Moot Court Brief of Chimene Keitner and Travis LeBlanc for Petitioner

I. THE CTEA’S RETROACTIVE EXTENSION OF EXISTING COPYRIGHTS IS UNCONSTITUTIONAL UNDER THE COPYRIGHT CLAUSE BECAUSE IT DOES NOT “PROMOTE THE PROGRESS OF SCIENCE.”

A. Congress’s Copyright Power “To promote the Progress of Science” Is Limited.

Congress exceeded its enumerated power “To promote the Progress of Science . . . by securing for limited Times to Authors . . . exclusive Right to their respective Writings,” U.S. Const. art. I, § 8, cl. 8, by retroactively extending the duration of existing copyrights for an additional twenty years, from fifty years following the author’s death to seventy years post-mortem. The structure of this grant defines Congress’s power “to do X by means of Y.” Congress’s power “To promote the progress of science” (X) is not introductory largesse, but is the actual power granted to Congress. The remainder of the clause—“by securing for limited Times,” etc.—is not an affirmative grant of power to Congress and in fact negatively limits the means by which Congress may exercise the power. See also, e.g., U.S. Const. art. II, § 2, cl. 2 (“[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties . . .”). It is with this understanding that the Court has described the Copyright and Patent Clause as “both a grant of power and a limitation” and held that Congress’s power under that clause is “limited to the promotion of advances in [science and] the ‘useful arts.’” Graham v. John Deere Co., 383 U.S. 1, 6 (1966); accord Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (unanimous opinion). Although Graham is a patent case, the analogy to the copyright context stands to reason. See Lee v. Runge, 404 U.S. 887 (1971) (“The limitations set forth in [Graham], therefore, apply with at least equal force to copyrights.”) (Douglas, J., dissenting) (citations omitted). If patent laws “must ‘promote the Progress of . . . useful Arts,’” then surely copyright laws “must” promote “the Progress of Science,” and Congress’s copyright power is limited accordingly. Congress exceeded its power with the CTEA by retroactively extending copyright terms without “promot[ing] the Progress of Science.”

There is no unqualified general copyright power. Authorized by a Constitution of enumerated powers, Congress’s power “To promote the Progress of Science” is inherently limited. See United States v. Lopez, 514 U.S. 549, 552 (1995) (“‘The powers delegated by the proposed Constitution to the federal government are few and defined’”) (quoting The Federalist No. 45 (James Madison)); id. at 553, quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95 (1824) (“‘[E]numeration presupposes something not enumerated.’”). The Court’s review of the CTEA should examine whether the retroactive extension adopted by Congress to achieve the constitutional end of promoting the progress of science is “appropriate” and “plainly adapted” to achieving that end. See McCulloch v. Maryland, 17 U.S. 316, 421 (1819).

The Constitution withholds from Congress a plenary power to promote scientific progress in any manner in which it desires. Unlike the Commerce Clause of Article I, section 8, the Copyright Clause is a qualified grant of power, and the “appropriate” means by which that power may be exercised are outlined in the text of the grant—“by securing for limited Times to Authors . . . exclusive Right to their respective Writings.” See also Graham, 383 U.S. at 6 (“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.”); Wheaton v. Peters, 33 U.S. (8 Peters) 591, 661 (1834) (finding that the Copyright Clause should be interpreted in light of the “words and sentences with which it stands connected”). As this Court has consistently declared since Gibbons v. Ogden, “We know of no rule for construing the extent of [Congress’s] powers, other than is given by the language of the instrument which confers them, taken together with the purposes for which they are conferred.” 22 U.S. at 187-88. Thus, any limit placed on Congress’s copyright power to promote “the Progress of Science” does not thereby come from the introductory language of the clause, accord Eldred v. Reno, 239 F.3d 372, 377 (D.C. Cir. 2001); Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981), but from the enumerated appropriate means construed with the purpose of the power. See Graham, 383 U.S. at 5-6.

It is inconsequential that this is the first opportunity courts have had to review American retroactive copyright term extensions. There is no rule that immunizes congressional legislation from judicial scrutiny. The fact that a legislative act goes unchallenged has nothing to do with its constitutionality. See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954). Since it is the duty of the Judiciary “to say what the law is,” Marbury v. Madison, 5 U.S. 137 (1803), it is the proper province of this Court to determine at any time when Congress has exceeded its copyright power, whether or not exercises of this power have been challenged in the past.

B. The CTEA’s Retroactive Term Extension of Existing Copyrights Is Not an “Appropriate” Means of “Promot[ing] the Progress of Science” Because It Impermissibly Expands the Limited but “Exclusive Right” That Congress Is Authorized to Provide to “Authors for Their Respective Writings.”

Congress’s power “To promote the Progress of Science” is inherently designed to further a public interest—namely, the “Progress of Science.” Although the Copyright Clause aims to promote the public good by authorizing Congress to provide a private benefit to “Authors for their respective Writings,” U.S. Const. art. I, § 8, cl. 8, the Clause ultimately aims to promote the progress of the public, and not the private domain. This Court described the rationale for the Constitution’s grant of limited monopolies in Sony Corp. of Am. v. Universal City Studios, Inc.:

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.

464 U.S. 417, 429 (1984) (citations omitted). While the immediate effect of copyright law is to secure a fair return for an author’s creative labor, this Court has said that “[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.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (citations omitted); see Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 1.03[A] (2001) (stating that the “primary purpose of copyright is not to reward the author, but . . . to secure the general benefits derived by the public from the labors of authors”) [hereinafter Nimmer on Copyright]. Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability. The provision of an “exclusive Right” “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.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 545-46 (1985). Thus, this Court’s jurisprudence is clear that “[t]he primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science’” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991).

In short, the purpose of providing an “exclusive Right” is to provide “Authors” with an incentive to stimulate artistic creativity for the general public good. Thus, the copyright power is inherently prospective. See Harper & Row, 471 U.S. at 546 (“[T]he monopoly granted by copyright actively serve[s] its intended purpose of inducing the creation of new material.”). It states a utilitarian, incentive-based rationale for intellectual property protection. If exercising the copyright power by retroactively extending the term of copyrights for an additional twenty years after “Authors”’ deaths cannot be shown to be “plainly adapted” to “promot[ing] the Progress of Science” under any set of assumptions, then the CTEA must be declared unconstitutional.

