No. 01-618

_________________________________________________

In The

Supreme Court of the United States

_________________________________________________

Eric Eldred, Et Al.,

Petitioners,

John D. Ashcroft, in his official capacity as

Attorney General,

Respondent.

_________________________________________________

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

_________________________________________________

BRIEF OF MALLA POLLACK, AMICUS CURIAE

SUPPORTING PETITIONERS

_________________________________________________

Malla Pollack

Northern Illinois University

College of Law

Normal Road

DeKalb, IL 60115

815-753-1160

after June 20, 2002

University of Memphis

Cecil C. Humphreys School of Law

3715 Central Ave.

Memphis, TN 38152-3140

901-678-2421

TABLE OF CONTENTS

Table of Contents ....................................................................i

Table of Authorities ...............................................................ii

Interest of Amicus Curiae.......................................................1

Authority to File......................................................................1

Summary of Argument............................................................1

Argument................................................................................2

I. The Copyright and Patent Clause Requires

Tight Judicial Review of Congressional

Action......................................................................2

A. Textual Choices Demonstrate Original Intent for Narrow Construction of the Power..............................................................3

B. Fear of Monopolies and Corruption Support Narrow Construction of the Power............................................................14

II. The Court Should Provide Clear Guidance

to Congress...........................................................21

Conclusion............................................................................24

TABLE OF AUTHORITIES

Cases: Page:

Ashwander v. TVA, 297 U.S. 288 (1936)............................21

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

489 U.S. 141 (1989)..................................................21

Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569 (1994)..................................................21

City of Boerne v. Flores, 521 U.S. 507 (1997).......1, 3, 10, 11

Eldred v. Reno, 295 F.3d 372 (D.C. Cir. 2001)......................7

Eldred v. Ashcroft, 255 F.3d 849 (2001)................................7

Feist Publications, Inc. v. Rural Tel. Svc. Co.,

499 U.S. 340 (1991).................................................21

Fogarty v. Fantasy, 510 U.S. 517 (1994)..............................21

Fox Film Corp. v. Doyal, 286 U.S. 123 (1932)....................22

Graham v. John Deere Co., 383 U.S. 1 (1966)...............15, 22

Goldstein v. Ca., 412 U.S. 546 (1973)..................................22

Great Atlantic & Pacific Tea Co. v. Supermarket

Equip. Corp., 340 U.S. 147 (1951)...........................22

Harper & Row Publ. v. Nation Enters.,

471 U.S. 539 (1985)..............................................9, 22

Kewanee Oil Co. v. Bicron Crop., 416 U.S. 470 (1974)......22

Kimel v. Florida Bd. of Regents,

528 U.S. 62 (2000)......................................1, 7, 11, 13

Lee v. Runge, 404 U.S. 887 (1971).......................................22

M’Culloch v. Maryland, 17 U.S. 316 (1819)..........................5

National Endowment for the Arts v.

Finley, 524 U.S. 569 (1998)........................................5

Pennock v. Dialogue, 27 U.S. (2 Pet.) 1 (1829)....................22

Printz v. United States, 521 U.S. 898 (1998)....................4, 10

Railway Labor Executives Ass’n v. Gibbons,

454 U.S.457 (1982).....................................................5

Shaw v. Cooper, 32 U.S. (7 Pet.) 292 (1833).......................22

Sony Corp. v. Universal City Studios,

464 U.S. 417 (1984)..................................................22

Turner Broadcasting Sys. v . FCC, 512 U.S. 622 (1994)........8

United States v. Morrison, 529 U.S. 598 (2000)........1, 11, 13

Ware v. Winsor, 62 U.S. (21 How.) 322 (1858)...................22

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)....................22

Provisions of U.S. Const.:

Art. I, Sec. 8, cl. 1 (Spending Power)...............................5, 20

Art. I, Sec. 8, cl. 3 (Commerce Clause)............................5, 20

Art. I, Sec. 8, cl. 4 (Bankruptcy Clause) ................................5

Art. I, Sec. 8, cl. 8 (Copyright and Patent Clause,

or Copyright Clause)..........................................passim

Art. I, Sec. 8, cl. 18 (Necessary and Proper Clause) ..............5

Art. I, Sec. 9, cl. 8.................................................................16

