the copyrighted works owned by others. [FN118] Furthermore, the court *668 found that the Copyright Act's fair-use provisions settled concerns about copyright law impinging on free-speech rights. [FN119]

Next, the majority addressed the plaintiffs' challenge that the CTEA violated the originality requirement of the Copyright Clause. [FN120] The plaintiffs relied upon Feist Publications, Inc. v. Rural Telephone Services Co., [FN121] which held that "[o]riginality is a constitutional requirement" for copyright because the terms "Authors" and "Writings," as they appear in the Copyright Clause, "presuppose a degree of originality." [FN122] The majority rejected the plaintiffs' claim by finding that an existingwork inherently lacks originality. [FN123] The requirement of originality is relevant to the question of whether a work is copyrightable in the first place, not whether a copyright may be renewed. [FN124] The court reasoned that, because congressional authorization of copyright renewal dated back to 1790, the plaintiffs' originality claim was fundamentally flawed. [FN125] Furthermore, the court found that plaintiffs failed to produce any precedent in support of their proposition. [FN126]

Finally, the majority analyzed the plaintiffs' claim that the CTEA violated the constitutional requirement that copyrights endure for only "limited times." [FN127] The majority noted that any congressional provision providing permanent copyright protection would exceed Congress's power under the Copyright Clause. [FN128] However, the plaintiffs contended that the preamble of the Copyright Clause, which grants "Congress . . . the Power . . . [t]o promote the Progress of Science and useful Arts," [FN129] bars extending the life of a preexisting copyright. [FN130] In other words, the plaintiffs argued that the phrase "limited Times" should be interpreted as allowing extension only as necessary to achieve the purpose of "promot[ing] the Progress of Science and useful Arts." [FN131] The majority rejected this argument by relying on the District of *669 Columbia Circuit's decision in Schnapper v. Foley, [FN132] where the court held that the preamble of the Copyright Clause did not constitute a limit on congressional power. [FN133]

The plaintiffs acknowledged "that the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power" and instead argued that "the Supreme Court has interpreted the terms 'Authors' and 'Writings' in light of that preamble and that this Court should do the same with 'limited Times."' [FN134] The majority found two problems with this argument. [FN135] First, the majority found it impossible to concede that the preamble is not a substantive limit and at the same time maintain that it limits the permissible duration of copyright more strictly than the textual requirement that it be for "limited Times." [FN136] Second, the plaintiffs maintained that Feist Publications, Inc. v. Rural Telephone Services Co. [FN137] supported their proposition that the preamble can be used to interpret the rest of the Clause. [FN138] The majority rejected this argument by noting that Feist never suggested that the preamble could be used in this manner. [FN139]

C. The Dissenting Opinion

Although Judge David B. Sentelle concurred with much of the majority opinion, [FN140] he dissented from the majority's holding that the twenty- year extension on copyright protection for existing works was constitutional. [FN141] Judge Sentelle focused on the breadth of the enumerated powers granted to Congress by the Copyright Clause. [FN142] The dissent analogized the U.S. Supreme Court's opinion in United States v. Lopez [FN143] to the present case. [FN144] In Lopez, the Court recognized that "congressional power under the Commerce Clause . . . is subject to *670 outer limits." [FN145] The dissent found that this concept of "outer limits" to enumerated powers applies to all such powers, including the Copyright Clause. [FN146]

Judge Sentelle went on to apply the framework laid out in Lopez, which he termed the "Lopez principle," to the present case. [FN147] First, the dissent analyzed whether the rationale in support of the extension has any stopping point or whether it would lead to the regulation of all human activity. [FN148] The dissent determined that the rationale offered by the government in support of the term extensions leads to an unlimited view of the copyright power, analogizing this to the unlimited power of the Commerce Clause asserted by the Government in Lopez. [FN149] In Lopez, the Court recognized "that limitations on the commerce power are inherent in the very language of the Commerce Clause." [FN150] Likewise, the dissent found limitations on the copyright power inherent in the language of the Copyright Clause. [FN151] The clause empowers Congress "[t]o promote the [p]rogress of [s]cience and useful [a]rts." [FN152] Thus, the dissent determined that the clause is not an open grant of power to secure exclusive rights, but a grant of power to promote progress. [FN153] Furthermore, the dissent found no substantive distinction between permanent protection and permanently available authority to extend originally limited protection. [FN154]

Judge Sentelle found that Congress can accomplish the unlimited protection the majority claimed it could not by simply extending the protection from 100 years to 120 years, from 120 years to 140 years, from 140 years to 200 years, and so on. [FN155] Additionally, the dissent found that the retrospective extension exceeds the understanding of enumerated powers reflected "in the Lopez principle of requiring some definable stopping point." [FN156] Judge Sentelle found that extending existing copyrights is not promoting useful arts, nor is it securing exclusivity for a limited time. [FN157] Therefore, Judge Sentelle would have held the CTEA unconstitutional because the retrospective term *671 extensions are beyond the outer limits of Congress's enumerated powers. [FN158]

IV. Discussion

The history of the Copyright Clause, and its subsequent examination by the Supreme Court, are the starting points for the analysis of the copyright term extensions. The Supreme Court has found limits upon congressional discretion that are implied from the text and the very nature of the Copyright Clause. [FN159] Although courts have repeatedly found that Congress's power under the Copyright Clause is limited, they have been reluctant to define these limits. [FN160] These implied limitations must be considered in determining the constitutionality of the CTEA.

A. The Supreme Court's Implied Constitutional Limits on the Copyright Clause

1. The Introductory Language

In determining the upper boundary of the constitutionally permitted copyright term, it is necessary to decide whether the stated purpose of the Copyright Clause acts to limit the discretion of Congress to set the term. In 1824, in Gibbons v. Ogden, [FN161] Justice Marshall stated:

If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those *672 objects are expressed in the instrument itself, should have great influence in the construction. . . . We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred. [FN162]

These views are particularly significant in the context of the Copyright Clause, for they indicate that a statement of purpose or objects set forth in the clause should greatly influence the interpretation of the clause. [FN163] In essence, the statement of purpose in the Copyright Clause-"To promote the Progress of Science and useful Arts"-represents a limitation on the power of Congress granted by the clause that must be considered in interpreting the clause. [FN164]

The Supreme Court has expressly recognized this in the patent context and implicitly in the copyright context. For example, in Graham v. John Deere Co., [FN165] the Court relied on the introductory language of the clause to support its view that there is a constitutional standard of invention that must be satisfied for patentability. The court prefaced its holding by noting:

[The Intellectual Property Clause] is both a grant of power and a limitation . . . . The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, 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. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must "promote the Progress of . . . useful Arts." This is the standard expressed in the Constitution and it may not be ignored. [FN166]

*673 Thus, there is a term beyond which the useful arts is no longer promoted and beyond which such progress may be hindered. At this point, the discretion of Congress to set copyright and patent terms becomes constitutionally limited. [FN167]

2. The Public Benefit Principle

In Twentieth Century Corp. v. Aiken, the Supreme Court made clear that "[t]he immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." [FN168] In so indicating, the Court implicitly stated that the purpose of the Copyright Clause is to provide societal benefit by promoting the progress of science and useful arts.

More recently, the Court has reaffirmed the public benefit principle. In Sony Corp. v. Universal Studios, Inc., [FN169] the Court rejected contributory infringementclaims against the manufacturer of a videocassette recorder. [FN170] The Court emphasized:

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. [FN171]

Although private reward is used as an incentive to promote creative activities, "[t]he copyright law, like the patent statutes, makes reward to the owner a secondary consideration." [FN172] In 1989, the Court addressed the balance between an exclusive grant to an author or inventor and the public benefit in a patent case, in Bonito Boats, Inc. v. Thunder Craft Boats, *674 Inc. [FN173] Addressing the substantive restrictions on Congress, the Court stated that "the ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure." [FN174]

Two years later, the Court affirmed the applicability of the principles articulated in Bonito Boats in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., [FN175] a copyright case. The Court in Feist struck down an attempt to expand copyright protection to telephone directories and other fact-based directories. [FN176] The court declared that originality, a term that is not in the Copyright Clause, "is a constitutional requirement." [FN177] In rejecting the "sweat of the brow" theory, the Court explained that:

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," and a constitutional requirement. . . . This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. [FN178]

The Court has reiterated that "[w]e have often recognized the monopoly privileges that Congress has authorized, while 'intended to motivate the creative activity of authors and inventors by the provision of a special reward,' are limited in nature and must ultimately serve the public good." [FN179]

Thus, Congress's power over copyright law is not "unlimited" but rather tied to the public purposes the clause identifies. These cases offer a strong defense of the significance of the public domain to the "Progress of Science and the useful Arts." Moreover, these cases are evidence of a commitment by the Court to use the Copyright Clause as a structural constraint on Congress's placement of private reward above the public interest. Feist, Graham, and the Trade-Mark Cases coupled together demonstrate that it is not only proper to use the Constitution to limit or invalidate federal intellectual property legislation, but that the Supreme Court has every intention of doing so in the near future. [FN180]

*675 B. Retrospective Extensions

In order to fully understand the constitutional infirmities of the CTEA, it is necessary to distinguish between the prospective extensions and retrospectiveextensions granted by the statute. [FN181] When the constitutional limits are properly understood, it becomes evident that the retrospective extensions violate the promotion of progress and limited times provisions of the Copyright Clause.

1. "To promote the Progress of . . . useful Arts" [FN182]

In the first 100 years after the first Copyright Act, Congress extended the term of copyright only once. [FN183] In the next fifty years, Congress extended the term of copyright only once. [FN184] In contrast, in the last thirty-seven years, Congress has extended the term of copyright eleven times. [FN185] Moreover, nine of those eleven times were extensions of subsisting copyrights. [FN186] Two of those extensions were for both subsisting copyrights and works not yet copyrighted. [FN187] These extensions have upset the balance between granting limited monopolies to authors and sustaining the vitality of the public domain. However, under the majority's rationale in Eldred v. Reno, Congress is free to extend the terms of subsisting copyrights indefinitely. [FN188]

The promotion of progress language of the Copyright Clause and the principle of the public domain work together to provide limitations on congressional action. [FN189] Enlargement of the public domain is what *676 constitutes progress in copyright law. [FN190] From the era of our founding fathers, the Supreme Court has continually stated that the primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and the useful arts by increasing the public domain. [FN191] The principal point of the Supreme Court's copyright jurisprudence is that there are constitutional limits on the power of Congress to legislate in the field of copyright. [FN192] The Supreme Court believes that safeguarding the public domain is of supreme importance, above other copyright interests. [FN193] Thus, it is necessary to answer whether the retrospective extension satisfies the promotion of progress language of the Copyright Clause.