Retroactive extension of the term of existing copyrights cannot provide an incentive to stimulate artistic creativity because incentives are by nature forward-looking. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970). Firstly, the CTEA’s retroactive extension does not promote the general public good because it only protects “Writings” which are already in existence. The CTEA’s retroactive extension is overly broad because it ensures an “exclusive Right” and private benefit to “Authors” who benefit for “Writings” they have already produced, whether or not they produce anything in the future. Authors with existing copyrights have already been induced to create “Writings” for which they have been rewarded the existing copyright; they have been compensated with the already-bargained-for existing copyright term. Contrary to the Government’s position, Congress will have met its promise to “Authors” by not changing the term of the “exclusive Right.” The CTEA’s retroactive benefit is a windfall, not a constitutional guarantee; it is not the constitutionally authorized incentive. Secondly, for those deceased “Authors” whose “exclusive Right” is retroactively extended, it is a priori impossible for them to benefit or receive an incentive from retroactive extension. See also United Christian Scientists v. Christian Sci. Bd. of Dirs., 829 F.2d 1152, 1168 n.84 (D.C. Cir. 1987) (“[A] grant of copyright protection after the author’s death to an entity not itself responsible for creating the work provides scant incentive for future creative endeavors.”). Instead, the only beneficiaries of such a retrospective extension are the estates of deceased authors and distributors, who gain from charging the public monopoly prices for an additional twenty years, though neither the estates nor the distributors created the works.

Judge Sentelle recognized below that the Government failed to offer even a “tenable theory” as to how a retroactive extension can promote science and the useful arts. See 239 F.3d at 382. All retroactive extension does is extend the monopoly of a work “already in existence” and does not in any way meet the “progress” requirements of the Copyright Clause. See Trade-Mark Cases, 100 U.S. 82, 94 (1879). Finally, those living “Authors” who are producing would continue to benefit from the CTEA’s prospective provisions, should they produce anything new. The fact that retroactive term extension does not promote a constitutional incentive (as opposed to a mere theoretical incentive) to create is sufficient to declare the CTEA unconstitutional.

Furthermore, the Government’s argument that the CTEA “promote[s] the Progress of Science” by harmonizing American copyright law with European law is also an unconstitutional windfall, and not a constitutional guarantee. The 1993 Directive adopted by the European Council requires its member countries to adopt a copyright term of life plus seventy years. See Council Directive 93/98/EEC, 1993 O.J. (L290) 9. However, no provision of the Constitution permits Congress to exercise its copyright power to retroactively harmonize American law with European law. In placing an item on the global market, one bargains under the risk that other countries will amend their laws. Moreover, without the retroactive term extension, American authors would not be harmed because they would continue to receive the same benefit-of-the-bargain in Europe that that they accepted here—life plus fifty years—under “rule of the shorter term.” See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised July 24, 1971, art. 7(8), 828 U.N.T.S. 221. Unlike Europe, our copyright law has always viewed copyright primarily as a vehicle for achieving social benefit based on the belief that encouragement of individual effort by personal gain is the best way to advance the public welfare. Harmonizing American law with European law does not per se meet the constitutional requirement that it “promote the Progress of Science.” Indeed, the CTEA is not “plainly adapted” because even without the proposed retroactive extension, the U.S. copyright owner of a sound recording or motion picture will be protected for “75 years from first publication or 100 years from creation whichever is shorter,” 17 U.S.C. § 101 (Supp. 1999), whereas the EC affords only five extra years of protection to sound recordings. See Council Directive 93/98/EEC, art. 3. Accordingly, insofar as U.S. protection goes beyond the EC, the CTEA cannot be plainly adapted to “promote the Progress of Science.”

Whether or not the Government can identify any incentive allegedly promoted by retroactive extension is inconsequential. The CTEA expands the scope of the author’s “exclusive Right” beyond its constitutional bounds. As this Court noted in Lopez, 514 U.S. at 549, and again in United States v. Morrison, 529 U.S. 598 (2000), Congress’s conclusion that a given piece of legislation serves a constitutional purpose “does not necessarily make it so.” Lopez, 514 U.S. at 557 n.2 (citation omitted). Although existing copyrights are further protected by retroactive extension, there is no added benefit to the public; there is no promotion of the “Progress of Science.” The scope of the Copyright Clause must be considered in the light of a balance between promoting the progress of science thorough the private benefit of an “exclusive Right,” but that promotion of a private monopoly may not be extended to embrace effects upon promoting progress that are so indirect and remote that to embrace them would effectively remove the distinction between the “public” and the “private” domains. Cf. id. at 556-57; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). A retroactive extension presents a clear case where Congress’s justification cannot stand.

C. The CTEA’s Retroactive Extension of the Term of Existing Copyrights is Not an “Appropriate” Means of “Promot[ing] the Progress of Science” Because It Violates the “Limited Times” Requirement of the Copyright Clause.

The Congress only has the power to promote the “Progress of Science” by granting exclusive rights for “limited Times.” U.S. Const. art. I, § 8, cl. 8; see also Ladd v. Law & Tech. Press, 762 F.2d 809, 812 (9th Cir. 1985). The first U.S. copyright statute applied only to books, maps, and charts, reserving to authors the rights to such works for a fourteen-year term, coupled with a renewal term of the same duration. See Act of May 31, 1790, ch. 15, 1 Stat. 124. By the end of the second century of copyright protection, the scope of protection had substantially expanded to encompass all original works of expression fixed in tangible media, and the period of exclusivity enjoyed by authors was extended to life plus fifty years. Congress seems to have found a way around the constitutional requirement of “limited Times.” While adhering to the rule that copyright terms be definite, rather than perpetual, Congress has adopted the practice of perpetually extending definite terms. Congress has extended the term of existing copyrights eleven times in the past forty years. See Eldred, 239 F.3d at 381. As a result of the CTEA and its predecessor legislation, creative works produced in 1923 under the expectation that they would enter the public domain in 1980 will not do so until 2019. See 17 U.S.C. § 101 (Supp. 1999). Congress’s perpetual extensions of copyright terms must be limited.

