ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
186 OCTOBER TERM, 2002
Syllabus
ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL
certiorari to the united states court of appeals for
the district of columbia circuit
No. 01–618. Argued October 9, 2002—Decided January 15, 2003
The Copyright and Patent Clause, U. S. Const., Art. I, § 8, cl. 8, provides
as to copyrights: “Congress shall have Power . . . [t]o promote the Prog-
ress of Science . . . by securing [to Authors] for limited Times . . . the
exclusive Right to their . . . Writings.” In the 1998 Copyright Term
Extension Act (CTEA), Congress enlarged the duration of copyrights by
20 years: Under the 1976 Copyright Act (1976 Act), copyright protection
generally lasted from a work’s creation until 50 years after the author’s
death; under the CTEA, most copyrights now run from creation until
70 years after the author’s death, 17 U. S. C. § 302(a). As in the case of
prior copyright extensions, principally in 1831, 1909, and 1976, Congress
provided for application of the enlarged terms to existing and future
copyrights alike.
Petitioners, whose products or services build on copyrighted works
that have gone into the public domain, brought this suit seeking a deter-
mination that the CTEA fails constitutional review under both the
Copyright Clause’s “limited Times” prescription and the First Amend-
ment’s free speech guarantee. Petitioners do not challenge the CTEA’s
“life-plus-70-years” timespan itself. They maintain that Congress went
awry not with respect to newly created works, but in enlarging the term
for published works with existing copyrights. The “limited Tim[e]” in
effect when a copyright is secured, petitioners urge, becomes the consti-
tutional boundary, a clear line beyond the power of Congress to extend.
As to the First Amendment, petitioners contend that the CTEA is a
content-neutral regulation of speech that fails inspection under the
heightened judicial scrutiny appropriate for such regulations. The Dis-
trict Court entered judgment on the pleadings for the Attorney General
(respondent here), holding that the CTEA does not violate the Copy-
right Clause’s “limited Times” restriction because the CTEA’s terms,
though longer than the 1976 Act’s terms, are still limited, not perpetual,
and therefore fit within Congress’ discretion. The court also held that
there are no First Amendment rights to use the copyrighted works of
others. The District of Columbia Circuit affirmed. In that court’s
unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U. S. 539, foreclosed petitioners’ First Amendment challenge to the
CTEA. The appeals court reasoned that copyright does not impermis-

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
187 Cite as: 537 U. S. 186 (2003)
Syllabus
sibly restrict free speech, for it grants the author an exclusive right only
to the specific form of expression; it does not shield any idea or fact
contained in the copyrighted work, and it allows for “fair use” even of
the expression itself. A majority of the court also rejected petitioners’
Copyright Clause claim. The court ruled that Circuit precedent pre-
cluded petitioners’ plea for interpretation of the “limited Times” pre-
scription with a view to the Clause’s preambular statement of purpose:
“To promote the Progress of Science.” The court found nothing in the
constitutional text or history to suggest that a term of years for a copy-
right is not a “limited Tim[e]” if it may later be extended for another
“limited Tim[e].” Recounting that the First Congress made the 1790
Copyright Act applicable to existing copyrights arising under state
copyright laws, the court held that that construction by contemporaries
of the Constitution’s formation merited almost conclusive weight under
Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57. As early as
McClurg v. Kingsland, 1 How. 202, the Court of Appeals recognized,
this Court made it plain that the Copyright Clause permits Congress to
amplify an existing patent’s terms. The court added that this Court
has been similarly deferential to Congress’ judgment regarding copy-
right. E. g., Sony Corp. of America v. Universal City Studios, Inc.,
464 U. S. 417. Concerning petitioners’ assertion that Congress could
evade the limitation on its authority by stringing together an unlimited
number of “limited Times,” the court stated that such legislative misbe-
havior clearly was not before it. Rather, the court emphasized, the
CTEA matched the baseline term for United States copyrights with the
European Union term in order to meet contemporary circumstances.
Held: In placing existing and future copyrights in parity in the CTEA,
Congress acted within its authority and did not transgress constitu-
tional limitations. Pp. 199–222.
1. The CTEA’s extension of existing copyrights does not exceed Con-
gress’ power under the Copyright Clause. Pp. 199–218.
(a) Guided by text, history, and precedent, this Court cannot agree
with petitioners that extending the duration of existing copyrights is
categorically beyond Congress’ Copyright Clause authority. Although
conceding that the CTEA’s baseline term of life plus 70 years qualifies
as a “limited Tim[e]” as applied to future copyrights, petitioners contend
that existing copyrights extended to endure for that same term are not
“limited.” In petitioners’ view, a time prescription, once set, becomes
forever “fixed” or “inalterable.” The word “limited,” however, does not
convey a meaning so constricted. At the time of the Framing, “limited”
meant what it means today: confined within certain bounds, restrained,
or circumscribed. Thus understood, a timespan appropriately “limited”

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
188 ELDRED v. ASHCROFT
Syllabus
as applied to future copyrights does not automatically cease to be “lim-
ited” when applied to existing copyrights. To comprehend the scope of
Congress’ Copyright Clause power, “a page of history is worth a volume
of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349. History
reveals an unbroken congressional practice of granting to authors of
works with existing copyrights the benefit of term extensions so that
all under copyright protection will be governed evenhandedly under the
same regime. Moreover, because the Clause empowering Congress to
confer copyrights also authorizes patents, the Court’s inquiry is signifi-
cantly informed by the fact that early Congresses extended the duration
of numerous individual patents as well as copyrights. Lower courts
saw no “limited Times” impediment to such extensions. Further, al-
though this Court never before has had occasion to decide whether ex-
tending existing copyrights complies with the “limited Times” prescrip-
tion, the Court has found no constitutional barrier to the legislative
expansion of existing patents. See, e. g., McClurg, 1 How., at 206.
Congress’ consistent historical practice reflects a judgment that an au-
thor who sold his work a week before should not be placed in a worse
situation than the author who sold his work the day after enactment of
a copyright extension. The CTEA follows this historical practice by
keeping the 1976 Act’s duration provisions largely in place and simply
adding 20 years to each of them.
The CTEA is a rational exercise of the legislative authority conferred
by the Copyright Clause. On this point, the Court defers substantially
to Congress. Sony, 464 U. S., at 429. The CTEA reflects judgments
of a kind Congress typically makes, judgments the Court cannot dismiss
as outside the Legislature’s domain. A key factor in the CTEA’s pas-
sage was a 1993 European Union (EU) directive instructing EU mem-
bers to establish a baseline copyright term of life plus 70 years and to
deny this longer term to the works of any non-EU country whose laws
did not secure the same extended term. By extending the baseline
United States copyright term, Congress sought to ensure that American
authors would receive the same copyright protection in Europe as their
European counterparts. The CTEA may also provide greater incentive
for American and other authors to create and disseminate their work in
the United States. Additionally, Congress passed the CTEA in light of
demographic, economic, and technological changes, and rationally cred-
ited projections that longer terms would encourage copyright holders
to invest in the restoration and public distribution of their works.
Pp. 199–208.
(b) Petitioners’ Copyright Clause arguments, which rely on several
novel readings of the Clause, are unpersuasive. Pp. 208–218.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
189 Cite as: 537 U. S. 186 (2003)
Syllabus
(1) Nothing before this Court warrants construction of the
CTEA’s 20-year term extension as a congressional attempt to evade or
override the “limited Times” constraint. Critically, petitioners fail to
show how the CTEA crosses a constitutionally significant threshold with
respect to “limited Times” that the 1831, 1909, and 1976 Acts did not.
Those earlier Acts did not create perpetual copyrights, and neither does
the CTEA. Pp. 208–210.
(2) Petitioners’ dominant series of arguments, premised on the
proposition that Congress may not extend an existing copyright absent
new consideration from the author, are unavailing. The first such con-
tention, that the CTEA’s extension of existing copyrights overlooks the
requirement of “originality,” incorrectly relies on Feist Publications,
Inc. v. Rural Telephone Service Co., 499 U. S. 340, 345, 359. That case
did not touch on the duration of copyright protection. Rather, it ad-
dressed only the core question of copyrightability. Explaining the orig-
inality requirement, Feist trained on the Copyright Clause words “Au-
thors” and “Writings,” id., at 346–347, and did not construe the “limited
Times” prescription, as to which the originality requirement has no
bearing. Also unavailing is petitioners’ second argument, that the
CTEA’s extension of existing copyrights fails to “promote the Progress
of Science” because it does not stimulate the creation of new works, but
merely adds value to works already created. The justifications that
motivated Congress to enact the CTEA, set forth supra, provide a ra-
tional basis for concluding that the CTEA “promote[s] the Progress of
Science.” Moreover, Congress’ unbroken practice since the founding
generation of applying new definitions or adjustments of the copyright
term to both future works and existing works overwhelms petitioners’
argument. Also rejected is petitioners’ third contention, that the
CTEA’s extension of existing copyrights without demanding additional
consideration ignores copyright’s quid pro quo, whereby Congress
grants the author of an original work an “exclusive Right” for a “limited
Tim[e]” in exchange for a dedication to the public thereafter. Given
Congress’ consistent placement of existing copyright holders in parity
with future holders, the author of a work created in the last 170 years
would reasonably comprehend, as the protection offered her, a copyright
not only for the time in place when protection is gained, but also for any
renewal or extension legislated during that time. Sears, Roebuck &
Co. v. Stiffel Co., 376 U. S. 225, 229, and Bonito Boats, Inc. v. Thunder
Craft Boats, Inc., 489 U. S. 141, 146, both of which involved the federal
patent regime, are not to the contrary, since neither concerned the ex-
tension of a patent’s duration nor suggested that such an extension

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
190 ELDRED v. ASHCROFT
Syllabus
might be constitutionally infirm. Furthermore, given crucial distinc-
tions between patents and copyrights, one cannot extract from language
in the Court’s patent decisions—language not trained on a grant’s dura-
tion—genuine support for petitioners’ quid pro quo argument. Patents
and copyrights do not entail the same exchange, since immediate disclo-
sure is not the objective of, but is exacted from, the patentee, whereas
disclosure is the desired objective of the author seeking copyright pro-
tection. Moreover, while copyright gives the holder no monopoly on
any knowledge, fact, or idea, the grant of a patent prevents full use by
others of the inventor’s knowledge. Pp. 210–217.
(3) The “congruence and proportionality” standard of review de-
scribed in cases evaluating exercises of Congress’ power under § 5 of the
Fourteenth Amendment has never been applied outside the § 5 context.
It does not hold sway for judicial review of legislation enacted, as copy-
right laws are, pursuant to Article I authorization. Section 5 author-
izes Congress to “enforce” commands contained in and incorporated into
the Fourteenth Amendment. The Copyright Clause, in contrast, em-
powers Congress to define the scope of the substantive right. See
Sony, 464 U. S., at 429. Judicial deference to such congressional defini-
tion is “but a corollary to the grant to Congress of any Article I power.”
Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6. It would be
no more appropriate for this Court to subject the CTEA to “congruence
and proportionality” review than it would be to hold the Act unconstitu-
tional per se. Pp. 217–218.
2. The CTEA’s extension of existing and future copyrights does not
violate the First Amendment. That Amendment and the Copyright
Clause were adopted close in time. This proximity indicates the Fram-
ers’ view that copyright’s limited monopolies are compatible with free
speech principles. In addition, copyright law contains built-in First
Amendment accommodations. See Harper & Row, 471 U. S., at 560.
First, 17 U. S. C. § 102(b), which makes only expression, not ideas, eligi-
ble for copyright protection, strikes a definitional balance between the
First Amendment and copyright law by permitting free communication
of facts while still protecting an author’s expression. Harper & Row,
471 U. S., at 556. Second, the “fair use” defense codified at § 107 allows
the public to use not only facts and ideas contained in a copyrighted
work, but also expression itself for limited purposes. “Fair use”
thereby affords considerable latitude for scholarship and comment, id.,
at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510
U. S. 569. The CTEA itself supplements these traditional First Amend-
ment safeguards in two prescriptions: The first allows libraries and simi-
lar institutions to reproduce and distribute copies of certain published
works for scholarly purposes during the last 20 years of any copyright

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
191 Cite as: 537 U. S. 186 (2003)
Syllabus
term, if the work is not already being exploited commercially and fur-
ther copies are unavailable at a reasonable price, § 108(h); the second
exempts small businesses from having to pay performance royalties on
music played from licensed radio, television, and similar facilities,
§ 110(5)(B). Finally, petitioners’ reliance on Turner Broadcasting Sys-
tem, Inc. v. FCC, 512 U. S. 622, 641, is misplaced. Turner Broadcasting
involved a statute requiring cable television operators to carry and
transmit broadcast stations through their proprietary cable systems.
The CTEA, in contrast, does not oblige anyone to reproduce another’s
speech against the carrier’s will. Instead, it protects authors’ original
expression from unrestricted exploitation. The First Amendment se-
curely protects the freedom to make—or decline to make—one’s own
speech; it bears less heavily when speakers assert the right to make
other people’s speeches. When, as in this case, Congress has not al-
tered the traditional contours of copyright protection, further First
Amendment scrutiny is unnecessary. See, e. g., Harper & Row, 471
U. S., at 560. Pp. 218–222.
239 F. 3d 372, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined.
Stevens, J., post, p. 222, and Breyer, J., post, p. 242, filed dissenting
opinions.
Lawrence Lessig argued the cause for petitioners. With
him on the briefs were Kathleen M. Sullivan, Alan B. Mor-
rison, Edward Lee, Charles Fried, Geoffrey S. Stewart, Don-
ald B. Ayer, Robert P. Ducatman, Daniel H. Bromberg,
Charles R. Nesson, and Jonathan L. Zittrain.
Solicitor General Olson argued the cause for respondent.
With him on the brief were Assistant Attorney General Mc-
Callum, Deputy Solicitor General Wallace, Jeffrey A. Lam-
ken, William Kanter, and John S. Koppel.*
*Briefs of amici curiae urging reversal were filed for the American
Association of Law Libraries et al. by Arnold P. Lutzker and Carl H.
Settlemyer III; for the College Art Association et al. by Jeffrey P. Cunard
and Bruce P. Keller; for the Eagle Forum Education & Legal Defense
Fund et al. by Karen Tripp and Phyllis Schlafly; for the Free Software
Foundation by Eben Moglen; for Intellectual Property Law Professors by
Jonathan Weinberg; for the Internet Archive et al. by Deirdre K. Mulli-

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
192 ELDRED v. ASHCROFT
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
This case concerns the authority the Constitution assigns
to Congress to prescribe the duration of copyrights. The
Copyright and Patent Clause of the Constitution, Art. I,
§ 8, cl. 8, provides as to copyrights: “Congress shall have
gan, Mark A. Lemley, and Steven M. Harris; and for Jack M. Balkin et al.
by Burt Neuborne.
Briefs of amici curiae urging affirmance were filed for the American
Intellectual Property Law Association by Baila H. Celedonia, Mark E.
Haddad, and Roger W. Parkhurst; for the American Society of Composers,
Authors and Publishers et al. by Carey R. Ramos, Peter L. Felcher, Drew
S. Days III, Beth S. Brinkmann, and Paul Goldstein; for Amsong, Inc.,
by Dorothy M. Weber; for AOL Time Warner, Inc., by Kenneth W. Starr,
Richard A. Cordray, Daryl Joseffer, Paul T. Cappuccio, Edward J. Weiss,
and Shira Perlmutter; for the Association of American Publishers et al.
by Charles S. Sims and Jon A. Baumgarten; for the Bureau of National
Affairs, Inc., et al. by Paul Bender and Michael R. Klipper; for the Direc-
tors Guild of America et al. by George H. Cohen, Leon Dayan, and Lau-
rence Gold; for Dr. Seuss Enterprises, L. P., et al. by Karl ZoBell, Nancy
O. Dix, Cathy Ann Bencivengo, Randall E. Kay, and Herbert B. Cheyette;
for the Intellectual Property Owners Association by Charles D. Ossola
and Ronald E. Myrick; for the International Coalition for Copyright
Protection by Eric Lieberman; for the Motion Picture Association of
America, Inc., by Seth P. Waxman, Randolph D. Moss, Edward C. Du-
Mont, Neil M. Richards, and Simon Barsky; for the Recording Artists
Coalition by Thomas G. Corcoran, Jr.; for the Recording Industry Associa-
tion of America by Donald B. Verrilli, Jr., Thomas J. Perrelli, William
M. Hohengarten, Matthew J. Oppenheim, and Stanley Pierre-Louis; for
the Songwriters Guild of America by Floyd Abrams and Joel Kurtzberg;
for Jack Beeson et al. by I. Fred Koenigsberg and Gaela K. Gehring Flo-
res; for Senator Orrin G. Hatch by Thomas R. Lee; for Edward Samuels,
pro se; and for Representative F. James Sensenbrenner, Jr., et al. by Ar-
thur B. Culvahouse, Jr., and Robert M. Schwartz.
Briefs of amici curiae were filed for Hal Roach Studios et al. by H.
Jefferson Powell and David Lange; for Intel Corp. by James M. Burger;
for the Nashville Songwriters Association International by Stephen K.
Rush; for the New York Intellectual Property Law Association by Bruce
M. Wexler and Peter Saxon; for the National Writers Union et al. by Peter
Jaszi; for the Progressive Intellectual Property Law Association et al. by
Michael H. Davis; for George A. Akerlof et al. by Roy T. Englert, Jr.; for
Tyler T. Ochoa et al. by Mr. Ochoa; and for Malla Pollack, pro se.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
193 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
Power . . . [t]o promote the Progress of Science . . . by secur-
ing [to Authors] for limited Times . . . the exclusive Right to
their . . . Writings.” In 1998, in the measure here under
inspection, Congress enlarged the duration of copyrights by
20 years. Copyright Term Extension Act (CTEA), Pub. L.
105–298, §§ 102(b) and (d), 112 Stat. 2827–2828 (amending 17
U. S. C. §§ 302, 304). As in the case of prior extensions,
principally in 1831, 1909, and 1976, Congress provided for
application of the enlarged terms to existing and future copy-
rights alike.
Petitioners are individuals and businesses whose products
or services build on copyrighted works that have gone into
the public domain. They seek a determination that the
CTEA fails constitutional review under both the Copyright
Clause’s “limited Times” prescription and the First Amend-
ment’s free speech guarantee. Under the 1976 Copyright
Act, copyright protection generally lasted from the work’s
creation until 50 years after the author’s death. Pub. L. 94–
553, § 302(a), 90 Stat. 2572 (1976 Act). Under the CTEA,
most copyrights now run from creation until 70 years after
the author’s death. 17 U. S. C. § 302(a). Petitioners do not
challenge the “life-plus-70-years” timespan itself. “Whether
50 years is enough, or 70 years too much,” they acknowledge,
“is not a judgment meet for this Court.” Brief for Petition-
ers 14.1 Congress went awry, petitioners maintain, not with
respect to newly created works, but in enlarging the term
for published works with existing copyrights. The “limited
Tim[e]” in effect when a copyright is secured, petitioners
urge, becomes the constitutional boundary, a clear line be-
yond the power of Congress to extend. See ibid. As to the
First Amendment, petitioners contend that the CTEA is a
content-neutral regulation of speech that fails inspection
1 Justice Breyer’s dissent is not similarly restrained. He makes no
effort meaningfully to distinguish existing copyrights from future grants.
See, e. g., post, at 242–243, 254–260, 264–266. Under his reasoning, the
CTEA’s 20-year extension is globally unconstitutional.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
194 ELDRED v. ASHCROFT
Opinion of the Court
under the heightened judicial scrutiny appropriate for such
regulations.
In accord with the District Court and the Court of Ap-
peals, we reject petitioners’ challenges to the CTEA. In
that 1998 legislation, as in all previous copyright term exten-
sions, Congress placed existing and future copyrights in par-
ity. In prescribing that alignment, we hold, Congress acted
within its authority and did not transgress constitutional
limitations.
I
A
We evaluate petitioners’ challenge to the constitutionality
of the CTEA against the backdrop of Congress’ previous ex-
ercises of its authority under the Copyright Clause. The
Nation’s first copyright statute, enacted in 1790, provided a
federal copyright term of 14 years from the date of publica-
tion, renewable for an additional 14 years if the author sur-
vived the first term. Act of May 31, 1790, ch. 15, § 1, 1 Stat.
124 (1790 Act). The 1790 Act’s renewable 14-year term ap-
plied to existing works (i. e., works already published and
works created but not yet published) and future works alike.
Ibid. Congress expanded the federal copyright term to 42
years in 1831 (28 years from publication, renewable for an
additional 14 years), and to 56 years in 1909 (28 years from
publication, renewable for an additional 28 years). Act of
Feb. 3, 1831, ch. 16, §§ 1, 16, 4 Stat. 436, 439 (1831 Act); Act
of Mar. 4, 1909, ch. 320, §§ 23–24, 35 Stat. 1080–1081 (1909
Act). Both times, Congress applied the new copyright term
to existing and future works, 1831 Act §§ 1, 16; 1909 Act
§§ 23–24; to qualify for the 1831 extension, an existing work
had to be in its initial copyright term at the time the Act
became effective, 1831 Act §§ 1, 16.
In 1976, Congress altered the method for computing fed-
eral copyright terms. 1976 Act §§ 302–304. For works cre-