Art. I, Sec. 10, cl. 1...............................................................16

Art. II, Sec. 2, cl. 2 (Treaty Power).........................................5

Amd. I.................................................................................... 9

Amd. II....................................................................................9

Amd. XIII..............................................................................10

Amd. XIV .........................................................................1, 10

Amd. XV...............................................................................10

Amd. XVIII...........................................................................10

Amd. XIX..............................................................................10

Amd. XXIII ..........................................................................10

Amd. XXIV...........................................................................10

Amd. XXVI...........................................................................10

U.S. Statutes

The Copyright Term Extension Act, (“CTEA”),

Pub. L. No. 105-298, 112 Stat. 2827 (1998)......passim

U.S. Congressional Materials

Barbara Ringer, Study No. 31: Renewal of

on Patents, Trademarks, and Copyrights of

the Senate Comm. on the Judiciary, 86^th

Cong., 1^st Sess., Copyright Law Revision

(Comm. Print 1960)....................................................6

S. Rept. No. 104-315 (1996).................................................12

British Statutes

The Statute of Monopolies, 21 Jam. 1, c.3 (1624)......2, 14, 20

British Legislative Materials

The Grand Remonstrance [of 1641], reprinted in

The Constitutional Documents of the Puritan

Revolution, 1625-1660

(Samuel Rawson Gardiner ed., 3^rd ed. rev. 1968).....17

Secondary Authorities

Howard B. Abrams, The Historical Foundation

of American Copyright Law,

29 Wayne L. Rev. 1119 (1983)...........................14, 17

Agrippa, To the Massachusetts Convention,

reprinted in 4 The Complete Anti-Federalist

(Herbert J. Storing ed., 1981)...................................16

Akhil Reed Amar, Intratextualism,

112 Harv. L. Rev. 747 (1999).....................................4

G. E. Aylmer, The King’s Servants: The Civil

Service of Charles I: 1625-1642 (1961)..............17, 18

Richard E. Baldwin & Frederic Robert-Nicoud,

Entry and Asymmetric Lobbying: Why

Governments Pick Losers, Nat’l Bur. of

Econ. Res. Working Paper No. W8756,

available at <http://www.ssrn.com> ,

or from authors at baldwin@hei.unige.ch;

f.1.robert-nicoud@lse.ac.uk.....................................23

Brief Amici Curiae of Tyler T. Ochoa, Mark Rose,

Edward C. Waltherscheid, the Organization

of American Historians, and H-Law:

Humanities and Social Sciences OnLine

in Support of Petitioners...........................................15

Julie Cohen, Copyright and the Perfect Curve,

53 Vanderbilt L. Rev. 1799 (2000)...........................12

Paul J. Heald & Suzanna Sherry, Implied Limits

on the Legislative Power, 2000 Univ. of Il.

L. Rev. 1119...........................................................5, 6

The Federalist Papers..............................................................9

Dennis Karjala, Copyright Protection of Operating

Software, Copyright Misuse, and Antitrust,

9 Cornell J.L. & Pub. Pol’y 161 (1999)....................22

Mark A. Lemley, The Constitutionalization of

Technology Law, 15 Berkeley Tech.

L.J. 529 (2000).........................................................22

Jessica Litman, Copyright Legislation and

Technological Change,

68 Or. L. Rev. 275 (1989).........................................23

Jessica Litman, Revising Copyright Law for the

Information Age, 75 Or. L. Rev. 19 (1996)...............23

James Madison, The Complete Madison

(Saul K. Padover ed. 1953).........................................9

George Mason, The Objections of the Hon. George

Mason to the Proposed Federal Constitution.