The nature of the public interest in copyright law is evident. The goal of copyright law is not harmonization with European laws or favorably balancing trade, [FN194] nor is it providing for the pecuniary interest for authors, their spouses, children, and grandchildren. [FN195] Rather, it is apparent from the language of the Copyright Clause and the title of the first copyright act that "the primary purpose of copyright is to promote learning, and the rights of the author are recognized only as an aid in furtherance of this purpose. The interest of the public is paramount . . . ." [FN196]

Each congressional extension of copyright terms should be demarcated against the public domain. Without doubt, copyright law presupposes this premise by the very nature of the bargains struck between the author and society under the Constitution--the author receives a limited monopoly of copyright, but only in exchange for an eventual commitment of the work to the public domain. This is implicit in the Constitution and is echoed in the Supreme Court's intellectual property jurisprudence.

In the Committee Report accompanying the 1909Copyright Act, the committee determined that in enacting copyright law, Congress must consider two questions: (1) "how much will the legislation stimulate the producer and so benefit the public," and (2) "how much will the monopoly granted be detrimental to the public?" [FN197] These same considerations are useful in evaluating the provisions of the CTEA. The answer to the first question is that the CTEA does not stimulate the *677 production of new works. The answer to the second question is that the CTEA will be detrimental to the public in a myriad of ways. In order to more fully answer these questions, one must understand the nature of the public domain.

After the copyright protection term expires on a work, the work becomes part of the public domain. [FN198] Works in the public domain can be used freely, without payment of royalties or restrictions on their use. [FN199] The main benefit of the public domain is that it serves as a wealth of creative material that may be reproduced, sampled, altered, or incorporated into other works by artists. This results in the creation of new and innovative works. Therefore, the creation of new works is dependent on a rich and vibrant public domain. [FN200] The costs of the CTEA on the public domain are immediate and considerable. Works that would ordinarily enter the public domain fifty years after the author's death remain protected for an additional twenty years. Therefore, fewer works will enter the public domain. Moreover, the public will enjoy fewer new works because current creative writers will be denied free access to important material for use in creating new works. [FN201] These additional twenty years of protection cannot act as an incentive to any current author to work harder to create new works that he or she would not have produced in any event. However, the extension is certain to hinder future creative activities of authors who rely on the rich and vibrant public domain.

The CTEA guarantees a continual income stream to favored companies of the legislature, including the American Society of Composers, Authors and Publishers (ASCAP), the Walt Disney Company, Motion Picture Association of America, and the Music Publishers Association, among others. [FN202] Professor William Patry, a *678 former House Intellectual Property subcommittee staff member, described the public interest participation as follows:

Copyright interest groups hold fund raisers for members of Congress, write campaign songs, invite members of Congress (and their staff) to private movie screenings or sold-out concerts, and draft legislation they expect Congress to pass without any changes. In the 104th Congress, they are drafting the committee reports and haggling among themselves about what needs to be in the report. In my experience, some copyright lawyers and lobbyists actually resent members of Congress and staff interfering with what they view as their legislation and their committee reports. With the 104th Congress we have, I believe, reached a point where legislative history must be ignored because not even the hands of congressional staff have touched committee reports. [FN203]

The retrospective portion of the CTEA is a legislative gift of public funds to private holders that does not in the slightest way benefit the public. The CTEA results in higher prices for consumers because of transfer payment demands by copyright holders.

The legislative history of the CTEA reveals that Congress either misunderstood the scope of the Copyright Clause or purposely muddied its real motivation. The Report of the Senate Judiciary Committee [FN204] fails to mention how the CTEA will benefit the public. [FN205] In today's society, Congress has developed its own principle of copyright philosophy-more copyright protection is better and the goal of copyright is to reward authors. [FN206]

*679 The balance between "exclusive rights" and "promotion of progress" has shifted in favor of private monopolies. [FN207] It is evident that Congress is concerned about American business, copyright holders, and the allure of money. In enacting the CTEA, Congress has deprived the public of the bargained for increase in the public domain "without any counterveiling benefit." [FN208] Could there possibly be any additional incentive to a dead author? Will the author be motivated to create new works when the copyright protection extension goes to private corporate monopolists? Obviously, the answer to these questions is "no."

Should Eldred be allowed to stand, the effect of the ruling on the public domain cannot be overstated. For the first time in over 200 years of copyright history in the United States, no works will enter the public domain for a full twenty years. Furthermore, Eldred gives the green light to Congress to continue its practice of extending copyrights on "the installment plan." [FN209] Under the majority's rationale in Eldred, Congress is free to extend the terms of subsisting copyrights indefinitely. [FN210]

The retrospective portion of the CTEA extends the term of the copyright monopoly without creating any new incentive to produce and without benefiting the public. Instead, the CTEA grants the additional term to something already in existence, which is directly contrary to Copyright Clause and Supreme Court copyright jurisprudence. The CTEA's retrospective extension of copyright terms creates no increase in motivation to authors, because the works in question have already been created. Moreover, the retrospective extension of copyright terms harms the public domain by keeping works out of the public's reach. For two centuries, the Supreme Court has recognized that both textually and functionally the Copyright Clause limits what Congress can accomplish and that the "promotion of progress" phrase is intended to enhance the public domain. The Court has shown that protecting the public domain is not only important, but that it is avalue higher than all other copyright interests. To be constitutional, the CTEA must "promote" the future production of copyrightable works of authorship. As has been shown, the retrospective term extension has no rational *680 connection with enhancing the public domain and thereby promoting progress. Therefore, the retrospective term extension is unconstitutional.

2. "[L]imited Times" [FN211]

In understanding the meaning of "for limited Times," the issue is not whether Congress has the power to extend the term of copyright protection. Congress can exercise the power, however, only to a certain point-that is, where the extension conforms to the limitations inherent in the language of the Copyright Clause taken as a whole. [FN212] Thus, the phrase "for limited Times" cannot be looked at in isolation. As the Supreme Court made clear in Wheaton v. Peters, [FN213] the meaning of a phrase in the Copyright Clause must be determined in the context of the "words and sentences with which it stands connected." [FN214] Therefore, the introductory phrase, "To promote the Progress of Science and the useful Arts," and the phrase "the exclusive Right" operate to limit the authority of Congress to set copyright terms.

Given the trend toward granting longer and longer copyright terms, due consideration must be given to the constitutional limitation that copyrights may last for only "limited Times." [FN215] Although for the past two centuries Congress has continually lengthened copyright terms, no jurisprudence has arisen demarcating the limits of the "limited Times" phrase of the Copyright Clause. An end-point must be established, and where that end-point lies remains untested. [FN216] What constitutes a limited time is difficult to answer. However, if the protection extends past the optimal duration, the public suffers because the works do not enter the public domain. [FN217] Continually extending protection durations limits the creative tools available for authors to create new works. [FN218]

According to the majority in Eldred, any fixed period short of infinity-whether embraced singularly or piecemeal-satisfies the "limited Times" restriction of the Copyright Clause. The majority's *681 view renders the words "limited Times" meaningless, and this reading is contrary to the purpose of the Framers' inclusion of the language. For example, under the government's current approach, the copyright on a number of works has received two twenty- year extensions, and there is nothing to prevent another extension in twenty more years. Hence, the extension is virtually perpetual or ad infinitum. The limitations are wholly illusory. Therefore, the government's current approach reads the "limited Times" language out of the Copyright Clause. The retrospective extension of twenty years for virtually all works violates the clause's express requirement that copyrights be granted for "limited Times." The extensions granted in the CTEA are essentially unlimited and are therefore unconstitutional. [FN219]

C. The First Amendment Challenge to the CTEA

In addition to their constitutional challenge based on the Copyright Clause, the plaintiffs in Eldred raised a First Amendment challenge to both the prospective and retrospective aspects of the CTEA. [FN220] The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech . . . ." [FN221] Without doubt, copyright law's potential for burdening speech has been recognized in U.S. case law [FN222] and scholarly commentary. [FN223] However, courts have rarely imposed First Amendment limitations on copyright because courts have *682 assumed that First Amendment principles are adequately protected by limitations imposed on copyright owners' rights. [FN224] This phenomenon was summed up by the court in Eldred when it stated, "copyrights are categorically immune from challenges under the First Amendment." [FN225] This application of "categorical immunity" is misplaced and turns the prevailing First Amendment doctrine on its head.

So why have courts not subjected copyright to First Amendment scrutiny, like private causes of action under the laws of defamation, [FN226] right of privacy, [FN227] right of publicity, [FN228] trademark, [FN229] intentional infliction of emotional distress, [FN230] and wiretapping? [FN231] The answer to this question turns on a myriad of interrelated factors. [FN232] However, as Professor Netanel argues, courts have continued to rely on early commentary and precedent that is fundamentally at odds with the current changes in copyright and First Amendment jurisprudence. [FN233] In Eldred, the court relied on Melville Nimmer's "definitional balance" [FN234] in support of copyright's "categorical immunity." [FN235] In copyright law, Nimmer provided, the balance between the First Amendment and copyright is preserved, in part, by the idea/expression dichotomy, [FN236] the *683 doctrine of fair use, [FN237] and copyright's limited term. [FN238] Professor Netanel points out that Nimmer's article was written over thirty years ago and has been rendered moot by fundamental changes in copyright [FN239] and First Amendment doctrines. [FN240] Therefore, the courts' continued reliance upon Nimmer's argument is misconceived. Even relying on Nimmer's argument, the court in Eldred overlooked the fact that Nimmer argued, "[n]either of the reasons previously posited justifying first amendment subordination to copyright can justify this extension of an existing copyright term. . . . [Therefore] I can but conclude that a serious question exists as to the constitutional validity of the proposed extension, given the countervailing interest in free speech." [FN241] Therefore, the D.C. District and Circuit courts ignored one of Nimmer's exceptions to the immunity for all facial challenges to Copyright Act amendments that burden speech.

Copyright should be subject to First Amendment scrutiny. [FN242] This proposition finds support in the recent case of Universal City Studios, Inc. v. Corley, [FN243] in which the Second Circuit upheld section 1201(a)(2) of the Copyright Act only after clearly subjecting that provision to heightened First Amendment scrutiny, following the standard announced in Turner I. [FN244] In enacting copyright law and enforcing copyright owners' rights, the government does not take a particular viewpoint of the restricted *684 expression. [FN245] Therefore, the CTEA is a content-neutral regulation of speech. [FN246] The test to be applied to content-neutral regulations has varied from highly exacting to highly deferential. [FN247] Copyright law is especially prone to industry group influence. [FN248] Therefore, copyright law should be subject to the heightened "intermediate scrutiny" applied by the Turner I court, where cable operators mounted a First Amendment challenge to the must-carry provisions of the Cable Television Consumer Protection Act of 1992. [FN249]

In Turner I, the Court stated that the government must show "that the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry." [FN250] Moreover, the government "bears the burden of showing that the remedy it has adopted does not 'burden substantially more speech than is necessary to further the government's legitimate interests."' [FN251] Despite due deference to Congress's legislative findings, the Court stated that they did not foreclose "independent judgment of the facts bearing on an issue of constitutional law." [FN252] The Court ultimately remanded the case to determine whether the must-carry provisions were supported by *685 "reasonable inferences based on substantial evidence." [FN253] In Turner II, on appeal from remand, the Supreme Court applied a more deferential standard than in Turner I. [FN254] Nevertheless, Turner II relied on the lower court's findings of fact, instead of deferring to Congress, in upholding the challenge to the must-carry law. [FN255] Turner I concluded that a content-neutral restriction is permissible if it serves a substantial or important governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires . . . that the means chosen do not 'burden substantially more speech than is necessary to further the government's legitimate interests."' [FN256] The CTEA fails this test.