The very fact that the Framers put “limited” in the Clause certifies that a copyright term that is perpetual would be clearly unconstitutional. See Eldred, 239 F.3d at 377. The Framers intended to give authors the copyright term needed to serve as an incentive for creation and no longer. The Government’s view that any fixed period one day short of infinity—whether adopted singularly or piecemeal—satisfies the “limited Times” restriction renders “limited Times” all but meaningless and imputes an unlikely frivolousness to the Framers’ inclusion of this language. As Judges Sentelle and Tatel probed below, the Government must explain “how a precedent that would permit the perpetuation of protection in increments is somehow more constitutional than one which did it in one fell swoop.” Eldred v. Ashcroft, 255 F.3d 849, 854 (D.C. Cir. 2001) (Sentelle & Tatel, JJ., dissenting). But more disparaging, such an expansive interpretation of “limited Times” extinguishes the public domain because no works would ever fall into it.

The reason for “limited Times” is to protect and enrich the public domain by ultimately terminating the monopoly power. The public domain that the Framers envisioned, as Justice Story explained, comprises creative works that “after a short interval” fall to the “people at large” “without restraint.” 3 Joseph Story, Commentaries on the Constitution of the United States § 11417 (1883). The Graham Court recognized this principle: “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.” 383 U.S. at 6. Once copyright protection expires on a work, the work enters the public domain. Works in the public domain may be used by all without copyright fees or restrictions. In a real sense, the public owns a “Writing” once its copyright expires. Congress may not unduly restrict the public’s ultimate right to use the work, fairly purchased through the costs incurred during the period of exclusivity.

The public domain consists of all sources of information and expressions that may be freely copied. It extends to “works, or components thereof, that are not eligible for copyright, works that were created before copyright existed, works that have had their copyrights expire, and intellectual property that is defined by the Copyright Act to fall outside the scope of its protection.” Jon M. Garon, Media & Monopoly in the Information Age: Slowing the Convergence at the Marketplace of Ideas, 17 Cardozo Arts & Ent. L.J. 491, 545 (1999). Because the public domain embodies a wealth of creative material that may be reproduced, sampled, altered, or incorporated into other works, resulting in the creation of new and innovative works, decreasing the amount of material in the public domain shrinks the amount of material on which new artists and writers build, thus causing a decrease in the amount of new work that will be produced. The CTEA’s retroactive extension paralyzes the public domain by preventing anything from entering it until 2019. This is an enormous impediment to progress.

The inviolable constitutional status of the public domain is well-established. Even the court of appeals recognized this principle. See Eldred, 239 F.3d at 377. On the basis of a unanimous decision in Graham, the Court held that Congress may not authorize the issuance of patents pursuant to the Copyright and Patent Clause whose effects are to remove works from the public domain. See 383 U.S. at 6; accord Bonito Boats, 489 U.S. at 141 (unanimous opinion). And in yet another unanimous decision in Feist, this Court extended this understanding of the constitutional status of the public domain to the copyright context by holding that telephone listings complied in a white pages directory are uncopyrightable facts. See Feist 499 U.S. at 345. Once an item has been placed in the public domain, it cannot be removed.^*

The Copyright Clause guarantees a public domain. But the only way that a public domain has any meaning is if works actually enter it. The Government has already extended the copyright on Mickey Mouse for two twenty-year extensions and yet it offers no assurance that it will not do so again in twenty years. The Government could extend the copyright on Mickey Mouse in twenty-year increments ad infinitum under its proffered rationale. If this trend continues - and there is no reason to believe that it will not - no work created after the 1920s will ever fall into the public domain absent procedural default or express dedication by the author. Such an abuse of copyright power is indistinguishable from a perpetual copyright. The Government’s “limited” term is “in effect” unlimited and should therefore be struck because it is an inappropriate means of promoting the “Progress of Science.”

By contrast, the interpretation of “limited Times” that Petitioners offer has a clear, constitutionally permissible limit on Congress’s exercise of its copyright power: Congress cannot retroactively extend copyrights. Congress need only select a time which it will maintain for all existing copyrights, but it could modify the term prospectively as to any future copyrights (barring any First Amendment challenges). The problem with the Government’s limitation, however, is that there are no limits on the restrictions that the government imagines the clause imposes. Without a limit, the existence of a public domain is vitally jeopardized.

The CTEA’s retroactive extension is also not “plainly adapted” to the Government’s argument that the twenty-year extension was appropriate given the relatively minor increase in life expectancies since 1976. Between 1976 and 1998, the life expectancy for people at birth increased by only three years. See CDC, Vital Statistics of the United States, 1995, tbl. 6-3 (1998); CDC, Vital Statistics of the United States, 1976, tbl. 5-3 (1978). While a three-year extension might be plausible, a twenty-year extension is in no way plainly adapted to that end.

D. The CTEA’s Retroactive Term Extension is not an “Appropriate” Means of “Promot[ing] the Progress of Science” Because It Violates the “Originality” Requirement of the Copyright Clause.

Originality is a constitutional requirement. The Court came to this conclusion in Feist, stating that “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.” Id. at 345. The Feist Court considered the copyrightability of “factual” telephone listings in a directory, ultimately acknowledging that it is “unmistakably clear” that the Court’s precedents interpreting the terms “Authors” and “Writings” “presupposed a degree of originality.” Id. at 346; see also The Trade-Mark Cases, 100 U.S. at 82 (addressing the originality requirement derived from “Writings”); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (addressing the originality requirement derived from “Authors”). Upholding originality as a “constitutional requirement,” the Feist Court declared originality to be the “touchstone of copyright protection today.” 499 U.S. at 346; see also L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719, 763 n.155 (1989) (“The originality requirement is constitutionally mandated for all works.”) (emphasis in original); accord Nimmer on Copyright, § 1.06[A] (“Originality is a statutory as well as a constitutional requirement.”). This is not to say that Congress must show that literally every copyright meets the originality requirement, but that the Congress, in order to exercise the copyright power must generally promote the progress of science by providing an “exclusive Right” for “limited Times” to original “Writings.” Cf. Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 859-60 (5th Cir. 1979).