Addressed to the Citizens of Virginia,

reprinted in Pamphlets on the Constitution of

the United States 327

(Paul L. Ford ed., 1968)......................................15, 21

Charles Howard McIlwain, Constitutionalism Ancient

and Modern (1940)....................................................20

Neil Weinstock Netanel, Locating Copyright

Within the First Amendment Skein,

54 Stan. L. Rev. 1 (2001)..........................................23

Tyler T. Ochoa, Patent and Copyright Term

Extension and the Constitution: A

Historical Perspective, 49 J. Copyr.

Soc’y USA 19 (2002)..................................................5

Akira Okada & Arno Riedl, Reciprocity,

Inefficiency and Social Exclusion:

Experimental Evidence, Tingergen Inst.

Discussion Paper No. TI 99-044/1,

available at <http://www.ssrn.com.>.......................23

Thomas Paine, Common Sense, reprinted in

Thomas Paine, Selected Works of

Thomas Paine & Citizen Tom Paine

[by] Howard Fast (Modern Library ed. 1946)...........16

William F. Patry, Copyright and the Legislative

Process: A Personal Perspective,

14 Cardozo AELJ 139 (1996)...................................23

Lyman Rae Patterson, Copyright in Historical

Perspective (1968)..............................................14, 17

Linda Levy Peck, Court Patronage and Corruption

in Early Stuart England (1990).................................15

Malla Pollack, Dealing with Old Father William,

or Moving from Constitutional Text to

Constitutional Doctrine: Progress Clause

Review of the Copyright Term Extension Act,

forthcoming Loyola of L.A. L. Rev. (Fall 2002)........4

Malla Pollack, The Multiple Unconstitutionality of

Business Method Patents: Common Sense,

Congressional Consideration, and

Constitutional History, 28 Rutgers

Computer & Tech. L.J. 61 (2002).............................20

Malla Pollack, The Owned Public Domain,

22 Hastings Comm/Ent 265 (2000)............................6

Malla Pollack, Purveyance and Power, or

Over-Priced Free Lunch: The Intellectual

Property Clause as an Ally of the Takings

Clause in the Public’s Control of Government,

30 Southwestern Univ.

L. Rev.1 (2000)...........................14, 15, 17, 18, 19, 20

Malla Pollack, The Right to Know?:

Delimiting Database Protection at the

Juncture of the Commerce Clause, the

Intellectual Property Clause and the First Amendment, 17 Cardozo AELJ 47 (1999)................13

Malla Pollack, What is Congress Supposed to

Promote?: Defining ‘Progress’ in Article I,

Section 8, Clause 8 of the United States

Constitution, or Introducing The Progress

Clause, forthcoming 80 Nebraska L. Rev.

(2002), now available at <http://

papers.ssrn.com/sol3/papers.cfm?

abstract_id=304180> ........................................3, 6, 11

Robert C. Post & Reva B. Siegel, Equal

Protection by Law: Federal

Antidiscrimination Legislation

after Morrison and Kimel,

110 Yale L.J. 441 (2000)..........................................14

A Son of Liberty, reprinted in

3 The Complete Anti-Federalist 34

(Herbert J. Storing ed., 1981)....................................16

Laurence H. Tribe, Reflections on Free-Form Method

in Constitutional Interpretation, 108 Harv.

L. Rev. 1221 (1995)....................................................4

Jonathan Weinberg, Brief of Copyright Law Professors

As Amici Curiae Supporting Petitioners.....................2

Gordon S. Wood, The Creation of the American

Republic 1776-1787 (1998)......................................15

INTEREST OF THE AMICUS CURIAE

Amicus Malla Pollack (“Pollack”) is a law professor with no financial interest in the outcome of this litigation. As an expert in the history of Art. I, Sec. 8, cl. 8 of the United States Constitution, the Copyright and Patent Clause, Pollack hopes to bring to the Court’s attention information not clearly presented by any other brief. Pollack believes this information supports a strong standard of review for congressional action pursuant to the Copyright and Patent Clause.

AUTHORITY TO FILE

Counsel for petitioner and respondent have consented to the filing of this brief. The consent letters have been filed with the Clerk of the Court.