A content-neutral regulation on speech must advance an "important governmental interest." [FN257] The Constitution expressly empowers Congress to grant exclusive rights in writings for limited times in order "[t]o promote the Progress of Science and useful Arts." [FN258] The Supreme Court has continually construed this mandate of copyright law to mean that "[c]reative work [is] to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." [FN259] Therefore, in order to serve the fundamental purpose of copyright law, "to Promote the Progress of Science," Congress must strike a balance between the "exclusive Right[s]" of copyright and the public domain. [FN260] Did Congress reasonably believe that it struck this balance when it enacted the CTEA?

*686 With regard to the retrospective term extensions, Nimmer eloquently demonstrated:

Neither of the reasons . . . justifying first amendment subordination to copyright can justify [an] extension of an existing copyright term. It can hardly be argued that an author's creativity is encouraged by such an extension, since the work for which the term is extended has already been created. [FN261]

Furthermore, the retrospective term extensions limit and restrict the public domain. As demonstrated in the Introduction, works that would have entered the public domain have now been delayed for an additional twenty years. As a result, fewer works will be available for use in creating new works. [FN262] Therefore, the CTEA creates no incentives to "promote the Progress of Science," and it decreases the sources that others could use to promote progress. Thus, the retrospective portions of the CTEA do not "advance an important governmental interest."

In Eldred, the Government advanced four justifications for the CTEA. [FN263] However, the only credible argument that the Government made was that the CTEA harmonizes U.S. copyright law with European copyright law. [FN264] This argument, however, as shown above, is misguided. Many commentators demonstrated that the CTEA does not harmonize U.S. copyright law with the copyright law of the European Union. [FN265] Furthermore, even if the court found that the CTEA did harmonize international copyright law, there is no support for the proposition that harmonization is an "important government interest." Moreover, the CTEA is not narrowly tailored to serve the goal of harmonization.

Unlike the retrospective term extensions, the prospective term extensions could increase the incentives to authors to create new works. However, the Government must show that this twenty-year increase in term protection will advance an "important government interest" *687 without "burden[ing] substantially more speech than [is] necessary to further those interests." [FN266] Thus, the incentives must outweigh the restrictions on speech. The plaintiffs in Eldred presented an affidavit by Hal R. Varian [FN267] that demonstrated the present value of the CTEA's twenty-year extensions for new authors is minimal. [FN268] Therefore, the incentives produced by the prospective term extensions are too speculative to justify the significant burdens on speech. Simply, the prospective term extensions do not "promote the Progress of Science" [FN269] in a manner consistent with the requirements of the First Amendment.

D. Legislative Record

In recent years, the Supreme Court has shown a readiness to find statutes unconstitutional when their legislative records do not support the factual judgments that justify congressional action. [FN270] Since 1995, the Supreme Court has made clear that constitutional limitations do matter by continually striking down legislation on constitutional grounds, including: the Gun-Free Zones Act, [FN271] the Line Item Veto Act, [FN272] and the Religious Freedom Restoration Act. [FN273] These cases demonstrate the Court's interest in limiting congressional efforts that exceed its enumerated powers. Congress has extended the reach of its power under the Copyright Clause in the same way Congress has expanded its power under the Commerce Clause. The Supreme Court has reaffirmed the principle that congressional action is confined to *688 "defined and limited" powers. [FN274] Congress has ignored the Court's limit on Congress's intellectual property power by enacting the CTEA. The Supreme Court has stated that "as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings . . ., regarding effect on interstate commerce." [FN275] There is no reason why this principle should not apply to the Copyright Clause and lead to a holding that the CTEA is unconstitutional because the legislative record does not justify Congress's action. [FN276] The courts must continue the trend established by the Supreme Court and ensure that Congress is living up to its constitutional duty as laid out in the Copyright Clause. Understanding the limits on congressional power will require judicial interpretation, just as determining Congress's power under the Commerce Clause has required judicial interpretation.

In his dissent, Judge Sentelle correctly analogized the Commerce Clause to the Copyright Clause. [FN277] He premised this analogy on the Supreme Court's decision in Lopez. [FN278] The overriding concern of the Court in Lopez was that the rationales offered by the Government in support of the Gun- Free School Zones Act offered no limitations on Congress's power under the Commerce Clause. [FN279] According to the Court, the enumeration of powers in the Commerce Clause presupposes something not enumerated, and when Congress attempts to change the federal balance by overstepping its enumerated powers, it is the Court's responsibility to intervene. [FN280] As Judge Sentelle stated, the government's rationale in support of the CTEA likewise offered no limitations on Congress's power under the Copyright Clause. [FN281] The flaw in the majority's analysis is that it provides no limiting principle. For example, there is nothing to stop Congress from extending the protection from 100 years to 120 years, from 120 years to 140 years, from 140 years to 200 years, and so on. [FN282]

In the First Amendment context, the Supreme Court has repeatedly emphasized that the judiciary must ultimately determine whether laws *689 are consistent with the First Amendment. [FN283] In Graham v. John Deere Co., the Court found that:

[The Intellectual Property Clause] is both a grant of power and a limitation. . . . The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, 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. [FN284]

Recently, in Feist Publications, Inc. v. Rural Telephone Service Co., the Court held that originality, a term that is not in the Copyright Clause, "is a constitutional requirement." [FN285] Congress was not free to permit copyright in facts or non-original works. [FN286] If Congress has failed to identify a speech-based justification for the statute, and the law suppresses more speech than it promotes, the court would be required to determine if the law is consistent with the First Amendment. Congress should be required to make a determination based on economic empirical evidence of the effects on free speech.

As an officially elected representative body, Congress makes policy decisions and is the superior fact-finder. [FN287] Like many other substantive areas of constitutional law, Congress has failed to perform adequate fact-finding when it comes to copyright issues. [FN288] When Congress enacted the CTEA, there was a lack of empirical research on the issue of how the CTEA would further the public welfare as embodied in the Constitution and its potential effect on free speech. [FN289] There was no factual study showing how much incentive is enough to further creative *690 activity. Moreover, the legislative history reveals that Congress's conclusions were "based on hypotheses built on hypotheses." [FN290] Proponents of the extension offered no proof, beyond generalized self-serving rhetoric lacking in substance, that the extension produces an incentive to create. [FN291] In reality, the United States's copyright industries have been successful because of a complex mix of private property rights, constitutionally protected liberties, and copyright rules that operate under free market principles. [FN292] Before embracing the world's copyright norms, Congress should ask whether those norms protect the rights and liberties of U.S. authors and match the principles that have served the United States so well for so long. [FN293]

E. Public Awareness and Political Accountability

For far too long, copyright legislation has revolved around the industry groups involved, with the public shut out of the debates because of its lack of knowledge of the stakes involved. As the public becomes more knowledgeable of copyright law, the disenfranchisement of the public will change. Congress will be forced to analyze industry requests with more care towards the public good, instead of solely focusing on the benefits provided to the industry groups.

Why should the public care about the copyright term extension? The answer is simple-every additional year of protection is another year that a citizen cannot use the work for free. Moreover, the public will enjoy fewer new works because current creative writers will be denied important pieces for use in creating new works. [FN294] The commons [FN295] will continue to be limited. For example, a federal judge recently issued a preliminary injunction blocking the publishing of a novel entitled The Wind Done Gone, a retelling of the 1936 saga Gone With the Wind from the prospective of a slave. [FN296] Although the Eleventh Circuit vacated and remanded, the case should have never been in court. Without the *691 additional copyright protection, the book should have fallen into the public domain in 1993. [FN297] Under the CTEA, Gone With the Wind is protected until 2032.

The crisis through which we are passing is more profound than any event in the purely political plane could possibly be-ideas and values of supreme magnitude are involved. The enormity of the challenge must be fully grasped if it is to be met. We, as a society, must examine anew the intrinsic value of ideas we have been accustomed to cherish. We must understand precisely the potential loss of the intellectual commons and the value we bestow upon it. Ultimately, the people are responsible for stopping Congress's all too frequent copyright term extensions. Although the constitutional challenge to the CTEA has validity, it is up to the public to exert pressure on Congress to control the continuing copyright term extensions.

V. Conclusion

In Eldred, the Court of Appeals for the D.C. Circuit erred by failing to find the CTEA's retrospective applications to be an improper exercise of congressional power under the Copyright Clause. Moreover, the Court improperly refused to determine whether the CTEA violates the First Amendment when it stated, "copyrights are categorically immune from challenges under the First Amendment." [FN298] In this era, with the increased development in intellectual property law, [FN299] it is necessary to ensure that emerging solutions rest on a solid constitutional foundation. In recent years, Congress has been guilty of setting intellectual property policy according to the private interests who appear before it. The result has been increased protection for intellectual property owners. Congress has ignored the mandate that copyright create incentives for the production of creative works and instead has granted benefits where no incentive to produce exists. Former Representative, now Judge Abner Mikva emphasized Congress's obligation to respect the Constitution when he stated that members of Congress "should remember that their constitutional oath is not just a ceremonial ritual *692 but an entrusting to their care of a document that gives this republic its unique longevity." [FN300]

The Supreme Court stated, "[b]ecause copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible." [FN301] Eldred represents the perfect opportunity for the Supreme Court to define the scope of Congress's power under the Copyright Clause and resolve the growing conflict between free speech and copyright law.

VI. Editor's Note

On February 19, 2002, the U.S. Supreme Court granted certiorari in Eldred v. Ashcroft. [FN302] The case will be heard in the 2002 fall term. The Court will address the following two questions: (1) did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retrospectively the term of existing copyrights?, and (2) is a law that extends the term of existing and future copyrights categorically immune from challenge under the First Amendment? [FN303] This case has "the potential of producing the most important copyright case in decades." [FN304] The Court's decision could determine how our culture and intellectual life evolves over the twenty- first century. Moreover, the decision will solidify concerns over the state of the public domain.

[FNa1]. Associate Member, 2001-2002 University of Cincinnati Law Review. I am grateful to Professors Dennis Karjala and Sara Nelson for their helpful comments. I wish to express heartfelt gratitude to my parents, Walter and Sydney, for their numerous sacrifices and patience in allowing me to pursue things I sometimes cannot articulate. Useful information regarding the opposition to copyright term extensions can be found at http:// eon.law.harvard.edu/openlaw/eldredvreno/ and http:// www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/.