Retroactive extension of copyright durations does not meet the originality requirement. The works that receive the retroactive extension already exist when the copyright power is exercised and therefore would not meet the constitutional, as opposed to statutory, requirement of originality. The “originality requirement is constitutionally mandated for all works,” Feist, 499 U.S. at 346, and not merely those that are seeking a copyright in the first place. “Original,” as used in copyright, means only that the work was independently created by the author, and that it possesses at least some minimal degree of creativity. “The purpose underlying the constitutional grant of power to Congress to protect writings is the promotion of original writings, an invitation to creativity. This is an expansive purpose . . .” Mitchell Bros., 604 F.2d at 856 (emphasis added). The originality requirement makes the copyright clause inherently prospective and inherently expansive. By extending the copyrights of works that are already in existence, the CTEA does not promote the progress of science because it neither expands the amount of creativity in existence, nor promotes the progress of the public domain.

Although the Copyright Clause does not expressly mention “originality,” this Court has limited the scope of “Writings” and “Authors” to those works that are “original”—excluding, for instance, facts from the scope of copyright protection, as well as matters that are already in the public domain. Feist, 499 U.S. at 345; Graham, 383 U.S. at 6. Like Bonito Boats, in the patent context, Feist stands for the proposition that the Copyright Clause prevents Congress from granting exclusive rights to what the public already owns and freely uses, such as public domain knowledge and works. Under the Government’s theory of originality, Congress is not restrained from removing “Writings” from the public domain today and providing them with a copyright as long as Congress could show that at some previous time the “Writing[]” was original. It is difficult to perceive any limitation on the Congress’s power. Nevertheless, the Court has consistently prohibited the removal of documents from the public domain and the Government has not articulated a defense to the contrary. There is no constitutional difference between the prohibition against removal from the public domain and a prohibition against retroactively extending the terms of existing copyrights. Where a work has already been produced, there is no justification for an extended monopoly, especially a monopoly that threatens speech. The CTEA’s retroactive extension of existing copyright terms is therefore unconstitutional.

The public domain has constitutional status which prevents the Congress from exercising its copyright power to remove “Writings” from it. Under the Government’s interpretation, there is no limit placed on the Congress’s authority to remove items from the public domain and First Amendment protections. Where the federal government attempts to take over the regulation of entire areas of traditional public property—namely, the public domain—areas having nothing to do with promoting the “Progress of Science” (e.g., existing copyrights) the boundaries between the spheres of private and public domain unconstitutionally blur. Cf. Lopez, 514 U.S. at 580.

The Government argued below that even though an existing copyrighted work may not induce the creation of anything new, the CTEA nevertheless promotes “progress” by creating incentives to distribute or preserve existing works, such as deteriorating films. But preservation is not progress. “Progress” involves forward movement, advancement, and creation, whereas preservation involves the very different realm of stasis and avoidance of decay. See New Lexicon Webster’s Dictionary 792 (“preserve . . . to keep up, maintain, prevent from ruin or decay”). While “preservation” might be tenable for a statute targeted at decaying films, it cannot begin to justify the wholesale retroactive extension of all subsisting copyrights, which also includes a vast array of books, poetry, music, plays and images covered by the CTEA. There are other ways to protect an author’s private incentive short of unconstitutionally extending all existing copyrights. For example, the Congress could have preserved deteriorating films by using a constitutional means to pursue the end it desires, such as creating a fund which would finance the saving of items for the public domain in which private incentives no longer exist (e.g., deteriorating film). The Government’s arguments about the unique economic value of preserving deteriorating film demonstrate the unreasonable overbreadth of the CTEA. If it is true that the economic value of films are a special case, then the appropriate solution is a special copyright term for film, not the general deferral of the public domain for the millions of non-film works that the CTEA affects in the name of preserving film. The CTEA is in no way “plainly adapted.”

Although Congress can use other means of protecting favored documents in the public domain, it cannot do this by issuing copyrights under another enumerated power, including the Necessary and Proper Clause, U.S. Const. art. I, § 8. In Railway Labor Executives Ass’n v. Gibbons, 455 U.S. 457 (1982), this Court held that the constitutional limit on nonuniform bankruptcy laws prevented Congress from using the Commerce Clause to enact that which the Bankruptcy Clause implicitly forbids. See id. at 471. Just as the commerce power or the treaty power could not be used to create copyrights of perpetual duration without running afoul of a specific limitation rooted in the Copyright Clause, inappropriate legislation which does not meet the originality requirement is similarly outside congressional competence, irrespective of the source of authority invoked. See Peter A. Jaszi, Goodbye to All That-A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 Vand. J. Transnat’l L. 595, 608-09 (1996) (arguing that “the congressional authority to legislate copyrights and quasi-copyrights on alternative bases is not a plenary one; rather, it is constrained by other constitutional language (e.g., the First Amendment and the Patent and Copyright Clause)”). Thus, in Authors League of Am., Inc. v. Oman, 790 F.2d 220, 224 (2d Cir. 1986), the Second Circuit held that Congressional denial of copyright protection to certain foreign works was an appropriate exercise of the commerce power which was not inconsistent with the rule that the commerce power cannot be used to overcome specific limits in the Constitution, such as those of the Copyright Clause. See 790 F.2d at 224. If another enumerated power such as the Necessary and Proper Clause could be used to effect what has already been prohibited elsewhere in the Constitution, then any prohibitory language would lose all meaning. Certainly, this was not the Framers’ intent, nor a result that this Court should sanction.

None of the Government’s justifications for Congress’s retroactive term extension “promote the Progress of Science.” Akin to the challenged legislation in Lopez, the CTEA does not contain an express jurisdictional element limiting its reach to a discrete set of “exclusive Right[s]” for “limited Times.” Cf. 514 U.S. at 562. And, furthermore, any link between retroactive copyright protection and the promotion of science that it alleges is too far attenuated to have any substantial effect on the “Progress of Science.” Cf. id. at 563-67. As this Court observed in Morrison, reasoning that follows a “but-for causal chain . . . to every attenuated effect,” 528 U.S. at 615, implicating an enumerated power is unworkable if we are to maintain the Constitution’s balance of powers. The burden is on the Government to show congressional findings regarding the substantial effect of retroactive extension on the “Progress of Science.” See 514 U.S. at 563. The CTEA’s moratorium on the public domain must be abolished.