SUMMARY OF ARGUMENT

The review standard for statutes passed pursuant to the Copyright and Patent Clause of the U.S. Const., Art. I, Sec. 8, cl. 8, should be similar to that used for the Enablement Clause of the Fourteenth Amendment, U.S. Const., Amd. XIV, Sec. 5., as explicated in City of Boerne v. Flores, 521 U.S. 507 (1997); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); United States v. Morrison, 529 U.S. 598 (2000). Original intent for a high standard of review

is indicated by the detailed fences inserted into the text of the Copyright and Patent Clause. The importance of these textual fences is supported by the ratifying generation’s concern with government corruption and by that generation’s understanding of the anti-corruption background of the ancestral Statute of Monopolies. The only other constitutional language with similarly constrained text is the Enablement Clause of several later amendments.

The Court should speak more fully than usual on the constitutional issues in this case, because Congress has ignored this Court’s repeated, less clear instructions to prioritize public access to “science and the useful arts.”

ARGUMENT

Amicus Malla Pollack (“Pollack”) writes separately to bring additional points to the Court’s attention. Specifically, Pollack argues (i) that the Court should use a high standard of review under the Copyright and Patent Clause, and (ii) that full analysis is appropriate in this case. On the other issues presented, Pollack fully supports the insightful amicus brief filed by Jonathan Weinberg on behalf of numerous law professors.

I. The Copyright and Patent Clause Requires Tight Judicial Review of Congressional Action

This Court has not yet formulated a standard of judicial review for congressional action pursuant to the Copyright Power. The text of the Constitution and the basic

policy concerns of the drafting and ratifying generation support a high standard of review.

A. Textual Choices Demonstrate Original Intent for Narrow Construction of the Power

The Copyright and Patent Clause is uniquely drafted. No other grant of power in the original Constitution or the early Amendments is as textually constrained. This drafting decision evidences that all the limitations in the Clause were necessary hedges to cabin the power acceptably.

First, the Clause includes a jurisdictional limit on the res as to which Congress may legislate: only the “writings” of “authors” and the “discoveries” of “inventors.”

Second, the Clause specifies that Congress may pass statutes for one, and only one policy goal, “to promote the

progress of science and useful arts.”

Third, the Clause specifies the means Congress may use: providing “exclusive rights” for mere “limited times.” The plural “times” does not undermine the extreme narrowness of the Power. “Times” allows for (i) different pre-set terms for different types of statutory rights, and (ii) pre-set terms divided into original and renewal terms. The

bargain theory of intellectual property requires terms to be set ex ante. The quid pro quo principle, or bargain theory of intellectual property, prevents the type of corruption the Framers recognized in earlier British practice, as discussed infra Section I.B.

No other Article One Power is as textually constrained. As a textual matter, therefore, this Court should require Congress to abide by each and every limitation. Respect for the Constitution’s writtenness requires strong judicial review.

The Court of Appeals decided the constitutionality of the Copyright Term Extension Act (“CTEA”) pursuant to the Copyright Power by the most deferential form of rational

basis review. The Constitution’s text demonstrates the inappropriateness of such lax review. The paradigm of rational basis review is an economic measure of general applicability passed pursuant to the Commerce Clause which is alleged to have violated the equal protection rights of an historically unthreatened group. The Commerce Clause, however, lacks any internal textual restraint on either means or goals. Even the jurisdictional limit of the Commerce Power is both immense and vague. Compare the current “Congress shall have the power . . . to regulate commerce . . . among the several states,” with the somewhat narrower hypothetical clause, “Congress shall have the power . . . To promote a civil, agrarian society, by regulating Commerce . . . among the several states.” This hypothetical adds only one of the several textual constraints located within the Copyright Clause. A goal is set, but the allowed means are not stated

even generally. No express time constraint is imposed. In stark contrast, the Copyright Clause specifies a single goal, allows only one tightly cabined means which may be deployed only for “limited times,” and provides a sharp jurisdictional limit (only “writings” of “authors” and “discoveries” of “inventors”).