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
195 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
ated by identified natural persons, the 1976 Act provided
that federal copyright protection would run from the work’s
creation, not—as in the 1790, 1831, and 1909 Acts—its publi-
cation; protection would last until 50 years after the author’s
death. § 302(a). In these respects, the 1976 Act aligned
United States copyright terms with the then-dominant inter-
national standard adopted under the Berne Convention for
the Protection of Literary and Artistic Works. See H. R.
Rep. No. 94–1476, p. 135 (1976). For anonymous works,
pseudonymous works, and works made for hire, the 1976 Act
provided a term of 75 years from publication or 100 years
from creation, whichever expired first. § 302(c).
These new copyright terms, the 1976 Act instructed, gov-
erned all works not published by its effective date of January
1, 1978, regardless of when the works were created. §§ 302–
303. For published works with existing copyrights as of
that date, the 1976 Act granted a copyright term of 75 years
from the date of publication, §§ 304(a) and (b), a 19-year in-
crease over the 56-year term applicable under the 1909 Act.
The measure at issue here, the CTEA, installed the fourth
major duration extension of federal copyrights.2 Retaining
the general structure of the 1976 Act, the CTEA enlarges
the terms of all existing and future copyrights by 20 years.
For works created by identified natural persons, the term
now lasts from creation until 70 years after the author’s
2 Asserting that the last several decades have seen a proliferation of
copyright legislation in departure from Congress’ traditional pace of legis-
lative amendment in this area, petitioners cite nine statutes passed be-
tween 1962 and 1974, each of which incrementally extended existing copy-
rights for brief periods. See Pub. L. 87–668, 76 Stat. 555; Pub. L. 89–142,
79 Stat. 581; Pub. L. 90–141, 81 Stat. 464; Pub. L. 90–416, 82 Stat. 397;
Pub. L. 91–147, 83 Stat. 360; Pub. L. 91–555, 84 Stat. 1441; Pub. L. 92–170,
85 Stat. 490; Pub. L. 92–566, 86 Stat. 1181; Pub. L. 93–573, Title I, 88 Stat.
1873. As respondent (Attorney General Ashcroft) points out, however,
these statutes were all temporary placeholders subsumed into the sys-
temic changes effected by the 1976 Act. Brief for Respondent 9.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
196 ELDRED v. ASHCROFT
Opinion of the Court
death. 17 U. S. C. § 302(a). This standard harmonizes the
baseline United States copyright term with the term
adopted by the European Union in 1993. See Council Direc-
tive 93/98/EEC of 29 October 1993 Harmonizing the Term of
Protection of Copyright and Certain Related Rights, 1993
Official J. Eur. Coms. (L 290), p. 9 (EU Council Directive 93/
98). For anonymous works, pseudonymous works, and
works made for hire, the term is 95 years from publication
or 120 years from creation, whichever expires first. 17
U. S. C. § 302(c).
Paralleling the 1976 Act, the CTEA applies these new
terms to all works not published by January 1, 1978.
§§ 302(a), 303(a). For works published before 1978 with ex-
isting copyrights as of the CTEA’s effective date, the CTEA
extends the term to 95 years from publication. §§ 304(a) and
(b). Thus, in common with the 1831, 1909, and 1976 Acts,
the CTEA’s new terms apply to both future and existing
copyrights.3
B
Petitioners’ suit challenges the CTEA’s constitutionality
under both the Copyright Clause and the First Amendment.
On cross-motions for judgment on the pleadings, the District
Court entered judgment for the Attorney General (respond-
ent here). 74 F. Supp. 2d 1 (DC 1999). The court held that
the CTEA does not violate the “limited Times” restriction
of the Copyright Clause because the CTEA’s terms, though
3 Petitioners argue that the 1790 Act must be distinguished from the
later Acts on the ground that it covered existing works but did not extend
existing copyrights. Reply Brief 3–7. The parties disagree on the ques-
tion whether the 1790 Act’s copyright term should be regarded in part as
compensation for the loss of any then existing state- or common-law copy-
right protections. See Brief for Petitioners 28–30; Brief for Respondent
17, n. 9; Reply Brief 3–7. Without resolving that dispute, we underscore
that the First Congress clearly did confer copyright protection on works
that had already been created.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
197 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
longer than the 1976 Act’s terms, are still limited, not perpet-
ual, and therefore fit within Congress’ discretion. Id., at 3.
The court also held that “there are no First Amendment
rights to use the copyrighted works of others.” Ibid.
The Court of Appeals for the District of Columbia Circuit
affirmed. 239 F. 3d 372 (2001). In that court’s unanimous
view, Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U. S. 539 (1985), foreclosed petitioners’ First Amendment
challenge to the CTEA. 239 F. 3d, at 375. Copyright, the
court reasoned, does not impermissibly restrict free speech,
for it grants the author an exclusive right only to the specific
form of expression; it does not shield any idea or fact con-
tained in the copyrighted work, and it allows for “fair use”
even of the expression itself. Id., at 375–376.
A majority of the Court of Appeals also upheld the CTEA
against petitioners’ contention that the measure exceeds
Congress’ power under the Copyright Clause. Specifically,
the court rejected petitioners’ plea for interpretation of the
“limited Times” prescription not discretely but with a view
to the “preambular statement of purpose” contained in the
Copyright Clause: “To promote the Progress of Science.”
Id., at 377–378. Circuit precedent, Schnapper v. Foley, 667
F. 2d 102 (CADC 1981), the court determined, precluded that
plea. In this regard, the court took into account petitioners’
acknowledgment that the preamble itself places no substan-
tive limit on Congress’ legislative power. 239 F. 3d, at 378.
The appeals court found nothing in the constitutional text
or its history to suggest that “a term of years for a copyright
is not a ‘limited Time’ if it may later be extended for another
‘limited Time.’ ” Id., at 379. The court recounted that “the
First Congress made the Copyright Act of 1790 applicable to
subsisting copyrights arising under the copyright laws of the
several states.” Ibid. That construction of Congress’ au-
thority under the Copyright Clause “by [those] contempo-
rary with [the Constitution’s] formation,” the court said, mer-

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
198 ELDRED v. ASHCROFT
Opinion of the Court
ited “very great” and in this case “almost conclusive” weight.
Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111
U. S. 53, 57 (1884)). As early as McClurg v. Kingsland, 1
How. 202 (1843), the Court of Appeals added, this Court had
made it “plain” that the same Clause permits Congress to
“amplify the terms of an existing patent.” 239 F. 3d, at 380.
The appeals court recognized that this Court has been simi-
larly deferential to the judgment of Congress in the realm of
copyright. Ibid. (citing Sony Corp. of America v. Universal
City Studios, Inc., 464 U. S. 417 (1984); Stewart v. Abend, 495
U. S. 207 (1990)).
Concerning petitioners’ assertion that Congress might
evade the limitation on its authority by stringing together
“an unlimited number of ‘limited Times,’ ” the Court of Ap-
peals stated that such legislative misbehavior “clearly is not
the situation before us.” 239 F. 3d, at 379. Rather, the
court noted, the CTEA “matches” the baseline term for
“United States copyrights [with] the terms of copyrights
granted by the European Union.” Ibid. “[I]n an era of
multinational publishers and instantaneous electronic trans-
mission,” the court said, “harmonization in this regard has
obvious practical benefits” and is “a ‘necessary and proper’
measure to meet contemporary circumstances rather than a
step on the way to making copyrights perpetual.” Ibid.
Judge Sentelle dissented in part. He concluded that Con-
gress lacks power under the Copyright Clause to expand the
copyright terms of existing works. Id., at 380–384. The
Court of Appeals subsequently denied rehearing and rehear-
ing en banc. 255 F. 3d 849 (2001).
We granted certiorari to address two questions: whether
the CTEA’s extension of existing copyrights exceeds Con-
gress’ power under the Copyright Clause; and whether the
CTEA’s extension of existing and future copyrights violates
the First Amendment. 534 U. S. 1126 and 1160 (2002). We
now answer those two questions in the negative and affirm.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
199 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
II
A
We address first the determination of the courts below
that Congress has authority under the Copyright Clause to
extend the terms of existing copyrights. Text, history, and
precedent, we conclude, confirm that the Copyright Clause
empowers Congress to prescribe “limited Times” for copy-
right protection and to secure the same level and duration of
protection for all copyright holders, present and future.
The CTEA’s baseline term of life plus 70 years, petitioners
concede, qualifies as a “limited Tim[e]” as applied to future
copyrights.4 Petitioners contend, however, that existing
copyrights extended to endure for that same term are not
“limited.” Petitioners’ argument essentially reads into the
text of the Copyright Clause the command that a time pre-
scription, once set, becomes forever “fixed” or “inalterable.”
The word “limited,” however, does not convey a meaning so
constricted. At the time of the Framing, that word meant
what it means today: “confine[d] within certain bounds,” “re-
strain[ed],” or “circumscribe[d].” S. Johnson, A Dictionary
of the English Language (7th ed. 1785); see T. Sheridan, A
Complete Dictionary of the English Language (6th ed. 1796)
(“confine[d] within certain bounds”); Webster’s Third New
International Dictionary 1312 (1976) (“confined within lim-
its”; “restricted in extent, number, or duration”). Thus un-
derstood, a timespan appropriately “limited” as applied to
future copyrights does not automatically cease to be “lim-
ited” when applied to existing copyrights. And as we ob-
serve, infra, at 209–210, there is no cause to suspect that a
4 We note again that Justice Breyer makes no such concession. See
supra, at 193, n. 1. He does not train his fire, as petitioners do, on Con-
gress’ choice to place existing and future copyrights in parity. Moving
beyond the bounds of the parties’ presentations, and with abundant policy
arguments but precious little support from precedent, he would condemn
Congress’ entire product as irrational.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
200 ELDRED v. ASHCROFT
Opinion of the Court
purpose to evade the “limited Times” prescription prompted
Congress to adopt the CTEA.
To comprehend the scope of Congress’ power under the
Copyright Clause, “a page of history is worth a volume of
logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349
(1921) (Holmes, J.). History reveals an unbroken congres-
sional practice of granting to authors of works with existing
copyrights the benefit of term extensions so that all under
copyright protection will be governed evenhandedly under
the same regime. As earlier recounted, see supra, at 194, the
First Congress accorded the protections of the Nation’s first
federal copyright statute to existing and future works alike.
1790 Act § 1.5 Since then, Congress has regularly applied
5 This approach comported with English practice at the time. The Stat-
ute of Anne, 1710, 8 Ann. c. 19, provided copyright protection to books not
yet composed or published, books already composed but not yet published,
and books already composed and published. See ibid. (“[T]he author of
any book or books already composed, and not printed and published, or
that shall hereafter be composed, and his assignee or assigns, shall have
the sole liberty of printing and reprinting such book and books for the
term of fourteen years, to commence from the day of the first publishing
the same, and no longer.”); ibid. (“[T]he author of any book or books al-
ready printed . . . or the bookseller or booksellers, printer or printers, or
other person or persons, who hath or have purchased or acquired the copy
or copies of any book or books, in order to print or reprint the same, shall
have the sole right and liberty of printing such book and books for the
term of one and twenty years, to commence from the said tenth day of
April, and no longer.”).
Justice Stevens stresses the rejection of a proposed amendment to
the Statute of Anne that would have extended the term of existing copy-
rights, and reports that opponents of the extension feared it would perpet-
uate the monopoly position enjoyed by English booksellers. Post, at 232–
233, and n. 9. But the English Parliament confronted a situation that
never existed in the United States. Through the late 17th century, a
government-sanctioned printing monopoly was held by the Stationers’
Company, “the ancient London guild of printers and booksellers.” M.
Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L.
Patterson, Copyright in Historical Perspective ch. 3 (1968). Although

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
201 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
duration extensions to both existing and future copyrights.
1831 Act §§ 1, 16; 1909 Act §§ 23–24; 1976 Act §§ 302–303; 17
U. S. C. §§ 302–304.6
Because the Clause empowering Congress to confer copy-
rights also authorizes patents, congressional practice with
respect to patents informs our inquiry. We count it signifi-
cant that early Congresses extended the duration of numer-
ous individual patents as well as copyrights. See, e. g., Act
of Jan. 7, 1808, ch. 6, 6 Stat. 70 (patent); Act of Mar. 3, 1809,
ch. 35, 6 Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6 Stat.
147 (patent); Act of May 24, 1828, ch. 145, 6 Stat. 389 (copy-
right); Act of Feb. 11, 1830, ch. 13, 6 Stat. 403 (copyright);
that legal monopoly ended in 1695, concerns about monopolistic practices
remained, and the 18th-century English Parliament was resistant to any
enhancement of booksellers’ and publishers’ entrenched position. See
Rose, supra, at 52–56. In this country, in contrast, competition among
publishers, printers, and booksellers was “intens[e]” at the time of the
founding, and “there was not even a rough analog to the Stationers’ Com-
pany on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6
Green Bag 2d 37, 45 (2002). The Framers guarded against the future
accumulation of monopoly power in booksellers and publishers by author-
izing Congress to vest copyrights only in “Authors.” Justice Stevens
does not even attempt to explain how Parliament’s response to England’s
experience with a publishing monopoly may be construed to impose a con-
stitutional limitation on Congress’ power to extend copyrights granted
to “Authors.”
6 Moreover, the precise duration of a federal copyright has never been
fixed at the time of the initial grant. The 1790 Act provided a federal
copyright term of 14 years from the work’s publication, renewable for an
additional 14 years if the author survived and applied for an additional
term. § 1. Congress retained that approach in subsequent statutes.
See Stewart v. Abend, 495 U. S. 207, 217 (1990) (“Since the earliest copy-
right statute in this country, the copyright term of ownership has been
split between an original term and a renewal term.”). Similarly, under
the method for measuring copyright terms established by the 1976 Act
and retained by the CTEA, the baseline copyright term is measured in
part by the life of the author, rendering its duration indeterminate at the
time of the grant. See 1976 Act § 302(a); 17 U. S. C. § 302(a).

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
202 ELDRED v. ASHCROFT
Opinion of the Court
see generally Ochoa, Patent and Copyright Term Extension
and the Constitution: A Historical Perspective, 49 J. Copy-
right Soc. 19 (2001). The courts saw no “limited Times” im-
pediment to such extensions; renewed or extended terms
were upheld in the early days, for example, by Chief Justice
Marshall and Justice Story sitting as circuit justices. See
Evans v. Jordan, 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813)
(Marshall, J.) (“Th[e] construction of the constitution which
admits the renewal of a patent, is not controverted. A re-
newed patent . . . confers the same rights, with an original.”),
aff ’d, 9 Cranch 199 (1815); Blanchard v. Sprague, 3 F. Cas.
648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have
entertained any doubt of the constitutional authority of con-
gress” to enact a 14-year patent extension that “operates
retrospectively”); see also Evans v. Robinson, 8 F. Cas. 886,
888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclu-
sive right . . . to limit the times for which a patent right shall
be granted, and are not restrained from renewing a patent
or prolonging” it.).7
Further, although prior to the instant case this Court did
not have occasion to decide whether extending the duration
of existing copyrights complies with the “limited Times” pre-
scription, the Court has found no constitutional barrier to
the legislative expansion of existing patents.8 McClurg v.
7 Justice Stevens would sweep away these decisions, asserting that
Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), “flatly contra-
dicts” them. Post, at 237. Nothing but wishful thinking underpins that
assertion. The controversy in Graham involved no patent extension.
Graham addressed an invention’s very eligibility for patent protection,
and spent no words on Congress’ power to enlarge a patent’s duration.
8 Justice Stevens recites words from Sears, Roebuck & Co. v. Stiffel
Co., 376 U. S. 225 (1964), supporting the uncontroversial proposition that a
State may not “extend the life of a patent beyond its expiration date,” id.,
at 231, then boldly asserts that for the same reasons Congress may not do
so either. See post, at 222, 226. But Sears placed no reins on Congress’
authority to extend a patent’s life. The full sentence in Sears, from which
Justice Stevens extracts words, reads: “Obviously a State could not,

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
203 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
Kingsland, 1 How. 202 (1843), is the pathsetting precedent.
The patentee in that case was unprotected under the law
in force when the patent issued because he had allowed his
employer briefly to practice the invention before he obtained
the patent. Only upon enactment, two years later, of an ex-
emption for such allowances did the patent become valid, ret-
roactive to the time it issued. McClurg upheld retroactive
application of the new law. The Court explained that the
legal regime governing a particular patent “depend[s] on the
law as it stood at the emanation of the patent, together with
such changes as have been since made; for though they may
be retrospective in their operation, that is not a sound objec-
tion to their validity.” Id., at 206.9 Neither is it a sound
consistently with the Supremacy Clause of the Constitution, extend the
life of a patent beyond its expiration date or give a patent on an article
which lacked the level of invention required for federal patents.” 376
U. S., at 231. The point insistently made in Sears is no more and no less
than this: States may not enact measures inconsistent with the federal
patent laws. Ibid. (“[A] State cannot encroach upon the federal patent
laws directly . . . [and] cannot . . . give protection of a kind that clashes
with the objectives of the federal patent laws.”). A decision thus rooted
in the Supremacy Clause cannot be turned around to shrink congres-
sional choices.
Also unavailing is Justice Stevens’ appeal to language found in a pri-
vate letter written by James Madison. Post, at 230, n. 6; see also dissent-
ing opinion of Breyer, J., post, at 246–247, 260, 261. Respondent points
to a better “demonstrat[ion],” post, at 226, n. 3 (Stevens, J., dissenting),
of Madison’s and other Framers’ understanding of the scope of Congress’
power to extend patents: “[T]hen-President Thomas Jefferson—the first
administrator of the patent system, and perhaps the Founder with the
narrowest view of the copyright and patent powers—signed the 1808 and
1809 patent term extensions into law; . . . James Madison, who drafted the
Constitution’s ‘limited Times’ language, issued the extended patents under
those laws as Secretary of State; and . . . Madison as President signed
another patent term extension in 1815.” Brief for Respondent 15.
9 Justice Stevens reads McClurg to convey that “Congress cannot
change the bargain between the public and the patentee in a way that
disadvantages the patentee.” Post, at 239. But McClurg concerned no

