Golan v. Holder

GENERAL, HOLDER, ATTORNEY GOLAN et al. v. et al. January 18, Argued October 201 1 Decided

No. 10-545. argued Anthony petitioners. T. the cause for Falzone Nazer, With him K. Ahrens, on the briefs were Julie A. Daniel Hugh Carolyn Q. Gottschalk, Fairless, J. Thomas C. Gold- Amy Howe, stein, Russell, Kevin K. and Karlan. Pamela S. respond argued the cause for Verrilli General

Solicitor Attorney Gen Assistant him on the brief were ents. With Arbus D&puty Stewart, Melissa General West, eral Solicitor Koppel.* Sherry, Kanter, and John S. William opinion of the Court. delivered Ginsburg Justice Literary and for the Protection of Convention The Berne Berne), (Berne Convention, Convention, Artistic Works governing principal is the accord which took effect American curiae amici urging were filed for reversal *Briefs of Shapiro; R. Steven for Aden J. Fine and by Civil Union Liberties Bar- McSherry, by Corynne Michael Library et al. Association American Band, by Geoffrey Brigham; for the Cato Institute clay, Jonathan and Quinn Ilya Shapiro; for the Conductors Guild Rosenkranz and Nicholas Hirsch; by Lawrence A. Corp. for Steven by et al. Creative Commons by Andrew Lessig; Legal & Defense Fund Eagle Forum Education for Donahue; H. Goldberg and David T. Sean Inc., by Schlafly; L. Google, for Carroll; Angels, Inc., by Michael the Information W. for for Heartland by Priscilla J. and Fellows Society Project at Yale Law School Professors L. and Debo- Smith; by James Hirsen the Justice and Freedom Fund for Nesson; Dewart; for Charles Petrucci, LLC, by Public rah J. Project for Jaszi, Cunard, Urban, P. Peter Jeffrey M. by Domain Interests Jennifer Samuelson; Knowledge by Gigi B. Sohn. and Pamela and for Public American amici filed for the curiae urging affirmance were Briefs of Lieberman, III, and T. Steven M. Association William Robinson by Bar Besek; Property Association June M. the American Intellectual Law Hill; Society R. W. by American Edward Reines David and for the Mohr, Paul by Christopher A. Composers, Publishers et al. Authors and Bender, Copy- Klipper; Michael R. for the International Coalition and Goldstein; for the David B. Eric M. Lieberman and by right Protection Phares; for the C. Gloria by International Publishers Association et al. Jakes, Robert D. J. Michael Property by Association Intellectual Owners Norman, Walker, Litowitz, Margaret Mary Douglas K. Esquenet, A. Beth Rhodes; America Kevin H. Association of and for the Motion Picture and Randolph D. Moss. Seth P. Waxman and by amici curiae were filed for the Franklin Pierce Center for Briefs of McCrackin; by Decherney Ann for Peter Property by Intellectual Jaszi; Friedberg; Alan Messrs. Carroll C. for Daniel J. Gervais by Tyler T. Ochoa and Mr. Gomez- Gomez-Arostegui for H. et Tomas al. Arostegui, pro se. both copyright

international relations. Latecomer to the inter- copyright regime national Berne, launched the United joined perfect States the Convention in 1989. To im- U. S. plementation part response of Berne, and as of our to Uruguay negotiations, Congress, of round multilateral trade gave enjoying protection in copyright abroad protection the same full term of available to U. S. works. § Congress Uruguay Agreements did in 514 so Round (URAA), grants protection pre- Act which existing protected works of Berne member countries, country origin, lacking protection their but in the United States for of three reasons: The not United States did protect country origin publi- works from the at the time of protect recordings cation; the United States did sound comply fixed before 1972; the author had failed with (formalities statutory Congress longer U. S. formalities no requires prerequisites copyright protection). protection foreign

The URAA accords no ato work after expired, causing its full term has it to fall into the country whether domain, under laws of ori- gin country. §514 encompassed by or of this Works are granted they enjoyed have had the would United States maintained relations with the au- country incompatible thor’s or removed formalities Foreign gain Berne. authors, however, no credit for the §514’s protection they years prior lacked enactment. They enjoy years exclusivity therefore fewer total than counterparts. consequence do their U. S. As a of the barri- copyright protection prior ers U. to the S. enactment § protection by works “restored” to measure country. had entered the domain in this To cushion impact placement protected in- status, their ameliorating parties cluded in 514 who accommodations for exploited had affected works before the was enacted. URAA pub- conductors, musicians, Petitioners include orchestra formerly enjoyed lishers, and who free access to others They main- public § the domain. 514 removed from works Copyright Clause, and Patent the tain that Constitution’s § inva- the both decree cl. and First Amendment 8, 8, Art. I, highest prescriptions § law, lidity of our Under those 514. public do- the petitioners a work that has entered assert, there. must forever remain reason, main, for whatever judgment Circuit, we con- Tenth of the In with the accord transgress limitations does not constitutional clude that 514 Congress’ authority. Patent Neither the on public the hold, we makes Amendment, nor the First Clause may territory any works cases, in and all domain, never exit.

I A agree from Berne to treat authors of the Union Members they own. treat their countries well as other member as Sept. at on revised Stockholm Convention, 9, 1886, Berne as 5(1), July 221, 225, 231-233. 1, Arts. 828 U. N. T. S. 14, 1967, country, who author a member as well Nationals of enjoy publishes states, thus in one of Berne’s 164 member 2(6), globe. copyright protection Arts. in across the nations country, mini- the moreover, Each must afford least 3. protection specified mum level of Berne. plus span 50 addi- least lifetime,

term must the author’s complied years, a not the has tional whether or author 7(1). 5(2), legal And, as Arts. member state’s formalities. protected its abroad unless here, relevant a work must be pro- country expired where term has either 18(l)-(2).1 origin. country Art. tection is claimed or the provides: Article 18 of the Berne Convention “(1) which, at the moment of apply shall to all works This Convention coming force, yet into the domain have fallen its into protection. country origin through expiry of the term “(2) however, which through term If, expiry granted, a work has fallen into the domain previously was system copyright protection A different of transnational long prevailed country. foreign 1891, in this Until categorically protection. were excluded Act from Throughout century, only eligible ,20th most of for- eign granted reciprocal were those authors countries whose rights printed to U. S. authors and whose works were §§ 1891, United States. See Act of Mar. 3, 13, Stat. Patry, Copy- 1107,1110; The United States and International (2003).2 right Law, 40 Houston L. For Rev. domes- protection hinged compli- tic and alike, authors registration, ance with notice, and renewal formalities. party The United became to Berne’s multilateral, States formality-free regime Initially, copyright in 1989.

adopted compliance approach” a “minimalist the with Con- (1988) (hereinafter Rep. p. vention. H. No. 7 100-609, R. Report). Implementa- BCIA House The Berne Convention (BCIA), “only tion Act of 2853, 1988 102 Stat. made those changes clearly [were] to American law that re- country claimed, work protection protected where is shall not be anew.

“(3) subject principle any provisions The this shall be application of special existing contained in that effect or to be concluded conventions to provisions, between countries of the In the absence of such the Union. concerned, respective determine, in so far as it the countries shall each application principle. of this conditions “(4) apply in the of new acces- preceding provisions shall also case by sions which is extended the to the and to cases in Union application by 7 of reservations.” 828 of Article or the abandonment N. T. U. S. 251. 2 amici, by excluded As noted Government’s the United States for the eign unprotected not to the number of works from swell in publishing consuming public, available to but to favor domestic See Brief for escaped paying royalties foreign terests authors. Curiae 8-15. This Publishers Association et al. Amici International Chace, champion of the 1891 according free Jonathan riding, Senator Act, Barbaxy peo its of literature” and made the United States “the coast Sess., 622, Cong., ple Rep. S. No. 50th 1st “the buccaneers of books.” (1888). Report, treaty’s provisions,”

quired BCIA House under Despite that member countries— Berne’s instruction at 7. foreign protect including to the “new accessions Union”— 18(1) origin, country Art. in the works under protec- (4), no 251, BCIA accorded S., 828 N. T. U. “any domain the United that is in the work tion § of future 12, Stat. 2860. Protection States,” 2(3), Article 18. See indicated, satisfied works, BCIA (“The together Act, this amendments made 102 Stat. 2853 this law as it exists on the date of the enactment with the adhering obligations satisfy United States Act, .”). Congress how- indicated, . . . to the Berne Convention pro- definitively rejected “retroactive” that it had not ever, punted pre-existing foreign instead it had works; tection implementation, deferring consid- of Berne’s on this issue thorough eration until “a more examination of Constitu- possible.” commercial, and consumer considerations is tional, Report, House 52.3 BCIA (“While (1994) 103-412, Rep. p. No. United States See also S. ad compliance its it never

declared Berne Convention legislation implement dressed enacted Article 18 of Conven Sehroeder, tion.”); Assistant Memorandum from Chris Counselor to the General, (DOJ), to Ira Attorney Legal Counsel, Officeof Dept, of Justice (July Counsel, Representative Shapiro, S. General Officeof the U. S. Trade (“At (1995) 29, 1994), Patry, GATT, the p. W. and the C-15 BCIA, removing Congress debating time was the issue of it reserved the public domain.”); Trade Agreement works from the General on Tariffs and (GATT): Provisions, Hearing Property Intellectual before Sub Joint Property on Intellectual Judicial committee and Administration Patents, Judiciary House Committee on the and the Subcommittee on Judiciary, Copyrights and Trademarks of the Senate on Committee (1994)(URAA Cong., Sess., (app. statement Hearing) 103d 2d 120 Joint Lehman, Secretary of A. of and Bruce Assistant Commerce Commissioner (Commerce (‘When States Dept.) of Patents and Trademarks the United Convention, acknowledged to the . . . adhered Berne possibility restoring copyright protection foreign that had public comply domain in fallen into the the United States for failure discussion.”)). with was an issue that merited further formalities

311 approach essayed by The minimalist the United did States negotiations not sit well with other Berne members.4 While ongoing Agree- were over the North American Free Trade (NAFTA), complained ment Mexican about the authorities grant protection, United States’ refusal to Ar- in accord with 18, ticle to Mexican works that remained under domestically. Property See Intellectual and International Hearings Issues, before the Subcommittee on Intellectual Property and Administration, Judicial House on Committee (1991) (statement Judiciary, Cong., 102d Sess., 1st 168 Ralph Register Copyrights).5 Register Oman, U. S. The reported Copyrights “questions” Turkey, Egypt, also from proteet- and Austria. Ibid. Thailand and Russia balked at 4 that, implicitly The dissent agrees whatever tentative conclusion Con gress 1988, requires reached in Article “protect 18 the United States to foreign issue,” special works at at absent a least convention the United Post, States did not at negotiate. post, here 365. also at (citing 366 Gervais, by Golan v. A Look Imposed Holder: at the Constraints Convention, (2011)); id., Berne L. Rev. En Bane Vand. 151-152 at (“[T]he clearly requires protection Convention that some level of be given authors have whose works entered the domain (other by expiration copyright).”). Ricketson, than previous Accord S. Literary Berne Convention for the Protection of Artistic Works (“There (1987) 1886-1986, p. existing is no basis which [protection works under Article can be completely 18] denied. The conditions and (and reservations,” 18(3) dissent, by authorized Article stressed post, 366-367), are of “limited” and “transitional” duration and “would deny be permitted [protection] particular altogether relation works.”). class ... of retroactivity provision NAFTA ultimately pre included a limited —a § cursor to granting 514 of the U. S. to cer URAA — tain Mexican Canadian films. These films had fallen into the domain, require between 1978 and for failure to meet U. S. notice Implementation Act, Agreement ments. See North American Free Trade §334, 2115; Franklin Stat. Brief for Pierce Center for Intellectual Property later, year Congress replaced as Amicus 14-16. Curiae One provision this version of 17 U. S. here. C. 104A issue See 3 Nimmer, §9A.03, 9A.04, 9A-17, M. Nimmer pp. & D. 9A-22 (2011) (hereinafter Nimmer). 312 copyrighted countries’

ing those here but works, U. S. reciprocated re- with public domains, until the United States Hearing 137 spect URAA Joint works. to their authors’ (statement Shapiro, Counsel, Office Ira General of S. (statement (USTR)); Representative 208 id., at Trade U. S. (statement Perlmutter); of Shira Professor of id., Industry Recording Amer- Association Berman, Jason S. (RIAA)).6 ica potent provide a enforcement