In sum, the uniquely detailed text of the Copyright Clause demonstrates that its drafters considered its possible misuse and decided not to allow Congress this power without multiple textual constraints. As a textual matter, therefore, the Copyright Power demands review at a much higher standard than that given mere commercial regulation.

Other basic concerns support a high review standard in the Copyright Clause issue of this case.

First, the review standard is generally raised when the statute in question is targeted at the intended area of protection. The CTEA targets the “writings” of “authors.” It has no more general applicability.

Looking at the Constitution structurally, the text separates out for unusual constraint congressional power over “writings” and “discoveries.” If the only intent had been to allow national treatment of such res regardless of interstate connection, the Clause would give “Congress the power . . . to promote writings and discoveries.” The textual difference between this hypothetical and the actual language of the

Copyright Clause demonstrates that copyright statutes should not be treated as mere economic regulation. Madison, after all, saw no need for the First Amendment’s speech and press clauses despite his clear understanding that republican government required an educated, informed populace. The Copyright Power is textually limited to force it into its proper role as an “engine of free expression.” The Copyright Clause is the pre-First Amendment First Amendment.

In the Constitution, the only textual structure comparable to the Copyright Clause is the enabling language repeated almost verbatim in eight amendments. These

clauses give Congress “power to enforce [the amendment] by appropriate legislation.”

This Court has recently recognized the independent judicial scrutiny required by this textual formulation. First, this Court emphasized that it, not Congress, defines the Constitution’s limiting words. Second, this Court insisted that Congress is limited to enacting legislation aimed at the goal recited in the granted power. Third, this Court

independently checked Congress’ factual record. Fourth, this Court held Congress’ power is limited to actions both congruent and proportionate with the constitutionally legitimate goal in light of the legislatively gathered facts.

The textual parallels counsel doctrinal similarity.

First, this Court should itself define the constraining phrases: “limited times” and “promote the progress of science and useful arts.”

Second, this Court should hold Congress to the one goal allowed by the Clause, “promot[ing] the progress of science and useful arts.” Congress has already declared the CTEA primarily aimed at quite different goals:

The purpose of the [CTEA] is to ensure adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works. . . . [E]nsuring fair compensation for American creators . . . and providing enhanced economic incentives to preserve existing works. . .

Accepting its own portrayal, Congress’ two main goals were economic: balance of trade and remuneration to “American

creators.” Facially, neither of these are intended to “promote[s] the progress of science and useful arts.” To the extent the CTEA targets these announced goals, it is unconstitutional per se.

Third, promoting preservation of works, the remaining announced goal, must be subjected to some version of proportionality and congruence review based on this Court’s independent perusal of the legislative record. While unlabeled, the review level in Kimel and Morrison is clearly higher than mere rational basis review.

B. Fear of Monopolies and Corruption Support Narrow Construction of the Power

Policy concerns important to the Framers and the ratifying generation support a high standard of review for congressional action pursuant to the Copyright and Patent Clause.

The Copyright and Patent Clause was drafted against the background of the English Statute of Monopolies and

the evils it attempted to control. Public concern with “monopolies” was not merely a fear of anticompetative economic behavior. It was a fear of government capture by special interests – in modern terms, “agency failure”; in Madison’s diction, “faction”; in Whig rhetoric, “corruption.”

During the ratification controversy, monopolies were denounced as the standard pay-off tool of a “corrupt oppressive aristocracy.” After all, everyone knew that

“[e]xclusive companies are, in trade, pretty much like an aristocracy in government, and produce nearly as bad effects. . . . [S]uch companies . . . always by the greatness of their capital, have an undue influence on government.” “Monopolies in trade [may be] granted to the favorites of government, by which the spirit of adventure will be destroyed, and the citizens subjected to the extortion of the companies who have an exclusive right, to engross different branches of commerce.” As Thomas Paine had warned “the [English] crown is [the] overbearing part [of] the English constitution . . . deriv[ing] its whole consequence merely from being the giver of places and pensions . ..,” places and pensions, furthermore, historically funded by monopolies and related methods of by-passing Parliamentary scrutiny of the

royal fisc.