[FN1]. This is the last stanza of the poem. The complete poem can be found in Robert Frost, New Hampshire 87 (1923).

[FN2]. Jeffrey S. Cramer, Robert Frost Among His Poems: A Literary Companion to the Poet's Own Biographical Contexts and Associations 77 (1996). The poem was first published in the New Republic on March 7, 1923, and was later collected in a volume entitled New Hampshire. The Robert Frost Encyclopedia 347 (Nancy Lewis Tuten & John Zubizarreta eds., 2001). New Hampshire, a volume of Frost's poems, was published on November 15, 1923, with 5350 copies being circulated, along with 350 limited edition signed copies. Jay Parini, Robert Frost: A Life 224 (1999).

[FN3]. See Act of March 4, 1909, ch. 320, 23, 35 Stat. 1075 (1909) (repealed 1947).

[FN4]. In fact, it would have gone into the public domain in 1951 if the copyright holder had not renewed the copyright that year. See id.

[FN5]. See 17 U.S.C. 302(a) (1994), amended by 17 U.S.C. 302 (2000). For a detailed discussion of the 1976 Act, see discussion infra Part II.A.4.

[FN6]. Pub. L. No. 105-298, tit. I, 101, 112 Stat. 2827, 2827 (1998) (codified as amended in scattered sections of 17 U.S.C. (2000)). When songwriter-turned-Congressman Sonny Bono died in a skiing accident, his colleagues named the bill in his honor.

[FN7]. See 17 U.S.C. 302(a) (2000).

[FN8]. See discussion infra Part II.A.1-5. Beginning in 1962, Congress enacted a succession of laws that extended copyright terms for those works whose terms were to expire. The following table details the extensions of the copyright terms:

Year Law Copyright Term Extension Maximum

Copyright

Term

1962 Pub. L. No. Subsisting copyrights extended to 59 years

87-668 12/31/65

1965 Pub. L. No. Subsisting copyrights extended to 61 years

89-142 12/31/67

1967 Pub. L. No. Subsisting copyrights extended to 62 years

90-141 12/31/68

1968 Pub. L. No. Subsisting copyrights extended to 63 years

90-416 12/31/69

1969 Pub. L. No. Subsisting copyrights extended to 64 years

91-147 12/31/70

1970 Pub. L. No. Subsisting copyrights extended to 65 years

91-555 12/31/71

1971 Pub. L. No. Subsisting copyrights extended to 66 years

92-170 12/31/72

1972 Pub. L. No. Subsisting copyrights extended to 68 years

92-556 12/31/74

1974 Pub. L. No. Subsisting copyrights extended to 70 years

93-573 12/31/76

1976 Pub. L. No. Subsisting copyrights extended to 75 75 years

94-553 years total term

1998 Pub. L. No. Subsisting copyrights extended to 95 95 years

105-298 years total term

This table can be found in Complaint 33, Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999) (No. 99-CV00065), available at http:// cyber.law.harvard.edu/eldredvreno/complaint_orig.html. Assuming an author lives to the age of seventy-five, if the author publishes the work when he or she is twenty-five-years old, he or she will be protected for over 120 years. Comparing this with the maximum term of protection (twenty-eight years) and the initial term of copyright (fourteen years) under the first Copyright Act of 1790, reveals a 329% increase and a 750% increase, respectively. In contrast, the current twenty-year term of patent protection marks only a 43% increase from the original patent term of fourteen years in the Patent Act of 1790. Thus, the CTEA now makes the term of copyright protection four to five times greater than the patent protection term. See Complaint 28, Golan v. Ashcroft (D. Colo. Sept. 19, 2001) (01-B-1854), available at http:// eon.law.harvard.edu/openlaw/golanvashcroft/complaint.pdf. See also generally Edward C. Walterscheid, The Remarkable-and Irrational-Disparity Between the Patent Term and the Copyright Term, 83 J. Pat. & Trademark Off. Soc'y 233 (2001).

[FN9]. See 17 U.S.C. 302(a) (2000).

[FN10]. See Pub. L. No. 105-298, 112 Stat. 2827 (1998).

[FN11]. See 17 U.S.C. 302(a), 304(b) (2000).

[FN12]. The end result of the CTEA is that no copyrighted work will enter the public domain until January 1, 2019. Therefore, for the next sixteen years, not a single published U.S. copyrighted work will enter the public domain. These works include, among others, New Hampshire by Robert Frost, Horse and Men by Sherwood Anderson, and Racundra's First Cruise by Arthur Ransome. See Complaint 25, Eldred (No. 99-CV00065), available at http:// cyber.law.harvard.edu/eldredvreno/complaint_orig.html. All of these works were created in 1923. See id. In early 1999, these works would have entered the public domain, their original seventy-five year copyright protection having run its course.

[FN13]. U.S. Const. art. I, 8, cl. 8. This clause is commonly referred to as the Intellectual Property Clause, the Patent Clause, or the Copyright Clause, depending on the context in which it is used. However, this is misleading because the clause contains "no reference to 'property' itself (or to patents or copyrights as such)." Bruce W. Bugbee, Genesis of American Patent and Copyright Law 129 (1967). As Edward Walterscheid has stated, "[a] more appropriate name for the Clause, at least in the context of the times, would be the 'Science and Useful Arts' Clause, because the term 'intellectual property' was unknown in the eighteenth century." Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 1-2 n.1 (1994). I believe the clause should be referred to as the Progress Clause. Nevertheless, I will refer to it as the Copyright Clause except where noted.

[FN14]. Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999), aff'd, 239 F.3d 372 (D.C. Cir. 2001), reh'g en banc denied sub. nom. Eldred v. Ashcroft, 255 F.3d 849 (D.C. Cir. 2001). Recently, a group of plaintiffs filed a complaint in the U.S. District Court for the Federal District of Colorado alleging that 514 of the Uruguay Round Agreements Act and the CTEA violate the Copyright Clause, along with the First and Fifth Amendments. See Complaint, Golan v. Ashcroft, (D. Colo. Sept. 19, 2001) (01-B-1854), available at http:// eon.law.harvard.edu/openlaw/golanvashcroft/complaint.pdf.

[FN15]. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) [hereinafter Turner I]; see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) [hereinafter Turner II]. For a complete discussion of Turner I & II see discussion infra Part IV.C.

[FN16]. U.S. Const. art. I, 8, cl. 8.

[FN17]. Id. Prior to the adoption of the U.S. Constitution, U.S. copyright law was determined by the states. Twelve of the original thirteen colonies passed copyright statutes under the Articles of Confederation. Only Delaware failed to pass a copyright statute. See Lyman Ray Patterson, Copyright in Historical Perspective 183-192 (1968) (explaining the basis and form of state copyright statutes); see also generally Francine Crawford, Pre- Constitutional Copyright Statutes, 23 Bull. of the Copyright Soc'y 11 (1975); Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It With Unanimous Approval?, 36 Am. J. Legal Hist. 361, 369-77 (1992). However, these statutes were virtually useless because of variations between state registration systems and terms of protection, as well as the absence of interstate enforcement mechanisms. See Walterscheid, supra note 13, at 22.

[FN18]. See Bugbee, supra note 13, at 129. The Continental Congress's Committee on Detail drafted the Copyright Clause in secrecy in April 1787. See William Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907, 912 (1997). Although there are no records of the substance of the committee's discussions, some indication of the committee's reasoning can be drawn from Madison's comment in The Federalist Papers No. 43:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point by laws passed at the instance of Congress.

The Federalist No. 43, at 271-72 (James Madison) (Clinton Rossiter ed., 1961).

[FN19]. Act of May 31, 1790, ch. 15, 1, 1 Stat. 124 (1790) (repealed 1831).

[FN20]. See id.

[FN21]. 17 U.S.C. 302(a) (1994). The copyright term under the 1976 Act, governing works created on or after January 1, 1976, commenced with the work's creation and terminated fifty years after the death of the work's author. See id.

[FN22]. Act for the Encouragement of Learning, 1710, 8 Anne, ch. 19 (Eng.). On May 4, 1557, through a charter, the British Crown granted power over the trades of printing, binding, publishing, and dealing in books to the Stationers' Company. Patterson, supra note 17, at 28-29. For an excellent discussion of Stationers' Company and how it operated, see Bugbee, supra note 13, at 51-55. The monopoly expired in 1695, and the Monarchy refused to extend it. Benjamin Kaplan, An Unhurried View of Copyright 6 (1967). The Stationers' Company lobbied Parliament for a bill to protect copyright. Id. at 6-7. In 1710, in response to the Stationers' Company's lobbying efforts, Parliament passed the first copyright statute, known as the Statute of Anne. Id. at 7. The Statute granted authors the exclusive right to copy their work for a period of fourteen years, with a possible renewal by the authors for an additional term of fourteen years. Act for the Encouragement of Learning, 1710, 8 Anne, ch. 93 (Eng.); see also generally, Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119, 1139-42 (1983). At the end of the original term or the renewal term, the work would enter the public domain. See id. at 1141.

[FN23]. Act of May 31, 1790, ch. 15, 1, 1 Stat. 124.

[FN24]. Robert L. Bard & Lewis Kurlantzick, Copyright Duration at the Millennium, 47 J. Copyright Soc'y 13, 13 (2000).

[FN25]. William F. Patry, The Copyright Term Extension Act of 1995: Or How Publishers Managed to Steal the Bread from Authors, 14 Cardozo Arts & Ent. L.J. 661, 669 (1996).

[FN26]. Id.

[FN27]. Patry, supra note 18, at 916.

[FN28]. Act of May 31, 1790, ch. 15, 1, 1 Stat. 124.

[FN29]. Act of Feb. 3, 1831, ch. 16, 1-2, 4 Stat. 436 (1831).

[FN30]. 7 Cong. Deb. App. CXIX (1830) (statement of Rep. William Ellsworth).

[FN31]. Patry, supra note 18, at 916.

[FN32]. Id.

[FN33]. Id. at 917-18.

[FN34]. Act of Mar. 4, 1909, ch. 320, 23, 35 Stat. 1075 (1909) (repealed 1976).

[FN35]. Jenny L. Dixon, The Copyright Term Extension Act: Is Life Plus Seventy Too Much?, 18 Hastings Comm. & Ent. L.J. 945, 957 (1996).

[FN36]. See Act of Mar. 4, 1909, ch. 320, 23, 35 Stat. 1075.

[FN37]. Samuel Clemmons, for example, argued that the term of protection was not long enough, and he advocated adopting a term of life plus fifty years, which was the standard in many foreign countries. See Arguments Before the Comms. on Patents on S. 6330 and H.R. 19,853, 59th Cong., 1st Sess. 116-21 (1906).

[FN38]. See id.