II. THE CTEA IS NOT “CATEGORICALLY IMMUNE” FROM CHALLENGE UNDER THE FIRST AMENDMENT.

A. The CTEA Directly Threatens First Amendment Freedoms.

The CTEA limits the freedom of speech. It extends a monopoly that prevents speakers from choosing freely how they wish to express themselves. It further delays the ability of would-be speakers to draw upon existing works as building blocks for their own messages, and it gives copyright holders twenty additional years of control over if, when, and how the public will hear a copyrighted message. Prolonging this government-sanctioned monopoly over expression threatens First Amendment freedoms, including “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).

The freedom of expression from governmental interference and the rejection of “silence coerced by law” are core features of our democratic system. See Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring). This Court has emphasized that “[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas . . . rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.” Red Lion, 395 U.S. at 390; see also Assoc. Press v. United States, 326 U.S. 1, 20 (1945). The dangers of monopolization are magnified by the corporate ownership of copyrights, through which media conglomerates control broad swaths of our information environment. See, e.g., Neil W. Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 28 (2001).

While the First Amendment does not prevent Congress from granting copyrights to “Authors” for “limited Times” under the Copyright Clause, it places additional restrictions on the nature and duration of the copyrights that Congress may grant. As Professor Melville Nimmer indicated: “If I may own Blackacre in perpetuity, why not also Black Beauty? The answer lies in the first amendment.” Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180, 1193 (1970). Professor Nimmer argued that retroactive extension of copyright terms cannot be justified on the basis of “economic encouragement of creativity” (because existing works have already been created in response to a sufficient economic incentive) or because of a concern for authorial privacy (because existing works, by definition, have already been made public). Id. at 1193-95. He emphasized that copyright monopolies cannot be granted, and their terms cannot be extended, without due consideration for “the countervailing interest in free speech.” Id. at 1195.

The task of determining whether a particular exercise of the copyright power runs afoul of the First Amendment falls to the courts. Professor Nimmer affirmed:

[W]here the question itself is a limitation on congressional power, as in the case of the first amendment, to conclude that such a question is for Congress and not for the Court to determine is to convert freedom of speech, “the matrix, the indispensable condition, of nearly every other form of freedom,” into a legally meaningless exhortation.

Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Cal. L. Rev. 935, 947-48 (1968), quoting Palko v. Connecticut, 302 U.S. 319, 327 (1937). The political processes that produce copyright legislation tend to be biased in favor of copyright holders and against the general public. Justice Breyer noted in his study of copyright: “Holders of copyrights about to expire have a financial interest in urging extension. . . . , while no single interest group is sufficiently affected to focus legislative attention upon the problems of dissemination.” Breyer, supra at 324. The extension of copyright terms should raise a yellow flag for courts charged with protecting the public’s First Amendment freedoms.

B. This Court’s Precedents Do Not Immunize the CTEA from First Amendment Challenge.

The Bill of Rights “curtail[s] and restrict[s] the general powers” enumerated in the original Constitution. N.Y. Times v. United States, 403 U.S. 713, 716 (1971) (Black & Douglas, JJ., concurring). While courts have rejected First Amendment defenses to infringement actions brought by copyright holders to enforce particular copyrights, see, e.g., Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74-75 (2d Cir. 1999); Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1171 (9th Cir. 1977), these holdings do not bear on the constitutionality of Congress’s exercise of the copyright power itself. Judicial opinions that focus on the legality vel non of a particular alleged infringement do not provide insight into the constitutionality of Congress’s exercise of the copyright power.

The court of appeals in the present case erroneously indicated that “[t]he relevant question under the First Amendment—regardless of whether it arises as a defense in a suit for copyright infringement or in an anticipatory challenge to a statute or regulation—is whether the party has a first amendment interest in a copyrighted work.” Eldred, 239 F.3d at 376. This echoes the district court’s assertion that “there are no First Amendment rights to use the copyrighted works of others.” Eldred v. Reno, 74 F. Supp. 2d 1, 5-6 (D.D.C. 1999). Both of these formulations beg the First Amendment question at issue here. Petitioners do not claim a First Amendment right “to use the copyrighted works of others.” Rather, they claim that Congress’s extension of the copyright term is unconstitutional. Works that would be in the public domain but for the CTEA have been granted unconstitutional copyrights.

The failure to comprehend this distinction between a First Amendment defense to a copyright infringement action and a First Amendment challenge to a blanket extension of copyright terms led the courts below to dispose of this issue erroneously. In so doing, they relied on other courts’ misconstructions of this Court’s holdings and dicta. For example, the Ninth Circuit drew the unwarranted conclusion in Sid & Marty Krofft that “[t]he constitutionality of the copyright law was settled long ago by the Supreme Court.” 562 F.2d at 1169. The Ninth Circuit based its assertion on this Court’s opinion in Kalem Co. v. Harper Bros., 222 U.S. 55 (1911), which upheld an author’s exclusive right to dramatize his works for the duration of the copyright term. This Court rejected the claim that making a motion picture based on a copyrighted book uses only the book’s uncopyrightable ideas and not its copyrighted expression. A copyright statute that prevents the unauthorized creation of a motion picture based on an author’s book does not involve an unconstitutional grant of monopoly over ideas. Id. at 63. This limited holding does not immunize “the copyright law” in general from constitutional scrutiny.

The D.C. Circuit’s opinion in Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981), a copyright case involving a dispute about a license to broadcast a film, also does not address Petitioners’ First Amendment claim. The Schnapper court held that because appellants were not themselves deprived of access to the film, they lacked standing to assert the First Amendment interests of third parties. Id. at 113. The court therefore declined to address the broader First Amendment question at issue here. Id. at 114. In the present case, by contrast, the court of appeals confirmed Petitioners’ standing to bring a First Amendment complaint against the CTEA. The court recognized that Petitioners “benefit from works in the public domain and are deprived of that benefit so long as such works are under copyright,” 239 F.3d at 375, and that this deprivation “is as true for works not yet created as for extant works on which the copyrights are about to expire.” Id. The reasoning in Schnapper, which is not binding on this Court, does not preclude Petitioners’ challenge to the CTEA based on their First Amendment interests.