Berne, however, did dispute contemplates resolu- The Convention mechanism. 33(1). Justice. Art. the International Court tion before noncompliance and allows specifies sanctions for But it no . . parties, “not . bound” themselves to declare time, provision. Art. dispute resolution the Convention’s 33(2)-(3), Unsurprisingly, no enforce- S.,T. at 277. 828 U. N. Gervais, The D. were launched before 1994. ment actions (3d 2008). Although Agreement ed. 213, and n. 134 TRIPS disagreed [our] inter- “several Berne Union Members Congress, pretation the Berne told 18,” of Article the USTR provide meaningful dispute resolution Convention did “not (statement Shapiro). Hearing process.” URAA Joint adopt shortcoming a minimalist “free This left Report, Karp, approach Berne Pinal evade Article 18.” Study Retroactive United States Article 18 on Works, Berne other Colum.-VLA Protection for (1996). J. L. Arts & landscape changed Uruguay round in 1994. The negotiations produced Trade the World

multilateral trade (WTO) Agreement Organization Trade-Related and the Berne counter- States and its new This tension between United that, despite the 1988 question the assertion parties calls into dissent’s benefits approach, States obtained the “[t]he Act’s minimalist United period, Con years.” Post, six-year many During Berne for at 365. this enjoyed benefits gress had reason to S. authors doubt U. full membership. Berne 313 Aspects (TRIPS).7 Property Rights of Intellectual The joined United pain States both. mandates, TRIPS of implementation WTO enforcement, of Berne’s 21 first arti- cles. (requiring TRIPS, Art. 9.1, 33 I. L. M. 1201 ad- rights” provisions herence to all but the “moral of Article 6bis). gave require- The WTO teeth to the Convention’s Noncompliance ments: ruling with subject a WTO could member countries to tariffs or cross-sector retaliation. See supra, Patry, Copyright Gervais, pp. at 7 W. 213; §24:1, 24- (2011). specter 8 to 24-9 proceed- of WTO enforcement ings credibility trading partners’ bolstered the of our threats challenge inadequate compliance the United States for (statement with Hearing Article 18. See URAA Joint 137 USTR) (“It Shapiro, likely of is that other WTO members challenge implementation would the current U. S. of Berne procedures.”).8 [WTO] Article 18 under Congress’ response Uruguay agreements put to the to rest any questions concerning compliance U. S. with Article 18. (codified Section 514 of the URAA, 108 Stat. 4976 17 at § 109(a)),9 U. 104A, S. C. extended to works that 7 Agreement Marrakesh Establishing Organization, the World Trade Apr. 15, 1994, 1867 N.U. T. S. 154. 8Proponents prompt congressional urged avoiding action a trade enforcement proceeding potentially the WTO’s first —would be instru — mental in preserving the “reputation United States’ as a world leader (statement Hearing field.” Smith, URAA Joint of Eric (IIPA)). International Intellectual Property Alliance regard, In this S.U. negotiators reported widespread perception of noncomplianee U. S. undermining was our leverage copyright negotiations. Unimpeachable Berne, adherence to told, was help would ensure enhanced for eign protection, dissemination, hence profitable and existing for future id., U. S. (app. Lehman, works. See at statement of Commerce Dept.) (“Clearly, providing for existing [retroactive] in our improve position id., own will negotiations.”); law our in future (statement RIAA). Berman, §104A Title reproduced 17 U. S. C. in full this appendix in an opinion. origin,10

garnered protection had but in their countries of exclusivity right the United States no coun- relations between three reasons: lack publica- try origin the time the United States recordings subject-matter protection tion; for sound lack of comply U. statu- and failure to S. 1972; fixed before copy- tory provide (e.g., notice of failure formalities copyright). register and renew a status, or to 104A(h)(6)(B)-(C).11 10 most, all, protec foreign eligible not are for Works from but countries § least one only 514. have “at provision tion under covers works that was, created, was a na rightholder at the time the work author or who 104A(h)(6)(D). § domiciliary eligible country.” 17 tional an U. S. C. of States, country” any “nation, United “eligible An includes other than the (A) country enact after the date of the becomes a WTO member that — ment (B) [URAA]; is, on such or after such of the date of enactment [or] becomes, adhering Convention.” date a nation to the Berne of enactment 104A(h)(3). above, 308, § supra, As noted see at 164 countries adhere Organization, Property World Intellectual Con Berne Convention. (as Convention, www.wipo.int/treaties visited Jan. tracting Parties: Berne file). 13, 2012, in and Clerk of case Court’s 11 century, Congress first Act until Copyright From the late the 20th statutory for compliance on certain conditioned work, required register her The most an author to malities. notable registration, copyrighted renew affix of published copies and notice See, unwary. a trap status. The formalities drew criticism as for the 7-8; McCannon, § g., 7.01[A], Doyle, Cary, e. 2 Notice Ringer, Nimmer & Study 7, (1957), Copyright of Copyright, p. reprinted No. 46 in 1 Studies (1963). 229, 272 1976, Congress requirement In for registration eliminated the renewal 1976,§§302,408, 2572, In future Act of 2580. works. Stat. 1988, mandatory 7,§ repealed prerequisite. 102 Stat. it notice BCIA 2857. works still And made renewal automatic for protection. their of Act first term Amendments retains, au- however, Stat. The Copyright 264-266. Act incentives for register provide copyrighted thors to their and notice works’ works 405(b) § See, statutory g., status. e. C. (precluding U. S. actual infringers” copy- lacked damages against “innocent of a work that notice 411(a) status); “work[s],” § righted (requiring registration of U. S. but works, foreign may an The revisions infringement). before owner sue public Works that have fallen into the domain after the expiration of a full term —either in the United country origin protec- or the no States further —receive Ibid,12 §514. Copyrights tion under “restored”13 under § copy- URAA 514 “subsist for remainder the term of granted that the work would have otherwise been ... if 104A(a)(l)(B). § public the work never entered the domain.” Prospectively, places foreign equal restoration works on an footing counterparts; assuming foreign with their U. S. day, domestic author died the same their works will enter 302(a) simultaneously. (copyrights domain death). generally expire years after the author’s Re- compensatory stored works, however, receive no time for the period exclusivity they enjoyed §514’s would have before they protected enactment, had been outset in United term, States. Their total falls therefore, short similarly available situated U. S. works. hardly

The URAA’s disturbance of the domain es- caped Congress’ imposed liability attention. Section 514 no occurring use of before restoration. anyone copy In addition, remained free to and use restored successively 5(2), pro- made accord with Berne Article which Convention foreign Berne, application copyright scribes of authors. formalities however, escape affords no domestic authors from domestic formalities. 5(3) (protection Art. country origin See within of is a matter of domes- law). tic 104A(h)(6)(B) §

12 Title 17 U. S. C. a “restored work” to defines exclude “an original authorship” public work of that is “in the domain in source its country expiration provision This through protection.” term of [its] “fallen tracks for that has into the Berne’s denial work public country origin through expiry domain the of the term of 18(1), S., protection.” Art. T. 828 U. N. 251. 13 pro that all works implies Restoration is a insofar it misnomer §104A tected Each work in the previously enjoyed protection. under subject-matter pro eligibility domain of lack of or because national formalities, tection, enjoyed many comply never and that failed to with g., 9A.04[A][l][b][iii], § e. copyright See, U. protection. S. 3 Nimmer 9A-26, and n. 29.4. §514 n year following See enactment. for one 514 n § 104A(h)(2)(A). compatibil- § Concerns about U. S. C. Takings led ity Clause Amendment’s with the Fifth parties”— protections “reliance additional to include or ac- enactment, used had, before the URAA’s those who See domain. quired then in the work 104A(h)(3)-(4).14 exploit may parties § continue to Reliance the restored work until the owner of a restored filing by gives of intent to enforce—either notice by years Copyright restoration, Officewithin two U. S. (d)(2)(A)(i), §104A(c), party. actually notifying the reliance (B)(i). may parties continue After reliance that, and year. period existing copies grace exploit of one for a (B)(ii). 104A(d)(2)(A)(ii) Finally, anyone § who, before and based work” created a “derivative enactment, URAA’s indefinitely exploit may the derivation work on a restored com- upon payment holder “reasonable parties judge cannot pensation,” if the to be set a district 104A(d)(3). § agree.

B §514. challenging petitioners In filed this lawsuit passed Congress, They URAA, it maintain that when authority Clause its under the exceeded transgressed The District limitations.15 First Amendment would in a manner that party must used the work

14 Areliance have See in effect. infringement a valid been constitute had 104A(h)(4)(A). restoration, to her party After is limited the reliance cannot, work, example, performer A of a previous uses. restored 3 Nimmer script. sell copies venture to post-restoration, §9A.04[C][l][a],at 9A-45 to 9A-46. constitutionality complaint challenged also Petitioners’ years Act, which added Term Extension Stat. rejected After this Court ofpxisting copyrights. duration future (2003), District challenge Ashcroft, U. S. 186 the a similar in Eldred v. 537 pleadings, the Golan v. portion petitioners’ this on dismissed suit Court 2004). (D af The Tenth Circuit Ashcroft, Supp. 310 F. 2d 1215 Colo. (2007), do not petitioners firmed, Gonzales, F. 3d 1179 Golan v. 501

317 granted Attorney summary Court General’s motion for judgment. Golan v. Gonzales, No. Civ. 2005 Ol-B-1854, WL (D 2005). Apr. rejecting petitioners’ 914754 Colo., In 20, argument, Clause the court stated that historically compunction “has little demonstrated about re moving copyrightable public materials from the domain.” part Id., *14. The court next declined to from “the set private censorship tled rule that via enforcement implicate does not First Id., Amendment concerns.” at *17. Appeals The Court of for the Tenth Circuit affirmed (2007). part. public Golan v. Gonzales, 501 F. 3d 1179 The agreed, Congress” domain, it was anot “threshold that was (in- powerless to “traverse in both Id., directions.” at 1187 omitted). quotations ternal marks But as the §514, Court Appeals read our decision Eldred v. Ashcroft, (2003),required U. inspec- S. further First Amendment tion, 3d, F. at 1187. The the tra- measure “‘altered ” copyright protection,’ ditional contours of said— court specifically, principle” “bedrock once works enter Ibid, they (quoting domain, Eldred, do leave. 221). 537 U. S., case was with an remanded instruc- tion to the District Court address First Amendment light opinion. claim in Tenth Circuit’s starting premise On remand, the District un- Court’s was regulate speech eontested: Section 514 does not basis upheld “narrowly of its if content; therefore the law would be significant government tailored to serve interest.” 611 (Colo. 2009) Supp. (quoting F. 2d 1165, 1170-1171 v.Ward (1989)). Against Summary Rock Racism, U. S. judgment petitioners, concluded, was due the court because § justified by 514’sconstriction of the was not domain compliance Berne, of federal asserted interests: attempt Court, claim in revive that this Pet. for Cert. n. 2. Neither entry summary have petitioners challenged judg the District Court’s ment for the on the claim that 514 violates the substantive Government component Due Process Clause. re- greater protection abroad, or

securing for U. S. authors foreign by inequitable treatment suffered mediation of the protection States. in the United lacked authors whose works Supp. F. at 1172-1177. 2d, pre- Congress’ Deferring to The Tenth Circuit reversed. relating affairs, the judgments dictive in matters §514 Amendment appellate held that survived First court law scrutiny. Specifically, determined that the court government narrowly important aim to fit the was tailored protecting copyright holders’ interests abroad. U. S. (2010); F. 3d 1076 challenge petitioners’ granted

We certiorari to consider § Copyright Amend- First Clause and the 514 under both the (2011), now affirm. II 562 U. S. 1270 ment, petitioners’ argument We first address authority, Copyright 514. enact Clause, lacked under the “Congress .. . Power shall have The Constitution states that securing promote Progress [t]o for lim- of Science ... Right . . . to their ited Times to . . . the exclusive Authors grant Writings.” in this I,Art. find §8, cl. 8. Petitioners authority impenetrable the extension an barrier protection writings, for whatever to authors whose public barrier We see no such are domain. reason, practice, Copyright historical Clause, in the text of precedents. our

A applica- The text of the Clause does exclude domain. tion of to works Symposium, Congressional Inherent Limitations Power and in the J. L. & Arts Clause, 30 Colum.