[FN39]. See H.R. Rep. No. 60-2222, at 14 (1909); S. Rep. No. 60-1108, at 14 (1909). The Committee stated:

It was urged before the committee that it would be better to have a single term without any right of renewal, and a term of life and fifty years was suggested. Your committee, after full consideration, decided that it was distinctly to the advantage of the author to preserve the renewal period. It not infrequently happens that the author sells his copyright outright to a publisher for a comparatively small sum. If the work proves to be a great success and lives beyond the term of twenty-eight years, your committee felt that it should be the exclusive right of the author to take the renewal term, and the law should be framed as is the existing law, so that he could not be deprived of that right.

Id.

[FN40]. See id.

[FN41]. See Dixon, supra note 35, at 959. In 1955, Congress authorized a series of studies to be conducted on every aspect of the then current copyright law. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 462-63 n.9 (1984). "[A]uthors, publishers and other parties with economic interests in the property rights" defined by the statute were commanded by Congress to "sit down with one [an]other and reach a mutually agreeable solution on the substantive issues." Dixon, supra note 35, at 959. These studies resulted in a compromise betweenall involved. See Patry, supra note 18, at 921. For an excellent account of the legislative history of the 1976 Act, see Jessica Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857 (1987).

[FN42]. See S. Rep. No. 94-473, at 47 (1975); H.R. Rep. No. 94-1476, at 47 (1976).

[FN43]. See id. See also Barbara Ringer, First Thoughts on the Copyright Act of 1976, 22 N.Y.L. Sch. L. Rev. 477, 482 (1977).

[FN44]. See generally Patry, supra note 25, at 671-88; Dixon, supra note 35, at 958-63.

[FN45]. See Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified at 17 U.S.C. 101-808 (1994)).

[FN46]. 17 U.S.C. 302 (1994).

[FN47]. Id. 302(a). "Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and fifty years after the author's death." Id.

[FN48]. 17 U.S.C. 303 (1994).

[FN49]. See id.

[FN50]. 17 U.S.C. 302 (1994).

[FN51]. See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright 9.02 (1995).

[FN52]. See id. A couple of years later, in a study by Congress, it was estimated that only twenty percent of registered works are subject to renewal. See S. Rep. No. 102-194, at 20 (1991).

[FN53]. See H.R. Rep. No. 94-1476, at 134 (1976).

[FN54]. Id.

[FN55]. See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at Paris, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221, reprinted in Paul Goldstein, International Legal Materials on Intellectual Property 100 (2000). The United States joined the Berne Convention for a myriad of reasons. First, by joining the Berne Convention, the United States continued its formidable presence in the global marketplace. S. Rep. No. 100-352, at 2 (1998). Second, membership guaranteed the United States the ability to exert input into the creation and direction of international copyright policy. Id. Third, the United States was able to reduce international copyright piracy. Id. at 4. Finally, by joining the Berne Convention, the United States was guaranteed the maximum level of protection in Berne member countries. Id. at 19.

[FN56]. Peter Burger, The Berne Convention: Its History and Its Key Role in the Future, 3 J.L. & Tech. 1, 11-12 (1988).

[FN57]. See Berne Convention, supra note 55, at art. 7(1). The United States could not become a member of the Berne Convention until it amended U.S. copyright law to reflect this minimum term of protection. See id. at art. 2(6).

[FN58]. Professor Litman has thoroughly examined the legislative history of the 1976 Copyright Act and determined that Congress compromised to industry groups. Jessica D. Litman, supra note 41, at 887-88. The end result was expansive definitions for copyright holders' rights with narrow exceptions to protect the small number of information users present. Id. A number of scholars have focused on the copyright differences between common law countries and civil law countries. In the United States, which follows the common law copyright system, the grant of copyright provides the author with an incentive to create for the public benefit, not solely for the author's benefit. David Lange, Recognizing the Public Domain, 44 Law & Cont. Prob. 147, 160 n.56 (1981). In civil law countries, copyright mainly protects authors' rights, focusing "exclusively on the individual author." Burger, supra note 56, at 7. Consequently, civil law countries' copyright law is perceived as being more favorable to authors. Another source of contention is the moral rights issue. The Berne Convention recognizes moral rights, while the United States recognizes only a limited form of moral rights. See Berne Convention, supra note 55, at art. 6bis(1) & (2); 17 U.S.C. 106A (1994). For an extensive discussion of moral rights, see Patrick G. Zabatta, Moral Rights and Musical Works: Are Composers Getting Berned?, 43 Syracuse L. Rev. 1095 (1992).

[FN59]. See Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended 17 U.S.C. 108, 203, 301-304 (2000)).

[FN60]. Id.

[FN61]. 17 U.S.C. 102(b)(1) (2000).

[FN62]. Id. 302(c). The term of protection of joint works was likewise extended from the life of the last surviving author plus fifty years to the life of the last surviving author plus seventy years. Id. 302(b)(2). This section replaced the word "fifty" in the original statute with "70." Id.

[FN63]. Id. 102(d)(1)(B).

[FN64]. See, e.g., Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H.R. 989, H.R. 1248, and H.R. 1734 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. 212 (1995)) [hereinafter Hearings on H.R. 989] (statement of Bruce A. Lehman, Assistant Sec'y of Commerce and Comm'r of Patents and Trademarks); 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Sen. Orrin Hatch); 141 Cong. Rec. E379 (daily ed. Feb. 16, 1995) (statements of Rep. Carlos Moorhead).

[FN65]. See Council Directive No. 93/98, art. 1, 1993 O.J. (L 290) 9 (harmonizing the term of copyright protection and certain related rights), reprinted in Sweet & Maxwell's E.C. Intellectual Property Materials 29-35 (A. Booy & A. Horton eds., 1994).

[FN66]. See id. at art. VII, 1.

[FN67]. See 141 Cong.Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Sen. Orrin Hatch); 141 Cong. Rec. E379 (daily ed. Feb. 16, 1995) (statement of Rep. Carlos Moorhead).

[FN68]. Joseph A. Lavigne, For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension Act of 1996, 73 U. Det. Mercy L. Rev. 311, 330-31 (1996).

[FN69]. Id. In the words of Senator Orrin Hatch, a staunch advocate of the CTEA:

America exports more copyrighted intellectual property than any country in the world, a huge percentage of it to the nations of the European Union. Intellectual property is, in fact, our second largest export; it is an area in which we possess a large trade surplus. At a time when we face trade deficits in many other areas, we cannot afford to abandon twenty years' worth of valuable overseas protection now available to our creators and copyright owners. We must adopt a life-plus-70-year term of copyright if we wish to improve our international balance.

141 Cong. Rec. S3390, S3391 (daily ed. Mar. 2, 1995) (statement of Sen. Orrin Hatch).

[FN70]. Id. See also Hearings on H.R. 989, supra note 64, at 272 (statement of Mary Ellin Barrett, daughter of Irving Berlin); id. at 233-36 (statement by Quincy Jones, songwriter). Accord 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Sen. Orrin Hatch); 141 Cong. Rec. E379 (daily ed. Feb. 16, 1995 (statements of Rep. Carlos Moorhead).

[FN71]. Orrin Hatch, Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. Pitt. L. Rev. 719, 733-34 (1998).

[FN72]. Id. Professor Arthur Miller advocates this argument:

The need for strong copyright protection becomes more important every year as a weapon with which to fight the piracy of intellectual property. Overseas piracy of American copyrighted material has grown dramatically in recent years due to the availability of equipment that can make cheap copies of movies, videotapes, sound recordings, and computer programs. As more and more digital technology arrives on the scene, the problem will only become worse.

Arthur R. Miller, Extending Copyright Preserves U.S. Culture, Billboard, Jan. 14, 1995, at 4.

[FN73]. See Hearings on H.R. 989, supra note 64, at 272-73 (statement of Mary Ellin Barrett, daughter of Irving Berlin).

[FN74]. E.g., Hatch, supra note 71, at 734-37.

[FN75]. E.g., id.

[FN76]. E.g., Lavigne, supra note 68, at 333-34.

[FN77]. E.g., Dennis S. Karjala, Statement of Copyright and Intellectual Property Law Professors in Opposition to H.R. 604, H.R. 2598, and S. 505, at 14-17, available at http://www.public.asu.edu/ dkarjala/legmats/1998 Statement.html (Jan. 28, 1998) (last visited February 1, 2002).

[FN78]. E.g., id. at 16.

[FN79]. Patry, supra note 25, at 663-64.

[FN80]. Id.

[FN81]. Article 6bis of the Berne Convention summarizes moral rights as follows:

Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.

Berne Convention, supra note 55, at art. 6bis. See also Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554 (1940).

[FN82]. The United States has recognized a limited concept of moral rights. See 17 U.S.C. 106(A) (2000).

[FN83]. Lavigne, supra note 68, at 337-38. See also 17 U.S.C. 107 (2000). The "fair use" doctrine permits liability-free use and alterations of copyrighted works, under certain circumstances, without the consent of the author, including when the original work is parodied. Id. See generally Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). For an excellent discussion of the "fair use" doctrine, see William F. Patry, The Fair Use Privilege in Copyright Law (1985). The "fair use" doctrine does not exist in name in Germany and France; however, a number of laws accomplish the same values that fair use tries to achieve. The German Act contains exemptions for making single copies for strictly private use, reproducing small parts of works for instructional purposes, copying of judicial opinions, and reproduction of works in new reports. See 2 Adolf Dietz, Germany, in International Copyright Law and Practice 8[2][a], at GER-116-24 (Paul E. Geller & Melville B. Nimmer eds., 1990) (2000). In addition, German law recognizes the "right of remuneration." See id. at GER-109-10. French copyright law does not recognize a broad fair use privilege. See 1 Andr Lucas & Robert Plaisant, France, in International Copyright Law and Practice 8[2][a], at FRA-116- 24. However, French copyright law exempts public uses of brief quotations, press reviews, and media public speeches so long as the author and source are clearly indicated. See id.

[FN84]. E.g., Lavigne, supra note 68, at 343-44.

[FN85]. See id.

[FN86]. See Karjala, supra note 77.

[FN87]. E.g., Lavigne, supra note 68, at 347.

[FN88]. Karjala, supra note 77.

[FN89]. Lavigne, supra note 68, at 348.

[FN90]. E.g., id. at 347-50.

[FN91]. Hearings on H.R. 989, supra note 64, at 355 (statement of Professor Jerome H. Reichman, Vanderbilt University School of Law).

[FN92]. Id.

[FN93]. Karjala, supra note 77, at 21-22.

[FN94]. Id.

[FN95]. Id. at 23-24.

[FN96]. U.S. Const. art. I, 8, cl. 8.

[FN97]. L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users' Rights 49 (1991). See also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1261 (11th Cir. 2001) ("[C]opyright laws have been enacted to achieve three main goals: the promotion of learning, the protection of the public domain, andthe granting of an exclusive right to the author.").