The decision in United Video v. FCC, 890 F.2d 1173 (D.C. Cir. 1989), is also distinguishable from the case at bar, despite the district court’s misplaced reliance on United Video to reject Petitioners’ First Amendment challenge. 74 F. Supp. 2d at 6. The court in United Video observed that, in general, “[c]ases in which a first amendment defense is raised to a copyright claim do not utilize an O’Brien analysis [of intermediate scrutiny].” 890 F.2d at 1190, citing United States v. O’Brien, 391 U.S. 367 (1968). The court therefore declined to apply intermediate scrutiny to “syndicated exclusivity” rules, which can bar cable companies from obtaining compulsory licenses to retransmit copyrighted broadcast signals. 890 F.2d at 1191-92. The D.C. Circuit did not need to apply O’Brien here because the copyrights themselves were not challenged. However, the court indicated that if the syndicated exclusivity rules applied to non-copyrighted television signals, the rules “would raise a serious first amendment problem.” Id. at 1192. When the constitutionality of a particular speech regulation is in question, as in the case at bar, the regulation must pass intermediate scrutiny in order to survive. See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (applying intermediate scrutiny to “must-carry” rules).

The court of appeals and the district court in the present case relied on this Court’s opinion in Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), to rule out a First Amendment challenge to the CTEA. See 239 F.3d at 375; 74 F. Supp. 2d at 6. However, like United Video, Harper & Row does not hold that the exercise of the copyright power to extend copyright terms is “categorically immune” from First Amendment challenge, but only that the First Amendment is not a viable defense to charges of infringing a particular copyright. In Harper & Row, the owners of the copyright on President Ford’s soon-to-be published memoirs sued The Nation Magazine for the unauthorized publication of quotations from the manuscript. Because The Nation conceded that its verbatim copying of the quotations “would constitute an infringement unless excused as a fair use,” 471 U.S. at 569, this Court’s analysis was limited to the issue of whether to create an exception to the fair use doctrine for the personal narratives of public figures. See id. at 558. The Court asked whether allowing the unauthorized publication of a public figure’s manuscript before its scheduled release would risk inhibiting the willingness of public figures to produce memoirs for public audiences, and it answered this question in the affirmative. This analysis does not shed light on the constitutionality of extending the copyright term of a work that has already been published.

C. The Idea/Expression Dichotomy Does Not Immunize the CTEA from First Amendment Challenge.

It is well established that a person cannot hold a copyright in ideas. See 17 U.S.C. § 102(b) (1994). Although the expression of ideas can be copyrighted, ideas themselves belong to the public domain by constitutional mandate. See Int’l News Serv. v. Assoc. Press, 248 U.S. 215, 234 (1918). Some courts have stated incorrectly that because the dichotomy between ideas and expression is generally viewed as protecting an alleged infringer’s First Amendment interest in ideas, any exercise of the copyright power automatically satisfies the First Amendment. See, e.g., United Video, 890 F.2d at 1191; Sid & Marty Krofft, 562 F.2d at 1170. But while the idea/expression dichotomy might mitigate First Amendment concerns in certain circumstances, it does not give Congress carte blanche in its exercise of the copyright power.

The opinions in United Video and Sid & Marty Krofft rely on Harper & Row and on certain statements by Professor Nimmer to support their blanket assertions of the general immunity of copyright law from First Amendment challenge. See, e.g., United Video, 890 F.2d at 1191, citing 1 Nimmer on Copyright § 1.10[B][2]. Their reliance is misplaced. Neither Professor Nimmer’s scholarship nor Harper & Row stands for the proposition that the idea/expression dichotomy immunizes exercises of the copyright power from First Amendment challenge. This Court affirmed in Harper & Row that The Nation is entitled to report the “news element” of President Ford’s memoirs, but not to make unauthorized verbatim use of his manuscript. See 471 U.S. at 556. Affirming the President’s right of first publication, and the public’s right of access to news, does not bear on the constitutionality of keeping a work out of the public domain for seventy, as opposed to fifty, years after an author’s death.

In his cited treatise, Professor Nimmer states that “[i]n general,” copyrighting expression while leaving ideas in the public domain “seems” to “comport with the underlying rationale for freedom of speech,” not that the idea/expression dichotomy insulates all exercises of the copyright power from First Amendment scrutiny. 1 Nimmer on Copyright § 1.10[B][2]. In fact, as noted above, Professor Nimmer was fundamentally skeptical of the constitutionality of copyright term extensions, since extending the term of copyrights would disserve the public’s “speech interest in ‘expression’” with no countervailing interest in encouraging creativity or in protecting authors’ privacy. See id. § 1.10[C][1]. Professor Nimmer also questioned the viability of the idea/expression dichotomy, particularly for graphic works in which “little is contributed by the idea divorced from its expression.” Id. § 1.10[C][2]. In addition, the uncertainty of what a court will characterize as an “idea” as opposed to “expression” can have an excessive chilling effect on protected expression that persists until a copyrighted work enters the public domain. See Netanel, supra at 19-20. The CTEA impermissibly extends the duration of this chilling effect and unduly burdens speech in contravention of the First Amendment.

D. The Fair Use Doctrine Does Not Immunize the CTEA from First Amendment Challenge.

The fair use doctrine was developed by courts in response to the acknowledged potential for copyright to “stifle the very creativity which that law is designed to foster” and to burden First Amendment freedoms. Iowa State Univ. Research Found., Inc. v. Am. Broad. Cos., 621 F. 2d 57, 60 (2d Cir. 1980), quoted in Stewart v. Abend, 495 U.S. 207, 236 (1990); see 4 Nimmer on Copyright § 13.05. It recognizes that an overly inclusive copyright monopoly, even when granted for a limited time, would unduly burden speech, and it indicates that the power to grant monopolies in expression is not absolute. The fair use defense might alleviate the burden on speech created by copyright extensions, but it does not insulate every exercise of the copyright power from First Amendment scrutiny. Professor Nimmer emphasizes: “The scope and extent of fair use falls within the discretion of the Congress. The limitations of the first amendment are imposed upon Congress itself.” See Nimmer, Does Copyright Abridge, supra at 1200. Furthermore, despite the codification of fair use as a defense to copyright infringement, 17 U.S.C. § 107 (1994), the success of this defense remains largely unpredictable. 4 Nimmer on Copyright § 13.05[A]. This can have a chilling effect even on permissible uses of copyrighted material. The CTEA prolongs this chilling effect and unduly burdens speech.