(2007). contrary argument primarily on Petitioners’ relies lifespan copyright’s ato of a the Constitution’s confinement “Removing Tim[e].” do- works from the “limited they [t]imes’restriction “violates the ‘limited main,” contend, by turning predictable period a fixed and into one that can expires.” be reset or resurrected at even after it time, Brief 22. for Petitioners largely dispositive petitioners’

Our decision Eldred is argument. question limited-time There we addressed the Congress whether violated the Clause when it ex- by years, existing copyrights. tended, 20 the terms of 537 (upholding Copyright U. S., at 192-193 Term Act Extension (CTEA)). Ruling Congress acted within constitutional bounds, we declined to infer from text of the prescription, Clause “the command that a time set, once becomes at Id., forever‘fixed’or‘inalterable.’” 199. “The ” convey meaning word ‘limited,’ we “does not observed, a so constricted.” Ibid. Rather, the term is best understood to “confine[d] mean within bounds,” “restrained],” certain Ibid, (internal omitted). quotation “circumscribed.” marks petitioners closely The construction tender resembles the rejected similarly definition in Eldred and is infirm. §514 by

The terms afforded works restored are no less light lengthened. “limited” than those the CTEA In El- petitioners Congress dred, do not here contend that the term granted years— plus has U. S. lifetimes, authors —their 70 302(a). petitioners is unlimited. 17 U. See S. Nor C. do explain why applied foreign terms of the same as duration, equally works, are not and “confined.” “circumscribed” Eldred, supra, S., at 199. Indeed, noted, U. as earlier see copyrights foreign 307, 315, of restored typically years last for fewer than those of their domestic counterparts. petitioners say, difference, had is that limited time

already passed for works in the domain. was What foreign that limited term for works once excluded from U. S. copyright protection? Exactly petitioners respond. “zero,” (works spe- question Brief a Petitioners “received expressly zero”; cificterm of ... set to sometimes period,” they “at the do- end of that “entered the pro- provide any main”); (by “refusing Arg. Tr. of Oral Congress “set[s] work,” zero,” term at for a tection come”). thereby “tell[s] We find scant us end has when the surely argument, of exclu- a “limited time” in this sense sivity begin may it end.16 before must persist, logical petitioners conclusion, to its Carried Congress a position institute would allow Government’s expires, third after “limited” term after the first second Congress legislated in- long Thus, on. as that, and so perpetual copyright be achievable. terms would stallments, peti- legislative hypothetical misbehavior Eldred, As posit far us. See afield from the case before tioners aligning In States 209-210. United S., 198-200, U. Convention, the Berne with other nations bound thereby according equitable disfavored once treatment charged hardly with a be authors, can stealthily regime perpetual design to move toward copyrights.

B Copy- practice reading the our of Historical corroborates permit compliance with Berne. Clause to full S.U. Undoubtedly, legislation generally has federal domain. Section 514 n disturb- public works in the affected petitioners distinguishes argue, their domain, ance petitioners adopting note, CTEA, suit from Eldred’s. In congressional Congress in accord “an acted with unbroken practice” granting preexpiration 537 extensions, term sup- practice, they comparable No S., maintain, U. at 200. §514. ports protect Congress occasion, however, seen fit to

On has freely Notably, Copyright Act works once available. granted protection many previously in of 1790 works (1790 Act), § public May 1 31, 1, domain. Act 1790 16 (“[I]t 9A-11, 9A.02[A][2], the lan 3 n. 28 stretches Cf. Nimmer posit that fol guage past breaking point Berne Convention resurrected.”). lowing ‘expiry the zero term’ the . . . work need not be

321 (covering “any 124 map, Stat. already chart, book, books States”). printed within these United Before the Act system, provided launched uniform national three States statutory copyright protection no at all.17 Of those that did protection, protect maps;18 afford some eight seven failed to published previously did not cover all books;19and ten denied comply to works that failed to with formalities.20 Congress, appears, The First it thus did not view the recognized, domain as inviolate. As we have the “construc- placed upon by tion [the of] the Constitution drafters [copyright] first act of and the act 1790, of 1802 ... men who contemporary [the many Constitution’s] were formation, of whom were members of the convention which framed it, very great weight.” is of itself entitled to Burrow-Giles (1884).21 Lithographic Sarony, Co.v. 111 U. S. 57 17 Bugbee, See B. Genesis of American Patent and Law 123- (hereinafter (1967) 124 Bugbee) (Delaware, Maryland, and Pennsylvania). 18 236; 47; See 1783 p. Mass. Acts N. p. 1783 J. Laws 1783 N. H. Laws 521; p. 6-7; 1783 R. pp. 49; I. p. VI; Laws 1784 Acts 1785 Va. Acts S. C. eh. 1786 N. Y. p. Laws 298. 19 1783 p. 617; 47; Conn. Pub. p. Acts 1783 N. J. Laws 1785 N. C. Laws 563;

p. States, 1786 p. Ga. Laws 323. In four enforcement was restricted yet printed” published.” works “not or “hereinafter 1783 p. 236; 521; Mass. 6-7; Acts 1783 N. H. p. pp. Laws I. Laws R. S. p. C. Acts 49. 20 Bugbee 109-123. parties debate the extent to which the First removed however, works from held, domain. We have that at least protected some by previously protection. the 1790 Act lacked In Peters, Wheaton v. (1834), 8 Pet. the Court ruled before enact Act, ment copyright protection expired upon common-law first Id., publication. published 663. Thus works covered the 1790 previously Act by public protected would have been in the domain unless state statute. founding generation perceived Had the the constitutional boundary petitioners today, Congress advance the First have de could signed prospective a public scheme that left the undisturbed. Ac domain (CADC Gonzales, Library, Luck’s Inc. v. 1262,1265 cord Music 407 3d F. 2005) (Section inter because, 514 does not offend the Clause alia, Wheaton, by Congress,” the First “evidence from as confirmed “points constitutionality.”). toward

322 Congress under-

Subsequent has not actions confirm that protection preclude for exist- the Clause stood copyrights of private ing the bills restored Several works. See previously domain. had the been (Corson Act), ofAct 763; 957, ch. Stat. 1849 19, Act of Feb. (Helmuth Act), Act of 618; 18 Stat. 534, ch. 23, 1874 June (Jones Act), These bills 1396. 29, ch. 30 Stat. 1898 Feb. unchallenged in court. were litiga- upheld

Analogous patent statutes, however, were pat- restoring Congress private passed bill tion.22 In sued Evans mill. When to Oliver Evans’ flour ent infringement, in the Circuit Justice Marshall first Chief (Va. (No. 1813), 4,564) Jordan, Evans v. 8 F. Cas. 872 Court, Washington Evans Court, this Bushrod and then Justice patent’s (1815),upheld restored the Jordan, 9 Craneh v. validity. patent’s expiration, “a said, the Court After the discovery general right [Evans’] not so vested was use using public” continue as to allow the defendant to patent’s machinery, between which he had constructed expiration passage. 202. also Id., and the bill’s (CC (No. 1,518) Sprague, .648, Blanchard v. 3 F. Cas. J.) (“I 1839) (Story, doubt have entertained Mass. never “give patent authority congress” constitutional by enjoyed which . . was in use invention, for an . act.”). community passage at the time of the again upheld Congress’ an inven- restoration of Court This Kingsland, protected McClurg 1 How. status in v. tion to (1843). recog- enforced an amendment There we despite prior patent use nized a an its invention employ- employer. dispensation, such inventor’s Absent unpatentable, have rendered the invention er’s use would “[bjecause Eldred, Here, empowering as in Clause re practice with copyrights patents, congressional also authorizes confer inquiry.” S., patents informs our 537 U. at 201. spect to open exploitation and therefore to without the inventor’s leave. Id., at 206-209. passed generally applicable has also legislation

granting patents copyrights and to inventions and works protection. that had lost An 1832 statute authorized a new patent “by inventor whose failure, inadvertence, acci comply dent, or statutory mistake,” to formalities ren original patent dered the inoperative.” “invalid or Act of July §3, 4 3, Stat. 559. An similarly 1893 measure allowed timely deposited authors who had not their work to receive rights privileges” “all and Act if affords, they required deposit by made the March 1, 1893. Act of 3,Mar. ch. 215, Stat. 743.23 And in 1919 and 1941, Con gress proclamations grant authorized the President to issue ing protection public to works that had fallen into the during domain I and World Wars II. See Act of 18, Dec. Sept. 1919, 11, ch. 41 Stat. 368; Act 1941, ch. 421, 55 Stat. 732.24 Pointing to dictum in Graham v. John Deere Co. Kan- City, (1966), petitioners

sas S. 1U. would have us look past history. this “Congress In Graham, we stated that may patents not authorize the issuance whose effects are

23Section 514 is in line with measures; them, these protec like it accords tion to works that had lapsed public into the domain because of failure to comply with supra, statutory U. S. at formalities. n. 11. 24Legislation order, this petitioners argue, is best understood as an Congress’ exercise of power remedy to neglect. so, excusable Even remedy that, sheltered creations action, absent congressional would have open been free exploitation. action, to according petitioners’ Such supra, argument, 318-320, dominant always see impermissi is ever and (“Plaintiffs ble. Accord Library, Luck’s Music 3d, 407 F. at 1265-1266 urge [the 1790 Act and legislation] simply the wartime extended time limits filing purport modify prohibition [did] removing public works from potential domain. But extent satisfy holders failed to procedural requirements, such works”— like protected by §514 those already necessarily have entered —“would ....”). domain knowledge domain, from the

to remove existent already Id., available.” access materials restrict free passage post, explained Eldred, this 6; But at 358. as we copy- Congress’ speak the limits did not constitutional right patent inven- authority. “addressed an it Rather, and protection.” very eligibility patent atS.,U. tion’s 202, n. 7. system ameliorating

Installing the a federal and Congress interruptions global presented true, war, it extraordinary lead- accord, TRIPS situations. Yet the comply ing Berne, measure with the United States to full signal supra, Eldred, 312-313; at cf. was event. See also (acknowl- dissenting) 259, J., U. atS., 264-265 (Breyer, uniformity edging importance of advanced international Convention). Given the Berne U. S. efforts to conform to second-guess Congress authority will not has, the we hold we pub- political leaving the made the choice between unstintingly. embracing Berne lic domain untouched and id., Cf. at 212-213.