The extent of the fear can only be understood by considering the extent of the corruption. The late Tudor and Early Stuart English monarchs lacked the man-power and revenue to control social and economic behavior through police or administrative agencies. Instead, regulation was imposed and funded indirectly though a maze of monopolies, fees, and special privileges. The Stationers’ Company, which controlled printers’ claims to “copy-rights,” was one such indirect form of rule, a trade guild which supported Crown censorship.

While full figures are unavailable, the Long Parliament claimed that monopolies alone yearly “prejudice’d the subject” by over one million pounds. The leading

authority is noted British historian G. E. Aylmer, who specialized in the indirect funding mechanisms of the early Stuarts. Aylmer’s educated estimates for yearly intake by officials of the national government from private citizens (including fees, gratuities, and gifts, but not bribes) is between £277,000 and £373,000. To put these figures in perspective, the Crown’s own annual revenue at the time was about £618,000, out of which the Crown paid these same officials about £350,000 per year. Yet Aylmer’s figures of the cost of indirect government administration are much too low – they omit many important scams.

To add insult to injury, these indirect methods of funding did not work well. That is, they did not work well at funding the public welfare-producing government projects

they supposedly supported. They did work well at providing financial rewards to Crown favorites without touching the treasury directly.

The Whigs and their political decedents, the American Framers, attempted to control government by limiting government revenue to legislatively approved

taxation, cutting off the hidden pseudo-taxes which allowed Crown administration without representational control. Hence, taxation without representation is tyranny. Hence, the Copyright and Patent Clause was uncontroversial during ratification because the power was tightly cabined to prevent misuse. Instead, the anti-monopoly rhetoric was aimed at the textually open Commerce Clause.

In sum, to review copyright statutes with the same deference accorded mere economic regulation betrays the textually recorded policy concerns of the ratifying generation. Congress may be able to give bonuses to favored corporations or industries through the spending power, or tilt

Commerce Clause based administrative agencies into pro-big business postures, but it cannot hide such subsidies behind “public interest” copyright statutes. The Copyright Clause was carefully drafted to curtail exactly this option – the hidden pay-off tool of a corrupt, oppressive aristocracy.

II. The Court Should Provide Clear Guidance to Congress

This Court’s usual reticence on constitutional issues is unsuitable for this case.

First, giving full deference to Congress’ as a co-equal branch of government, Congress cannot follow the Constitution without this Court’s teaching on what the document means. This Court has yet to explicate the Copyright Power— a Power which has reached enormous importance. Congress needs this Court’s guidance.

Second, Congress has not responded to this Court’s repeated statements that the Copyright and Patent Clause’s purpose is to increase public access to knowledge and technology. This Court has attempted to create a soft-

voiced dialogue. Since Congress has not listened, this Court should raise its voice to be heard.

Third, the current burgeoning of copyright-holder and patent-holder rights to exclude is fueled by what the Framers’ and ratifiers of the Constitution would term “corruption,” Madison would name “faction,” and law and economics scholars would call “agency failure.” Mere political process is institutionally incapable of motivating Congress to act in the public interest regarding the scope of intellectual property. Perhaps such action is allowable normal politics

in other areas of federal regulation, but the Copyright and Patent Clause was written in reaction to similar corrupt English practices. In this one Clause, if nowhere else in the Constitution, the Framers clearly intended to disallow special interest legislation. This Court should so-instruct Congress.

CONCLUSION

For all the reasons discussed above, this Court should both (i) use a heightened standard of review for the Copyright Clause issues, and (ii) fully explicate the requirements imposed by the Clause.

Respectfully submitted:

May 20, 2002

__________________

Malla Pollack, Esq.

Member of the Bar of the U.S. Sp. Ct.

Northern Illinois University

College of Law

Normal Road

DeKalb, IL 60115

815-753-1160

after June 20, 2002

University of Memphis

Cecil C. Humphreys School of Law

3715 Central Ave.

Memphis, TN 38152-3140

901-678-2421