III. THE CTEA DOES NOT SURVIVE FIRST AMENDMENT SCRUTINY BECAUSE IT BURDENS SUBSTANTIALLY MORE SPEECH THAN NECESSARY TO FURTHER AN IMPORTANT GOVERNMENTAL INTEREST.

A. The CTEA Is Subject to Intermediate Scrutiny Under the First Amendment Because It Is a Content-Neutral Speech Regulation.

Congress must prove compliance with the First Amendment when it enacts a speech-restrictive regulation such as the CTEA. See Turner, 512 U.S. at 664. The nature and extent of evidence required for the Government to prove compliance depends upon the applicable standard of scrutiny. In a case involving a First Amendment challenge, “the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling force.” Id. at 641, quoting Los Angeles v. Preferred Communications, 476 U.S. 488, 496 (1986). This Court’s First Amendment jurisprudence distinguishes between content-based regulations, which are subject to strict scrutiny, and content-neutral regulations, which are subject to varying degrees of intermediate scrutiny. The general test for content-neutrality is “whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.” Turner, 512 U.S. at 642, quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Petitioners do not allege that the CTEA targets their expression because of its content. It is therefore subject to intermediate scrutiny.

Even though the CTEA is content-neutral, it is not a mere “time, place, or manner” restriction that “leave[s] open ample alternative channels for communication of the information.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). As long as the works that Petitioners seek to reproduce, disseminate, perform, or transform remain copyrighted, Petitioners may be barred statutorily (if the copyright holder cannot be located or refuses to grant a license) or economically (if the price of a license is prohibitive) from expressing themselves using works that, prior to the enactment of the CTEA, would have been available to them and to the public generally. Because of its potential unduly to burden speech by obstructing the entry of works into the public domain, the CTEA is subject to a degree of intermediate scrutiny that does not merely collapse into rational basis review.

This Court articulated the criteria that must be satisfied under intermediate scrutiny in United States v. O’Brien, 391 U.S. 367 (1968):

[A content-neutral] regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id. at 377. As indicated above, Petitioners maintain that the extension of existing copyright terms is not authorized by the copyright power. However, even if the CTEA were constitutional under the copyright power, it would still need to survive intermediate scrutiny under the First Amendment. This it cannot do.

The burden of proof in justifying a speech regulation rests squarely with the Government. Turner, 512 U.S. at 664. The Government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id. This Court has “stressed in First Amendment cases that the deference afforded to legislative findings does ‘not foreclose our independent judgment of the facts bearing on an issue of constitutional law.’” Id. at 666, quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989). In Sable, this Court found unconstitutional a prohibition on indecent and obscene interstate commercial telephone messages. This Court reached this conclusion because “the congressional record contain[ed] no legislative findings that would justify [the Court] in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban, to achieve the Government’s interest in protecting minors.” Id. Similarly, in the case at bar, the Government patently fails to meet its burden of proof, not for lack of development of the record, but because its proffered reasoning cannot be substantiated.

B. The CTEA Burdens Substantially More Speech than Necessary to Promote Progress .

The Constitution vests Congress with the copyright power for the explicit and exclusive purpose of “promot[ing] the Progress of Science.” U.S. Const. art. I, § 8, cl. 8. The Senate Committee on the Judiciary affirmed in its report on the CTEA that the purpose of exercising the copyright power is to “giv[e] creators an incentive to advance knowledge and culture.” S. Rep. No. 104-315, at 10 (1996). The report offers no support for the proposition that extending the term of existing copyrights will produce such an incentive. As indicated by Senator Hank Brown, “there is no evidence that the current monopoly grant of life-plus-50 years is an insufficient incentive. There is nothing in the hearing record that suggests extending the copyright term will result in more works or higher quality works.” Id. at 32 (minority opinion). Senator Brown also notes that retroactive extensions cannot provide incentives for creation, and that granting an extension to copyright owners rather than to authors themselves belies the purported goal of providing an “incentive to create.” Id. at 32-33. He reminds us that “in part, the incentive to create comes from the public domain works which can inspire, be borrowed from, and improved upon. . . . By draining the public domain, we will restrict a portion of creativity.” Id. at 32.

The majority report does not satisfactorily address any of Senator Brown’s observations. Between 1923 and 2000, approximately 25,251,000 works were registered with the U.S. Copyright Office. See U.S. Copyright Office, Annual Report of the Register of Copyrights 2000 at 46 (2000). There has been no appreciable rise in registrations since the enactment of the CTEA; to the contrary, registrations have exceeded 500,000 per annum every year since 1984. See id. The Government does not show why a policy of keeping these works out of the public domain for an additional twenty years will serve the interests of promoting progress or advancing knowledge. The report does not support its contention that “whether the benefit accrues to individual creators or corporate copyright owners, the ultimate beneficiary is the public domain, which will be greatly enriched by the added influx of creative works over the long term.” S. Rep. No. 104-315, at 13. It is difficult to comprehend how the interest in enriching the public domain will be served by a moratorium on the entry of works into the public domain until 2019.

The majority report also fails to justify its prospective extension of copyrights. It does not show how or why a twenty-year copyright term extension promotes an important governmental interest without burdening substantially more speech than necessary. The observation that “[o]ne of the reasons why people exert themselves to earn money or acquire property is to leave a legacy to their children and grandchildren,” id. at 12, does not indicate that this concern for financial legacy plays a determinative role in motivating acts of creative expression. It also fails to explain why a twenty-year extension is required to generate creative motivation. The present discounted value of revenue streams in the distant future does not provide a strong present incentive for artistic creation. See, e.g., Rebecca Tushnet, Copyright as a Model for Free Speech Law, 42 B.C. L. Rev. 1, 77 n.251 (2000) (noting that “the incremental incentive to creativity of a copyright that extends much after an author’s death is vanishingly small”).

The only purported relationship between extension and production indicated in the Senate report relates to the “income . . . of corporate copyright owners” who use profits from “enduring works” to produce future works. S. Rep. No. 104-315, at 12. Not only does the report fail to substantiate its concern for the financial health of “motion picture studios and publishers,” id., but it also gives no indication that extending all existing and future copyrights by twenty years is in any way tailored to achieve this goal. Under Congress’s rationale, perpetual copyrights should be instituted to maximize the return on a corporate copyright owner’s investment. Neither the copyright power nor the First Amendment can countenance such a result.