[FN98]. "While protection of the author was a matter of concern, it was clearly subordinated to the overriding interest of the public and the public domain." Abrams, supra note 22, at 1126.

[FN99]. See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 346-47 (1991); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989); Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 429 (1984). See also Suntrust Bank, 268 F.3d at 1262 (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985)) ("Parallel to the patent regime, the limited time period of the copyright serves the dual purpose of ensuring that the work will enter the public domain and ensuring that the author has received 'a fair return for [her] labors."') (alteration in original).

[FN100]. Michael J. Madison, Legal-Ware: Contract and Copyright in the Digital Age, 67 Fordham L. Rev. 1025, 1097 (1998) ("The public domain may do more: it provides a common reference library of publicly accessible facts and ideas-an intellectual commons-that gives our diverse polity the vocabulary and syntax necessary to engage in a variety of political and social debate and to function at some level as a single community.").

[FN101]. Copyright Term Extension Act of 1995: Hearings on S.4839 Before the Senate Comm. on the Judiciary, 104th Cong. (1995) (statement of Prof. Peter Jaszi), available at 1995 WL 10524355.

[FN102]. Lange, supra note 58, at 147 (arguing "that the growth of intellectual property in recent years has been uncontrolled to the point of recklessness" and that this "should be offset today by equally deliberate recognition of individual rights in the public domain"); Jessica Litman, The Public Domain, 39 Emory L.J. 965, 968 (1990) (arguing "[t]he public domain should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use"); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533, 1559 (1993) ( "[T]he public domain is largely filled with creations whose period of protection has expired, works which have been abandoned, or works for which no protection existed ab initio. Similarly, if there are works which, under Lockean principles, would have only limited duration or would not be capable of being owned, they would be part of the common.").

[FN103]. See Complaint, Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999) (No. 99-CV00065). The Eldritch Press website is located at http:// www.eldritchpress.org/. Eldritch Press publishes rare and out-of-print public domain books on the Internet as a hobby. Id. 21. Eldritch Press was recognized by the National Endowment of the Humanities as one of the twenty best humanities sites on the Web because of its access to rare and out-of-print books. Id. 23. The on-line library caters to 4000 visitors per day and has received hits from almost every country. Id. Eldritch Press is globally accessible. Id. Since 1995, Eldred has posted more than fifty on-line books. See Carl S. Kaplan, Online Publisher Challenges Copyright Law, N.Y. Times Cyberlaw J. (Jan. 15, 1999), at http:// www.nytimes.com/library/tech/99/01/cyber/cyberlaw/15law.html. These books include works of American literature by such authors as Oliver Wendell Holmes (Sr.), Nathaniel Hawthorne, and Henry James. See id. Eldritch Press also focuses on World War I novels, French and Russian literature, science and natural history, and children's books. See id. Other plaintiffs included Higginson Book Company, Jill A. Crandell, Tri-Horn International, Luck's Music Library, Inc., Edwin F. Kalmus Co., American Film Heritage Association, Moviecraft, Inc., Dover Publications, Inc., and Copyright's Commons. See Eldred, 74 F. Supp. 2d. at 2.

[FN104]. Eldred, 74 F. Supp. 2d at 2.

[FN105]. Id. at 3. Furthermore, Eldred argued that the CTEA violated the "public trust doctrine," a theory traditionally applied in cases of transfer of public lands to private ownership. Id. at 3-4. The Court rejected this argument and concluded that the public trust doctrine was not relevant because it applied only to navigable waters, not copyrights. Id. at 4.

[FN106]. Id. at 4.

[FN107]. Id. at 3.

[FN108]. Id. The court cited United Video v. FCC, 890 F.2d 1173, 1191 (D.C. Cir. 1989) for the proposition that there are no First Amendment rights to use the copyrighted works of others. Id.

[FN109]. Id.

[FN110]. Id.

[FN111]. Eldred v. Reno, 239 F.3d 372, 373 (D.C. Cir. 2001).

[FN112]. See id. at 375-76.

[FN113]. Id. at 375. The majority recognized that the plaintiffs benefit from the use of works that enter the public domain, and due to the enactment of the CTEA, they could no longer exploit works for which copyright protection would have expired in the near future. Id. Therefore, the court reasoned that the plaintiffs were injured by the CTEA, and the court could redress the injury by holding the CTEA invalid. Id.

[FN114]. Id. at 375-76. The court relied on Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) and United Video, Inc. v. FCC, 890 F.3d 1173 (1989). See id.

[FN115]. Id. at 375. The Court referred to Nimmer's "definitional balance" to support the proposition that "copyrights are categorically immune from challenges under the First Amendment." Id. For a discussion of Nimmer's "definitional balance" see infra notes 239-243 and accompanying text.

[FN116]. Eldred, 239 F.3d at 376 (alteration in original).

[FN117]. See id.

[FN118]. Id.

[FN119]. Id. The majority ended this part of its analysis by stating that the works to which the CTEA applies, and in which the plaintiffs claim a First Amendment interest, are by definition copyrighted. According to the court, this puts the works on the "latter half of the 'idea/expression dichotomy' and makes them subject to fair use." Id.

[FN120]. See id. at 376-77.

[FN121]. 499 U.S. 340 (1991).

[FN122]. Id. at 346.

[FN123]. Eldred, 239 F.3d at 376-77.

[FN124]. Id. at 377.

[FN125]. Id.

[FN126]. Id.

[FN127]. See id. at 377-78.

[FN128]. Id.

[FN129]. U.S. Const. art. I, 8, cl. 8.

[FN130]. Eldred, 239 F.3d at 378.

[FN131]. See id. at 377-78.

[FN132]. 667 F.2d 102 (1981).

[FN133]. Id. at 112.

[FN134]. Eldred, 239 F.3d at 378.

[FN135]. See id. at 378

[FN136]. Id.

[FN137]. 499 U.S. 340 (1991).

[FN138]. Eldred, 239 F.3d at 378.

[FN139]. Id.

[FN140]. See id. at 380 (Sentelle, J., dissenting).

[FN141]. Id. (Sentelle, J., dissenting). The majority believed that the dissent's narrow view of Schnapper was not properly before the court because it was rejected by the actual parties to the case and was only urged through an amicus brief. Id. at 378. The court found that issues raised in an amicus brief are not properly before the court. Id. Furthermore, the majority noted that a court should avoid seeking out constitutional issues not essential to the disposition of the case before it. Id.

[FN142]. See id. at 380-81 (Sentelle, J., dissenting).

[FN143]. 514 U.S. 549 (1995) (considering the validity of the Gun-Free School Zones Act).

[FN144]. Eldred, 239 F.3d at 381 (Sentelle, J., dissenting).

[FN145]. Lopez, 514 U.S. at 556-57.

[FN146]. Eldred, 239 F.3d at 381 (Sentelle, J., dissenting).

[FN147]. See id. at 382 (Sentelle, J., dissenting).

[FN148]. Id. (Sentelle, J., dissenting).

[FN149]. Id. (Sentelle, J., dissenting).

[FN150]. Lopez, 514 U.S. at 553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95 (1824)).

[FN151]. Eldred, 239 F.3d at 381 (Sentelle, J., dissenting).

[FN152]. Id. (quoting U.S. Const. art. I, 8, cl. 8) (Sentelle, J., dissenting).

[FN153]. Id. (Sentelle, J., dissenting).

[FN154]. Id. (Sentelle, J., dissenting).

[FN155]. Id. at 382 (Sentelle, J., dissenting).

[FN156]. Id. (Sentelle, J., dissenting).

[FN157]. Id. (Sentelle, J., dissenting).

[FN158]. Id. (Sentelle, J., dissenting).

[FN159]. See infra notes 161-67 and accompanying text.

[FN160]. See Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 859-60 (5th Cir. 1979) (quoting Jeremy Philips, Copyright in Obscene Works: Some British and American Problems, 6 Anglo-Am. L. Rev. 138, 165-66 (1977)) (acknowledging that while the "words of the copyright clause" do not require that the individual copyrights be shown to "promote science or useful arts," but they clearly "require that Congress shall promote those ends"); Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314, 327 n.48 (7th Cir. 1972) (quoting Lee v. Runge, 404 U.S. 887, 890 (1971) (Douglas, J., dissenting from denial of certiorari)) ("The congressional power to grant monopolies for 'Writings and Discoveries' is likewise limited to that which accomplishes the stated purpose of promoting 'the Progress of Science and useful Arts."'); Aalmuhammed v. Lee, 202 F.3d 1227, 1235 (9th Cir. 2000) ("The Constitution establishes the social policy that our construction of the statutory term 'authors' carries out. The Founding Fathers gave Congress the power to give authors copyrights in order '[t]o promote the progress of Science and useful arts."') (alteration in original); Greenberg v. Nat'l Geographic Soc'y, 244 F.3d 1267, 1271 (11th Cir. 2001) ("In all cases involving copyright law, we understand that any interpretation and application of the statutory law must be consistent with the copyright clause of the United States Constitution . . . . That clause is a limitation, as well as a grant, of the copyright power."). See also generally Paul J. Heald and Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 U. Ill. L. Rev. 1119 (2000).

[FN161]. 22 U.S. (9 Wheat.) 1 (1824).

[FN162]. Id. at 188-89.

[FN163]. In the Supreme Court's first copyright case, the Court stated that the words of the Copyright Clause must be interpreted in light of the "words and sentences with which it stands connected." Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 661 (1834).

[FN164]. In 1870 and 1876, Congress passed statutes providing for registration and enforcement of trademarks. Based on these statutes, the Supreme Court was faced with the issue of whether Congress can enact trademark protection statutes. See Trade-Mark Cases, 100 U.S. 82 (1879). The Court held that Congress could not, consistent with Article I, Section 8, Clause 8, protect trademarks because they lack originality. Id. at 94. The Trade- Mark Cases stand for the proposition that the Copyright Clause is not an open- ended grant of power to Congress to create exclusive rights, but a specifically limited grant available only to protect original contributions that further the wealth of human knowledge.

[FN165]. 383 U.S. 1 (1966).

[FN166]. Id. at 5-6. See also, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000) ("the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power").

[FN167]. The Court implicitly supported this point in Twentieth Century Music Corp. v. Aiken when it stated:

The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.

422 U.S. 151, 156 (1975).

[FN168]. Id. See also Stewart v. Abend, 495 U.S. 207, 228 (1990) ("The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist's labors.").

[FN169]. 464 U.S. 417 (1984).

[FN170]. See id. at 456.

[FN171]. Id. at 429.

[FN172]. Id. (quoting United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948)).

[FN173]. 489 U.S. 141 (1989).

[FN174]. Id. at 151.

[FN175]. 499 U.S. 340 (1991).

[FN176]. See id. at 362-64.

[FN177]. Id. at 346.

[FN178]. Id. at 349-50 (citations omitted).

[FN179]. Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994).

[FN180]. David Lange, Copyright and the Constitution in the Age of Intellectual Property, 1 J. Intell. Prop. L. 119, 133-34 (1993).