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
204 ELDRED v. ASHCROFT
Opinion of the Court
objection to the validity of a copyright term extension,
enacted pursuant to the same constitutional grant of author-
ity, that the enlarged term covers existing copyrights.
Congress’ consistent historical practice of applying newly
enacted copyright terms to future and existing copyrights
reflects a judgment stated concisely by Representative Hun-
tington at the time of the 1831 Act: “[J]ustice, policy, and
equity alike forb[id]” that an “author who had sold his [work]
a week ago, be placed in a worse situation than the author
who should sell his work the day after the passing of [the]
act.” 7 Cong. Deb. 424 (1831); accord, Symposium, The Con-
stitutionality of Copyright Term Extension, 18 Cardozo
Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[S]ince 1790,
it has indeed been Congress’s policy that the author of yes-
terday’s work should not get a lesser reward than the author
of tomorrow’s work just because Congress passed a statute
lengthening the term today.”). The CTEA follows this his-
torical practice by keeping the duration provisions of the
1976 Act largely in place and simply adding 20 years to each
of them. Guided by text, history, and precedent, we cannot
agree with petitioners’ submission that extending the dura-
tion of existing copyrights is categorically beyond Congress’
authority under the Copyright Clause.
Satisfied that the CTEA complies with the “limited Times”
prescription, we turn now to whether it is a rational exercise
of the legislative authority conferred by the Copyright
Clause. On that point, we defer substantially to Congress.
such change. To the contrary, as Justice Stevens acknowledges, Mc-
Clurg held that use of an invention by the patentee’s employer did not
invalidate the inventor’s 1834 patent, “even if it might have had that effect
prior to the amendment of the patent statute in 1836.” Post, at 239. In
other words, McClurg evaluated the patentee’s rights not simply in light
of the patent law in force at the time the patent issued, but also in light
of “such changes as ha[d] been since made.” 1 How., at 206. It is thus
inescapably plain that McClurg upheld the application of expanded patent
protection to an existing patent.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
205 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
Sony, 464 U. S., at 429 (“[I]t is Congress that has been as-
signed the task of defining the scope of the limited monopoly
that should be granted to authors . . . in order to give the
public appropriate access to their work product.”).10
The CTEA reflects judgments of a kind Congress typically
makes, judgments we cannot dismiss as outside the Legisla-
ture’s domain. As respondent describes, see Brief for Re-
spondent 37–38, a key factor in the CTEA’s passage was a
1993 European Union (EU) directive instructing EU mem-
bers to establish a copyright term of life plus 70 years. EU
Council Directive 93/98, Art. 1(1), p. 11; see 144 Cong. Rec.
S12377–S12378 (daily ed. Oct. 12, 1998) (statement of Sen.
Hatch). Consistent with the Berne Convention, the EU di-
rected its members to deny this longer term to the works of
any non-EU country whose laws did not secure the same
extended term. See Berne Conv. Art. 7(8); P. Goldstein, In-
ternational Copyright § 5.3, p. 239 (2001). By extending the
baseline United States copyright term to life plus 70 years,
Congress sought to ensure that American authors would re-
10 Justice Breyer would adopt a heightened, three-part test for the
constitutionality of copyright enactments. Post, at 245. He would invali-
date the CTEA as irrational in part because, in his view, harmonizing the
United States and European Union baseline copyright terms “appar-
ent[ly]” fails to achieve “significant” uniformity. Post, at 264. But see
infra this page and 206. The novelty of the “rational basis” approach he
presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531
U. S. 356, 383 (2001) (Breyer, J., dissenting) (“Rational-basis review—
with its presumptions favoring constitutionality—is ‘a paradigm of judi-
cial restraint.’ ” (quoting FCC v. Beach Communications, Inc., 508 U. S.
307, 314 (1993))). Rather than subjecting Congress’ legislative choices in
the copyright area to heightened judicial scrutiny, we have stressed that
“it is not our role to alter the delicate balance Congress has labored to
achieve.” Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America
v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984). Congress’ exer-
cise of its Copyright Clause authority must be rational, but Justice
Breyer’s stringent version of rationality is unknown to our literary prop-
erty jurisprudence.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
206 ELDRED v. ASHCROFT
Opinion of the Court
ceive the same copyright protection in Europe as their Euro-
pean counterparts.11 The CTEA may also provide greater
incentive for American and other authors to create and dis-
seminate their work in the United States. See Perlmutter,
Participation in the International Copyright System as a
Means to Promote the Progress of Science and Useful Arts,
36 Loyola (LA) L. Rev. 323, 330 (2002) (“[M]atching th[e]
level of [copyright] protection in the United States [to that
in the EU] can ensure stronger protection for U. S. works
abroad and avoid competitive disadvantages vis-a` -vis foreign
rightholders.”); see also id., at 332 (the United States could
not “play a leadership role” in the give-and-take evolution of
the international copyright system, indeed it would “lose all
flexibility,” “if the only way to promote the progress of sci-
ence were to provide incentives to create new works”).12
In addition to international concerns,13 Congress passed
the CTEA in light of demographic, economic, and technologi-
11 Responding to an inquiry whether copyrights could be extended “for-
ever,” Register of Copyrights Marybeth Peters emphasized the dominant
reason for the CTEA: “There certainly are proponents of perpetual copy-
right: We heard that in our proceeding on term extension. The Songwrit-
ers Guild suggested a perpetual term. However, our Constitution says
limited times, but there really isn’t a very good indication on what limited
times is. The reason why you’re going to life-plus-70 today is because
Europe has gone that way . . . .” Copyright Term, Film Labeling, and
Film Preservation Legislation: Hearings on H. R. 989 et al. before the
Subcommittee on Courts and Intellectual Property of the House Commit-
tee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House
Hearings).
12 The author of the law review article cited in text, Shira Perlmutter,
currently a vice president of AOL Time Warner, was at the time of the
CTEA’s enactment Associate Register for Policy and International Af-
fairs, United States Copyright Office.
13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26
Colum. J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist read-
ing of the Copyright Clause that is in tension with . . . America’s interna-
tional copyright relations over the last hundred or so years”).

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
207 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
cal changes, Brief for Respondent 25–26, 33, and nn. 23 and
24,14 and rationally credited projections that longer terms
would encourage copyright holders to invest in the res-
toration and public distribution of their works, id., at 34–37;
see H. R. Rep. No. 105–452, p. 4 (1998) (term extension
“provide[s] copyright owners generally with the incentive
to restore older works and further disseminate them to the
public”).15
14 Members of Congress expressed the view that, as a result of increases
in human longevity and in parents’ average age when their children are
born, the pre-CTEA term did not adequately secure “the right to profit
from licensing one’s work during one’s lifetime and to take pride and com-
fort in knowing that one’s children—and perhaps their children—might
also benefit from one’s posthumous popularity.” 141 Cong. Rec. 6553
(1995) (statement of Sen. Feinstein); see 144 Cong. Rec. S12377 (daily ed.
Oct. 12, 1998) (statement of Sen. Hatch) (“Among the main developments
[compelling reconsideration of the 1976 Act’s term] is the effect of demo-
graphic trends, such as increasing longevity and the trend toward rearing
children later in life, on the effectiveness of the life-plus-50 term to pro-
vide adequate protection for American creators and their heirs.”). Also
cited was “the failure of the U. S. copyright term to keep pace with the
substantially increased commercial life of copyrighted works resulting
from the rapid growth in communications media.” Ibid. (statement of
Sen. Hatch); cf. Sony, 464 U. S., at 430–431 (“From its beginning, the
law of copyright has developed in response to significant changes in
technology. . . . [A]s new developments have occurred in this country, it
has been the Congress that has fashioned the new rules that new technol-
ogy made necessary.”).
15 Justice Breyer urges that the economic incentives accompanying
copyright term extension are too insignificant to “mov[e]” any author with
a “rational economic perspective.” Post, at 255; see post, at 254–257.
Calibrating rational economic incentives, however, like “fashion[ing] . . .
new rules [in light of] new technology,” Sony, 464 U. S., at 431, is a task
primarily for Congress, not the courts. Congress heard testimony from a
number of prominent artists; each expressed the belief that the copyright
system’s assurance of fair compensation for themselves and their heirs was
an incentive to create. See, e. g., House Hearings 233–239 (statement of
Quincy Jones); Copyright Term Extension Act of 1995: Hearing before the
Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55–56 (1995)

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
208 ELDRED v. ASHCROFT
Opinion of the Court
In sum, we find that the CTEA is a rational enactment;
we are not at liberty to second-guess congressional determi-
nations and policy judgments of this order, however debat-
able or arguably unwise they may be. Accordingly, we can-
not conclude that the CTEA—which continues the unbroken
congressional practice of treating future and existing copy-
rights in parity for term extension purposes—is an imper-
missible exercise of Congress’ power under the Copyright
Clause.
B
Petitioners’ Copyright Clause arguments rely on several
novel readings of the Clause. We next address these argu-
ments and explain why we find them unpersuasive.
1
Petitioners contend that even if the CTEA’s 20-year term
extension is literally a “limited Tim[e],” permitting Congress
to extend existing copyrights allows it to evade the “limited
Times” constraint by creating effectively perpetual copy-
rights through repeated extensions. We disagree.
(statement of Bob Dylan); id., at 56–57 (statement of Don Henley); id., at
57 (statement of Carlos Santana). We would not take Congress to task
for crediting this evidence which, as Justice Breyer acknowledges, re-
flects general “propositions about the value of incentives” that are “unde-
niably true.” Post, at 255.
Congress also heard testimony from Register of Copyrights Marybeth
Peters and others regarding the economic incentives created by the
CTEA. According to the Register, extending the copyright for existing
works “could . . . provide additional income that would finance the produc-
tion and publication of new works.” House Hearings 158. “Authors
would not be able to continue to create,” the Register explained, “unless
they earned income on their finished works. The public benefits not only
from an author’s original work but also from his or her further creations.
Although this truism may be illustrated in many ways, one of the best
examples is Noah Webster[,] who supported his entire family from the
earnings on his speller and grammar during the twenty years he took to
complete his dictionary.” Id., at 165.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
209 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
As the Court of Appeals observed, a regime of perpetual
copyrights “clearly is not the situation before us.” 239
F. 3d, at 379. Nothing before this Court warrants construc-
tion of the CTEA’s 20-year term extension as a congressional
attempt to evade or override the “limited Times” con-
straint.16 Critically, we again emphasize, petitioners fail to
16 Justice Breyer agrees that “Congress did not intend to act unconsti-
tutionally” when it enacted the CTEA, post, at 256, yet in his very next
breath, he seems to make just that accusation, ibid. What else is one to
glean from his selection of scattered statements from individual Members
of Congress? He does not identify any statement in the statutory text
that installs a perpetual copyright, for there is none. But even if the
statutory text were sufficiently ambiguous to warrant recourse to legisla-
tive history, Justice Breyer’s selections are not the sort to which this
Court accords high value: “In surveying legislative history we have re-
peatedly stated that the authoritative source for finding the Legislature’s
intent lies in the Committee Reports on the bill, which ‘represen[t] the
considered and collective understanding of those [Members of Congress]
involved in drafting and studying proposed legislation.’ ” Garcia v.
United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S.
168, 186 (1969)). The House and Senate Reports accompanying the CTEA
reflect no purpose to make copyright a forever thing. Notably, the Senate
Report expressly acknowledged that the Constitution “clearly precludes
Congress from granting unlimited protection for copyrighted works,”
S. Rep. No. 104–315, p. 11 (1996), and disclaimed any intent to contravene
that prohibition, ibid. Members of Congress instrumental in the CTEA’s
passage spoke to similar effect. See, e. g., 144 Cong. Rec. H1458 (daily
ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright
protection should be for a limited time only” and that “[p]erpetual protec-
tion does not benefit society”).
Justice Breyer nevertheless insists that the “economic effect” of the
CTEA is to make the copyright term “virtually perpetual.” Post, at 243.
Relying on formulas and assumptions provided in an amicus brief sup-
porting petitioners, he stresses that the CTEA creates a copyright term
worth 99.8% of the value of a perpetual copyright. Post, at 254–256. If
Justice Breyer’s calculations were a basis for holding the CTEA uncon-
stitutional, then the 1976 Act would surely fall as well, for—under the
same assumptions he indulges—the term set by that Act secures 99.4% of
the value of a perpetual term. See Brief for George A. Akerlof et al. as
Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that
analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%)

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
210 ELDRED v. ASHCROFT
Opinion of the Court
show how the CTEA crosses a constitutionally significant
threshold with respect to “limited Times” that the 1831,
1909, and 1976 Acts did not. See supra, at 194–196; Austin,
supra n. 13, at 56 (“If extending copyright protection to
works already in existence is constitutionally suspect,” so is
“extending the protections of U. S. copyright law to works
by foreign authors that had already been created and even
first published when the federal rights attached.”). Those
earlier Acts did not create perpetual copyrights, and neither
does the CTEA.17
2
Petitioners dominantly advance a series of arguments all
premised on the proposition that Congress may not extend
an existing copyright absent new consideration from the au-
thor. They pursue this main theme under three headings.
Petitioners contend that the CTEA’s extension of existing
copyrights (1) overlooks the requirement of “originality,”
(2) fails to “promote the Progress of Science,” and (3) ignores
copyright’s quid pro quo.
Acts might be suspect. Justice Breyer several times places the Found-
ing Fathers on his side. See, e. g., post, at 246–247, 260, 261. It is doubt-
ful, however, that those architects of our Nation, in framing the “limited
Times” prescription, thought in terms of the calculator rather than the
calendar.
17 Respondent notes that the CTEA’s life-plus-70-years baseline term is
expected to produce an average copyright duration of 95 years, and that
this term “resembles some other long-accepted durational practices in the
law, such as 99-year leases of real property and bequests within the rule
against perpetuities.” Brief for Respondent 27, n. 18. Whether such ref-
erents mark the outer boundary of “limited Times” is not before us today.
Justice Breyer suggests that the CTEA’s baseline term extends beyond
that typically permitted by the traditional rule against perpetuities.
Post, at 256–257. The traditional common-law rule looks to lives in being
plus 21 years. Under that rule, the period before a bequest vests could
easily equal or exceed the anticipated average copyright term under the
CTEA. If, for example, the vesting period on a deed were defined with
reference to the life of an infant, the sum of the measuring life plus 21
years could commonly add up to 95 years.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
211 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
Petitioners’ “originality” argument draws on Feist Publi-
cations, Inc. v. Rural Telephone Service Co., 499 U. S. 340
(1991). In Feist, we observed that “[t]he sine qua non of
copyright is originality,” id., at 345, and held that copyright
protection is unavailable to “a narrow category of works in
which the creative spark is utterly lacking or so trivial as
to be virtually nonexistent,” id., at 359. Relying on Feist,
petitioners urge that even if a work is sufficiently “original”
to qualify for copyright protection in the first instance, any
extension of the copyright’s duration is impermissible be-
cause, once published, a work is no longer original.
Feist, however, did not touch on the duration of copyright
protection. Rather, the decision addressed the core ques-
tion of copyrightability, i. e., the “creative spark” a work
must have to be eligible for copyright protection at all. Ex-
plaining the originality requirement, Feist trained on the
Copyright Clause words “Authors” and “Writings.” Id., at
346–347. The decision did not construe the “limited Times”
for which a work may be protected, and the originality re-
quirement has no bearing on that prescription.
More forcibly, petitioners contend that the CTEA’s exten-
sion of existing copyrights does not “promote the Progress
of Science” as contemplated by the preambular language of
the Copyright Clause. Art. I, § 8, cl. 8. To sustain this ob-
jection, petitioners do not argue that the Clause’s preamble
is an independently enforceable limit on Congress’ power.
See 239 F. 3d, at 378 (Petitioners acknowledge that “the pre-
amble of the Copyright Clause is not a substantive limit
on Congress’ legislative power.” (internal quotation marks
omitted)). Rather, they maintain that the preambular lan-
guage identifies the sole end to which Congress may leg-
islate; accordingly, they conclude, the meaning of “limited
Times” must be “determined in light of that specified end.”
Brief for Petitioners 19. The CTEA’s extension of existing
copyrights categorically fails to “promote the Progress of
Science,” petitioners argue, because it does not stimulate the

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
212 ELDRED v. ASHCROFT
Opinion of the Court
creation of new works but merely adds value to works al-
ready created.
As petitioners point out, we have described the Copyright
Clause as “both a grant of power and a limitation,” Graham
v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966), and
have said that “[t]he primary objective of copyright” is “[t]o
promote the Progress of Science,” Feist, 499 U. S., at 349.
The “constitutional command,” we have recognized, is that
Congress, to the extent it enacts copyright laws at all, create
a “system” that “promote[s] the Progress of Science.” Gra-
ham, 383 U. S., at 6.18
We have also stressed, however, that it is generally for
Congress, not the courts, to decide how best to pursue the
Copyright Clause’s objectives. See Stewart v. Abend, 495
U. S., at 230 (“Th[e] evolution of the duration of copyright
protection tellingly illustrates the difficulties Congress
faces . . . . [I]t is not our role to alter the delicate balance
18 Justice Stevens’ characterization of reward to the author as
“a secondary consideration” of copyright law, post, at 227, n. 4 (internal
quotation marks omitted), understates the relationship between such re-
wards and the “Progress of Science.” As we have explained, “[t]he eco-
nomic philosophy behind the [Copyright] [C]lause . . . is the conviction that
encouragement of individual effort by personal gain is the best way to
advance public welfare through the talents of authors and inventors.”
Mazer v. Stein, 347 U. S. 201, 219 (1954). Accordingly, “copyright law cel-
ebrates the profit motive, recognizing that the incentive to profit from the
exploitation of copyrights will redound to the public benefit by resulting
in the proliferation of knowledge. . . . The profit motive is the engine that
ensures the progress of science.” American Geophysical Union v. Tex-
aco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff ’d, 60 F. 3d 913 (CA2 1994).
Rewarding authors for their creative labor and “promot[ing] . . . Progress”
are thus complementary; as James Madison observed, in copyright “[t]he
public good fully coincides . . . with the claims of individuals.” The Feder-
alist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer’s assertion
that “copyright statutes must serve public, not private, ends,” post, at
247, similarly misses the mark. The two ends are not mutually exclusive;
copyright law serves public ends by providing individuals with an incen-
tive to pursue private ones.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
213 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
Congress has labored to achieve.”); Sony, 464 U. S., at 429
(“[I]t is Congress that has been assigned the task of defining
the scope of [rights] that should be granted to authors or to
inventors in order to give the public appropriate access to
their work product.”); Graham, 383 U. S., at 6 (“Within the
limits of the constitutional grant, the Congress may, of
course, implement the stated purpose of the Framers by se-
lecting the policy which in its judgment best effectuates the
constitutional aim.”). The justifications we earlier set out
for Congress’ enactment of the CTEA, supra, at 205–207,
provide a rational basis for the conclusion that the CTEA
“promote[s] the Progress of Science.”
On the issue of copyright duration, Congress, from the
start, has routinely applied new definitions or adjustments
of the copyright term to both future works and existing
works not yet in the public domain.19 Such consistent con-
gressional practice is entitled to “very great weight, and
when it is remembered that the rights thus established have
not been disputed during a period of [over two] centur[ies],
it is almost conclusive.” Burrow-Giles Lithographic Co. v.
Sarony, 111 U. S., at 57. Indeed, “[t]his Court has repeat-
edly laid down the principle that a contemporaneous legisla-
tive exposition of the Constitution when the founders of our
Government and framers of our Constitution were actively
participating in public affairs, acquiesced in for a long term of
years, fixes the construction to be given [the Constitution’s]
provisions.” Myers v. United States, 272 U. S. 52, 175
(1926). Congress’ unbroken practice since the founding gen-
19 As we have noted, see supra, at 196, n. 3, petitioners seek to distin-
guish the 1790 Act from those that followed. They argue that by requir-
ing authors seeking its protection to surrender whatever rights they had
under state law, the 1790 Act enhanced uniformity and certainty and thus
“promote[d] . . . Progress.” See Brief for Petitioners 28–31. This ac-
count of the 1790 Act simply confirms, however, that the First Congress
understood it could “promote . . . Progress” by extending copyright protec-
tion to existing works. Every subsequent adjustment of copyright’s dura-
tion, including the CTEA, reflects a similar understanding.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
214 ELDRED v. ASHCROFT
Opinion of the Court
eration thus overwhelms petitioners’ argument that the
CTEA’s extension of existing copyrights fails per se to “pro-
mote the Progress of Science.” 20
Closely related to petitioners’ preambular argument, or a
variant of it, is their assertion that the Copyright Clause
“imbeds a quid pro quo.” Brief for Petitioners 23. They
contend, in this regard, that Congress may grant to an “Au-
tho[r]” an “exclusive Right” for a “limited Tim[e],” but only
in exchange for a “Writin[g].” Congress’ power to confer
copyright protection, petitioners argue, is thus contingent
upon an exchange: The author of an original work receives
an “exclusive Right” for a “limited Tim[e]” in exchange for
a dedication to the public thereafter. Extending an existing
copyright without demanding additional consideration, peti-
tioners maintain, bestows an unpaid-for benefit on copyright
holders and their heirs, in violation of the quid pro quo
requirement.
We can demur to petitioners’ description of the Copyright
Clause as a grant of legislative authority empowering Con-
gress “to secure a bargain—this for that.” Id., at 16; see
Mazer v. Stein, 347 U. S. 201, 219 (1954) (“The economic phi-
losophy behind the clause empowering Congress to grant
patents and copyrights is the conviction that encouragement
of individual effort by personal gain is the best way to ad-
vance public welfare through the talents of authors and in-
ventors in ‘Science and useful Arts.’ ”). But the legislative
evolution earlier recalled demonstrates what the bargain en-
tails. Given the consistent placement of existing copyright
20 Justice Stevens, post, at 235, refers to the “legislative veto” held
unconstitutional in INS v. Chadha, 462 U. S. 919 (1983), and observes that
we reached that decision despite its impact on federal laws geared to our
“contemporary political system,” id., at 967 (White, J., dissenting). Plac-
ing existing works in parity with future works for copyright purposes, in
contrast, is not a similarly pragmatic endeavor responsive to modern
times. It is a measure of the kind Congress has enacted under its Patent
and Copyright Clause authority since the founding generation. See
supra, at 194–196.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
215 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
holders in parity with future holders, the author of a work
created in the last 170 years would reasonably comprehend,
as the “this” offered her, a copyright not only for the time
in place when protection is gained, but also for any renewal
or extension legislated during that time.21 Congress could
rationally seek to “promote . . . Progress” by including in
every copyright statute an express guarantee that authors
would receive the benefit of any later legislative extension of
the copyright term. Nothing in the Copyright Clause bars
Congress from creating the same incentive by adopting the
same position as a matter of unbroken practice. See Brief
for Respondent 31–32.
Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225
(1964), nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
489 U. S. 141 (1989), is to the contrary. In both cases, we
invalidated the application of certain state laws as inconsist-
ent with the federal patent regime. Sears, 376 U. S., at 231–
233; Bonito, 489 U. S., at 152. Describing Congress’ consti-
tutional authority to confer patents, Bonito Boats noted:
“The Patent Clause itself reflects a balance between the need
to encourage innovation and the avoidance of monopolies
which stifle competition without any concomitant advance in
the ‘Progress of Science and useful Arts.’ ” Id., at 146.
21 Standard copyright assignment agreements reflect this expectation.
See, e. g., A. Kohn & B. Kohn, Music Licensing 471 (3d ed. 1992–2002)
(short form copyright assignment for musical composition, under which
assignor conveys all rights to the work, “including the copyrights and pro-
prietary rights therein and in any and all versions of said musical composi-
tion(s), and any renewals and extensions thereof (whether presently avail-
able or subsequently available as a result of intervening legislation)”
(emphasis added)); 5 M. Nimmer & D. Nimmer, Copyright § 21.11[B],
p. 21–305 (2002) (short form copyright assignment under which assignor
conveys all assets relating to the work, “including without limitation, copy-
rights and renewals and/or extensions thereof ”); 6 id., § 30.04[B][1],
p. 30–325 (form composer-producer agreement under which composer “as-
signs to Producer all rights (copyrights, rights under copyright and other-
wise, whether now or hereafter known) and all renewals and extensions
(as may now or hereafter exist)”).