C. The CTEA Burdens Substantially More Speech than Necessary to Achieve Harmonization with European Law.

The Government’s purported interest in harmonization with European law does not save the CTEA. First, the Government offers no evidence that American authors have experienced a decline in productivity as a result of discrepancies between copyright terms among various countries. Second, the Government offers no substantiation of its claim that an international standard of life plus seventy is emerging in the global marketplace, other than speculation by the Register of Copyrights in 1995 that “[i]t does appear that at some point in the future the standard will be life plus 70.” Id. at 8. This prediction seems to have been based largely, if not entirely, upon the European Union’s 1993 internal harmonization of copyright terms among member states as part of its creation of a common market. See Council Directive 93/98/EEC, 1993 O.J. (L290) 9. The EU term is not a global standard.

Even if harmonization is deemed an important governmental interest, the CTEA is not tailored to achieve this goal. First, the number of member states of the European Union is still dwarfed by the number of signatories of the Berne Convention, which establishes a minimum copyright term of life plus fifty. See WIPO, Berne Convention: Status on February 13, 2002, at http://www.wipo.int/treaties/documents/english/word/e-berne.doc (listing 149 signatories). This makes it difficult to speak of an emerging international standard of life plus seventy. Second, the CTEA does not merely harmonize U.S. copyright terms with those in the EU, but it actually goes much further and grants extended monopolies over works whose copyright the EU directive did not extend. For example, the CTEA creates a copyright term for pseudonymous and anonymous works of either ninety-five years after publication or 120 years after creation, 17 U.S.C. § 302(c) (Supp. 1999), while the EU standard for such works is seventy years after the work becomes publicly available. See Council Directive 93/98/EEC, art. 1 §§ 3-4. The CTEA creates a term of life plus seventy for all copyrightable material, including recordings, performances, and broadcasts, whereas the EU directive establishes a term for recorded works and broadcasts of fifty years after fixation or performance. See id. art. 2. Corporate authors (whose copyrights generally come under the heading of works for hire) now receive ninety-five years of monopoly protection under the CTEA, 17 U.S.C. § 302(c), compared with only seventy years of protection in Europe. Council Directive 93/98/EEC, art. 1 § 4. The Council Directive does not extend the copyright term of fifty years for motion pictures. See id. art. 3.

The clearest indication that Congress made no attempt to tailor the CTEA to achieve the goal of harmonization with Europe is Congress’s rejection of a proposed amendment which would have harmonized U.S. and EU copyright law with respect to corporate ownership. See S. Rep. No. 104-315, at 5. If the true goal of the CTEA is to create an “international trading advantage,” id. at 9, then there is no good reason to stop at life plus seventy. The notion that “our trading partners [would] get a free ride from their use of our intellectual property” absent harmonization, id. at 10, involves a novel definition of the concept of “free ride.” Harmonization for individual works is built into international copyright law through conflicts rules such as the rule of the shorter term. The only plausible interpretation of the “free ride” notion here is that some works created in Europe will have longer copyright terms than similar works produced in the United States. Under this rationale, the United States should always modify its copyright terms upward to match other countries’ longer terms. The First Amendment does not permit this tit-for-tat protectionism at the expense of the American public’s enjoyment and use of our cultural heritage through the public domain.

The Senate report indicates that a life plus fifty term “depriv[es] copyright owners of two decades of income they might otherwise have.” Id. at 9. It is similarly indisputable that failure to grant a life plus 550 term “deprives” copyright owners of five centuries of income they might otherwise have. These observations are irrelevant to the constitutionality of term extensions. Nowhere in this discussion do we find any mention of the American public’s interest in access to a vibrant public domain. The First Amendment does not permit such an oversight.

D. The CTEA Burdens Substantially More Speech than Necessary to Prevent Film Deterioration.

The governmental interest in preserving works fixed in perishable media, see id. at 13, is not served by a copyright term extension. Copyright extension increases the cost of access to works whose copyright owners can be identified, and it precludes the initiation of preservation activities for “orphan” works whose owners are unknown. The extension of private monopoly terms undermines other public initiatives, such as the creation by Congress of the National Film Preservation Foundation, 36 U.S.C. § 1517 (1994), “to promote and ensure the preservation and public accessibility of the nation’s film heritage.” Id. § 151702(1). An extension of copyright terms in all types of works, not just those “fixed in perishable media,” is not in any way tailored to further the goal of preservation. Far from saving the CTEA from invalidation, the film preservation rationale further reveals this legislation’s impermissible overbreadth.

E. The CTEA Disserves the Public Interest in a Vibrant Public Domain.

The Government has presented no compelling evidence to support the proposition that a copyright term of life plus fifty is insufficient to promote progress and to supply incentives for creation. Any extension of the copyright term comes at the direct expense of the influx of works into the public domain. The First Amendment protects the right of the public to speak, to hear, and to build freely upon works whose initial private monopoly is justified only by its future “broad public availability.” Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 432 (1984); see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

Copyright laws structure our information environment and determine its accessibility. The longer a work is kept out of the public domain, the greater the burden on the public’s ability to experience, to engage with, and to build on that work free from the constraints and the chilling effect of copyright. The Eleventh Circuit recently emphasized: “[T]he public interest is always served in promoting First Amendment values and in preserving the public domain from encroachment.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (2001). This statement echoes the affirmation of Thomas Jefferson: “That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them . . . incapable of confinement or exclusive appropriation.” 6 Writings of Thomas Jefferson at 181 (H.A. Washington ed., 1854), quoted in Graham, 383 U.S. at 9 n.2. The First Amendment is designed in part to further this vision of freedom.

Perhaps it “makes sense” to harmonize the U.S. copyright term with that of Europe. But it also “makes sense” to keep guns out of school zones, and to give women every possible remedy for gender-based violence. See Morrison, 529 U.S. at 614; Lopez, 514 U.S. at 557. The Constitution does not permit Congress to do everything that “makes sense.” The First Amendment requirement that the promotion of governmental interests not restrict substantially more speech than necessary compels invalidation of the CTEA.