[FN181]. See Michael H. Davis, Extending Copyright and the Constitution: "Have I Stayed Too Long?," 52 Fla. L. Rev. 989, 992 (2000).

[FN182]. U.S. Const. art. I, 8, cl. 8.

[FN183]. See Act of Feb. 3, 1831, ch. 16, 1-2, 4 Stat. 436 (repealed 1870).

[FN184]. See Act of Mar. 4, 1909, 4, 35 Stat. 1075, 1076 (repealed 1976).

[FN185]. See supra note 8. These laws include Pub. L. No. 105-298, 112 Stat. 2827 (1998); Pub. L. No. 94-553, tit. I, 101, 90 Stat. 2573 (1976); Pub. L. No. 93-573, tit. I, 104, 88 Stat. 1873 (1974); Pub. L. No. 92- 566, 86 Stat. 1181 (1972); Pub. L. No. 92-170, 85 Stat. 490 (1971); Pub. L. No. 91-555, 84 Stat. 1441 (1970); Pub. L. No. 91-147, 83 Stat. 360 (1969); Pub. L. No. 90-416, 82 Stat. 397 (1968); Pub. L. No. 90-141, 81 Stat. 464 (1967); Pub. L. No. 89-142, 79 Stat. 581 (1965); and Pub. L. No. 87-668, 76 Stat. 555 (1962).

[FN186]. See Pub. L. No. 93-573, tit. I, 104, 88 Stat. 1873 (1974); Pub. L. No. 92-566, 86 Stat. 1181 (1972); Pub. L. No. 92-170, 85 Stat. 490 (1971); Pub. L. No. 91-555, 84 Stat. 1441 (1970); Pub. L. No. 91-147, 83 Stat. 360 (1969); Pub. L. No. 90-416, 82 Stat. 397 (1968); Pub. L. No. 90-141, 81 Stat. 464 (1967); Pub. L. No. 89-142, 79 Stat. 581 (1965); Pub. L. No. 87-668, 76 Stat. 555 (1962).

[FN187]. See Pub. L. No. 105-298, 112 Stat. 2827 (1998); Pub. L. No. 94-553, tit. I, 101, 90 Stat. 2573 (1976).

[FN188]. See Eldred v. Reno, 239 F.3d 372, 381-82 (D.C. Cir. 2001) (Sentelle, J., dissenting).

[FN189]. Davis, supra note 181, at 1016.

[FN190]. Id.

[FN191]. See supra notes 168-80 and accompanying text.

[FN192]. See supra notes 161-67 and accompanying text.

[FN193]. See supra notes 168-80 and accompanying text.

[FN194]. See supra notes 76-83 and accompanying text.

[FN195]. See supra notes 87-92 and accompanying text.

[FN196]. Lyman Ray Patterson, Copyright in Historical Perspective 196 (1968).

[FN197]. H.R. Rep. No. 60-2222, at 7 (1909).

[FN198]. See discussion supra Part II.B.3.

[FN199]. See id.

[FN200]. The great nineteenth century cartoonist Thomas Nast created Santa Claus by starting from a skinny Father Christmas figure in the public domain. Nast converted this skinny figure into the jovial and roly-poly figure that we all know today as Santa Claus. Dinitia Smith, Immortal Words, Immortal Royalties? Even Mickey Mouse Joins the Fray, N.Y. Times, March 28, 1998, at A13.

[FN201]. See Karjala, supra note 77, at 6.

None of the arguments for extension take into consideration the loss to both revenue and culture represented by the absence of popular new works that are not created because underlying works that would have served as a foundation remain under the control of a copyright owner. By definition, this loss can never be known, but that makes it no less real or substantial.

Id.

[FN202]. The CTEA was introduced in 1997 by Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) and House Judiciary Committee Intellectual Property Chairman Howard Roble (R-N.C.). Phyllis Schlafly, Why Disney Has Clout with the Republican Congress, Eagle Forum (Nov. 25, 1998), available at http:// www.eagleforum.org/column/1998/nov98/98-11-25.html (last visited Feb. 1, 2002). The Walt Disney Company was the main special interest group supporting the CTEA because its copyright on Mickey Mouse was scheduled to expire in 2003. Id. The additional twenty-year extension of Disney's copyright on Mickey Mouse is worth billions of dollars to the Disney Company. Id. The Disney Political Action Committee (PAC) rewarded Republican and Democratic cosponsors with direct campaign contributions totaling $95,805 to Democratic Members and $53,807 to Republican Members of Congress. Id. Moreover, the music, television, and movie industries donated more than $6.3 million to Congress in 1997-1998. See Center for Responsive Politics, available at http:// www.opensecrets.org/industries/summary.asp? Ind=B02&cycle=1998&recipdetail=A&sortorder=U. For an excellent discussion of the history of special influence over copyright legislation, see Jessica Litman, Digital Copyright 35-63 (2001).

[FN203]. William F. Patry, Copyright and the Legislative Process: A Personal Perspective, 14 Cardozo Arts & Ent. L.J. 139, 141 (1996).

[FN204]. S. Rep. No. 104-315 (1996).

[FN205]. See id. at 6-17.

[FN206]. Rep. Mary Bono (R-Cal.) represents this philosophy when she stated:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

144 Cong. Rec. H9952 (daily ed. Oct. 7, 1998) (statement of Congresswoman Mary Bono).

In defense of the term extensions, Senator Hatch argues: "In short, the Copyright Term Extension Act has, as its focus, the actual authors of the works that would receive extended copyright protection and seeks to ensure that they will be the ones to reap the financial rewards of such protection." Hatch, supra note 71, at 745.

[FN207]. See generally Jessica Litman, Revising Copyright Law for the Information Age, 75 Or. L. Rev. 19 (1996).

[FN208]. Quality King Distrib., Inc. v. L'Anza Research Int'l, Inc., 523 U.S. 135, 151 (1998) (quoting Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 450-51 (1984)).

[FN209]. See supra note 101.

[FN210]. Eldred v. Reno, 239 F.3d 372, 378-79 (D.C. Cir. 2001).

[FN211]. U.S. Const. art. I, 8, cl. 8.

[FN212]. Justice Story described copyright terms as "short," and that after the "short interval," creative works would enter the public domain "without restraint." Joseph Story, Commentaries on the Constitution of the United States 558, at 402-403 (R. Rotunda & J. Novak eds., 1987).

[FN213]. 33 U.S. (8 Pet.) 591 (1834).

[FN214]. Id. at 661.

[FN215]. U.S. Const. art. I, 8, cl. 8.

[FN216]. "The length of the term is so long that it invites a court review." S. Rep. No. 104-315, at 33 (1996) (minority view of Mr. Brown).

[FN217]. Litman, supra note 102, at 966-67.

[FN218]. Id.

[FN219]. See generally Robert Patrick Merges & Glenn Harlan Reynolds, The Proper Scope of the Copyright and Patent Power, 37 Harv. J. on Legis. 45, 58 (2000); Davis, supra note 181, at 994.

[FN220]. See Eldred v. Reno, 239 F.3d 372, 375-76 (D.C. Cir. 2001).

[FN221]. U.S. Const. amend I.

[FN222]. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (noting that First Amendment protections "embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas"); Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1170 (9th Cir. 1977) (explaining that an idea/expression dichotomy accommodates First Amendment concerns). A recent onslaught of cases have continued the view that copyright requires no external First Amendment scrutiny. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir. 2001); Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001). But see Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) (applying a First Amendment analysis to the anti-trafficking provisions of the Digital Millennium Copyright Act of 1998 but holding that those provisions survived First Amendment scrutiny).

[FN223]. The incompatibility of intellectual property protection with First Amendment freedoms has been a major concern with a number of scholars. See Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1 (2001); Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. Rev. 1057 (2001); Dan L. Burk, Patenting Speech, 79 Tex. L. Rev. 99 (2000); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999); Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's "Total Concept and Feel," 38 Emory L.J. 393 (1989); Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 Cal. L. Rev. 283 (1979); Paul Goldstein, Copyright and the First Amendment, 70 Colum. L. Rev. 983 (1970); Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press, 17 UCLA L. Rev. 1180 (1970).

[FN224]. See supra note 222. Recently, for the first time by a circuit court, the 11th Circuit applied the First Amendment's Free Speech Clause to constrain the enforcement of a copyright. See Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357 (N.D. Ga. 2001), vacated, 252 F.3d 1165 (11th Cir. 2001), opinion issued by, 268 F.3d 1257 (11th Cir. 2001) (finding the district court's order to be an unlawful prior restraint in violation of the First Amendment).

[FN225]. Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001).

[FN226]. See, e.g., N. Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

[FN227]. See, e.g., Time, Inc. v. Hill, 385 U.S. 374 (1967).

[FN228]. See, e.g., Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977).

[FN229]. See, e.g., Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658 (5th Cir. 2000).

[FN230]. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

[FN231]. See, e.g., Bartnicki v. Vopper, 532 U.S. 514 (2001).

[FN232]. Defamation was once categorically disfavored speech. See Beauharnais v. Illinois, 343 U.S. 250 (1952). But, that categorical exclusion has been substantially limited. See N. Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Commercial speech was also once disfavored speech. See Valentine v. Chrestensen, 316 U.S. 52 (1942). However, the categorical exclusion has been substantially limited. See Central Hudson Gas & Elec. Corp. v. Public Servs. Comm'n, 447 U.S. 557 (1980).

[FN233]. Netanel, supra note 223, at 12-30.

[FN234]. Nimmer, supra note 223, at 1186. Nimmer argued that as long as copyright protected expression only, not ideas, First Amendment interests were satisfied. Id.

[FN235]. See Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) and United Video, Inc. v. FCC, 890 F.2d 1173, 1176-78 (D.C. Cir. 1989), both of which cite to 1 Nimmer, supra note 51, 1.10(B)).

[FN236]. See 17 U.S.C. 102(b) (2000) ("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.").

[FN237]. See id. 107 ("[F]air use of a copyrighted work . . . for purposes such as criticism [or] comment . . . is not an infringement of copyright.").

[FN238]. See U.S. Const. art. I, 8, cl. 8.

[FN239]. Netanel, supra note 223, at 8-12. Professor Netanel argues that changes occurring since Nimmer's 1970 article, including doctrinal and technological changes, result in copyright limitations that fail to protect First Amendment values. See id. at 26. "Today, copyright law's primary internal safety valves-the idea/expression dichotomy, fair use privilege, and limited term-provide far weaker constraints on copyright holder prerogatives than they did in 1970." Id. at 12. Professor Netanel found that the idea/expression dichotomy and the fair use doctrine result in inconsistent application and these protections eroded over the years. See id. at 13-23. Moreover, since Nimmer's article appeared in print, Congress has extended the term of copyright six times. Id. at 23-24; see also supra note 8 and discussion supra notes 41-63 and accompanying text.