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
216 ELDRED v. ASHCROFT
Opinion of the Court
Sears similarly stated that “[p]atents are not given as
favors . . . but are meant to encourage invention by reward-
ing the inventor with the right, limited to a term of years
fixed by the patent, to exclude others from the use of his
invention.” 376 U. S., at 229. Neither case concerned the
extension of a patent’s duration. Nor did either suggest
that such an extension might be constitutionally infirm.
Rather, Bonito Boats reiterated the Court’s unclouded un-
derstanding: “It is for Congress to determine if the present
system” effectuates the goals of the Copyright and Patent
Clause. 489 U. S., at 168. And as we have documented, see
supra, at 201–204, Congress has many times sought to effec-
tuate those goals by extending existing patents.
We note, furthermore, that patents and copyrights do not
entail the same exchange, and that our references to a quid
pro quo typically appear in the patent context. See, e. g.,
J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International,
Inc., 534 U. S. 124, 142 (2001) (“The disclosure required by
the Patent Act is ‘the quid pro quo of the right to exclude.’ ”
(quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484
(1974))); Bonito Boats, 489 U. S., at 161 (“the quid pro quo
of substantial creative effort required by the federal [patent]
statute”); Brenner v. Manson, 383 U. S. 519, 534 (1966) (“The
basic quid pro quo . . . for granting a patent monopoly is the
benefit derived by the public from an invention with substan-
tial utility.”); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an
invention is already commonly known and used when the
patent is sought, “there might be sound reason for presum-
ing, that the legislature did not intend to grant an exclusive
right,” given the absence of a “quid pro quo.”). This is un-
derstandable, given that immediate disclosure is not the ob-
jective of, but is exacted from, the patentee. It is the price
paid for the exclusivity secured. See J. E. M. Ag Supply,
534 U. S., at 142. For the author seeking copyright protec-
tion, in contrast, disclosure is the desired objective, not
something exacted from the author in exchange for the copy-

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
217 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
right. Indeed, since the 1976 Act, copyright has run from
creation, not publication. See 1976 Act § 302(a); 17 U. S. C.
§ 302(a).
Further distinguishing the two kinds of intellectual prop-
erty, copyright gives the holder no monopoly on any knowl-
edge. A reader of an author’s writing may make full use of
any fact or idea she acquires from her reading. See § 102(b).
The grant of a patent, on the other hand, does prevent full
use by others of the inventor’s knowledge. See Brief for
Respondent 22; Alfred Bell & Co. v. Catalda Fine Arts, 191
F. 2d 99, 103, n. 16 (CA2 1951) (The monopoly granted by a
copyright “is not a monopoly of knowledge. The grant of a
patent does prevent full use being made of knowledge, but
the reader of a book is not by the copyright laws prevented
from making full use of any information he may acquire from
his reading.” (quoting W. Copinger, Law of Copyright 2 (7th
ed. 1936))). In light of these distinctions, one cannot extract
from language in our patent decisions—language not trained
on a grant’s duration—genuine support for petitioners’ bold
view. Accordingly, we reject the proposition that a quid pro
quo requirement stops Congress from expanding copyright’s
term in a manner that puts existing and future copyrights
in parity.22
3
As an alternative to their various arguments that extend-
ing existing copyrights violates the Copyright Clause per se,
petitioners urge heightened judicial review of such exten-
sions to ensure that they appropriately pursue the purposes
of the Clause. See Brief for Petitioners 31–32. Specifically,
22 The fact that patent and copyright involve different exchanges does
not, of course, mean that we may not be guided in our “limited Times”
analysis by Congress’ repeated extensions of existing patents. See supra,
at 201–204. If patent’s quid pro quo is more exacting than copyright’s,
then Congress’ repeated extension of existing patents without constitu-
tional objection suggests even more strongly that similar legislation with
respect to copyrights is constitutionally permissible.

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
218 ELDRED v. ASHCROFT
Opinion of the Court
petitioners ask us to apply the “congruence and proportional-
ity” standard described in cases evaluating exercises of Con-
gress’ power under § 5 of the Fourteenth Amendment. See,
e. g., City of Boerne v. Flores, 521 U. S. 507 (1997). But we
have never applied that standard outside the § 5 context; it
does not hold sway for judicial review of legislation enacted,
as copyright laws are, pursuant to Article I authorization.
Section 5 authorizes Congress to enforce commands con-
tained in and incorporated into the Fourteenth Amendment.
Amdt. 14, § 5 (“The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.”
(emphasis added)). The Copyright Clause, in contrast, em-
powers Congress to define the scope of the substantive right.
See Sony, 464 U. S., at 429. Judicial deference to such con-
gressional definition is “but a corollary to the grant to Con-
gress of any Article I power.” Graham, 383 U. S., at 6. It
would be no more appropriate for us to subject the CTEA
to “congruence and proportionality” review under the Copy-
right Clause than it would be for us to hold the Act unconsti-
tutional per se.
For the several reasons stated, we find no Copyright
Clause impediment to the CTEA’s extension of existing
copyrights.
III
Petitioners separately argue that the CTEA is a content-
neutral regulation of speech that fails heightened judicial re-
view under the First Amendment.23 We reject petitioners’
23 Petitioners originally framed this argument as implicating the CTEA’s
extension of both existing and future copyrights. See Pet. for Cert. i.
Now, however, they train on the CTEA’s extension of existing copyrights
and urge against consideration of the CTEA’s First Amendment validity
as applied to future copyrights. See Brief for Petitioners 39–48; Reply
Brief 16–17; Tr. of Oral Arg. 11–13. We therefore consider petitioners’
argument as so limited. We note, however, that petitioners do not explain
how their First Amendment argument is moored to the prospective/
retrospective line they urge us to draw, nor do they say whether or how their

537US2 Unit: $U15 [04-22-04 17:52:22] PAGES PGT: OPIN
219 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
plea for imposition of uncommonly strict scrutiny on a copy-
right scheme that incorporates its own speech-protective
purposes and safeguards. The Copyright Clause and First
Amendment were adopted close in time. This proximity in-
dicates that, in the Framers’ view, copyright’s limited monop-
olies are compatible with free speech principles. Indeed,
copyright’s purpose is to promote the creation and publica-
tion of free expression. As Harper & Row observed: “[T]he
Framers intended copyright itself to be the engine of free
expression. By establishing a marketable right to the use
of one’s expression, copyright supplies the economic incen-
tive to create and disseminate ideas.” 471 U. S., at 558.
In addition to spurring the creation and publication of new
expression, copyright law contains built-in First Amendment
accommodations. See id., at 560. First, it distinguishes be-
tween ideas and expression and makes only the latter eligible
for copyright protection. Specifically, 17 U. S. C. § 102(b)
provides: “In no case does copyright protection for an origi-
nal work of authorship extend to any idea, procedure, proc-
ess, system, method of operation, concept, principle, or dis-
covery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.” As we
said in Harper & Row, this “idea/expression dichotomy
strike[s] a definitional balance between the First Amend-
ment and the Copyright Act by permitting free communica-
tion of facts while still protecting an author’s expression.”
471 U. S., at 556 (internal quotation marks omitted). Due to
this distinction, every idea, theory, and fact in a copyrighted
work becomes instantly available for public exploitation at
the moment of publication. See Feist, 499 U. S., at 349–350.
Second, the “fair use” defense allows the public to use not
only facts and ideas contained in a copyrighted work, but
also expression itself in certain circumstances. Codified at
17 U. S. C. § 107, the defense provides: “[T]he fair use of a
free speech argument applies to copyright duration but not to other as-
pects of copyright protection, notably scope.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
220 ELDRED v. ASHCROFT
Opinion of the Court
copyrighted work, including such use by reproduction in
copies . . . , for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copy-
right.” The fair use defense affords considerable “latitude
for scholarship and comment,” Harper & Row, 471 U. S., at
560, and even for parody, see Campbell v. Acuff-Rose Music,
Inc., 510 U. S. 569 (1994) (rap group’s musical parody of Roy
Orbison’s “Oh, Pretty Woman” may be fair use).
The CTEA itself supplements these traditional First
Amendment safeguards. First, it allows libraries, archives,
and similar institutions to “reproduce” and “distribute, dis-
play, or perform in facsimile or digital form” copies of certain
published works “during the last 20 years of any term of
copyright . . . for purposes of preservation, scholarship, or
research” if the work is not already being exploited commer-
cially and further copies are unavailable at a reasonable
price. 17 U. S. C. § 108(h); see Brief for Respondent 36.
Second, Title II of the CTEA, known as the Fairness in
Music Licensing Act of 1998, exempts small businesses, res-
taurants, and like entities from having to pay performance
royalties on music played from licensed radio, television, and
similar facilities. 17 U. S. C. § 110(5)(B); see Brief for Repre-
sentative F. James Sensenbrenner, Jr., et al. as Amici Curiae
5–6, n. 3.
Finally, the case petitioners principally rely upon for their
First Amendment argument, Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622 (1994), bears little on copyright.
The statute at issue in Turner required cable operators to
carry and transmit broadcast stations through their proprie-
tary cable systems. Those “must-carry” provisions, we ex-
plained, implicated “the heart of the First Amendment,”
namely, “the principle that each person should decide for
himself or herself the ideas and beliefs deserving of expres-
sion, consideration, and adherence.” Id., at 641.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
221 Cite as: 537 U. S. 186 (2003)
Opinion of the Court
The CTEA, in contrast, does not oblige anyone to repro-
duce another’s speech against the carrier’s will. Instead, it
protects authors’ original expression from unrestricted ex-
ploitation. Protection of that order does not raise the free
speech concerns present when the government compels or
burdens the communication of particular facts or ideas. The
First Amendment securely protects the freedom to make—
or decline to make—one’s own speech; it bears less heavily
when speakers assert the right to make other people’s
speeches. To the extent such assertions raise First Amend-
ment concerns, copyright’s built-in free speech safeguards
are generally adequate to address them. We recognize that
the D. C. Circuit spoke too broadly when it declared copy-
rights “categorically immune from challenges under the
First Amendment.” 239 F. 3d, at 375. But when, as in this
case, Congress has not altered the traditional contours of
copyright protection, further First Amendment scrutiny is
unnecessary. See Harper & Row, 471 U. S., at 560; cf. San
Francisco Arts & Athletics, Inc. v. United States Olympic
Comm., 483 U. S. 522 (1987).24
IV
If petitioners’ vision of the Copyright Clause held sway, it
would do more than render the CTEA’s duration extensions
unconstitutional as to existing works. Indeed, petitioners’
assertion that the provisions of the CTEA are not severable
would make the CTEA’s enlarged terms invalid even as to
24 We are not persuaded by petitioners’ attempt to distinguish Harper &
Row on the ground that it involved an infringement suit rather than a
declaratory action of the kind here presented. As respondent observes,
the same legal question can arise in either posture. See Brief for Re-
spondent 42. In both postures, it is appropriate to construe copyright’s
internal safeguards to accommodate First Amendment concerns.
Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) (“It
is . . . incumbent upon us to read the statute to eliminate [serious constitu-
tional] doubts so long as such a reading is not plainly contrary to the intent
of Congress.”).

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
222 ELDRED v. ASHCROFT
Stevens, J., dissenting
tomorrow’s work. The 1976 Act’s time extensions, which set
the pattern that the CTEA followed, would be vulnerable
as well.
As we read the Framers’ instruction, the Copyright
Clause empowers Congress to determine the intellectual
property regimes that, overall, in that body’s judgment, will
serve the ends of the Clause. See Graham, 383 U. S., at 6
(Congress may “implement the stated purpose of the Fram-
ers by selecting the policy which in its judgment best effec-
tuates the constitutional aim.” (emphasis added)). Beneath
the facade of their inventive constitutional interpretation,
petitioners forcefully urge that Congress pursued very bad
policy in prescribing the CTEA’s long terms. The wisdom
of Congress’ action, however, is not within our province to
second-guess. Satisfied that the legislation before us re-
mains inside the domain the Constitution assigns to the First
Branch, we affirm the judgment of the Court of Appeals.
It is so ordered.
Justice Stevens, dissenting.
Writing for a unanimous Court in 1964, Justice Black
stated that it is obvious that a State could not “extend the
life of a patent beyond its expiration date,” Sears, Roebuck &
Co. v. Stiffel Co., 376 U. S. 225, 231 (1964).1 As I shall ex-
plain, the reasons why a State may not extend the life of a
patent apply to Congress as well. If Congress may not ex-
pand the scope of a patent monopoly, it also may not extend
1 Justice Harlan wrote a brief concurrence, but did not disagree with
this statement. Justice Black’s statement echoed a portion of Attorney
General Wirt’s argument in Gibbons v. Ogden, 9 Wheat. 1, 171 (1824):
“The law of Congress declares, that all inventors of useful improvements
throughout the United States, shall be entitled to the exclusive right in
their discoveries for fourteen years only. The law of New-York declares,
that this inventor shall be entitled to the exclusive use of his discovery for
thirty years, and as much longer as the State shall permit. The law of
Congress, by limiting the exclusive right to fourteen years, in effect de-
clares, that after the expiration of that time, the discovery shall be the
common right of the whole people of the United States.”

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
223 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
the life of a copyright beyond its expiration date. Accord-
ingly, insofar as the 1998 Sonny Bono Copyright Term Ex-
tension Act, 112 Stat. 2827, purported to extend the life of
unexpired copyrights, it is invalid. Because the majority’s
contrary conclusion rests on the mistaken premise that this
Court has virtually no role in reviewing congressional grants
of monopoly privileges to authors, inventors, and their suc-
cessors, I respectfully dissent.
I
The authority to issue copyrights stems from the same
Clause in the Constitution that created the patent power.
It provides:
“Congress shall have Power . . . To promote the Prog-
ress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.” Art. I,
§ 8, cl. 8.
It is well settled that the Clause is “both a grant of power
and a limitation” and that Congress “may not overreach the
restraints imposed by the stated constitutional purpose.”
Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5–6
(1966). As we have made clear in the patent context, that
purpose has two dimensions. Most obviously the grant of
exclusive rights to their respective writings and discoveries
is intended to encourage the creativity of “Authors and In-
ventors.” But the requirement that those exclusive grants
be for “limited Times” serves the ultimate purpose of pro-
moting the “Progress of Science and useful Arts” by guaran-
teeing that those innovations will enter the public domain as
soon as the period of exclusivity expires:
“Once the patent issues, it is strictly construed, United
States v. Masonite Corp., 316 U. S. 265, 280 (1942), it
cannot be used to secure any monopoly beyond that con-
tained in the patent, Morton Salt Co. v. G. S. Suppiger
Co., 314 U. S. 488, 492 (1942), . . . and especially relevant

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
224 ELDRED v. ASHCROFT
Stevens, J., dissenting
here, when the patent expires the monopoly created by
it expires, too, and the right to make the article—includ-
ing the right to make it in precisely the shape it carried
when patented—passes to the public. Kellogg Co. v.
National Biscuit Co., 305 U. S. 111, 120–122 (1938);
Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 185
(1896).” Sears, Roebuck & Co., 376 U. S., at 230.
It is that ultimate purpose that explains why a patent may
not issue unless it discloses the invention in such detail that
one skilled in the art may copy it. See, e. g., Grant v. Ray-
mond, 6 Pet. 218, 247 (1832) (Marshall, C. J.) (“The third sec-
tion [of the 1793 Act] requires, as preliminary to a patent, a
correct specification and description of the thing discovered.
This is necessary in order to give the public, after the privi-
lege shall expire, the advantage for which the privilege is
allowed, and is the foundation of the power to issue the pat-
ent”). Complete disclosure as a precondition to the issuance
of a patent is part of the quid pro quo that justifies the lim-
ited monopoly for the inventor as consideration for full and
immediate access by the public when the limited time
expires.2
Almost two centuries ago the Court plainly stated that
public access to inventions at the earliest possible date was
the essential purpose of the Clause:
“While one great object was, by holding out a reasonable
reward to inventors and giving them an exclusive right
to their inventions for a limited period, to stimulate the
efforts of genius; the main object was ‘to promote the
2 Attorney General Wirt made this precise point in his argument in Gib-
bons v. Ogden, 9 Wheat., at 175: “The limitation is not for the advantage
of the inventor, but of society at large, which is to take the benefit of the
invention after the period of limitation has expired. The patentee pays a
duty on his patent, which is an effective source of revenue to the United
States. It is virtually a contract between each patentee and the people
of the United States, by which the time of exclusive and secure enjoyment
is limited, and then the benefit of the discovery results to the public.”