C argument Copyright and Petitioners’ ultimate as to Congress is em- Patent concerns its initial words. Clause powered “promote Progress and useful of Science systems patent protec- by enacting Arts” and Perhaps Const., I, §8, tion. U. S. Art. el. 8. counterintu- itively Congress’ contemporary reader, for the patent authority progress author- its science; is tied to the ity, progress Graham, to the arts. of the useful J.). (Marshall, at S., 1; Cas., U. and n. 8 F. 5, Evans, petitioners acknowledge, “Progress refers of Science,” knowledge broadly spread learn- to “the creation and ing.” post, at 344-345. 21; Brief for Petitioners accord They legislation argue cannot that nevertheless federal “spur[s] legislation the cre- aim serve Clause’s unless accord 24; ation of . . . new works.” Brief for Petitioners solely post, with works 360. Because 514 deals already urge, petitioners “provides plausible created, it no incentive to create new works” and is therefore invalid. Reply Brief 4.25

The creation of at least one work, new is not however, way Congress promote may knowledge sole learning. rejected In argument nearly Eldred, we an identical to the petitioners petitioners urged one rehearse. The Eldred existing copyrights categorically “CTEA’s extension of ‘promote Progress fails to Science,’... it because does not stimulate the creation of S., new works.” 537 at 211- U. response argument, 212. In Copy- to this we held that the copyright provision, Clause does not demand that each discretely, operate examined to induce new Rather, works. explained, “empowers Congress we the Clause to determine property regimes body’s intellectual overall, in that, judgment, will serve the ends the Id., of Clause.” at 222. permissible beyond And those we ends, held, extended the (rejecting creation of new id., works. See at 205-206 the “ only way promote progress notion that ‘the to the of science [is] provide (quoting to incentives to create new works’” Participation Perlmutter, in the International System Progress as a Means To Promote the Science (LA) (2002))).26 Loyola Useful Arts, 36 L. 323, Rev. writing petitioners’ argu- Even were we on a clean slate, unavailing. Nothing Copy- ment would be in the text the 25But see Brief Motion Amicus for Picture Association of America Curiae 27 (observing that income existing from works can finance the Eldred, S., publication works); 208, creation and of new 537 U. at n. 15 (noting that “supported family Noah Webster from earnings his entire speller on years his and grammar during twenty complete to he took (internal omitted)). dictionary” his quotation marks tentatively, also suggests, copy dissent more that at least where right legislation extends previously to works do main, Congress that new incentives must counterbalance restriction with Post, create. at assuming 351. Even domain were cate gory 318-324, supra, significance, of constitutional we not contra at would understand Progress contingent meaning. “the Science” have this exclusively “Progress confines of Science” Clause (internal quota- Id., at n. 5 324, “incentives for creation.” omitted). founding, more-

tion Evidence from the marks suggests opposed inducing that over, dissemination —as promote appropriate means to as an creation —was viewed Mythology, Constructing Copyright’s See Nachbar, science. (“The (2002) protec- Bag scope copyright 37,44 2d Green framing,” existing it was tion trained as time of “publication, with claims on “is inconsistent creation,” activity promote to be order must creative (internal omitted)). quotation Until marks valid.” publi- contingent Congress made fact, “federal [thereby] primarily providing cre- incentives not cation[,] supra, Perlmutter, ation,” but dissemination. “copy- correspondingly recognize n. 5. Our decisions right supplies the and dissemi- economic incentive to create Harper Row, Publishers, nate Inc. Nation ideas.” & v. added). (1985) Enterprises, (emphasis See 539,558 471 U. S. also 537 U. 206.27 Eldred, S., at comfortably §514 against backdrop, falls this

Considered Congress’ authority Copyright Clause. within under the Congress rationally have that adherence could concluded “promotes knowledge,” Peti- Berne the diffusion of Brief for sys- well-functioning A tioners 4. international likely existing encourage tem would dissemination (statement Hearing future works. URAA Joint Perlmutter). compliance Con- Berne, Full Professor gress expand mar- had reason would believe, invigorate protection kets available U. authors S. and against piracy Rep. 103-412, of U. No. abroad, S. works S. (statement (1994); pp. Hearing of 224, 225 Joint URAA (statement IIPA), A); Berman, 244, Smith, RIA at of id., 27That induce the dissemina might the same economic incentives also futons, fruit, evidence Bibles, post, tion see answer to this is no long literary property that has legislation furthering the dissemination of way been thought legitimate “promote Progress Science.” thereby benefiting copyright-intensive industries stateside inducing greater process. investment in the creative provision of incentives for the creation new works surely is an spread essential means to advance the of knowl edge learning. hold, We however, that it is not the sole Congress may “[t]o promote Progress means use of Sci (United supra, ence.” See Perlmutter, at 332 States would flexibility” “lose provision all were the of incentives to create science).28 way promote progress exclusive Congress exemplary that determined adherence to Berne objectives Copyright would serve the of the Clause. We reject have no judgment Congress made. warrant the rational III explain why

A We next the First Amendment does not in hibit the restoration authorized 514. To so, do we first recapitulate part pathmarking the relevant of our decision in petitioners argued Eldred. The in Eldred, like those here, only that violated had the “limited Times” prescription of the In addition, and inde Clause. pendently, petitioners charged, Congress the Eldred had expression guar offended the First Amendment’s freedom 20-year enlargement copyright’s antee. The CTEA’s of a provision. we duration, held in Eldred, offended neither Concerning recognized the First Amendment, we expression some restriction the inherent and intended 28The suggests dissent copyrigh[t]” “utilitarian view of em by Jefferson, Madison, braced apart law and our case sets us from conti nental Europe and inhibits from harmonizing us our laws with those post, 348-349, in the countries civil-law tradition. 365. persuasive For Austin, Copy suggestion, refutation of that see Does the (2002) Clause Mandate Isolationism? 26 Colum. J. L. & Arts (cautioning against reading “an isolationist Clause that is in tension with ... America’s international relations over the last years”). hundred or so

328 “Copy- grant Noting every copyright. effect adopted right close Clause and First Amendment were at that the Framers S., 537 U. we observed time,” copyright simply regarded a limit on They may expressive also manner which be used. By “engine expression[:] estab- as an saw of free expression, lishing right a marketable to the use of one’s copyright supplies and dis- incentive to create economic Ibid, (quoting Harper S.,U. Row, seminate & 471 ideas.” (internal omitted)); quotation id., at 546 at 558 marks see by .(“rights designed assure con- conferred are knowledge a fair return for their tributors to the store labors”). We then described “traditional contours” protection, “idea/expression dichotomy” and e., i. recognized jurispru- use” Both are in our “fair defense.29 El- First dence as “built-in Amendment accommodations.” Harper at 560 219; at see 471 dred, S., Row, S., U. & U. (First protections Copy- are “embodied Amendment expression copyrightable Act’s distinction between uncopyrightable ideas,” in the “latitude facts and scholarship safeguarded use for defense). and comment” the fair idea/expression dichotomy at 17 U. S. C. is codified 102(b): copyright protec[t] idea, . . “In no does . case concept, system, operation, procedure, process, method of discovery explained, principle, illustrated, . . . described, copyrighted] [the [idea/ “Due this or embodied in work.” every theory, copy- expression] and fact in distinction, idea, righted instantly exploita- work becomes available for expression publication”; at the moment the author’s tion gains copyright protection. 219; Eldred, S., alone 537 U. (“idea/expression Harper di- Row, S., see & U. at 556 case, appeal gave the initial in this the Tenth an unconfined On Circuit in Eldred to “traditional contours of reading copyright.” to our reference 3d, incorrect, clarify. reading F. That as we here 1187-1196. was chotomy strikefe] a definitional balance between First by permitting Amendment Act and free com- protecting expres- munication of while still facts an author’s (internal omitted)). quotation sion” marks The second “traditional contour,” the fair use defense, is § copyrighted “[T]he at codified 107: U. S. C. fair use of including reproduction copies work, such use in , ... purposes reporting, such criticism, comment, news teach- ing copies use), (including multiple scholarship, for classroom infringement copyright.” or is not an research, This limi- exclusivity only tation on “allows the to use not facts copyrighted [the and ideas contained in a work, but also au- expression thor’s] in itself certain Eldred, circumstances.” (“fair 537 U. at at 220 S., 219; id., see use defense affords scholarship considerable latitude for and comment, . . . even (internal omitted)). parody” quotation marks purposes “speech-protective safeguards” Given the by copyright law, id., embraced see at 219, we in concluded heightened pe- Eldred that call there was no for the review sought titioners in that case.30 We reach same con- clusion here.31 Section 514 leaves undisturbed the “idea/ expression” distinction and the “fair use” More- defense. Congress adopted over, measures to ease the transition from copyright regime: a national to an international scheme It deferred the date from enforcement and it runs, which impact parties” cushioned the of restoration on “reliance exploited foreign who works denied before 514 (describing supra, took effect. 17 U. See 315-316 S. C. (h)). § 104A(c), (d), Eldred, S., See also 537 U. Eldred, (“Protection S., at 221 original [an 537 U. author’s

expression exploitation] speech from does not raise the free unrestricted present government compels concerns communi when the or burdens the ideas.”). particular cation of facts works, narrowly specific problem orphan the dis Focusing sent principal protections overlooks “the dissemination- against these Post, restricting copyright.” harms at 357. exemptions avail-

(describing supplemental allowances and impact). mitigate the able certain CTEA’s users B challenge attempt distinguish from the their Petitioners away interests in Eldred. First Amendment one turned say, petitioners higher here, at stake because order are counterparts enjoyed they “vested their Eldred — —unlike rights” already had entered domain. rights they copyright law’s “built- limited retain under un- safeguards” for the in their no are, view, substitute §514’s enjoyed they Nor, use enactment. limited before 514 n foray § urge, “unprecedented” petitioners into the does supported possess public pedigree the historical that domain Petitioners the issue in for term extension at Eldred. Brief 42-43. spun, depend argument an

However these contentions rejected namely, above, we the Consti- considered and that public largely renders untouchable tution the domain attempt Congress. the here to achieve under Petitioners they not win Amendment what could banner First under the Clause: On their view of the public they is as read the First Clause, inviolable; domain policed through heightened public Amendment, the domain is scrutiny Congress’ judicial have As means ends. we Copy- already supra, shown, 318-327, the text see right scarcely historical establish Clause record public cannot domain,” “once work enters anyone permit [to] even the it,” creator — —“not nothing record, con- 3d, at 1184. And in the F. historical gressional practice, jurisprudence warrants ex- or our own ceptional copyrighted First works Amendment solicitude public chal- were once in this domain.32 Neither 32“[R]equir[ing] already public domain to that have fallen into the stay asserts, “easily might, supply there” dissent an administrable Post, might However rule bright-line standard.” at 358. attractive this lenge nor allege Congress that raised Eldred, we stress, transgressed generally applicable prohi- First Amendment example, we are bition; faced, protec- with hinges viewpoint. tion that on the author’s opinion The Tenth Circuit’s initial peti- determined that stronger tioners marshaled a challenge First Amendment predecessors than did “possessed their in Eldred, who never unfettered access to of the works at 501 F. issue.” 3d, (“[0]nce id., 1193. See also at 1194 the works at issue anyone copy, [petitioners] became free for had vested First §514’s expressions, Amendment [thus] interests in the in- [petitioners’] rights terference subject to First scrutiny.”). petitioners put Amendment As init this Court, Congress impermissibly exploit revoked their for- eign “belonged works that to them” once the works were in domain. Brief for Petitioners 44-45. lawyers,

To rights” the “vested formulation might exactly Rights typically sound backwards: vest at the copyright protection, outset of rightholder. in an author or 201(a) g., (“Copyright See, e. protected U. S. C. in a work .”). initially . . . vests in the author . . . Once the term of any rightholder. ends, the works do not revest simply lapse Instead, the works into domain. be, it is not a rule in history. rooted the constitutional text or Nor can it fairly gleaned be from our case law. The dissent cites three decisions to document its assertion that “this Court particular impor has assumed the tance of public domain material in roughly analogous circumstances.” Graham, Ibid. in City, John Deere Co. Kansas The dictum v. 383 U. S. of 1,6 (1966), earlier, noted did not treat the public domain as a constitutional certainly not under the rubric the First Amendment. See limit — swpra, at 323-324. The other two decisions the dissent cites considered Kew- law, whether the preempted federal Patent Act state trade-secret anee Corp., Oil Co. v. Bicron 470, (1974), 416 U. S. 479-484 and whether the press reporters liability publishing freedom of the shielded from material Broadcasting Corp. Cox public documents, drawn from court v. (1975). Cohn, 469, remotely 420 U. S. 495-497 Neither decision ascribed significance public constitutional to a work’s domain status.