[FN240]. Netanel, supra note 223, at 30-37. Professor Netanel stated:

[R]ecent decades have seen the emergence and solidification of a category- based approach to standards of review for government regulation that burdens speech, the refinement of tests for determining whether such regulation passes First Amendment muster, and a greater focus in First Amendment challenges (and, indeed, in constitutional analysis generally) on the government purpose or motive behind regulation.

Id. at 30.

[FN241]. Nimmer, supra note 223, at 1194-95.

[FN242]. Netanel, supra note 223, at 37-47 (arguing that copyright does not merit sui generis treatment, and copyright does not fall within a category of speech that is not subject to First Amendment scrutiny).

[FN243]. 273 F.3d 429 (2d Cir. 2001).

[FN244]. Id. at 453-54.

[FN245]. Netanel, supra note 223, at 49 ("Copyright's purpose is to provide an economic incentive for the creation and dissemination of original expression. Its target is not the viewpoint, subject matter, or even communicative impact of the infringer's speech, but rather the infringement's deleterious impact on the copyright incentive."). For case law support, see Bartnicki v. Vopper, 532 U.S. 514, 525-26 (2001) (holding that 18 U.S.C. 2511(1)(c), which prohibits the disclosure of illegally intercepted communication, is content neutral because its purpose is to protect privacy and because it discriminates among types of speech by virtue of source, not subject matter).

[FN246]. "Deciding whether a particular regulation is content based or content neutral is not always a simple task . . . . As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner I, 512 U.S. 622, 642-43 (1994). In determining whether a regulation is content based or content neutral, the courts look to the purpose behind the regulation; typically, "[g]overnment regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech."' Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). For a successful argument that copyright legislation should be classified as content- neutral regulations, see Netanel, supra note 223, at 47-54. Some scholars have argued that copyright legislation is content based. See Julie E. Cohen, Examined Lives: Information Privacy and the Subject as Object, 52 Stan. L. Rev. 1373, 1417 (2000); Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 186 (1998).

[FN247]. Under the Ward-O'Brien test, the regulations will be upheld if they (1) "are justified without reference to the content of the regulated speech," (2) "are narrowly tailored to serve a significant governmental interest," and (3) "leave open ample channels for communication of the information." Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293). Courts applying this test have given great deference to the government regulation. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1203-04 (1996) (describing O'Brien as "toothless").

[FN248]. See supra notes 202-03.

[FN249]. See Turner I, 512 U.S 622 (1994); Turner II, 520 U.S. 180 (1997).

[FN250]. Turner I, 512 U.S. at 664-65.

[FN251]. Id. at 665 (quoting Ward, 491 U.S. at 799).

[FN252]. Id. at 666 (quoting Sable Communications, Inc. v. FCC, 492 U.S. 115, 129 (1989)).

[FN253]. Id.

[FN254]. See Turner II, 520 U.S. at 195-96.

[FN255]. See id. at 195.

[FN256]. Turner I, 512 U.S. at 662 (quoting Ward, 491 U.S at 799). The Supreme Court has used slightly different formulations to express the narrow tailoring requirement of a content-neutral regulation. In O'Brien, the formulation was "if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377 (1968). In Ward, the formulation was "'so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."' Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). Ward added, however, that the regulation may not "burden substantially more speech than is necessary to further the government's legitimate interests." Id. Turner I quoted both the "no greater than is essential" formulation from O'Brien, and the "would be achieved less effectively" formulation from Ward. Turner I, 512 U.S. at 662. Turner I made clear that the narrow tailoring requirement is less demanding than the least restrictive means requirement of a content-specific regulation, and appears to have settled on the "substantially more" phrasing from Ward as the formulation that best expresses the requirement. Id.

[FN257]. Turner II, 520 U.S. at 189.

[FN258]. U.S. Const. art. I, 8, cl. 8.

[FN259]. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("[t]he 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").

[FN260]. See discussion supra Parts II.B, IV.A.

[FN261]. Nimmer, supra note 223, at 1194-95.

[FN262]. Karjala, supra note 77, at 12-13.

[FN263]. See discussion supra Part II.A.5.a.

[FN264]. See supra notes 63-66.

[FN265]. See Hearings on H.R. 998, supra note 64, at 290 (statement of Prof. Dennis Karjala); see id. at 312 (statement of Prof. William F. Patry); see id. at 355 (statement of Prof. J.H. Reichman). The CTEA provides the United States with longer protection for photographers, creators of applied arts, sound recording and film producers, and broadcasters than the European Union. Neil Weinstock Netanel, Copyright and Democratic Civil Society, 106 Yale L.J. 283, 367 (1996). Even if the CTEA creates minimal harmony with the European Union, it creates disharmony with other countries. For example, a Japanese author would enjoy a term of life of the author plus seventy years in the United States, while an American author would only enjoy a term of life of the author plus fifty years in Japan. Patry, supra note 25, at 393-394.

[FN266]. Turner II, 520 U.S. 180, 189 (1997).

[FN267]. Dean of the School of Information Management and Systems at the University of California, Berkeley. See Affidavit of Hal R. Varian at 1-3, Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999) (No. 99-CV00065), available at http://cyber.law.harvard.edu/eldrevreno/varian.pdf (last visited Feb. 1, 2002).

[FN268]. See id. at 1-3 (explaining that the present value for a change from seventy-five to ninety-five years at an interest rate of 10% is .1% of the return for the first fifty years).

[FN269]. U.S. Const. art. I, 8, cl. 8.

[FN270]. See Bd. of Trs. v. Garrett, 531 U.S. 356 (2001) (invalidating provisions of the Americans with Disabilities Act); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (invalidating the Age Discrimination in Employment Act by relying on Congress's failure to find explicitly, or to amass a legislative record, evidencing a pattern of age discrimination by the states); see also United States v. Morrison, 529 U.S. 598 (2000); City of Boerne v. Flores, 512 U.S. 507 (1997); United States v. Lopez, 514 U.S. 549 (1995). But see A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 Cornell L. Rev. 328 (2001) (arguing the Court's new approach is not only inconsistent with precedent, but also fundamentally ill advised, most importantly because it constitutes a constitutionally suspect intrusion on congressional investigative and legislative procedures); William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 Stan. L. Rev. 87 (2001) (arguing that reliance on the concept of legislative record is unworkable and illegitimate).

[FN271]. See Lopez, 514 U.S. 549 (1995).

[FN272]. See Clinton v. New York, 524 U.S. 417 (1998).

[FN273]. See City of Boerne, 521 U.S. 507 (1997).

[FN274]. Id. at 516 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)).

[FN275]. Lopez, 514 U.S. at 562.

[FN276]. See infra notes 289-90.

[FN277]. See Eldred v. Reno, 239 F.3d 372, 381-82 (D.C. Cir. 2001) (Sentelle, J., dissenting).

[FN278]. See id. at 381-82 (Sentelle, J., dissenting).

[FN279]. See Lopez, 514 U.S. at 564.

[FN280]. Id. at 552.

[FN281]. Eldred, 239 F.3d at 381 (Sentelle, J., dissenting).

[FN282]. Id. at 382 (Sentelle, J., dissenting).

[FN283]. See, e.g., Turner I, 512 U.S. 622, 666 (1994). In the First Amendment setting, despite due deference to Congress's legislative findings, the Court may still need to exercise "independent judgment of the facts bearing on an issue of constitutional law," but also stating that "Congress is not obligated . . . to make a record of the type that an administrative agency or court does to accommodate judicial review." Id. See also Turner II, 520 U.S. 180, 199, 212-13 (1997) (same).

[FN284]. 383 U.S. 1, 5-6 (1966).

[FN285]. 499 U.S. 340, 346 (1991).

[FN286]. Id.

[FN287]. Marci A. Hamilton, Copyright Duration Extension and the Dark Heart of Copyright, 14 Cardozo Arts & Ent. L. J. 655, 657 (1996).

[FN288]. Id. Professor Hamilton stated, "[t]here is much talk in the literature and the cases of the 'incentive' nature of copyright law. But there is no factual study that shows how much incentive is enough to further creative activity, or what kinds of incentiveswork: money, control, or time." Id.

[FN289]. See id. at 657-58; see also Schlafly, supra note 202. The only CTEA congressional hearing was held in 1995. Id. Furthermore, there was no floor debate. Id. Moreover, on a single day, October 27, 1998, the Senate Judiciary Committee discharged the bill by unanimous consent, and the full Senate passed the bill by unanimous consent without a roll call, and the House passed the bill by voice vote under the suspension of the rules. Id.

[FN290]. Hamilton, supra note 287, at 657.

[FN291]. See, e.g., Hearings on H.R. 989, supra note 64, at 264 (statement of E. Randol Schoenberg).

[FN292]. Marci Hamilton, Should U.S. Intellectual Property Rights Change to Fit World Norms?, (May 24, 2001), available at http:// writ.news.findlaw.com/hamilton/20010524.html. (last visited February 1, 2002).

[FN293]. Id.

[FN294]. Karjala, supra note 77, at 10. George F. Handel, the great composer, was known for borrowing works of other composers. See, e.g., George J. Buelow, The Case for Handel's Borrowings: The Judgment of Three Centuries, in Handel: Tercentenary Collection 61-82 (Stanley Sadie & Anthony Hicks eds., 1987).

[FN295]. "In most cases, the commons is a resource to which anyone within the relevant community has a right without obtaining the permission of anyone else." Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World 19-20 (2001).

[FN296]. See Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357 (N.D. Ga. 2001), vacated, 252 F.3d 1165 (11th Cir. 2001), opinion issued by, 268 F.3d 1257 (11th Cir. 2001).

[FN297]. See Lawrence Lessig, Let the Stories Go, N.Y. Times op-ed, (April 30, 2001), available at http://www.nytimes.com/2001/04/30/opinion/30LESS.html (last visited February 1, 2002).

[FN298]. Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001).

[FN299]. See Anticybersquating Consumer Protection Act, Pub. L. No. 106- 113, 113 Stat. 1501 (1999) (codified at 15 U.S.C. 1125(d) (2000)) (permitting new trademark rights in domain names); Digital Millennium Copyright Act, Pub. L. No 105-304, 112 Stat. 2860 (1998) (codified at 17 U.S.C. 1201-1205 (2000)) (forbidding circumvention of technological control measures); No Electronic Theft Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified at 17 U.S.C. 506 (2000)) (enlarging criminal penalties for copyright infringement).

[FN300]. Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. Rev. 587, 611 (1983).

[FN301]. Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994).

[FN302]. See Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir. 2001), cert. granted, 122 S. Ct. 1062 (Feb. 19, 2002) (No. 01-618).

[FN303]. Brief for Petitioner at i, Eldred (No. 01-618), available at http://eon.law.harvard.edu/openlaw/eldredvashcroft/cert-petition.pdf.

[FN304]. Linda Greenhouse, Justices to Review Copyright Extension, N.Y. Times, Feb. 20, 2002, at C1.