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
225 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
progress of science and useful arts;’ and this could be
done best, by giving the public at large a right to make,
construct, use, and vend the thing invented, at as early
a period as possible, having a due regard to the rights
of the inventor. If an inventor should be permitted to
hold back from the knowledge of the public the secrets
of his invention; if he should for a long period of years
retain the monopoly, and make, and sell his invention
publicly, and thus gather the whole profits of it, relying
upon his superior skill and knowledge of the structure;
and then, and then only, when the danger of competition
should force him to secure the exclusive right, he should
be allowed to take out a patent, and thus exclude the
public from any farther use than what should be derived
under it during his fourteen years; it would materially
retard the progress of science and the useful arts, and
give a premium to those, who should be least prompt to
communicate their discoveries.” Pennock v. Dialogue,
2 Pet. 1, 18 (1829).
Pennock held that an inventor could not extend the period
of patent protection by postponing his application for the
patent while exploiting the invention commercially. As we
recently explained, “implicit in the Patent Clause itself ” is
the understanding “that free exploitation of ideas will be the
rule, to which the protection of a federal patent is the excep-
tion. Moreover, the ultimate goal of the patent system is to
bring new designs and technologies into the public domain
through disclosure.” Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U. S. 141, 151 (1989).
The issuance of a patent is appropriately regarded as a
quid pro quo—the grant of a limited right for the inventor’s
disclosure and subsequent contribution to the public domain.
See, e. g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 63
(1998) (“[T]he patent system represents a carefully crafted
bargain that encourages both the creation and the public dis-
closure of new and useful advances in technology, in return

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
226 ELDRED v. ASHCROFT
Stevens, J., dissenting
for an exclusive monopoly for a limited period of time”). It
would be manifestly unfair if, after issuing a patent, the Gov-
ernment as a representative of the public sought to modify
the bargain by shortening the term of the patent in order
to accelerate public access to the invention. The fairness
considerations that underlie the constitutional protections
against ex post facto laws and laws impairing the obligation
of contracts would presumably disable Congress from mak-
ing such a retroactive change in the public’s bargain with
an inventor without providing compensation for the taking.
Those same considerations should protect members of the
public who make plans to exploit an invention as soon as it
enters the public domain from a retroactive modification of
the bargain that extends the term of the patent monopoly.
As I discuss below, the few historical exceptions to this rule
do not undermine the constitutional analysis. For quite
plainly, the limitations “implicit in the Patent Clause itself,”
489 U. S., at 151, adequately explain why neither a State nor
Congress may “extend the life of a patent beyond its expira-
tion date,” Sears, Roebuck & Co., 376 U. S., at 231.3
Neither the purpose of encouraging new inventions nor
the overriding interest in advancing progress by adding
knowledge to the public domain is served by retroactively
increasing the inventor’s compensation for a completed in-
vention and frustrating the legitimate expectations of mem-
bers of the public who want to make use of it in a free
3 The Court acknowledges that this proposition is “uncontroversial”
today, see ante, at 202, n. 8, but overlooks the fact that it was highly
controversial in the early 1800’s. See n. 11, infra. The Court assumes
that the Sears holding rested entirely on the pre-emptive effect of congres-
sional statutes even though the opinion itself, like the opinions in Graham
v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), and Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989), also relied on the
pre-emptive effect of the constitutional provision. That at least some of
the Framers recognized that the Constitution itself imposed a limitation
even before Congress acted is demonstrated by Madison’s letter, quoted
in n. 6, infra.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
227 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
market. Because those twin purposes provide the only ave-
nue for congressional action under the Copyright/Patent
Clause of the Constitution, any other action is manifestly
unconstitutional.
II
We have recognized that these twin purposes of encourag-
ing new works and adding to the public domain apply to
copyrights as well as patents. Thus, with regard to copy-
rights on motion pictures, we have clearly identified the
overriding interest in the “release to the public of the prod-
ucts of [the author’s] creative genius.” United States v. Par-
amount Pictures, Inc., 334 U. S. 131, 158 (1948).4 And, as
with patents, we have emphasized that the overriding pur-
pose of providing a reward for authors’ creative activity is
to motivate that activity and “to allow the public access to
the products of their genius after the limited period of exclu-
sive control has expired.” Sony Corp. of America v. Uni-
versal City Studios, Inc., 464 U. S. 417, 429 (1984). Ex post
facto extensions of copyrights result in a gratuitous transfer
of wealth from the public to authors, publishers, and their
successors in interest. Such retroactive extensions do not
even arguably serve either of the purposes of the Copyright/
Patent Clause. The reasons why such extensions of the
patent monopoly are unconstitutional apply to copyrights as
well.
Respondent, however, advances four arguments in support
of the constitutionality of such retroactive extensions:
(1) The first Copyright Act enacted shortly after the Consti-
4 “The copyright law, like the patent statutes, makes reward to the
owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S.
123, 127, Chief Justice Hughes spoke as follows respecting the copyright
monopoly granted by Congress, ‘The sole interest of the United States
and the primary object in conferring the monopoly lie in the general bene-
fits derived by the public from the labors of authors.’ It is said that re-
ward to the author or artist serves to induce release to the public of the
products of his creative genius.” 334 U. S., at 158.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
228 ELDRED v. ASHCROFT
Stevens, J., dissenting
tution was ratified applied to works that had already been
produced; (2) later Congresses have repeatedly authorized
extensions of copyrights and patents; (3) such extensions
promote the useful arts by giving copyright holders an incen-
tive to preserve and restore certain valuable motion pic-
tures; and (4) as a matter of equity, whenever Congress pro-
vides a longer term as an incentive to the creation of new
works by authors, it should provide an equivalent reward
to the owners of all unexpired copyrights. None of these
arguments is persuasive.
III
Congress first enacted legislation under the Copyright/
Patent Clause in 1790 when it passed bills creating federal
patent and copyright protection. Because the content of
that first legislation, the debate that accompanied it, and the
differences between the initial versions and the bills that ul-
timately passed provide strong evidence of early Congresses’
understanding of the constitutional limits of the Copyright/
Patent Clause, I examine both the initial copyright and pat-
ent statutes.
Congress first considered intellectual property statutes in
its inaugural session in 1789. The bill debated, House Reso-
lution 10—“a bill to promote the progress of science and use-
ful arts, by securing to authors and inventors the exclusive
right to their respective writings and discoveries,” 3 Docu-
mentary History of First Federal Congress of the United
States 94 (L. de Pauw, C. Bickford, & L. Hauptman eds. 1977)
(hereinafter Documentary History)—provided both copy-
right and patent protection for similar terms.5 The first
Congress did not pass H. R. 10, though a similar version was
5 A copy of this bill specifically identified has not been found, though
strong support exists for considering a bill from that session as H. R. 10.
See E. Walterscheid, To Promote the Progress of Useful Arts: American
Patent Law and Administration, 1798–1836, pp. 87–88 (1998) (hereinafter
Walterscheid). This bill is reprinted in 4 Documentary History 513–519.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
229 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
reintroduced in the second Congress in 1790. After minimal
debate, however, the House of Representatives began consid-
eration of two separate bills, one covering patents and the
other copyrights. Because, as the majority recognizes,
“congressional practice with respect to patents informs our
inquiry,” ante, at 201, I consider the history of both patent
and copyright legislation.
The Patent Act
What eventually became the Patent Act of 1790 had its
genesis in House Resolution 41, introduced on February 16,
1790. That resolution differed from H. R. 10 in one impor-
tant respect. Whereas H. R. 10 would have extended patent
protection to only those inventions that were “not before
known or used,” H. R. 41, by contrast, added the phrase
“within the United States” to that limitation and expressly
authorized patent protection for “any person, who shall after
the passing of this act, first import into the United States . . .
any . . . device . . . not before used or known in the said
States.” 6 Documentary History 1626–1632. This change
would have authorized patents of importation, providing
United States patent protection for inventions already in use
elsewhere. This change, however, was short lived and was
removed by a floor amendment on March 5, 1789. Walter-
scheid 125. Though exact records of the floor debate are
lost, correspondence from House Members indicate that
doubts about the constitutionality of such a provision led to
its removal. Representative Thomas Fitzsimmons wrote to
a leading industrialist that day stating that the section
“ ‘allowing to Importers, was left out, the Constitutional
power being Questionable.’ ” Id., at 126 (quoting Letter
from Rep. Thomas Fitzsimmons to Tench Coxe (Mar. 5,
1790)). James Madison himself recognized this constitu-
tional limitation on patents of importation, flatly stating that
the constitution “forbids patents for that purpose.” 13 Pa-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
230 ELDRED v. ASHCROFT
Stevens, J., dissenting
pers of James Madison 128 (C. Hobson & R. Rutland eds.
1981) (reprinting letter to Tench Coxe (Mar. 28, 1790)).6
The final version of the 1790 Patent Act, 1 Stat. 109, did
not contain the geographic qualifier and thus did not pro-
vide for patents of importation. This statutory omission,
coupled with the contemporaneous statements by legislators,
provides strong evidence that Congress recognized signifi-
cant limitations on their constitutional authority under the
Copyright/Patent Clause to extend protection to a class of
intellectual properties. This recognition of a categorical
constitutional limitation is fundamentally at odds with the
majority’s reading of Article I, § 8, to provide essentially no
limit on congressional action under the Clause. If early con-
gressional practice does, indeed, inform our analysis, as it
should, then the majority’s judicial excision of these constitu-
tional limits cannot be correct.
The Copyright Act
Congress also passed the first Copyright Act, 1 Stat. 124,
in 1790. At that time there were a number of maps, charts,
and books that had already been printed, some of which were
copyrighted under state laws and some of which were argua-
bly entitled to perpetual protection under the common law.
The federal statute applied to those works as well as to new
works. In some cases the application of the new federal
rule reduced the pre-existing protections, and in others it
6 “Your idea of appropriating a district of territory to the encouragement
of imported inventions is new and worthy of consideration. I can not but
apprehend however that the clause in the constitution which forbids pat-
ents for that purpose will lie equally in the way of your expedient. Con-
gress seem to be tied down to the single mode of encouraging inventions
by granting the exclusive benefit of them for a limited time, and therefore
to have no more power to give a further encouragement out of a fund of
land than a fund of money. This fetter on the National Legislature tho’
an unfortunate one, was a deliberate one. The Latitude of authority now
wished for was strongly urged and expressly rejected.” Madison’s de-
scription of the Copyright/Patent Clause as a “fetter on the National Leg-
islature” is fully consistent with this Court’s opinion in Graham.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
231 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
may have increased the protection.7 What is significant is
that the statute provided a general rule creating new federal
rights that supplanted the diverse state rights that pre-
viously existed. It did not extend or attach to any of those
pre-existing state and common-law rights: “That congress, in
passing the act of 1790, did not legislate in reference to exist-
ing rights, appears clear.” Wheaton v. Peters, 8 Pet. 591,
661 (1834); see also Fox Film Corp. v. Doyal, 286 U. S. 123,
127 (1932) (“As this Court has repeatedly said, the Congress
did not sanction an existing right but created a new one”).
Congress set in place a federal structure governing certain
types of intellectual property for the new Republic. That
Congress exercised its unquestionable constitutional author-
ity to create a new federal system securing rights for authors
and inventors in 1790 does not provide support for the propo-
sition that Congress can extend pre-existing federal protec-
tions retroactively.
Respondent places great weight on this first congressional
action, arguing that it proves that “Congress thus unques-
tionably understood that it had authority to apply a new,
more favorable copyright term to existing works.” Brief for
Respondent 12–13. That understanding, however, is not rel-
evant to the question presented by this case—whether “Con-
gress has the power under the Copyright Clause to extend
retroactively the term of existing copyrights?” Brief for
7 Importantly, even this first Act required a quid pro quo in order to
receive federal copyright protection. In order to receive protection under
the Act, the author was first required to register the work: “That no per-
son shall be entitled to the benefit of this act, in cases where any map,
chart, book or books, hath or have been already printed and published,
unless he shall first deposit, and in all other cases, unless he shall before
publication deposit a printed copy of the title of such map, chart, book or
books, in the clerk’s office of the district court where the author or proprie-
tor shall reside.” § 3, 1 Stat. 124. This registration requirement in fed-
eral district court—a requirement obviously not required under the vari-
ous state laws protecting written works—further illustrates that the 1790
Act created new rights, rather than extending existing rights.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
232 ELDRED v. ASHCROFT
Stevens, J., dissenting
Petitioners i.8 Precisely put, the question presented by this
case does not even implicate the 1790 Act, for that Act cre-
ated, rather than extended, copyright protection. That this
law applied to works already in existence says nothing about
the First Congress’ conception of its power to extend this
newly created federal right.
Moreover, Members of Congress in 1790 were well aware
of the distinction between the creation of new copyright re-
gimes and the extension of existing copyrights. The 1790
Act was patterned, in many ways, after the Statute of Anne
enacted in England in 1710. 8 Ann., c. 19; see Fred Fisher
Music Co. v. M. Witmark & Sons, 318 U. S. 643, 647–648
(1943). The English statute, in addition to providing au-
thors with copyrights on new works for a term of 14 years
renewable for another 14-year term, also replaced the book-
sellers’ claimed perpetual rights in existing works with a
single 21-year term. In 1735, the booksellers proposed an
amendment that would have extended the terms of existing
copyrights until 1756, but the amendment was defeated.
Opponents of the amendment had argued that if the bill were
to pass, it would “in Effect be establishing a perpetual
Monopoly . . . only to increase the private Gain of the
8 Respondent’s reformulation of the questions presented by this case
confuses this basic distinction. We granted certiorari to consider the
question: “Did the D. C. Circuit err in holding that Congress has the power
under the Copyright Clause to extend retroactively the term of existing
copyrights?” Respondent’s reformulation of the first question pre-
sented—“Whether the 20-year extension of the terms of all unexpired
copyrights . . . violates the Copyright Clause of the Constitution insofar
as it applies to works in existence when it took effect”—significantly
changes the substance of inquiry by changing the focus from the federal
statute at issue to irrelevant common-law protections. Brief for Respond-
ent I. Indeed, this reformulation violated this Court’s Rule 24(1)(a),
which states that “the brief [on the merits] may not raise additional ques-
tions or change the substance of the questions already presented in” the
petition for certiorari.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
233 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
Booksellers . . . .” 9 The authors of the federal statute that
used the Statute of Anne as a model were familiar with this
history. Accordingly, this Court should be especially wary
of relying on Congress’ creation of a new system to support
the proposition that Congress unquestionably understood
that it had constitutional authority to extend existing
copyrights.
IV
Since the creation of federal patent and copyright protec-
tion in 1790, Congress has passed a variety of legislation,
both providing specific relief for individual authors and in-
ventors as well as changing the general statutes conferring
patent and copyright privileges. Some of the changes did
indeed, as the majority describes, extend existing protec-
tions retroactively. Other changes, however, did not do so.
A more complete and comprehensive look at the history
of congressional action under the Copyright/Patent Clause
demonstrates that history, in this case, does not provide the
“ ‘volume of logic,’ ” ante, at 200, necessary to sustain the
Sonny Bono Act’s constitutionality.
Congress, aside from changing the process of applying for
a patent in the 1793 Patent Act, did not significantly alter
the basic patent and copyright systems for the next 40 years.
During this time, however, Congress did consider many
private bills. Respondent seeks support from “Congress’s
historical practice of using its Copyright and Patent Clause
authority to extend the terms of individual patents and
copyrights.” Brief for Respondent 13. Carefully read,
9 “A LETTER to a Member of Parliament concerning the Bill now
depending . . . for making more effectual an Act in the 8th Year of the
Reign of Queen Anne, entituled, An Act for the Encouragement of Learn-
ing, by . . . Vesting the Copies of Printed Books in the Authors or Purchas-
ers.” Document reproduced in Goldsmiths’—Kress Library of Economic
Literature, Segment I: Printed Books Through 1800, Microfilm No. 7300
(reel 460).

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
234 ELDRED v. ASHCROFT
Stevens, J., dissenting
however, these private bills do not support respondent’s his-
torical gloss, but rather significantly undermine the histori-
cal claim.
The first example relied upon by respondent, the extension
of Oliver Evans’ patent in 1808, ch. 13, 6 Stat. 70, demon-
strates the pitfalls of relying on an incomplete historical
analysis. Evans, an inventor who had developed several im-
provements in milling flour, received the third federal patent
on January 7, 1791. See Federico, Patent Trials of Oliver
Evans, 27 J. Pat. Off. Soc. 586, 590 (1945). Under the 14-year
term provided by the 1790 Patent Act, this patent was to
expire on January 7, 1805. Claiming that 14 years had not
provided him a sufficient time to realize income from his
invention and that the net profits were spent developing
improvements on the steam engine, Evans first sought an
extension of his patent in December 1804. Id., at 598; 14
Annals of Cong. 1002 (1805). Unsuccessful in 1804, he tried
again in 1805, and yet again in 1806, to persuade Congress
to pass his private bill. Undaunted, Evans tried one last
time to revive his expired patent after receiving an adverse
judgment in an infringement action. See Evans v. Cham-
bers, 8 F. Cas. 837 (No. 4,555) (CC Pa. 1807). This time, his
effort at private legislation was successful, and Congress
passed a bill extending his patent for 14 years. See An Act
for the relief of Oliver Evans, 6 Stat. 70. This legislation,
passed January 21, 1808, restored a patent monopoly for an
invention that had been in the public domain for over four
years. As such, this Act unquestionably exceeded Congress’
authority under the Copyright/Patent Clause: “The Con-
gress in the exercise of the patent power may not overreach
the restraints imposed by the stated constitutional pur-
pose. . . . Congress may not authorize the issuance of pat-
ents whose effects are to remove existent knowledge from
the public domain, or to restrict free access to materials
already available.” Graham, 383 U. S., at 5–6 (emphasis
added).

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
235 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
This extension of patent protection to an expired patent
was not an isolated incident. Congress passed private bills
either directly extending patents or allowing otherwise un-
timely applicants to apply for patent extensions for approxi-
mately 75 patents between 1790 and 1875. Of these 75 pat-
ents, at least 56 had already fallen into the public domain.10
The fact that this repeated practice was patently unconstitu-
tional completely undermines the majority’s reliance on this
history as “significant.” Ante, at 201.
Copyright legislation has a similar history. The federal
Copyright Act was first amended in 1831. That amendment,
like later amendments, not only authorized a longer term
for new works, but also extended the terms of unexpired
copyrights. Respondent argues that that historical practice
effectively establishes the constitutionality of retroactive ex-
tensions of unexpired copyrights. Of course, the practice
buttressess the presumption of validity that attaches to
every Act of Congress. But, as our decision in INS v.
Chadha, 462 U. S. 919 (1983), demonstrates, the fact that
Congress has repeatedly acted on a mistaken interpretation
of the Constitution does not qualify our duty to invalidate an
unconstitutional practice when it is finally challenged in an
appropriate case. As Justice White pointed out in his dis-
sent in Chadha, that case sounded the “death knell for nearly
200 other statutory provisions” in which Congress had exer-
cised a “ ‘legislative veto.’ ” Id., at 967. Regardless of the
effect of unconstitutional enactments of Congress, the scope
of “ ‘the constitutional power of Congress . . . is ultimately a
10 See, e. g., ch. 74, 6 Stat. 458 (patent had expired for three months);
ch. 113, 6 Stat. 467 (patent had expired for over two years); ch. 213, 6 Stat.
589 (patent had expired for five months); ch. 158, 9 Stat. 734 (patent had
expired for over two years); ch. 72, 14 Stat. 621 (patent had expired nearly
four years); ch. 175, 15 Stat. 461 (patent had expired for over two years);
ch. 15, 16 Stat. 613 (patent had expired for six years); ch. 317, 16 Stat. 659
(patent had expired for nearly four years); ch. 439, 17 Stat. 689 (patent
had expired for over two years).