332 (“This 18(1), g., S., at e. T. 251

See, Berne, Art. 828 U. N. apply not . all works which . . have Convention shall to .”). Anyone , public free yet has . . fallen into the domain public after the one, but no domain, access to the expired, acquires ownership rights in once- term has protected works. protect

Congress recurrently adjusts copyright cat- to law compass. egories For exam- once the law’s of works outside Congress ground ple, extended broke new when it § 26 13, in Act of Mar. 1891, 3, works Aug. 1856, 18,11 in Act of Stat. Stat. dramatic works 1110;to photographs photographic negatives Act 1865, in 138; to and pictures in ofAct 1912, of Mar. 13 Stat. to motion 3, 1, 540; recordings Aug. Act 488; 1972, 24, Stat. to fixed sound 1971, 85 and to works 391; of Oct. Stat. architectural 15, 1990, Act, Architectural Protection Works above, occasions, Stat. And on as recounted 5133. several public Congress protected previously domain, works by public. supra, freely hence usable at 320-324. See Congress grant protection If without could to these works scrutiny, hazarding heightened what Amendment then First speech pre- principle protecting free it from disarms maturely into domain for reasons antithetical cast Berne Convention?33 prohibition impose

Section add, we a blanket does protest fair access. that inadequate use Petitioners idea/expression protect dichotomy plainly “are speech expression rights from Section took Takings It Amend was the Fifth Amendment’s the First Clause —not apparently perceived ment —that on its potential to be a check authority freely public. URAA protect works then available to (statement id., Hughes); at 121 Hearing Rep. (app. Joint to statement id., (statement USTR); Lehman, Shapiro, at 141 Dept.); Commerce id., (statement DOJ). Schroeder, reliance-party at 145 Christopher supra, protections §514, meant address supplied see were (prepared such Hearing concerns. See URAA Joint statement 148-149 Schroeder). petitioners, public” or . . . the is, “the unrestricted —that right perform, copy, work, teach and the entire distribute “Playing reason.” Brief for Petitioners 46-47. petitioners symphony,” few bars a Shostakovich observe, performing “is no substitute for the entire work.” Id., at 47.34 Congress put petitioners

But has not in this bind. The question here, Eldred, is whether would-be users must pay expression, for their use desired of the author’s or else exploitation limit their to “fair use” of that work. Proko- performed fiev’s Peter and the Wolf could once be free of charge; perform after 514 the it must be obtained marketplace. marketplace, in the This is course, the same contemporaries: exists for the music of Prokofiev’s U. S. Copland example, enjoy works and Bernstein, for copyright protection, appear regularly but nevertheless programs eoncertgoers. of U. S. joined foreign

Before we Berne, domestic some protected works were in- under U. S. statutes and bilateral agreements, foreign ternational while other works were (because royalty-free) artificially available at an low cost. By fully implementing Congress Berne, that most ensured foreign governed works, whether would be domestic, legal regime. phenomenon the same to which responded is not new: Distortions of the same order occurred greater frequency for- the detriment of both —and eign and domestic when, before authors — entirely copyright protec- works were excluded from U. S. Kampelman, tion. See and International The United States (1947)(“American Copyright, 406,413 41 Am. Int’l L. read- J. Cooper ers were less inclined to read the or Haw- novels of pre-1973 composer, Because his works Shostakovich was a Russian Office, protected were Cir in the States. See U. S. United cular No. 38A: The International of the United States Relations 9, 11, (2010) 2n. and the (copyright relations between Soviet Union 1973). United States date

334 buy they a novel of Scott

thorne for a dollar when could quarter.”)- trend Dickens for a 514 continued Section foreign placing copyright regime by toward a harmonized they occupied position if current would works have regime when were created had been effect those works deprived are published. once first Authors deprivation; spared continuing 514 effects of that initial nothing gives labors more than of their them the benefit during normal whatever time remains before the expires.35 term petitioners, much of the so-called

Unlike the dissent makes problem. “orphan post, 354-357, See at 366-367. works” readily acknowledge users We would-be difficulties locating copyrightable may identifying or face in materials Copyright generally Office,Re- owners. See U. S. (2006). port Orphan con- Works 21-40 But as the dissent hardly peculiar post, difficulty cedes, at see this is 357, §514. similarly in- works It for afflicts, restored under attempt catalogue stance, libraries S. books. U. S. U. Library post, See at 355-356. See also for Brief American (Section al. as 22 Association et Amici Curiae 514 “exacer- works); orphan problem bated,” did not but create, supra, (tracing orphan-works U. S. at 41-44 Office, problem Congress’ commencing formalities, elimination of Act).36 with the 1976 appropriate judicial, opposed to

Nor matter is this a legislative, Google, Inc., resolution. Authors v. Cf. Guild “

35Persistently deploring re copyright’ protection it] [because ‘restored public domain,” moves does not post, material from at the dissent pause to why lodged consider when and the material came to be by § domain. a term got Most of works affected there after by zero or a cut short term failure observe U. S. formalities. supra, at 314. 356-357, problem post, pervasive copyright piracy, noted scarcely formerly in the protected likewise is limited to public domain. (SDNY 2011) Supp. (rejecting pro- E 2d 677-678

posed “Google Books” class settlement because, inter alia, “the exploiting establishment of a mechanism for unclaimed books a matter more suited for than this Court” 212)). (citing policy Eldred, S„U. Indeed, the host of logistical questions speak identified the dissent Despite “longstanding themselves. Post, at 355-356. ef- Supp. (quoting forts,” see Guild, Authors 770 F. 2d, at 678 Marybeth Peters), Congress yet passed statement of has not orphan-works legislation by ameliorative of the sort enacted g., Copyright other members, Berne e. see, Act, Canada § (authorizing Copyright R. S. C., 1985, C-42, c. Board to orphan by persons making license use of after unable, owner). reasonable efforts, locate Hereto- orphan-works suggested fore, no one has issue through implementation should be addressed our of Berne, overarching through legislation pro- rather than of the sort posed by Congress post, and cited dissent. See Legal Digiti- 366-367; U. Office, S. in Mass Issues (2011) efforts). (discussing legislative zation 25-29 recent unstinting may impetus Our adherence to Berne add to calls legislation. for the enactment of such But resistance to prescriptions surely necessary proper Berne’s is not a or re- sponse pervasive question, Congress to the what should do orphan about works.

IV Congress determined that U. S. interests were best served participation system our full in the dominant interna- copyright protection. tional include Those interests ensur- ing exemplary compliance obligations, with our international securing greater protection abroad, U. S. authors remedying unequal judg- treatment of authors. The § expresses political ment 514 lies well within the ken of the obligation, branches. It is our of course, to determine whether the action took, not, wise encounters stated, For the we constitutional shoal. reasons are sat- of Appeals it does not. The Court judgment isfied the Tenth Circuit is therefore

Affirmed. Kagan no or deci- in the consideration Justice took part case. sion this

APPENDIX Title 17 U. S. C. 104A provides:

“(a) and Term.— Automatic Protection

“(1) Term.— section,

“(A) this subsists, accordance date of on the in restored and vests works, automatically restoration.

“(B) this work in which under Any is restored term of copy- for the remainder section shall subsist granted the work have otherwise been would do- work never the United States if the entered main in the United States.

“(2) was work in which the Exception. Any — Custodian ever owned or administered the Alien by Property a owned by in the be and which restored would copyright a restored thereof, or government instrumentality work. Ownership Copyright.

“(b) restored OF Restored — A of in rightholder work vests the author or initial initially of country the work as determined the law of the source by the work. Filing

“(c) Intent Restored of Notice of Enforce Copyright Against the Reliance or after Parties. — On in a date a of who owns restoration, any person copyright the file with restored work or an exclusive therein right may of Office a notice intent enforce Copyright person’s a di- or or serve such notice right may exclusive copyright the a notice rectly on a reliance of party. Acceptance any parties Office is effective as to reliance but presumption validity shall not any create a of the of party facts stated therein. Service on a reliance is effective party as parties to that reliance and other reliance with knowledge actual of such service and of the of that contents notice. Infringement

“(d) Remedies of Restored Copyrights.— copyright

“(1) Enforcement of in restored works against any RELIANCE PARTY.—As IN THE A ABSENCE OF party party, provided who is not a reliance the in remedies chapter 5 of this title shall be available on or after date copyright respect of restoration of a restored to an act infringement copyright restored that is commenced on or after the date of restoration. “(2) Enforcement in restored parties. against against —As a reliance reliance (3)

party, except provided paragraphs to the extent in and (4), provided chapter the remedies 5 of this title shall be respect infringement available, with to an act of restored copyright, on or after the date of restoration of restored requirements following if either of the sub- paragraphs are met:

“(A)(i) (or The owner of the restored such (or agent) owner’s owner of an exclusive therein agent) during such owner’s files with the Office, period beginning the 24-month restoration, on date of copyright; notice of intent to enforce the restored “(ii)(I) infringement the act of after the commenced period beginning publica- end of the the date of 12-month Register; tion of the notice the Federal “(II) infringement the act commenced before (I) period end of 12-month described subclause period, continued end of that in which after the 12-month only infringement case be available for occur- remedies shall ring period; that or after the end of 12-month

“(HI) copy- phonorecords copies in which or a work of after right are made has restored under this been section Register. publication Federal the notice of intent in the of (or “(B)(i) such owner of the restored (or right agent) an therein the owner of exclusive owner’s or party agent) upon of a a notice reliance owner’s serves such copyright; and to “(ii)(I) a intent enforce restored infringement after act of commenced period beginning the notice on the date end of the 12-month received; of intent is

“(II) infringement of before the act commenced (I) period and 12-month subclause end described period, in which that continued after the end of 12-month infringement only for the case remedies shall be available occurring period; the end that or after 12-month “(III) copy- copies phonorecords which or of work after has are made been restored under this section receipt of the notice of intent. subpara- provided

“In the event that notice is under both (A) (B), period graphs into such the 12-month referred publication subparagraphs or shall run from earlier service of notice.

“(3) (A) In of a Existing the case works. — derivative upon is derivative work is based a restored work created—

“(i) Uruguay the date of the of the before enactment Agreements country if restored Act, Round the source of the eligible country is date, work an on such “(ii) country which of the before date on the source country, country eligible if restored work becomes an country eligible an date enactment, on such may party exploit “a reliance continue that derivative for if reli- work the duration restored party pays to the rea- ance owner the restored subject compensation for conduct be sonable which would remedy infringement provisions this but paragraph.

“(B) agreement parties, In the of an absence between the compensation by the amount of such shall be determined an any action in court, United States district and shall reflect potential harm to the or for or actual market value of the party’s exploita- restored work from reliance continued compensation tion of the work, as well for the relative expression contributions of of the author of the restored party work and the reliance work. the derivative “(4) infringement Commencement reliance parties. purposes of the case —For section in of reliance parties, infringement shall be deemed to have commenced registration before when acts which would have constituted infringement subject copy- had the restored work been right were commenced before the date of restoration.