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
236 ELDRED v. ASHCROFT
Stevens, J., dissenting
judicial rather than a legislative question, and can be settled
finally only by this Court.’ ” United States v. Morrison, 529
U. S. 598, 614 (2000) (quoting Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241, 273 (1964) (Black, J., concur-
ring)). For, as this Court has long recognized, “[i]t is obvi-
ously correct that no one acquires a vested or protected right
in violation of the Constitution by long use, even when that
span of time covers our entire national existence.” Walz v.
Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970).
It would be particularly unwise to attach constitutional
significance to the 1831 amendment because of the very dif-
ferent legal landscape against which it was enacted. Con-
gress based its authority to pass the amendment on grounds
shortly thereafter declared improper by the Court. The Ju-
diciary Committee Report prepared for the House of Repre-
sentatives asserted that “an author has an exclusive and per-
petual right, in preference to any other, to the fruits of his
labor.” 7 Cong. Deb., App., p. cxx (1831). The floor debate
echoed this same sentiment. See, e. g., id., at 424 (statement
of Mr. Verplanck (rejecting the idea that copyright involved
“an implied contract existing between an author and the pub-
lic” for “[t]here was no contract; the work of an author was
the result of his own labor” and copyright was “merely a
legal provision for the protection of a natural right”)). This
sweat-of-the-brow view of copyright, however, was emphati-
cally rejected by this Court in 1834 in Wheaton v. Peters, 8
Pet., at 661 (“Congress, then, by this act, instead of sanction-
ing an existing right, as contended for, created it”). No pre-
sumption of validity should attach to a statutory enactment
that relied on a shortly thereafter discredited interpretation
of the basis for congressional power.11
11 In the period before our decision in Wheaton, the pre-emptive effect
of the Patent/Copyright Clause was also a matter of serious debate within
the legal profession. Indeed, in their argument in this Court in Gibbons
v. Ogden, 9 Wheat., at 44–61, 141–157, the defenders of New York’s grant
of a 30-year monopoly on the passenger trade between New Jersey and

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
237 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
In 1861, Congress amended the term of patents, from a
14-year term plus opportunity for 7-year extension to a flat
17 years with no extension permitted. Act of Mar. 2, 1861,
ch. 88, § 16, 12 Stat. 249. This change was not retroactive,
but rather only applied to “all patents hereafter granted.”
Ibid. To be sure, Congress, at many times in its history, has
retroactively extended the terms of existing copyrights and
patents. This history, however, reveals a much more het-
erogeneous practice than respondent contends. It is replete
with actions that were unquestionably unconstitutional.
Though relevant, the history is not dispositive of the consti-
tutionality of the Sonny Bono Act.
The general presumption that historic practice illuminates
the constitutionality of congressional action is not controlling
in this case. That presumption is strongest when the earli-
est acts of Congress are considered, for the overlap of iden-
tity between those who created the Constitution and those
who first constituted Congress provides “contemporaneous
and weighty evidence” of the Constitution’s “true meaning.”
Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888). But
that strong presumption does not attach to congressional ac-
tion in 1831, because no member of the 1831 Congress had
been a delegate to the framing convention 44 years earlier.
Moreover, judicial opinions relied upon by the majority in-
terpreting early legislative enactments have either been im-
plicitly overruled or do not support the proposition claimed.
Graham flatly contradicts the cases relied on by the majority
and respondent for support that “renewed or extended terms
Manhattan argued that the Clause actually should be interpreted as con-
firming the State’s authority to grant monopoly privileges that supple-
mented any federal grant. That argument is, of course, flatly inconsistent
with our recent unanimous decision in Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U. S. 141 (1989). Although Attorney General Wirt had
urged the Court to endorse our present interpretation of the Clause, its
implicit limitations were unsettled when the 1831 Copyright Act was
passed.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
238 ELDRED v. ASHCROFT
Stevens, J., dissenting
were upheld in the early days.” Ante, at 202.12 Evans v.
Jordan, 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall,
J.); Evans v. Robinson, 8 F. Cas. 886, 888 (No. 4,571) (CC Md.
1813); and Blanchard v. Sprague, 3 F. Cas. 648, 650 (No.
1,518) (CC Mass. 1839) (Story, J.), all held that private bills
passed by Congress extending previously expired patents
were valid. Evans v. Jordan and Evans v. Robinson both
considered Oliver Evans’ private bill discussed above while
Blanchard involved ch. 213, 6 Stat. 589, which extended
Thomas Blanchard’s patent after it had been in the public
domain for five months. Irrespective of what circuit courts
held “in the early days,” ante, at 202, such holdings have been
implicitly overruled by Graham and, therefore, provide no
support for respondent in the present constitutional inquiry.
The majority’s reliance on the other patent case it cites is
similarly misplaced. Contrary to the suggestion in the
Court’s opinion, McClurg v. Kingsland, 1 How. 202 (1843),
did not involve the “legislative expansion” of an existing
patent. Ante, at 202. The question in that case was
whether the former employer of the inventor, one James
Harley, could be held liable as an infringer for continuing to
use the process that Harley had invented in 1834 when he
was in its employ. The Court first held that the employer’s
use of the process before the patent issued was not a public
12 It is true, as the majority points out, ante, at 202, n. 7, that Graham
did not expressly overrule those earlier cases because Graham did not
address the issue whether Congress could revive expired patents. That
observation does not even arguably justify reliance on a set of old circuit
court cases to support a proposition that is inconsistent with our present
understanding of the limits imposed by the Copyright/Patent Clause.
After all, a unanimous Court recently endorsed the precise analysis that
the majority now seeks to characterize as “wishful thinking.” Ante, at
202, n. 7. See Bonito Boats, 489 U. S., at 146 (“Congress may not create
patent monopolies of unlimited duration, nor may it ‘authorize the issuance
of patents whose effects are to remove existent knowledge from the public
domain, or to restrict free access to materials already available’ ” (quoting
Graham, 383 U. S., at 6)).

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
239 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
use that would invalidate the patent, even if it might have
had that effect prior to the amendment of the patent statute
in 1836. 1 How., at 206–208. The Court then disposed of
the case on the ground that a statute enacted in 1839 pro-
tected the alleged infringer’s right to continue to use the
process after the patent issued. Id., at 209–211. Our opin-
ion said nothing about the power of Congress to extend the
life of an issued patent. It did note that Congress has ple-
nary power to legislate on the subject of patents provided
“that they do not take away the rights of property in exist-
ing patents.” Id., at 206. The fact that Congress cannot
change the bargain between the public and the patentee in
a way that disadvantages the patentee is, of course, fully
consistent with the view that it cannot enlarge the patent
monopoly to the detriment of the public after a patent has
issued.
The history of retroactive extensions of existing and ex-
pired copyrights and patents, though relevant, is not conclu-
sive of the constitutionality of the Sonny Bono Act. The
fact that the Court has not previously passed upon the con-
stitutionality of retroactive copyright extensions does not in-
sulate the present extension from constitutional challenge.
V
Respondent also argues that the Act promotes the useful
arts by providing incentives to restore old movies. For at
least three reasons, the interest in preserving perishable
copies of old copyrighted films does not justify a wholesale
extension of existing copyrights. First, such restoration
and preservation will not even arguably promote any new
works by authors or inventors. And, of course, any original
expression in the restoration and preservation of movies will
receive new copyright protection.13 Second, however strong
13 Indeed, the Lodging of the Motion Picture Association of America,
Inc., as Amicus Curiae illustrates the significant creative work involved
in releasing these classics. The Casablanca Digital Video Disc (DVD) con-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
240 ELDRED v. ASHCROFT
Stevens, J., dissenting
the justification for preserving such works may be, that jus-
tification applies equally to works whose copyrights have
already expired. Yet no one seriously contends that the
Copyright/Patent Clause would authorize the grant of mo-
nopoly privileges for works already in the public domain
solely to encourage their restoration. Finally, even if this
concern with aging movies would permit congressional pro-
tection, the remedy offered—a blanket extension of all copy-
rights—simply bears no relationship to the alleged harm.
VI
Finally, respondent relies on concerns of equity to justify
the retroactive extension. If Congress concludes that a
longer period of exclusivity is necessary in order to provide
an adequate incentive to authors to produce new works, re-
spondent seems to believe that simple fairness requires that
the same lengthened period be provided to authors whose
works have already been completed and copyrighted. This
is a classic non sequitur. The reason for increasing the in-
ducement to create something new simply does not apply to
an already-created work. To the contrary, the equity ar-
gument actually provides strong support for petitioners.
Members of the public were entitled to rely on a promised
access to copyrighted or patented works at the expiration
of the terms specified when the exclusive privileges were
granted. On the other hand, authors will receive the full
benefit of the exclusive terms that were promised as an in-
ducement to their creativity, and have no equitable claim to
increased compensation for doing nothing more.
tains a “documentary You Must Remember This, hosted by Lauren Bacall
and featuring recently unearthed outtakes” and an “[a]ll-new introduction
by Lauren Bacall.” Disc cover text. Similarly, the Citizen Kane DVD
includes “[t]wo feature-length audio commentaries: one by film critic
Roger Ebert and the other by director/Welles biographer Peter Bogdano-
vich” and a “gallery of storyboards, rare photos, alternate ad campaigns,
studio correspondence, call sheets and other memorabilia” in addition to a
2-hour documentary. Disc cover text.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
241 Cite as: 537 U. S. 186 (2003)
Stevens, J., dissenting
One must indulge in two untenable assumptions to find
support in the equitable argument offered by respondent—
that the public interest in free access to copyrighted works
is entirely worthless and that authors, as a class, should re-
ceive a windfall solely based on completed creative activity.
Indeed, Congress has apparently indulged in those assump-
tions for under the series of extensions to copyrights, with
the exception of works which required renewal and which
were not renewed, no copyrighted work created in the past
80 years has entered the public domain or will do so until
2019. But as our cases repeatedly and consistently empha-
size, ultimate public access is the overriding purpose of the
constitutional provision. See, e. g., Sony Corp., 464 U. S., at
429. Ex post facto extensions of existing copyrights, unsup-
ported by any consideration of the public interest, frustrate
the central purpose of the Clause.
VII
The express grant of a perpetual copyright would unques-
tionably violate the textual requirement that the authors’
exclusive rights be only “for limited Times.” Whether the
extraordinary length of the grants authorized by the 1998
Act are invalid because they are the functional equivalent of
perpetual copyrights is a question that need not be answered
in this case because the question presented by the certiorari
petition merely challenges Congress’ power to extend ret-
roactively the terms of existing copyrights. Accordingly,
there is no need to determine whether the deference that is
normally given to congressional policy judgments may save
from judicial review its decision respecting the appropriate
length of the term.14 It is important to note, however, that
14 Similarly, the validity of earlier retroactive extensions of copyright
protection is not at issue in this case. To decide the question now pre-
sented, we need not consider whether the reliance and expectation inter-
ests that have been established by prior extensions passed years ago
would alter the result. Cf. Heckler v. Mathews, 465 U. S. 728, 746 (1984)

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
242 ELDRED v. ASHCROFT
Breyer, J., dissenting
a categorical rule prohibiting retroactive extensions would
effectively preclude perpetual copyrights. More impor-
tantly, as the House of Lords recognized when it refused to
amend the Statute of Anne in 1735, unless the Clause is
construed to embody such a categorical rule, Congress may
extend existing monopoly privileges ad infinitum under
the majority’s analysis.
By failing to protect the public interest in free access to
the products of inventive and artistic genius—indeed, by vir-
tually ignoring the central purpose of the Copyright/Patent
Clause—the Court has quitclaimed to Congress its principal
responsibility in this area of the law. Fairly read, the Court
has stated that Congress’ actions under the Copyright/
Patent Clause are, for all intents and purposes, judicially un-
reviewable. That result cannot be squared with the basic
tenets of our constitutional structure. It is not hyperbole to
recall the trenchant words of Chief Justice John Marshall:
“It is emphatically the province and duty of the judicial de-
partment to say what the law is.” Marbury v. Madison, 1
Cranch 137, 177 (1803). We should discharge that responsi-
bility as we did in Chadha.
I respectfully dissent.
Justice Breyer, dissenting.
The Constitution’s Copyright Clause grants Congress the
power to “promote the Progress of Science . . . by securing
for limited Times to Authors . . . the exclusive Right to their
respective Writings.” Art. I, § 8, cl. 8 (emphasis added).
The statute before us, the 1998 Sonny Bono Copyright Term
Extension Act, extends the term of most existing copyrights
(“We have recognized, in a number of contexts, the legitimacy of protect-
ing reasonable reliance on prior law even when that requires allowing an
unconstitutional statute to remain in effect for a limited period of time”).
Those interests are not at issue now, because the act under review in this
case was passed only four years ago and has been under challenge in court
since shortly after its enactment.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
243 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
to 95 years and that of many new copyrights to 70 years
after the author’s death. The economic effect of this 20-year
extension—the longest blanket extension since the Nation’s
founding—is to make the copyright term not limited, but vir-
tually perpetual. Its primary legal effect is to grant the
extended term not to authors, but to their heirs, estates, or
corporate successors. And most importantly, its practical
effect is not to promote, but to inhibit, the progress of “Sci-
ence”—by which word the Framers meant learning or knowl-
edge, E. Walterscheid, The Nature of the Intellectual Prop-
erty Clause: A Study in Historical Perspective 125–126
(2002).
The majority believes these conclusions rest upon practical
judgments that at most suggest the statute is unwise, not
that it is unconstitutional. Legal distinctions, however, are
often matters of degree. Panhandle Oil Co. v. Mississippi
ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting),
overruled in part by Alabama v. King & Boozer, 314 U. S. 1,
8–9 (1941); accord, Walz v. Tax Comm’n of City of New York,
397 U. S. 664, 678–679 (1970). And in this case the failings
of degree are so serious that they amount to failings of
constitutional kind. Although the Copyright Clause grants
broad legislative power to Congress, that grant has limits.
And in my view this statute falls outside them.
I
The “monopoly privileges” that the Copyright Clause
confers “are neither unlimited nor primarily designed to pro-
vide a special private benefit.” Sony Corp. of America v.
Universal City Studios, Inc., 464 U. S. 417, 429 (1984);
cf. Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5
(1966). This Court has made clear that the Clause’s limi-
tations are judicially enforceable. E. g., Trade-Mark Cases,
100 U. S. 82, 93–94 (1879). And, in assessing this statute for
that purpose, I would take into account the fact that the
Constitution is a single document, that it contains both a

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
244 ELDRED v. ASHCROFT
Breyer, J., dissenting
Copyright Clause and a First Amendment, and that the two
are related.
The Copyright Clause and the First Amendment seek re-
lated objectives—the creation and dissemination of informa-
tion. When working in tandem, these provisions mutually
reinforce each other, the first serving as an “engine of free
expression,” Harper & Row, Publishers, Inc. v. Nation En-
terprises, 471 U. S. 539, 558 (1985), the second assuring that
government throws up no obstacle to its dissemination. At
the same time, a particular statute that exceeds proper
Copyright Clause bounds may set Clause and Amendment at
cross-purposes, thereby depriving the public of the speech-
related benefits that the Founders, through both, have
promised.
Consequently, I would review plausible claims that a
copyright statute seriously, and unjustifiably, restricts the
dissemination of speech somewhat more carefully than
reference to this Court’s traditional Copyright Clause juris-
prudence might suggest, cf. ante, at 204–205, and n. 10.
There is no need in this case to characterize that review as
a search for “ ‘congruence and proportionality,’ ” ante, at 218,
or as some other variation of what this Court has called “in-
termediate scrutiny,” e. g., San Francisco Arts & Athletics,
Inc. v. United States Olympic Comm., 483 U. S. 522, 536–537
(1987) (applying intermediate scrutiny to a variant of nor-
mal trademark protection). Cf. Nixon v. Shrink Missouri
Government PAC, 528 U. S. 377, 402–403 (2000) (Breyer,
J., concurring) (test of proportionality between burdens and
benefits “where a law significantly implicates competing
constitutionally protected interests”). Rather, it is neces-
sary only to recognize that this statute involves not pure
economic regulation, but regulation of expression, and what
may count as rational where economic regulation is at issue
is not necessarily rational where we focus on expression—in
a Nation constitutionally dedicated to the free dissemination
of speech, information, learning, and culture. In this sense

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
245 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
only, and where line-drawing among constitutional interests
is at issue, I would look harder than does the majority at the
statute’s rationality—though less hard than precedent might
justify, see, e. g., Cleburne v. Cleburne Living Center, Inc.,
473 U. S. 432, 446–450 (1985); Plyler v. Doe, 457 U. S. 202,
223–224 (1982); Department of Agriculture v. Moreno, 413
U. S. 528, 534–538 (1973).
Thus, I would find that the statute lacks the constitution-
ally necessary rational support (1) if the significant benefits
that it bestows are private, not public; (2) if it threatens seri-
ously to undermine the expressive values that the Copyright
Clause embodies; and (3) if it cannot find justification in
any significant Clause-related objective. Where, after ex-
amination of the statute, it becomes difficult, if not impos-
sible, even to dispute these characterizations, Congress’
“choice is clearly wrong.” Helvering v. Davis, 301 U. S. 619,
640 (1937).
II
A
Because we must examine the relevant statutory effects
in light of the Copyright Clause’s own purposes, we should
begin by reviewing the basic objectives of that Clause. The
Clause authorizes a “tax on readers for the purpose of giving
a bounty to writers.” 56 Parl. Deb. (3d Ser.) (1841) 341, 350
(Lord Macaulay). Why? What constitutional purposes
does the “bounty” serve?
The Constitution itself describes the basic Clause objective
as one of “promot[ing] the Progress of Science,” i. e., knowl-
edge and learning. The Clause exists not to “provide a spe-
cial private benefit,” Sony, supra, at 429, but “to stimulate
artistic creativity for the general public good,” Twentieth
Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). It
does so by “motivat[ing] the creative activity of authors”
through “the provision of a special reward.” Sony, supra,
at 429. The “reward” is a means, not an end. And that is

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
246 ELDRED v. ASHCROFT
Breyer, J., dissenting
why the copyright term is limited. It is limited so that its
beneficiaries—the public—“will not be permanently de-
prived of the fruits of an artist’s labors.” Stewart v. Abend,
495 U. S. 207, 228 (1990).
That is how the Court previously has described the
Clause’s objectives. See also Mazer v. Stein, 347 U. S. 201,
219 (1954) (“[C]opyright law . . . makes reward to the owner
a secondary consideration” (internal quotation marks omit-
ted)); Sony, 464 U. S., at 429 (“[L]imited grant” is “in-
tended . . . to allow the public access to the products of
[authors’] genius after the limited period of exclusive control
has expired”); Harper & Row, supra, at 545 (Copyright is
“intended to increase and not to impede the harvest of
knowledge”). But cf. ante, at 212, n. 18. And, in doing so,
the Court simply has reiterated the views of the Founders.
Madison, like Jefferson and others in the founding gen-
eration, warned against the dangers of monopolies. See,
e. g., Monopolies. Perpetuities. Corporations. Ecclesias-
tical Endowments. in J. Madison, Writings 756 (J. Rakove
ed. 1999) (hereinafter Madison on Monopolies); Letter from
Thomas Jefferson to James Madison (July 31, 1788), in 13
Papers of Thomas Jefferson 443 (J. Boyd ed. 1956) (herein-
after Papers of Thomas Jefferson) (arguing against even
copyright monopolies); 2 Annals of Cong. 1917 (1791) (state-
ment of Rep. Jackson in the First Congress, Feb. 1791)
(“What was it drove our forefathers to this country? Was
it not the ecclesiastical corporations and perpetual monopo-
lies of England and Scotland?”). Madison noted that the
Constitution had “limited them to two cases, the authors of
Books, and of useful inventions.” Madison on Monopolies
756. He thought that in those two cases monopoly is justi-
fied because it amounts to “compensation for” an actual com-
munity “benefit” and because the monopoly is “temporary”—
the term originally being 14 years (once renewable). Ibid.
Madison concluded that “under that limitation a sufficient rec-
ompence and encouragement may be given.” Ibid. But

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
247 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
he warned in general that monopolies must be “guarded with
strictness agst abuse.” Ibid.
Many Members of the Legislative Branch have expressed
themselves similarly. Those who wrote the House Report
on the landmark Copyright Act of 1909, for example, said
that copyright was not designed “primarily” to “benefit” the
“author” or “any particular class of citizens, however wor-
thy.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 6–7 (1909).
Rather, under the Constitution, copyright was designed “pri-
marily for the benefit of the public,” for “the benefit of the
great body of people, in that it will stimulate writing and
invention.” Id., at 7. And were a copyright statute not
“believed, in fact, to accomplish” the basic constitutional ob-
jective of advancing learning, that statute “would be beyond
the power of Congress” to enact. Id., at 6–7. Similarly,
those who wrote the House Report on legislation that imple-
mented the Berne Convention for the Protection of Literary
and Artistic Works said that “[t]he constitutional purpose of
copyright is to facilitate the flow of ideas in the interest of
learning.” H. R. Rep. No. 100–609, p. 22 (1988) (internal
quotation marks omitted). They added:
“Under the U. S. Constitution, the primary objective of
copyright law is not to reward the author, but rather to
secure for the public the benefits derived from the au-
thors’ labors. By giving authors an incentive to create,
the public benefits in two ways: when the original ex-
pression is created and . . . when the limited term . . .
expires and the creation is added to the public domain.”
Id., at 17.
For present purposes, then, we should take the following
as well established: that copyright statutes must serve pub-
lic, not private, ends; that they must seek “to promote the
Progress” of knowledge and learning; and that they must do
so both by creating incentives for authors to produce and
by removing the related restrictions on dissemination after

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
248 ELDRED v. ASHCROFT
Breyer, J., dissenting
expiration of a copyright’s “limited Tim[e]”—a time that
(like “a limited monarch”) is “restrain[ed]” and “circum-
scribe[d],” “not [left] at large,” 2 S. Johnson, A Dictionary of
the English Language 1151 (4th rev. ed. 1773). I would
examine the statute’s effects in light of these well-
established constitutional purposes.
B
This statute, like virtually every copyright statute, im-
poses upon the public certain expression-related costs in the
form of (1) royalties that may be higher than necessary to
evoke creation of the relevant work, and (2) a requirement
that one seeking to reproduce a copyrighted work must ob-
tain the copyright holder’s permission. The first of these
costs translates into higher prices that will potentially re-
strict a work’s dissemination. The second means search
costs that themselves may prevent reproduction even where
the author has no objection. Although these costs are, in a
sense, inevitable concomitants of copyright protection, there
are special reasons for thinking them especially serious here.
First, the present statute primarily benefits the holders of
existing copyrights, i. e., copyrights on works already cre-
ated. And a Congressional Research Service (CRS) study
prepared for Congress indicates that the added royalty-
related sum that the law will transfer to existing copyright
holders is large. E. Rappaport, CRS Report for Congress,
Copyright Term Extension: Estimating the Economic Values
(1998) (hereinafter CRS Report). In conjunction with offi-
cial figures on copyright renewals, the CRS Report indicates
that only about 2% of copyrights between 55 and 75 years
old retain commercial value—i. e., still generate royalties
after that time. Brief for Petitioners 7 (estimate, uncon-
tested by respondent, based on data from the CRS, Census
Bureau, and Library of Congress). But books, songs, and
movies of that vintage still earn about $400 million per year
in royalties. CRS Report 8, 12, 15. Hence, (despite declin-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
249 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
ing consumer interest in any given work over time) one
might conservatively estimate that 20 extra years of copy-
right protection will mean the transfer of several billion
extra royalty dollars to holders of existing copyrights—copy-
rights that, together, already will have earned many billions
of dollars in royalty “reward.” See id., at 16.
The extra royalty payments will not come from thin air.
Rather, they ultimately come from those who wish to read
or see or hear those classic books or films or recordings that
have survived. Even the $500,000 that United Airlines has
had to pay for the right to play George Gershwin’s 1924 clas-
sic Rhapsody in Blue represents a cost of doing business,
potentially reflected in the ticket prices of those who fly.
See Ganzel, Copyright or Copywrong? 39 Training 36, 42
(Dec. 2002). Further, the likely amounts of extra royalty
payments are large enough to suggest that unnecessarily
high prices will unnecessarily restrict distribution of classic
works (or lead to disobedience of the law)—not just in theory
but in practice. Cf. CRS Report 3 (“[N]ew, cheaper editions
can be expected when works come out of copyright”); Brief
for College Art Association et al. as Amici Curiae 24 (One
year after expiration of copyright on Willa Cather’s My An-
tonia, seven new editions appeared at prices ranging from $2
to $24); Ganzel, supra, at 40–41, 44 (describing later aban-
doned plans to charge individual Girl Scout camps $257 to
$1,439 annually for a license to sing songs such as God Bless
America around a campfire).
A second, equally important, cause for concern arises out
of the fact that copyright extension imposes a “permissions”
requirement—not only upon potential users of “classic”
works that still retain commercial value, but also upon poten-
tial users of any other work still in copyright. Again using
CRS estimates, one can estimate that, by 2018, the number
of such works 75 years of age or older will be about 350,000.
See Brief for Petitioners 7. Because the Copyright Act of
1976 abolished the requirement that an owner must renew a

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
250 ELDRED v. ASHCROFT
Breyer, J., dissenting
copyright, such still-in-copyright works (of little or no com-
mercial value) will eventually number in the millions. See
Pub. L. 94–553, §§ 302–304, 90 Stat. 2572–2576; U. S. Dept. of
Commerce, Bureau of Census, Statistical History of the
United States: From Colonial Times to the Present 956
(1976) (hereinafter Statistical History).
The potential users of such works include not only movie
buffs and aging jazz fans, but also historians, scholars, teach-
ers, writers, artists, database operators, and researchers of
all kinds—those who want to make the past accessible for
their own use or for that of others. The permissions re-
quirement can inhibit their ability to accomplish that task.
Indeed, in an age where computer-accessible databases
promise to facilitate research and learning, the permissions
requirement can stand as a significant obstacle to realization
of that technological hope.
The reason is that the permissions requirement can inhibit
or prevent the use of old works (particularly those without
commercial value): (1) because it may prove expensive to
track down or to contract with the copyright holder,
(2) because the holder may prove impossible to find, or
(3) because the holder when found may deny permission
either outright or through misinformed efforts to bargain.
The CRS, for example, has found that the cost of seeking
permission “can be prohibitive.” CRS Report 4. And
amici, along with petitioners, provide examples of the kinds
of significant harm at issue.
Thus, the American Association of Law Libraries points
out that the clearance process associated with creating an
electronic archive, Documenting the American South, “con-
sumed approximately a dozen man-hours” per work. Brief
for American Association of Law Libraries et al. as Amici
Curiae 20. The College Art Association says that the costs
of obtaining permission for use of single images, short ex-
cerpts, and other short works can become prohibitively high;
it describes the abandonment of efforts to include, e. g., cam-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
251 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
paign songs, film excerpts, and documents exposing “horrors
of the chain gang” in historical works or archives; and it
points to examples in which copyright holders in effect have
used their control of copyright to try to control the content
of historical or cultural works. Brief for College Art Asso-
ciation et al. as Amici Curiae 7–13. The National Writers
Union provides similar examples. Brief for National Writ-
ers Union et al. as Amici Curiae 25–27. Petitioners point
to music fees that may prevent youth or community orches-
tras, or church choirs, from performing early 20th-century
music. Brief for Petitioners 3–5; see also App. 16–17 (Copy-
right extension caused abandonment of plans to sell sheet
music of Maurice Ravel’s Alborada Del Gracioso). Amici for
petitioners describe how electronic databases tend to avoid
adding to their collections works whose copyright holders
may prove difficult to contact, see, e. g., Arms, Getting the
Picture: Observations from the Library of Congress on Pro-
viding Online Access to Pictorial Images, 48 Library Trends
379, 405 (1999) (describing how this tendency applies to the
Library of Congress’ own digital archives).
As I have said, to some extent costs of this kind accom-
pany any copyright law, regardless of the length of the copy-
right term. But to extend that term, preventing works
from the 1920’s and 1930’s from falling into the public do-
main, will dramatically increase the size of the costs just as—
perversely—the likely benefits from protection diminish.
See infra, at 254–256. The older the work, the less likely it
retains commercial value, and the harder it will likely prove
to find the current copyright holder. The older the work,
the more likely it will prove useful to the historian, artist, or
teacher. The older the work, the less likely it is that a sense
of authors’ rights can justify a copyright holder’s decision
not to permit reproduction, for the more likely it is that the
copyright holder making the decision is not the work’s cre-
ator, but, say, a corporation or a great-grandchild whom the
work’s creator never knew. Similarly, the costs of obtaining

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
252 ELDRED v. ASHCROFT
Breyer, J., dissenting
permission, now perhaps ranging in the millions of dollars,
will multiply as the number of holders of affected copyrights
increases from several hundred thousand to several million.
See supra, at 249–250. The costs to the users of nonprofit
databases, now numbering in the low millions, will multiply
as the use of those computer-assisted databases becomes
more prevalent. See, e. g., Brief for Internet Archive et al.
as Amici Curiae 2, 21, and n. 37 (describing nonprofit Project
Gutenberg). And the qualitative costs to education, learn-
ing, and research will multiply as our children become ever
more dependent for the content of their knowledge upon
computer-accessible databases—thereby condemning that
which is not so accessible, say, the cultural content of early
20th-century history, to a kind of intellectual purgatory from
which it will not easily emerge.
The majority finds my description of these permissions-
related harms overstated in light of Congress’ inclusion of a
statutory exemption, which, during the last 20 years of a
copyright term, exempts “facsimile or digital” reproduction
by a “library or archives” “for purposes of preservation,
scholarship, or research,” 17 U. S. C. § 108(h). Ante, at 220.
This exemption, however, applies only where the copy is
made for the special listed purposes; it simply permits a li-
brary (not any other subsequent users) to make “a copy” for
those purposes; it covers only “published” works not “subject
to normal commercial exploitation” and not obtainable, ap-
parently not even as a used copy, at a “reasonable price”;
and it insists that the library assure itself through “reason-
able investigation” that these conditions have been met.
§ 108(h). What database proprietor can rely on so limited
an exemption—particularly when the phrase “reasonable in-
vestigation” is so open-ended and particularly if the database
has commercial, as well as noncommercial, aspects?
The majority also invokes the “fair use” exception, and it
notes that copyright law itself is restricted to protection of
a work’s expression, not its substantive content. Ante, at

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
253 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
219–220. Neither the exception nor the restriction, how-
ever, would necessarily help those who wish to obtain from
electronic databases material that is not there—say, teachers
wishing their students to see albums of Depression Era pho-
tographs, to read the recorded words of those who actually
lived under slavery, or to contrast, say, Gary Cooper’s heroic
portrayal of Sergeant York with filmed reality from the bat-
tlefield of Verdun. Such harm, and more, see supra, at 248–
252, will occur despite the 1998 Act’s exemptions and despite
the other “First Amendment safeguards” in which the ma-
jority places its trust, ante, at 219–220.
I should add that the Motion Picture Association of
America also finds my concerns overstated, at least with re-
spect to films, because the extension will sometimes make it
profitable to reissue old films, saving them from extinction.
Brief for Motion Picture Association of America, Inc., as
Amicus Curiae 14–24. Other film preservationists note,
however, that only a small minority of the many films, partic-
ularly silent films, from the 1920’s and 1930’s have been pre-
served. 1 Report of the Librarian of Congress, Film Pres-
ervation 1993, pp. 3–4 (Half of all pre-1950 feature films and
more than 80% of all such pre-1929 films have already been
lost); cf. Brief for Hal Roach Studios et al. as Amici
Curiae 18 (Out of 1,200 Twenties Era silent films still under
copyright, 63 are now available on digital video disc). They
seek to preserve the remainder. See, e. g., Brief for Internet
Archive et al. as Amici Curiae 22 (Nonprofit database digi-
tized 1,001 public-domain films, releasing them online with-
out charge); 1 Film Preservation 1993, supra, at 23 (report-
ing well over 200,000 titles held in public archives). And
they tell us that copyright extension will impede preserva-
tion by forbidding the reproduction of films within their own
or within other public collections. Brief for Hal Roach Stu-
dios et al. as Amici Curiae 10–21; see also Brief for Internet
Archive et al. as Amici Curiae 16–29; Brief for American
Association of Law Libraries et al. as Amici Curiae 26–27.

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
254 ELDRED v. ASHCROFT
Breyer, J., dissenting
Because this subsection concerns only costs, not counter-
vailing benefits, I shall simply note here that, with respect
to films as with respect to other works, extension does cause
substantial harm to efforts to preserve and to disseminate
works that were created long ago. And I shall turn to the
second half of the equation: Could Congress reasonably have
found that the extension’s toll-related and permissions-
related harms are justified by extension’s countervailing
preservationist incentives or in other ways?
C
What copyright-related benefits might justify the statute’s
extension of copyright protection? First, no one could rea-
sonably conclude that copyright’s traditional economic ra-
tionale applies here. The extension will not act as an eco-
nomic spur encouraging authors to create new works. See
Mazer, 347 U. S., at 219 (The “economic philosophy” of the
Copyright Clause is to “advance public welfare” by “encour-
ag[ing] individual effort” through “personal gain”); see also
ante, at 212, n. 18 (“[C]opyright law serves public ends by
providing individuals with an incentive to pursue private
ones”). No potential author can reasonably believe that he
has more than a tiny chance of writing a classic that will
survive commercially long enough for the copyright exten-
sion to matter. After all, if, after 55 to 75 years, only 2% of
all copyrights retain commercial value, the percentage sur-
viving after 75 years or more (a typical pre-extension copy-
right term)—must be far smaller. See supra, at 248; CRS Re-
port 7 (estimating that, even after copyright renewal, about
3.8% of copyrighted books go out of print each year). And
any remaining monetary incentive is diminished dramatically
by the fact that the relevant royalties will not arrive until
75 years or more into the future, when, not the author, but
distant heirs, or shareholders in a successor corporation, will
receive them. Using assumptions about the time value of
money provided us by a group of economists (including five

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
255 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
Nobel prize winners), Brief for George A. Akerlof et al. as
Amici Curiae 5–7, it seems fair to say that, for example, a
1% likelihood of earning $100 annually for 20 years, starting
75 years into the future, is worth less than seven cents today.
See id., App. 3a; see also CRS Report 5. See generally Ap-
pendix, Part A, infra.
What potential Shakespeare, Wharton, or Hemingway
would be moved by such a sum? What monetarily moti-
vated Melville would not realize that he could do better for
his grandchildren by putting a few dollars into an interest-
bearing bank account? The Court itself finds no evidence
to the contrary. It refers to testimony before Congress
(1) that the copyright system’s incentives encourage cre-
ation, and (2) (referring to Noah Webster) that income
earned from one work can help support an artist who “ ‘con-
tinue[s] to create.’ ” Ante, at 208, n. 15. But the first of
these amounts to no more than a set of undeniably true prop-
ositions about the value of incentives in general. And the
applicability of the second to this Act is mysterious. How
will extension help today’s Noah Webster create new works
50 years after his death? Or is that hypothetical Webster
supposed to support himself with the extension’s present dis-
counted value, i. e., a few pennies? Or (to change the meta-
phor) is the argument that Dumas fils would have written
more books had Dumas pe`re’s Three Musketeers earned
more royalties?
Regardless, even if this cited testimony were meant more
specifically to tell Congress that somehow, somewhere, some
potential author might be moved by the thought of great-
grandchildren receiving copyright royalties a century hence,
so might some potential author also be moved by the thought
of royalties being paid for two centuries, five centuries, 1,000
years, “ ’til the End of Time.” And from a rational economic
perspective the time difference among these periods makes
no real difference. The present extension will produce a
copyright period of protection that, even under conservative

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
256 ELDRED v. ASHCROFT
Breyer, J., dissenting
assumptions, is worth more than 99.8% of protection in per-
petuity (more than 99.99% for a songwriter like Irving Ber-
lin and a song like Alexander’s Ragtime Band). See Appen-
dix, Part A, infra. The lack of a practically meaningful
distinction from an author’s ex ante perspective between
(a) the statute’s extended terms and (b) an infinite term
makes this latest extension difficult to square with the Con-
stitution’s insistence on “limited Times.” Cf. Tr. of Oral
Arg. 34 (Solicitor General’s related concession).
I am not certain why the Court considers it relevant in this
respect that “[n]othing . . . warrants construction of the [1998
Act’s] 20-year term extension as a congressional attempt to
evade or override the ‘limited Times’ constraint.” Ante,
at 209. Of course Congress did not intend to act unconstitu-
tionally. But it may have sought to test the Constitution’s
limits. After all, the statute was named after a Member of
Congress, who, the legislative history records, “wanted the
term of copyright protection to last forever.” 144 Cong.
Rec. H9952 (daily ed. Oct. 7, 1998) (statement of Rep. Mary
Bono). See also Copyright Term, Film Labeling, and Film
Preservation Legislation: Hearings on H. R. 989 et al. before
the Subcommittee on Courts and Intellectual Property of the
House Judiciary Committee, 104th Cong., 1st Sess., 94 (1995)
(hereinafter House Hearings) (statement of Rep. Sonny
Bono) (questioning why copyrights should ever expire); ibid.
(statement of Rep. Berman) (“I guess we could . . . just make
a permanent moratorium on the expiration of copyrights”);
id., at 230 (statement of Rep. Hoke) (“Why 70 years? Why
not forever? Why not 150 years?”); cf. ibid. (statement of
the Register of Copyrights) (In Copyright Office proceed-
ings, “[t]he Songwriters Guild suggested a perpetual term”);
id., at 234 (statement of Quincy Jones) (“I’m particularly fas-
cinated with Representative Hoke’s statement. . . . [W]hy not
forever?”); id., at 277 (statement of Quincy Jones) (“If we can
start with 70, add 20, it would be a good start”). And the
statute ended up creating a term so long that (were the vest-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
257 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
ing of 19th-century real property at issue) it would typically
violate the traditional rule against perpetuities. See 10 R.
Powell, Real Property §§ 71.02[2]–[3], p. 71–11 (M. Wolf ed.
2002) (traditional rule that estate must vest, if at all, within
lives in being plus 21 years); cf. id., § 71.03, at 71–15 (modern
statutory perpetuity term of 90 years, 5 years shorter than
95-year copyright terms).
In any event, the incentive-related numbers are far too
small for Congress to have concluded rationally, even with
respect to new works, that the extension’s economic-
incentive effect could justify the serious expression-related
harms earlier described. See Part II–B, supra. And, of
course, in respect to works already created—the source of
many of the harms previously described—the statute creates
no economic incentive at all. See ante, at 226–227 (Ste-
vens, J., dissenting).
Second, the Court relies heavily for justification upon in-
ternational uniformity of terms. Ante, at 196, 205–206. Al-
though it can be helpful to look to international norms and
legal experience in understanding American law, cf. Printz
v. United States, 521 U. S. 898, 977 (1997) (Breyer, J., dis-
senting), in this case the justification based upon foreign
rules is surprisingly weak. Those who claim that significant
copyright-related benefits flow from greater international
uniformity of terms point to the fact that the nations of the
European Union have adopted a system of copyright terms
uniform among themselves. And the extension before this
Court implements a term of life plus 70 years that appears
to conform with the European standard. But how does
“uniformity” help to justify this statute?
Despite appearances, the statute does not create a uniform
American-European term with respect to the lion’s share of
the economically significant works that it affects—all works
made “for hire” and all existing works created prior to 1978.
See Appendix, Part B, infra. With respect to those works
the American statute produces an extended term of 95 years

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
258 ELDRED v. ASHCROFT
Breyer, J., dissenting
while comparable European rights in “for hire” works last
for periods that vary from 50 years to 70 years to life plus
70 years. Compare 17 U. S. C. §§ 302(c), 304(a)–(b), with
Council Directive 93/98/EEC of 29 October 1993 Harmonizing
the Term of Protection of Copyright and Certain Related
Rights, Arts. 1–3, 1993 Official J. Eur. Coms. (L 290), pp. 11–12
(hereinafter EU Council Directive 93/98). Neither does the
statute create uniformity with respect to anonymous or pseud-
onymous works. Compare 17 U. S. C. §§ 302(c), 304(a)–(b),
with EU Council Directive 93/98, Art. 1, p. 11.
The statute does produce uniformity with respect to copy-
rights in new, post-1977 works attributed to natural persons.
Compare 17 U. S. C. § 302(a) with EU Council Directive 93/
98, Art. 1(1), p. 11. But these works constitute only a subset
(likely a minority) of works that retain commercial value
after 75 years. See Appendix, Part B, infra. And the fact
that uniformity comes so late, if at all, means that bringing
American law into conformity with this particular aspect of
European law will neither encourage creation nor benefit the
long-dead author in any other important way.
What benefit, then, might this partial future uniformity
achieve? The majority refers to “greater incentive for
American and other authors to create and disseminate their
work in the United States,” and cites a law review article
suggesting a need to “ ‘avoid competitive disadvantages.’ ”
Ante, at 206. The Solicitor General elaborates on this
theme, postulating that because uncorrected disuniformity
would permit Europe, not the United States, to hold out the
prospect of protection lasting for “life plus 70 years” (instead
of “life plus 50 years”), a potential author might decide to
publish initially in Europe, delaying American publication.
Brief for Respondent 38. And the statute, by creating a uni-
formly longer term, corrects for the disincentive that this
disuniformity might otherwise produce.
That disincentive, however, could not possibly bring about
serious harm of the sort that the Court, the Solicitor Gen-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
259 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
eral, or the law review author fears. For one thing, it is
unclear just who will be hurt and how, should American pub-
lication come second—for the Berne Convention still offers
full protection as long as a second publication is delayed by
30 days. See Berne Conv. Arts. 3(4), 5(4). For another,
few, if any, potential authors would turn a “where to publish”
decision upon this particular difference in the length of the
copyright term. As we have seen, the present commercial
value of any such difference amounts at most to comparative
pennies. See supra, at 254–256. And a commercial deci-
sion that turned upon such a difference would have had to
have rested previously upon a knife edge so fine as to be
invisible. A rational legislature could not give major weight
to an invisible, likely nonexistent incentive-related effect.
But if there is no incentive-related benefit, what is the ben-
efit of the future uniformity that the statute only partially
achieves? Unlike the Copyright Act of 1976, this statute
does not constitute part of an American effort to conform to
an important international treaty like the Berne Convention.
See H. R. Rep. No. 94–1476, pp. 135–136 (1976) (The 1976
Act’s life-plus-50 term was “required for adherence to the
Berne Convention”); S. Rep. No. 94–473, p. 118 (1975) (same).
Nor does European acceptance of the longer term seem to
reflect more than special European institutional considera-
tions, i. e., the needs of, and the international politics sur-
rounding, the development of the European Union. House
Hearings 230 (statement of the Register of Copyrights); id.,
at 396–398 (statement of J. Reichman). European and
American copyright law have long coexisted despite impor-
tant differences, including Europe’s traditional respect for
authors’ “moral rights” and the absence in Europe of con-
stitutional restraints that restrict copyrights to “limited
Times.” See, e. g., Kwall, Copyright and the Moral Right:
Is an American Marriage Possible? 38 Vand. L. Rev. 1–3
(1985) (moral rights); House Hearings 187 (testimony of the
Register of Copyrights) (“limited [T]imes”).