“(e) a Notices Intent to Enforce Restored Copyright.— copyright

“(1) Notices filed of intent with the of- (A)(i) A intent filed with the notice fice. — signed by Office to enforce a restored shall be the owner of restored or the owner an exclu- sive who files the under subsection therein, notice (d)(2)(A)(i) (hereafter paragraph in this referred to as the ‘owner’), identify by agent, or the title of the owner’s shall English the restored and shall include an translation work, any of the title alternative titles known to the other by may identified, owner an which restored work be may telephone address and number at which the owner be by agent, signed agency contacted. If notice is an writing signed relationship in have been must constituted by filing owner of the notice. before may specifically require regulations Office other informa- provide tion notice, to be in the but failure such included other not invalidate the notice be basis information shall Register. for refusal restored work in the Federal to list the “(ii) has If a no formal work in which is restored it of intent in title, shall the notice detail be described identify it. sufficient

“(iii) may far- corrected Minor errors or omissions be is filed. after the notice of intent ther notice time minor or omissions for such errors Notices corrections accepted period in subsection after the shall be (d)(2)(A)(i). established Regis- published be Federal

Notices shall (B). pursuant subparagraph to ter “(B)(i) Register Copyrights publish in the Fed- The shall of Register, commencing after not later 4 months the than eral every particular a months date of restoration for nation and years, identifying period restored a of 2 thereafter for lists ownership if to en- and the thereof a notice intent copyright force a restored has been filed.

“(fi) containing intent Not less than 1 list all notices of to shall Office enforce be maintained in the Information Public public in- of the Office and shall be available during pursuant spection copying regular and hours business to sections 705 and 708.

“(C) Register Copyrights fix rea- is authorized receipt, processing, record- sonable fees based on the costs of ing, publication a and of notices of intent restored to enforce copyright and corrections thereto.

“(D)(i) days Agree- Not later than 90 before date the the Property Aspects ment on Trade-Related Intellectual 101(d)(15) Uruguay in Round referred to section of the Agreements respect the Act into force with United enters publish the in States, Office shall and issue Register regulations filing governing Federal under this subsection of notices of intent a restored to enforce copyright.

“(ii) regulations permit of restored Such shall owners copyrights simultaneously registration re- file copyright. stored “(2) op party.— Notices intent served reliance

(A) may Notices intent to enforce restored party any be served on a the date of reliance time after copyright. restoration restored “(B) Notices of intent to enforce a restored party signed by served on a reliance shall be the owner or agent, identify shall owner’s the restored work any, work in which the used, restored work is if detail identify English sufficient to and shall an them, include any the title, translation of alternative known to other titles by may the owner which identified, the work be use or objects, uses to which the owner and an and tele- address phone party may at which number the reliance contact the agency signed agent, owner. If notice an rela- tionship writing signed must have been constituted by the owner before service the notice. “(3) -Any ma- EFFECT OF MATERIAL FALSE STATEMENTS.— respect knowingly any

terial false statement made intent restored identified notice of shall respect make void all claims and assertions made with copyright. such restored Warranty Immunity

“(f) From Related Liability.— “(1) general. Any person promises, warrants, who In — guarantees right

or that a work not violate an does exclusive granted equitable, legal, not be liable for section shall warranty, promise, if arbitral, or administrative or relief guarantee by copy- of of is virtue the restoration breached guar- warranty, promise, if or section, under this such January 1, antee is before 1995. made “(2) required person shall Performances. —No be to perform any performance infringing if is act such made provisions virtue of under of the restoration of obligation perform this was undertaken be- section, if the January fore 1995. “(g) Restoration. —When- of Proclamation particular foreign nation

ever ex- the President finds that a by authors are nationals or domiciliaries tends, to works who copyright protection on sub- States, the United restored provided stantially section, the basis as under this the same by proclamation may restored President extend any provided work— under this section to “(1) is, date authors on the or more of the which one sovereign domiciliary, publication, or author- national, a first ity or nation; of that

“(2) published that nation. which was first any may suspend, such or revoke revise, “The President pro- any impose proclamation or conditions limitations or proclamation. tection under such a “(h) purposes of this section and section DEFINITIONS.—For 109(a):

“(1) proclamation' means or The ‘date of adherence term as of which, nation the earlier on which a date respect Agreement into enters force with the date the WTO adhering Berne not a nation to the States, United country, a member becomes— Convention or WTO “(A) adhering Convention; a Berne nation “(B) country; member WTO “(C) adhering Treaty; a nation to the WIPO “(D) adhering Performances and nation to the WIPO Phonograms Treaty; or

“(E) subject proclamation under sub- a Presidential (g). section

“(2) is— ‘date of a restored restoration’ of

“(A) January country re- 1996, if the source adhering or a nation the Berne Convention stored work is country date, a WTO on such or member “(B) proclamation, the case of adherence the date country other source the restored work. “(3) ‘eligible country’ a than means other nation, term United that— States,

“(A) country date of a after the becomes WTO member Uruguay Agreements Act; the enactment of the Round “(B) date of or such is, on such date enactment after adhering becomes, a the Berne of enactment nation Convention;

“(C) Copyright Treaty; adheres to the WIPO “(D) adheres to WIPO Performances and Phono- grams Treaty; or

“(E) subject after such of date enactment becomes to a proclamation (g). under subsection

“(4) party” any person The term “reliance means who—

“(A) respect particular engages with to a in work, acts, country eligible before the of source an work becomes country, which have would violated 106 if the re- section subject protection, stored work had been country eligible country, who, after the source becomes an engage continues to in acts; such

“(B) country particular before the source of work a be- eligible country, acquires copies an comes makes or or more phonorecords work; or or

“(C) disposition as the or result sale other of a (d)(3), signifi- derivative work covered under subsection or (A) person subparagraph (B), cant assets of in a described or assignee, person. is a or successor, licensee of that “(5) copyright’ The term in ‘restored means restored work under this section.

“(6) original The term ‘restored work’ an work of means authorship that—

“(A) protected (a); is under subsection “(B) country is domain in its source through expiration protection; termof

“(C) domain the United States due to—

“(i) any noncompliance imposed with formalities including time law, United States failure of re- comply proper newal, lack notice, or failure to manufacturing requirements;.

“(ii) subject matter in the lack of case February recordings or 1972; sound fixed before “(iii) eligibility; lack of national “(D) rightholder who was, has at least author or one domiciliary time created, the work was national published, published in country, eligible and if first an was country published eligible United States an and not in the eligi- publication 30-day period following during in such the country; and ble

“(E) eligible country an is if the for the work source solely Per- country by the WIPO virtue of its adherence recording. Phonograms Treaty, a formances sound “(7) ‘rightholder’ person— the The term means

“(A) recording, respect fixes first who, with to a sound recording authorization, or sound with “(B) acquired rights person from described who the has (A) by oper- any conveyance subparagraph or in means of ation law.

“(8) country’ is— The ‘source of a restored work

“(A) States; a nation than the United other “(B) unpublished in the an work— case of

“(i) right- eligible country or the the author which domiciliary, if has or, a national or work holder is a restored majority rightholder, the more than author or of which rightholders authors are or domiciliar- or nationals ies; or

“(ii) majority rightholders if are not the or authors foreign, has which the nation other than the United States significant work; contacts most with

“(C) published in the work— case of

“(i) pub- eligible country which work is first lished, or

“(ii) day published if the on the restored work is same country eligible eligible has which countries, or more significant the most contacts with the work.” Breyer, joins, Justice whom Justice Alito dissenting. (by “[t]o promote Progress

In which order Science” “learning” “knowledge”), term the Founders meant power grants Constitution’s Clause “seeur[e] for limited Times to . Authors . . the exclusive Right Writings.” to their ... I, 8, Art. cl. 8. This “exclu- Right” charge sive allows its holder to to a fee those who copyrighted wish to use ability charge a and work, the encourages production that fee the of new material. In this Macaulay’s sense, a is, in a words, “tax on readers purpose giving bounty bounty to writers” —a designed encourage production. new As the Court said “‘[t]he philosophy [Copy- Eldred, economic behind the right] [CJlause encouragement ... is conviction by personal gain way individual effort is best to advance public through welfare the talents of authors and inven- ” (2003) tors.’ Eldred v. Ashcroft, 212, 537 U. S. 186, n. 18 (quoting (1954)). Mazer v. Stein, 347 201, U. S. T. Macaulay, (E. Speeches 1913); Copyright 25 Miller ed. E. Property The Walterscheid, Nature of the Intellectual (2002) Study Perspective Clause: A in Historical 125-126 (hereinafter Walterscheid).

The encourage anyone us, statute however, before does not produce single By new definition, work. it bestows monetary only rewards on owners of old works—works that already already have been are in created the Ameri- can At domain. the same time, statute inhibits published the dissemination of those works, works many abroad after of which there are includ- millions, ing photographs, films, of art, innumerable and, of (in statute) course, books—books that the absence of the rightful places computer-accessible would their assume spreading knowledge throughout databases, the world. See my infra, 354-357. In view, the Clause does not authorize to enact I this statute. And conse- quently dissent.

I possibility eliciting always production is, new precondition has an been, essential for American protection. Right,” words, The Constitution’s “exclusive through “Progress Science,”

“limited viewed Times,” significance legal history what lens of underscore the Eldred, philosophy be- referred the “economic Court (brack- n. 18 S., hind the Clause.” 537 U. omitted). copyright’s philosophy That ets understands private monopoly privileges grants authors as of limited elicit reason—to that are conferred for a benefits new creation. two-edged recognized, monopoly a

Yet, as the Founders encourage production of hand, one sword. On the it can anyone protection, new works. In the absence of might freely copy products creative of an author’s incurring appropriating the non- labor, benefits without thereby repeatable deterring from creation, authors costs exerting place. hand, in the On the other themselves first use) (and of restrict tends to the dissemination compe- produced works once either the absence of because directly prices higher tition into consumer translates copying permission to because need secure sometimes the po- imposes for make it administrative costs that difficult copyrighted and tential users to find its owner of work bargain. Eco- strike a W. & R. The Posner, See Landes Property 213- 68-70, nomic of Law Structure Intellectual (2003). Consequently, original 214 the British law all statute, Framers, and our the Constitution’s case recognized resulting necessary copyright’s for have and call balance. they

At Constitution, the time Framers the wrote 18th-century copyright statute, were well aware of Britain’s (1710), they 19 were Anne, Anne, Statute of ch. and struggles legal produced aware of it. That statute sought monopo- part pre-existing limit, control, to and to emerged lies that had trade as a of the book result previously having granted special privileges to Crown’s royal example, Crown, favorites. The had chartered Company, permitting regulate Stationers’ to censor it and government’s works on the behalf. The Stationers had thereby acquired disposition copies control over the of published emerged copy- works, from which the Stationers’ right right company conferred on members, authors, —a perpetuity. that was deemed exist L. Patterson, in. Copyright (1968) Perspective in Historical 1-16, 114-150 (hereinafter Patterson); Walterscheid 59-65; Gómez- Arostegui, Story The Untold First Suit Under Berkeley the Statute of Anne in 1710, 25 L. Tech. J. (2010). 1247, 1250-1256 prevent

To monopoly the continuation of the booksellers’ encourage and to authors write new books, Parliament enacted the Statute of Anne. It “An bore the title: Act Encouragement Learning, by vesting Copies printed Copies, in the Books Authors or Purchasers of such during granted the Times therein And mentioned.” it au- (not publishers) assignees Right thors and their the “sole Liberty printing” periods their works for limited of time encourage compose in order to them “to and write useful added). § (emphasis Books.” Anne, ch. As one histo- put plank rian has it: “The central of the . . Act . was ... a quid pro quo. encourage cultural To ‘learned Men to com- pose provide guar- and write useful Books’the state would temporally print reprint if anteed, limited, those Myth Deazley, works.” Law, Common (2003). attempts 62 Camb. L. J. 106, At in their first, argued minimize losses, their that booksellers authors perpetual copyright had a common-law in their works deriv- ing rights from their natural as creators. But House ultimately Rep. Eng. Lords held Donaldson v. 1 Beckett, (1774), 837 that the Statute of Anne had transformed perpetual such common-law into a of a designed limited term to serve the interest. Patter- Deazley, supra, 153, son at 15-16, 158-179; 114-126.