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
260 ELDRED v. ASHCROFT
Breyer, J., dissenting
In sum, the partial, future uniformity that the 1998 Act
promises cannot reasonably be said to justify extension of
the copyright term for new works. And concerns with uni-
formity cannot possibly justify the extension of the new term
to older works, for the statute there creates no uniformity
at all.
Third, several publishers and filmmakers argue that the
statute provides incentives to those who act as publishers to
republish and to redistribute older copyrighted works. This
claim cannot justify this statute, however, because the ra-
tionale is inconsistent with the basic purpose of the Copy-
right Clause—as understood by the Framers and by this
Court. The Clause assumes an initial grant of monopoly, de-
signed primarily to encourage creation, followed by termina-
tion of the monopoly grant in order to promote dissemination
of already-created works. It assumes that it is the disap-
pearance of the monopoly grant, not its perpetuation, that
will, on balance, promote the dissemination of works already
in existence. This view of the Clause does not deny the em-
pirical possibility that grant of a copyright monopoly to the
heirs or successors of a long-dead author could on occasion
help publishers resurrect the work, say, of a long-lost Shake-
speare. But it does deny Congress the Copyright Clause
power to base its actions primarily upon that empirical possi-
bility—lest copyright grants become perpetual, lest on bal-
ance they restrict dissemination, lest too often they seek to
bestow benefits that are solely retroactive.
This view of the Clause finds strong support in the writ-
ings of Madison, in the antimonopoly environment in which
the Framers wrote the Clause, and in the history of the
Clause’s English antecedent, the Statute of Anne—a statute
which sought to break up a publishers’ monopoly by offering,
as an alternative, an author’s monopoly of limited duration.
See Patterson, Understanding the Copyright Clause, 47
J. Copyright Soc. 365, 379 (2000) (Statute of Anne); L. Pat-
terson, Copyright in Historical Perspective 144–147 (1968)

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
261 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
(same); Madison on Monopolies 756–757; Papers of Thomas
Jefferson 442–443; The Constitutional Convention and the
Formation of the Union 334, 338 (W. Solberg 2d ed. 1990);
see also supra, at 246–247.
This view finds virtually conclusive support in the Court’s
own precedents. See Sony, 464 U. S., at 429 (The Copyright
Clause is “intended . . . to allow the public access . . . after
the limited period of exclusive control”); Stewart, 495 U. S.,
at 228 (The copyright term is limited to avoid “permanently
depriv[ing]” the public of “the fruits of an artist’s labors”);
see also supra, at 245–246.
This view also finds textual support in the Copyright
Clause’s word “limited.” Cf. J. Story, Commentaries on the
Constitution § 558, p. 402 (R. Rotunda & J. Nowak eds. 1987)
(The Copyright Clause benefits the public in part because it
“admit[s] the people at large, after a short interval, to the
full possession and enjoyment of all writings . . . without
restraint” (emphasis added)). It finds added textual support
in the word “Authors,” which is difficult to reconcile with a
rationale that rests entirely upon incentives given to publish-
ers perhaps long after the death of the work’s creator.
Cf. Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U. S. 340, 346–347 (1991).
It finds empirical support in sources that underscore the
wisdom of the Framers’ judgment. See CRS Report 3
(“[N]ew, cheaper editions can be expected when works come
out of copyright”); see also Part II–B, supra. And it draws
logical support from the endlessly self-perpetuating nature
of the publishers’ claim and the difficulty of finding any kind
of logical stopping place were this Court to accept such a
uniquely publisher-related rationale. (Would it justify con-
tinuing to extend copyrights indefinitely, say, for those
granted to F. Scott Fitzgerald or his lesser known contempo-
raries? Would it not, in principle, justify continued protec-
tion of the works of Shakespeare, Melville, Mozart, or per-
haps Salieri, Mozart’s currently less popular contemporary?

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
262 ELDRED v. ASHCROFT
Breyer, J., dissenting
Could it justify yet further extension of the copyright on the
song Happy Birthday to You (melody first published in 1893,
song copyrighted after litigation in 1935), still in effect and
currently owned by a subsidiary of AOL Time Warner? See
Profitable “Happy Birthday,” Times of London, Aug. 5,
2000, p. 6.)
Given this support, it is difficult to accept the conflicting
rationale that the publishers advance, namely, that exten-
sion, rather than limitation, of the grant will, by rewarding
publishers with a form of monopoly, promote, rather than
retard, the dissemination of works already in existence. In-
deed, given these considerations, this rationale seems con-
stitutionally perverse—unable, constitutionally speaking, to
justify the blanket extension here at issue. Cf. ante, at 239–
240 (Stevens, J., dissenting).
Fourth, the statute’s legislative history suggests another
possible justification. That history refers frequently to the
financial assistance the statute will bring the entertainment
industry, particularly through the promotion of exports.
See, e. g., S. Rep. No. 104–315, p. 3 (1996) (“The purpose of
the bill is to ensure adequate copyright protection for Ameri-
can works in foreign nations and the continued economic ben-
efits of a healthy surplus balance of trade”); 144 Cong. Rec.,
at H9951 (statement of Rep. Foley) (noting “the importance
of this issue to America’s creative community,” “[w]hether it
is Sony, BMI, Disney,” or other companies). I recognize
that Congress has sometimes found that suppression of com-
petition will help Americans sell abroad—though it has si-
multaneously taken care to protect American buyers from
higher domestic prices. See, e. g., Webb-Pomerene Act (Ex-
port Trade), 40 Stat. 516, as amended, 15 U. S. C. §§ 61–65;
see also IA P. Areeda & H. Hovenkamp, Antitrust Law
¶ 251a, pp. 134–137 (2d ed. 2000) (criticizing export cartels).
In doing so, however, Congress has exercised its commerce,
not its copyright, power. I can find nothing in the Copy-
right Clause that would authorize Congress to enhance the

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
263 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
copyright grant’s monopoly power, likely leading to higher
prices both at home and abroad, solely in order to produce
higher foreign earnings. That objective is not a copyright
objective. Nor, standing alone, is it related to any other ob-
jective more closely tied to the Clause itself. Neither can
higher corporate profits alone justify the grant’s enhance-
ment. The Clause seeks public, not private, benefits.
Finally, the Court mentions as possible justifications “de-
mographic, economic, and technological changes”—by which
the Court apparently means the facts that today people
communicate with the help of modern technology, live longer,
and have children at a later age. Ante, at 206–207, and n. 14.
The first fact seems to argue not for, but instead against,
extension. See Part II–B, supra. The second fact seems
already corrected for by the 1976 Act’s life-plus-50 term,
which automatically grows with lifespans. Cf. Department
of Health and Human Services, Centers for Disease Control
and Prevention, Deaths: Final Data for 2000 (2002) (Table 8)
(reporting a 4-year increase in expected lifespan between
1976 and 1998). And the third fact—that adults are having
children later in life—is a makeweight at best, providing no
explanation of why the 1976 Act’s term of 50 years after an
author’s death—a longer term than was available to authors
themselves for most of our Nation’s history—is an insuffi-
cient potential bequest. The weakness of these final ration-
ales simply underscores the conclusion that emerges from
consideration of earlier attempts at justification: There is no
legitimate, serious copyright-related justification for this
statute.
III
The Court is concerned that our holding in this case not
inhibit the broad decisionmaking leeway that the Copyright
Clause grants Congress. Ante, at 204–205, 208, 222. It is
concerned about the implications of today’s decision for the
Copyright Act of 1976—an Act that changed copyright’s
basic term from 56 years (assuming renewal) to life of the

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
264 ELDRED v. ASHCROFT
Breyer, J., dissenting
author plus 50 years, ante, at 194–195. Ante, at 222. It is
concerned about having to determine just how many years
of copyright is too many—a determination that it fears would
require it to find the “right” constitutional number, a task for
which the Court is not well suited. See ibid.; but cf. ante, at
210, n. 17.
I share the Court’s initial concern, about intrusion upon
the decisionmaking authority of Congress. See ante, at 205,
n. 10. But I do not believe it intrudes upon that authority
to find the statute unconstitutional on the basis of (1) a legal
analysis of the Copyright Clause’s objectives, see supra, at
245–248, 260–263; (2) the total implausibility of any incentive
effect, see supra, at 254–257; and (3) the statute’s apparent
failure to provide significant international uniformity, see
supra, at 257–260. Nor does it intrude upon congressional
authority to consider rationality in light of the expressive
values underlying the Copyright Clause, related as it is to the
First Amendment, and given the constitutional importance
of correctly drawing the relevant Clause/Amendment bound-
ary. Supra, at 243–245. We cannot avoid the need to exam-
ine the statute carefully by saying that “Congress has not al-
tered the traditional contours of copyright protection,” ante,
at 221, for the sentence points to the question, rather than the
answer. Nor should we avoid that examination here. That
degree of judicial vigilance—at the far outer boundaries of
the Clause—is warranted if we are to avoid the monopolies and
consequent restrictions of expression that the Clause, read
consistently with the First Amendment, seeks to preclude.
And that vigilance is all the more necessary in a new century
that will see intellectual property rights and the forms of
expression that underlie them play an ever more important
role in the Nation’s economy and the lives of its citizens.
I do not share the Court’s concern that my view of the
1998 Act could automatically doom the 1976 Act. Unlike the
present statute, the 1976 Act thoroughly revised copyright
law and enabled the United States to join the Berne Conven-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
265 Cite as: 537 U. S. 186 (2003)
Breyer, J., dissenting
tion—an international treaty that requires the 1976 Act’s
basic life-plus-50 term as a condition for substantive protec-
tions from a copyright’s very inception, Berne Conv. Art.
7(1). Consequently, the balance of copyright-related harms
and benefits there is far less one sided. The same is true of
the 1909 and 1831 Acts, which, in any event, provided for
maximum terms of 56 years or 42 years while requiring re-
newal after 28 years, with most copyrighted works falling
into the public domain after that 28-year period, well before
the putative maximum terms had elapsed. See ante, at 194;
Statistical History 956–957. Regardless, the law provides
means to protect those who have reasonably relied upon
prior copyright statutes. See Heckler v. Mathews, 465 U. S.
728, 746 (1984). And, in any event, we are not here consider-
ing, and we need not consider, the constitutionality of other
copyright statutes.
Neither do I share the Court’s aversion to line-drawing in
this case. Even if it is difficult to draw a single clear bright
line, the Court could easily decide (as I would decide) that
this particular statute simply goes too far. And such exam-
ples—of what goes too far—sometimes offer better constitu-
tional guidance than more absolute-sounding rules. In any
event, “this Court sits” in part to decide when a statute ex-
ceeds a constitutional boundary. See Panhandle Oil, 277
U. S., at 223 (Holmes, J., dissenting). In my view, “[t]ext,
history, and precedent,” ante, at 199, support both the need
to draw lines in general and the need to draw the line here
short of this statute. See supra, at 242–248, 260–263. But
see ante, at 199, n. 4.
Finally, the Court complains that I have not “restrained”
my argument or “train[ed my] fire, as petitioners do, on Con-
gress’ choice to place existing and future copyrights in par-
ity.” Ante, at 193, n. 1, and 199, n. 4. The reason that I
have not so limited my argument is my willingness to accept,
for purposes of this opinion, the Court’s understanding that,
for reasons of “[j]ustice, policy, and equity”—as well as es-

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
266 ELDRED v. ASHCROFT
Breyer, J., dissenting
tablished historical practice—it is not “categorically beyond
Congress’ authority” to “exten[d] the duration of existing
copyrights” to achieve such parity. Ante, at 204 (internal
quotation marks omitted). I have accepted this view, how-
ever, only for argument’s sake—putting to the side, for the
present, Justice Stevens’ persuasive arguments to the
contrary, ante, at 226–242 (dissenting opinion). And I make
this assumption only to emphasize the lack of rational justi-
fication for the present statute. A desire for “parity” be-
tween A (old copyrights) and B (new copyrights) cannot jus-
tify extending A when there is no rational justification for
extending B. At the very least (if I put aside my rationality
characterization), to ask B to support A here is like asking
Tom Thumb to support Paul Bunyan’s ox. Where the case
for extending new copyrights is itself so weak, what “jus-
tice,” what “policy,” what “equity” can warrant the tolls and
barriers that extension of existing copyrights imposes?
IV
This statute will cause serious expression-related harm.
It will likely restrict traditional dissemination of copyrighted
works. It will likely inhibit new forms of dissemination
through the use of new technology. It threatens to interfere
with efforts to preserve our Nation’s historical and cultural
heritage and efforts to use that heritage, say, to educate our
Nation’s children. It is easy to understand how the statute
might benefit the private financial interests of corporations
or heirs who own existing copyrights. But I cannot find any
constitutionally legitimate, copyright-related way in which
the statute will benefit the public. Indeed, in respect to
existing works, the serious public harm and the virtually
nonexistent public benefit could not be more clear.
I have set forth the analysis upon which I rest these judg-
ments. This analysis leads inexorably to the conclusion that
the statute cannot be understood rationally to advance a con-
stitutionally legitimate interest. The statute falls outside

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
267 Cite as: 537 U. S. 186 (2003)
Appendix to opinion of Breyer, J.
the scope of legislative power that the Copyright Clause,
read in light of the First Amendment, grants to Congress.
I would hold the statute unconstitutional.
I respectfully dissent.
APPENDIX TO OPINION OF BREYER, J.
A
The text’s estimates of the economic value of 1998 Act
copyrights relative to the economic value of a perpetual
copyright, supra, at 255–256, as well as the incremental
value of a 20-year extension of a 75-year term, supra, at 254–
255, rest upon the conservative future value and discount
rate assumptions set forth in the brief of economist amici.
Brief for George A. Akerlof et al. as Amici Curiae 5–7.
Under these assumptions, if an author expects to live 30
years after writing a book, the copyright extension (by in-
creasing the copyright term from “life of the author plus 50
years” to “life of the author plus 70 years”) increases the
author’s expected income from that book—i. e., the economic
incentive to write—by no more than about 0.33%. Id., at 6.
The text assumes that the extension creates a term of 95
years (the term corresponding to works made for hire and
for all existing pre-1978 copyrights). Under the economists’
conservative assumptions, the value of a 95-year copyright
is slightly more than 99.8% of the value of a perpetual copy-
right. See also Tr. of Oral Arg. 50 (Petitioners’ statement
of the 99.8% figure). If a “life plus 70” term applies, and if
an author lives 78 years after creation of a work (as with
Irving Berlin and Alexander’s Ragtime Band), the same as-
sumptions yield a figure of 99.996%.
The most unrealistically conservative aspect of these as-
sumptions, i. e., the aspect most unrealistically favorable to
the majority, is the assumption of a constant future income
stream. In fact, as noted in the text, supra, at 248, uncon-
tested data indicate that no author could rationally expect

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
268 ELDRED v. ASHCROFT
Appendix to opinion of Breyer, J.
that a stream of copyright royalties will be constant forever.
Indeed, only about 2% of copyrights can be expected to re-
tain commercial value at the end of 55 to 75 years. Ibid.
Thus, in the overwhelming majority of cases, the ultimate
value of the extension to copyright holders will be zero, and
the economic difference between the extended copyright and
a perpetual copyright will be zero.
Nonetheless, there remains a small 2% or so chance that a
given work will remain profitable. The CRS Report sug-
gests a way to take account of both that likelihood and the
related “decay” in a work’s commercial viability: Find the
annual decay rate that corresponds to the percentage of
works that become commercially unavailable in any given
year, and then discount the revenue for each successive year
accordingly. See CRS Report 7. Following this approach,
if one estimates, conservatively, that a full 2% of all works
survives at the end of 75 years, the corresponding annual
decay rate is about 5%. I instead (and again conservatively)
use the 3.8% decay rate the CRS has applied in the case of
books whose copyrights were renewed between 1950 and
1970. Ibid. Using this 3.8% decay rate and the economist
amici’s proposed 7% discount rate, the value of a 95-year
copyright is more realistically estimated not as 99.8%, but as
99.996% of the value of a perpetual copyright. The compa-
rable “Irving Berlin” figure is 99.99999%. (With a 5% decay
rate, the figures are 99.999% and 99.999998%, respectively.)
Even these figures seem likely to be underestimates in the
sense that they assume that, if a work is still commercially
available, it earns as much as it did in a year shortly after
its creation.
B
Conclusions regarding the economic significance of “works
made for hire” are judgmental because statistical informa-
tion about the ratio of “for hire” works to all works is scarce.
Cf. Community for Creative Non-Violence v. Reid, 490 U. S.
730, 737–738, n. 4 (1989). But we know that, as of 1955,

537US2 Unit: $U15 [04-22-04 17:52:23] PAGES PGT: OPIN
269 Cite as: 537 U. S. 186 (2003)
Appendix to opinion of Breyer, J.
copyrights on “for hire” works accounted for 40% of newly
registered copyrights. Varmer, Works Made for Hire and
on Commission, Study No. 13, in Copyright Law Revision
Studies Nos. 1–19, prepared for the Subcommittee on Pat-
ents, Trademarks, and Copyrights of the Senate Committee
on the Judiciary, 86th Cong., 2d Sess., 139, n. 49 (Comm. Print
1960). We also know that copyrights on works typically
made for hire—feature-length movies—were renewed, and
since the 1930’s apparently have remained commercially via-
ble, at a higher than average rate. CRS Report 13–14.
Further, we know that “harmonization” looks to benefit
United States exports, see, e. g., H. R. Rep. No. 105–452, p. 4
(1998), and that films and sound recordings account for the
dominant share of export revenues earned by new copy-
righted works of potential lasting commercial value (i. e.,
works other than computer software), S. Siwek, Copyright
Industries in the U. S. Economy: The 2002 Report 17. It
also appears generally accepted that, in these categories, “for
hire” works predominate. E. g., House Hearings 176 (testi-
mony of the Register of Copyrights) (“[A]udiovisual works
are generally works made for hire”). Taken together, these
circumstances support the conclusion in the text that the ex-
tension fails to create uniformity where it would appear to
be most important—pre-1978 copyrighted works nearing the
end of their pre-extension terms, and works made for hire.