Many early patterned statutes, colonial after the objective copyright’s Statute of Anne, also stated that was 348 thereby produce im- encourage and

to to new works authors learning. prove En- Office, S. See U. 1963) (rev. pp. 19 actments, 3, 1, 6, 10, 17, Bulletin 11, No. (statutes Jersey, Pennsylvania, South Connecticut, New York); Georgia, Bra- 74-75; Carolina, and New Walterscheid in the Land cha, The Adventures of of Anne Statute Legal Transplant, 25 Unlimited Possibilities: Life of (2010). Berkeley 1427, Tech. L. J. 1444-1450 predominant expressed least, to, At that was view by, for ex- Jefferson, the Founders. Patterson 93. Thomas ample, initially great uncertainty expressed toas whether grant copyrights Constitution should authorize writing patents and “the benefit of limited all, even monopolies anything than is too other doubtful” to warrant “suppression.” to their Letter from Thomas Jefferson 1788), (July Papers 31, James of Thomas Jef- Madison (J. 1956). Boyd also 440, ferson James Madison ed. thought justly among “Monopolies . . . classed are greatest nu[i]sances in Government.” Letter from James (Oct. 1788), 16, id., in 14 17, Madison Thomas Jefferson (J. 1958). Boyd argued ed. But that “in certain cases” he (“with copyright, monopolies granted” such as should “be abuse”) guarded agst serve caution, and with strictness gained “compensation actually benefit community might . . . the owner withhold which otherwise Monopolies. Corporations. Perpetuities. from use.” (J. Writings Endowments., Ecclesiastical in J. Madison, 1999) added). eventually (emphasis Rakove ed. Jefferson agree supporting came to a limited conferral Madison, rights monopoly only encouragement to men but an “as pursue may utility.” produce ideas Letter from which 1813), (Aug. in 6 Thomas Jefferson Isaac McPherson 2009) (J. Papers Looney Jefferson, at ed. of Thomas added). (emphasis copyrights patents,

This utilitarian view embraced Madison, the “natural Jefferson stands in contrast to rights” underlying European copy- view much of continental right English promoted law—a view that the booksellers in following an effort to limit their losses the enactment of the part of Statute Anne and that motivated enactment of of some the colonial statutes. Patterson 158-179, 183-192. Premised on the idea that an author inventor has an inher- right mythically ent to the fruits of it labor, his stems from legendary 6th-century King of statement Diarmed “‘to ” every every accordingly copy.’ cow her calf, and book its History Copy- A. Birrell, Seven Lectures on the Law and (1899). though perhaps Books view, That re- opinion, contrary flected ante, the Court’s runs writing the more utilitarian that views influenced the Copyright our own Constitution’s Clause. See S. Ricketson, Literary The Berne Convention for the Protection of and (1987) (The pp. Artistic Works: 5-6 1886-1986, first French “placed rights laws authors’ on a more elevated understanding basis than the Act done,” of Anne had on the they “simply according that recognition were formal to what already ‘very things’”); was inherent in the nature of S. Rights Neighbouring Stewart, International (2d 1989) (describing European system 6-7 d’auteur). ed. of droit understanding This utilitarian has Clause long been in the reflected case law. In Mazer, Court’s example, embodying the Court refers to “encouragement by personal view that individual effort gain way through is the best to advance welfare (empha- talents of authors and inventors.” S., 347 U. at 219 added). Century Corp. sis In v. Aiken, Twentieth Music (1975), says underlying copyright U. S. 151 the Court “[cjreative understanding encouraged is to work be ultimately private rewarded, but motivation must promoting availability serve the cause broad (emphasis literature, music, Id., and the other at 156 arts.” added). Sony City Corp. And in America v. Universal (1984), speaking of

Studios, Inc., Court, 464 U. 417 the S. “monopoly copyrights patents, points the and that both out primar- [not] Congress may privileges are . .. that authorize designed ily provide special private Rather, to a benefit. public grant by important a an the is means which limited may purpose the be It is achieved. intended motivate special by activity provision authors ... the creative of of g., added); (emphasis Gra- Id., also, reward.” 429 see e. (1966) City, 1, v. Deere Kansas U. 6 ham John (The Co. 383 S. Progress promote ‘[to] “constitutional command ... the expressed [ofScience]’... is the in the standard Constitution may Doyal, ignored”); Corp. 286 it not be Fox v. and Film (1932)(“The States the United 123, U. S. sole interest of general lie[s] from in the . . . benefits derived the authors”). the labors

Congress congressional expressed Re- has similar views ports legislation. example, an Thus, for Report House states: object to be consti-

“The attained and the reason for the grant power grant itself. tutional are in the imbedded promote They progress are ‘to and science says] nothing [The arts.’... useful Clause ... about purpose or his desire to secure to the author inventor property.’” Rep. ‘natural H. R. No. his Cong., 52d Sess., 1st 2.

Similarly, congressional of the authors landmark Copyright Act wrote: provides have Constitution

“The ... shall grant primarily power [copyrights] [n]ot . . . policy author, . . . benefit but because body people, great believed to be for the benefit give writing invention, will that it stimulate and Rep. No. and H. R. some bonus authors inventors.” (1909). Cong., Sess., 60th 2d they say: And went on to

“Congress questions: must consider . . . First, two how legislation producer much will the stimulate the public; so benefit the and, second, how much will the monopoly granted public? be detrimental to the The granting rights, proper of such exclusive under the upon conditions, terms and confers benefit outweighs temporary monopoly.” the evils of the Ibid. upshot history, precedent text, is that demon- Copyright places great

strate that the on the Clause value power copyright production. Congress to elicit new particular may copyright’s ability cases determine that outweighs any high prices, do so concomitant administrative costs, and restrictions on And when it does dissemination. respect judgment. so, we Eldred, must its S., See 537 U. empower Congress 222. But does the Clause to enact a public brings statute that domain, withdraws works from the higher prices doing seriously about re- costs, and so particularly dissemination, stricts who need it for those scholarly, purposes pro- or cultural educational, without —all viding any production additional incentive for the of new question material? I And, That is the before us. as have I said, believe the answer is no. this statute any plausible reading has exceeded what under are, Copyright permissible Clause, its limits.

W J—i copy- says The Act before that it American us “restores” part, did not works, to a set of for the most which, previously protection. enjoy copyright These American but as of the domain, had fallen into America’s they yet “restoration” into the date, had not fallen foreign country they originated. domain of the where anywhere originating The almost statute covers works (set- 104A(h)(3) §C. States. 17 U. S. outside United criteria); ting eligibility Office, Circular out S.U. the United No. 38A: Relations International (2010). primarily The of works consists States relevant set at some originating obtain, or that did not of works abroad (1) point copyright protection the au- because lost, American copyright comply for- applicable failed to with American thor (such (2) renewal), nation in which notice or malities or they published relations were then lacked first (3) recordings they fixed are States, United sound 104A(h)(6)(C). § February work 1972. A must before satisfy requirements: had have also technical It must other eligible rightholder an who was a or resident of national country day have been it and it cannot created; on the was pub- published days first in § of its the United States within 104A(h)(6)(D). grants lication. Act these works expired expires had at the time it would have starting a full term the author American obtained (in published from on which the was first date work 104A(a)(l)(B). foreign country). mainly applies published be-

The Act abroad works first apply significantly to ear- tween 1923 It and 1989. does not published 1921 would lier works because work before it received have fallen into the before 1977had domain copyright published a full while be- term, American works copyright tween 1921 and 1923 obtained a “restored” expired Sonny Exten- Term before the 1998 Bono years Act, at most. See sion could have lasted two so § (extending copyright term of I, 101, Tit. Stat. 2574 90 copyright years); S. 75 17 U. C. works still under in 1977 to 304(b) § (extending copyright still under term works copyright years). impact on more in 1998 to 95 It has less became a recent because 1989 the United States works copyright requirement, Berne member, abolished the notice provided prospective copyright protection and thenceforth throughout the Berne Union. See R. Schechter & J. Property: Copyrights, Thomas, Intellectual The Law Pat- (2003); ents and Trademarks 75-77 §7, 102 Stat. 2857-2858 (codified §§401-406). at 17 amended U. S. C.

Despite temporal these limitations, Act covers vast category pub- numbers of works. The first includes works copyright lished countries that had relations with the during period, United this States time such as most of West- Europe ern Japan, and Latin America, Australia, and see satisfy Circular 38A, 2-10, No. whose did not authors copyright perhaps American formalities, author, because the may sought copyright, published who not have an American proper the book perhaps abroad without American notice, copyright because the author obtained a valid American but failed to renew it. (works category

The second that entered the do- relations) copyright among main due to a lack of includes, published all others, works in Russia and other countries (when May of the former Soviet Union before joined U. S. S. R. the Universal Convention (UCQ), published People’s Republic all works in the (when China before March bilateral relations People’s Republic between the and the United States were established), published first all South Korean before (when UCC), joined October South Korea and all Egyptian published and Turkish works March before (when Berne). joined id,, United States at 2-10, 2, 5, nn. 6. category eligi- recordings

The third covers all sound from February published ble countries after 1972. practical significance of federal restoration to category this re- clear, works is less these works since ceived, and receive, continued to under 301(c). state law. See 17 U. S. C.

Apparently precise figures there are about number no then-Register affects, of works the Act but in 1996 the they “probably Marybeth thought Copyrights, Peters, Accomplish- The in Review: number in the millions.” Year Objectives Office, 7 Ford. U. ments and S. Property L. J. &Media Entertainment Intellectual (1996).

A provision do- takes from the before us works 104A(h)(2)(A) § January 1, 1996. at least as of main, dates). (setting It restricts the dissemi- then “restoration” ways. works in two nation those charge copyright” can fees for First, holders now “restored price previously used for free. The consumers Op. Fugues 87, for a of example, score Shostakovich’s Preludes by multiple Brief for Conduc- has risen a of seven. as the Court And, al. as Amici Curiae 11. tors Guild et perform recognizes, “Peter and orchestra that once could an buy “right charge” . will have the Wolf. . free of now marketplace.” perform at 333. But Ante, it ... 104A(d)(3), works, for certain the case of “derivative” copyright” copyright holders, like can holder, “restored other charge what the If a school orchestra market will bear. nonprofit organization charges, other cannot afford the new They aggravating do so be it. will have to without — already problem in the United serious cultural education Brief for et as Amici States. See Conductors Guild al. Cu- (describing inability many riae 4-5, 7-8 orchestras pay for the rental of sheet music covered “restored eopyright[s]”). important,

Second, creates ad- and at least as the statute determining whether costs, ministrative such as the costs of subject searching copyright,” a a work the of “restored copyright” negotiating fee. holder, “restored Con- gress has tried to ease the administrative burden contact- ing copyright negotiating prices those whom holders and pre- parties],” namely the statute calls “reliance those who viously they freely had available used such works when were 104A(h)(4). in the domain. But has done nothing securing per- to ease the administrative burden of copyright placed upon mission from owners is those who they want previously to ause work that did not use, and this particular problem “orphan is a when it comes to works”— older and more obscure works with minimal commercial copyright value impos- that have owners who are difficult or Unusually high to sible track down. administrative costs severely threaten to limit the distribution and use of those despite which, works—works their characteristic lack eco- prove culturally nomic can value, invaluable. example, according

There are millions of such For works. European figures, orphan Union there are 13 million books (13% European in the Union total number of books there), copyright orphan European 225,000 films in film orphan photographs King- archives, and 17 million in United Vuopala, Orphan dom museums. A. Assessment (2010), Rights Works Issue and Costs for Clearance http://ec.europa.eu/information_society/activities/ online (all digital_libraries/doc/reports_orphan/anna_report.pdf In- ternet materials as 13, 2012, visited Jan. available in file). university, Clerk of Court’s ease How is a a film collec- compiler, a tor, musician, a database or a scholar now ob- permission any tain to use such lesser known work previously in the American domain? Consider the questions group, individual, such or institution usu- ally eligible must answer: Is the work for restoration under the statute? If so, who now holds the au- —the publisher? long-lost an thor? heir? a an association? cousin? Suppose Whom must we contact? What address? no negotiation? one answers? How do we conduct questions To these, find and similar, answers costs money. Michigan University In- cost to the and the example, Library Services, stitute Museum in the determine the status of books contained Digital Library published in HathiTrust that were million. will exceed $1 States from 1923 to United Amici Cu- et Brief for American al. as Library Association riae 15. the Los

It to learn that is consequently surprising collec- has unable make its Angeles Library Public been tion of Mexican folk music available because publicly that a cultural Jewish locating owners, problems efforts to make available has abandoned organization similar materials, cultural music or that film pre- Jewish and other servers, museums, scholars, compilers, database universities, others associated the administrative costs report forced to locate have foreign with owners trying work- other scholarly, them curtail their or cultural, g., e. See, Library efforts. Comments of preserving Alliance in to the U. S. Copyright Copyright Response (Mar. 2005), Office’s on on- Works Orphan Inquiry line at Com- http://www.arl.org/bm~doc/lcacomment0305.pdf; ments of Creative and Save The Music Commons Orphan to the U. S. on Response Office’s Inquiry (Mar. 25, 2005), Works online at http://www.copyright.gov/ Gen- orphan/comments/OW0643-STM-CreativeCommons.pdf; (GATT): eral on Intellectual Agreement Tariffs and Trade Provisions, Joint Property before Subcommittee Hearing on Intellectual and Judicial Administration Property on House Committee on the and the Subcommittee Judiciary Patents, Trademarks the Senate Commit- Copyrights (1994) tee Sess., 131, 103d 2d Judiciary, Cong., (hereinafter (statement Urbanski, Joint Hearing) Larry Chairman of the Fairness in Coalition and Presi- As- Moviecraft, Inc.); Library dent for American Brief sociation et al. as Amici Curiae Brief Creative 6-23; as Amicus Curiae 7-8; Project Commons Brief for Corp. Petrucci, LLC, as Amicus Curiae 10-11.

These administrative can costs high prove counterproduc- tive another some users way. They will tempt potential And “steal” or than do “pirate” works rather without. piracy breeding begets piracy, often the destructive habit of taking copyrighted paying for them, works without even payment possible. ignore where Such the critical habits copyright plays role in the creation of new while re- works, flecting by appears magic a false that new belief creation thought hope compensation. without

B recognize ordinary copyright protection I also comes accompanied dissemination-restricting royalty charges and administrative But here work costs. the restrictions special thing, harm. one For location restored ordinary higher works means costs. than administrative requirements it another, For very the statute’s technical make copy- difficult to has its establish whether a work had Gard, restored the statute. In the Trenches With Arguments 104A:An in Golan v. Evaluation Parties’ Supreme L. Court, Holder as It to the 64 Vand. Rev. Heads (2011) (describing En Banc 216-220 difficulties encoun- compiling necessary tered in information to create an applies online tool to determine whether the statute case). given protection copyright” ma- all,

Worst of “restored removes doing public In it the so, terial from the domain. reverses payment expectations to used, use, who or intended of those Congress they thought belonged that to them. Were works respect property similarly to act to well-established with rights, problem analo- the would be obvious. This statute pre- thereby gously Americans’ diminishes, restricts, existing formerly public material in to domain freedom use expressive their activities. majority correctly that the

Thus, while the observes pre- normally copyright dissemination-restricting harms problems legislation appropriate ante, at resolve, for to sent per- question Clause whether the 334-335, the is by problem Congress seriously a such mits to exacerbate public taking countervail- out the domain without a works judicial question ing appropriate resolu- for benefit. This is had to decide unlike Eldred where the Court Indeed, tion. copyright complicated line-drawing question ais a —when easily long? too an administrable standard term —here require that have that would available—a standard stay already public to there. fallen into the domain just present statute features of mentioned several, important, they distinguish it from other are By public removing domain, the laws. material from pre-existing “abridges” freedom statute, terms, literal public might speak. practical In terms, members say, how have as well as well decided what when say expres- part reviewing repeating, init, with a view to freely reasonably they be, that was, sion believed or would surpris- speech implications, not available. these it is Given ing protect long sought public domain has revising material at 362 infra, when laws. See instances). (listing particu- And this Court has assumed importance public roughly analo- lar domain material in gous (“Congress Graham, circumstances. See 383 U. at 6 S., may patents are effects authorize issuance of whose domain”); knowledge public to remove existent from the (1974) Corp., 470, Kewanee Oil (trade v. Bicron 416 U. S. Co. “policy incompatible secret is not public matter once in domain must remain in domain”); Broadcasting Corp. Cox Cohn, v. 420 S.U. (First (1975) sanctioning press prohibits Amendment documents); publishing see material disclosed in court Century Corp., Corp. also Dastar v. Fox Film Twentieth (“The (2003) copy U. S. . . . once (internal expired public” quotation passes has . . . to the omitted)). marks forward-looking copyright to laws tend

Moreover, whereas (the yet writer benefit those whose identities are not known yet has not who written a who has book, musician yet song), composed primarily when a a law is looking greater trying backward risk is that is help expense badly organized known beneficiaries at the argue present unknown it users who find difficult their thought Congress. problem case In I Eldred, this was generally (dissenting opin- severe. atS., 537 U. 243-266 ion). light Congress, And in of the fact with one minor that exception, testimony only representatives from heard existing copyright hoped passage of holders, who that reciprocal statute enable from would them to benefit treat- ment of abroad, 364-365,1 American at infra, authors cannot say problem, that even here the while much diminished, was nonexistent. agree majority doing

I with the in this that, statute so, among speakers does not discriminate their based on view- points subject or matter. Ante, at 330-331. But such con- potential prob- siderations do not exhaust First Amendment lems. Cf. v. IMS S. Inc., Sorrell Health U.

(2011) (finding problem First Amendment statute that prohibits drug using publicly manufacturers from available prescriber-identifying marketing information their efforts part specific speakers”); “disfavor[ed] it because Turner (1994) Broadcasting System, FCC, Inc. v. U. S. (“Regulations among among media, that discriminate dif- speakers single present ferent a medium, within often seri- concerns”). ous First Amendment (e. together, g., speech-related

Taken harms restrict- these ing reversing payment previously use of material; available expectations; rewarding public’s ex- rent-seekers pense) presence show the of a First Amendment least present purposes, enough. I interest. For And need not interest show whether the harms decide only point I need violation of the First Amendment. single importance interpreting as Constitution setting should not read document—a document that we at cross- Clause and the First Amendment 360 application

purposes. here of strict need I Nor advocate only specially heightened I find that or need review. require important enough to interest First Amendment to care the claimed courts to scrutinize with some reasons they justify the Act to determine whether constitute in order copyright-related justifications serious for the reasonable speech-related including harms, which the Act seems harms, likely impose. to

C copyright’s 1 This statutedoes not serve traditional namely monetary that “motivate ends, creation awards activity Sony, S., 429, U. at authors,” creative 464 “encourag[e] Mazer, at and S., individual U. effort,” thereby promoting avail “serve the cause of broad ability music, arts,” Twentieth literature, and the other Century grants “re The its Music, S., statute U. 156. only copyright[s]” already produced. It stored provides produce anything monetary new. no incentive the time Unlike other American from statutes including onwards, at issue the statute Founders significant quid copyright-related it Eldred, lacks pro quo. majority refer- this fact seeks to avoid awkward practice mostly suggests

ring past congressional that that may provide protection new increased both to or newly previously Ante, created created works. § (conferring May 320-321, 31, 1790, 1,1 323; Act Stat. old); Act its new federal on new works as well as patents July (authorizing new 3, 1832, Stat. 559 past comply inadvertently future failed to inventors who formalities); statutory McClurg Kings- applicable v. (1843) deeming past (applying an act land, 1 How. 202 briefly patent despite being it used future valid inventor’s by, dispute example, employer). I do not the inventor’s copyright power. Insofar as such statute does the newly former, e., i. extends created material, it copyright’s justification eliciting embodies traditional new — production. Congress may And I do not doubt then also existing say, scope include works within the of, increased protection equitable for and administrative reasons. See (describing equitable Eldred, 537 atS., 204, U. 214-215 rea- applying newly copyright sons for extended terms to future alike). existing copyrights us,- The statute before how- directly any production. Compare ever, does not elicit new (majority opinion) (noting id., at 204-208 ex- statute’s apply newly tended term would to material, created finding eliciting that the determination of the likelihood its production practice new in was a for matter to determine), dissenting) id., at 243-267 (Breyer, J., (expressing prac- the view that there little likelihood, is material). tice, that the statute elicit would new See also (the Congress likely thought 219 Walterscheid 1790 it was substituting protection pre-existing federal for state protections); Copyright common-law Maher, Term, Retro- spective Extension, and the Law of 1790 in His- Context, torical 49 J. USA 1021, 1023-1024, Soc. (2002)(numerical suggesting and n. 8 estimate that 1790Act only domain). public removed a small number of books from majority private The other statutes to which the are refers retroactively granting protection bills, statutes in wartime, Ante, or the 19, 1849, like. Feb. ch. 320-323; 57, Act of 9 (Levi Corson); Stat. 763 23,1874, 534,18 Act June ch. Stat., (Tod Helmuth); pt. p. 618 3, 1898, Act of Feb. ch. 30 17, 29, (Judson Jones); Stat. 1396 41 1919, 11, Act of Dec. ch. 18, Sept. Stat. 368; 25, 732; Act of ch. 55 Stat. see also 1941, 421, (1815) private (upholding v. a Jordan, Evans 9 Cranch 199 mill). restoring patent protection special bill ato flour But earthquakes, circumstances, wars, hurricanes, like and other prevent practice of a disasters, the realization reasonable expectation securing maintaining right. pre-existing

362 exceptions designed provide special are Private bills comparable 1893, equitable 3, of Mar. See also Act reasons. tell). (similar, find far can To ch. 27 743 as I 215, Stat. important analogy present which law, an these laws expect part did not the author for most covers (and protect particularly did not want in America often protect), somewhat seems farfetched. contrary. practice congressional It con-

In shows fact, string preventing virtually legislation sists of unbroken g., public See, e. withdrawal of works from domain. Implementation 1988, §12, Berne Convention Act (the protection provide Stat. Act “does any in the United domain work that is in States”); Copyright Stat. 2573 Act of I, Tit. (declining work that to extend effect); Copy- taking prior in the to the Act domain (“[N]o shall 1909, §7, Stat. Act original any subsist in work is in the the text which country any published this work which was in domain, or any foreign country prior going this into effect of already copyrighted Act in the United and has not been Copy States”); Respecting Act to Amend the Several Acts (the Rights §16, not extend to 4 Stat. 439 Act “shall already copyright secured, which has heretofore term of expired”); Rep. Cong., Sess., see H. also 87th 2d R. No. (1962) (expressing possible “it is not concern because expired copyright, to the commit- revive terms of it seems copyright suspend expiration tee to be further desirable period working long enough a out of remain- to enable the law”). ing obstacles revision overall majority arguments. it First, other makes several argues require at that the Clause does the “creation of not may “promote least work,” ante, one new but instead specifically Progress ways. And of Science” other it existing mentions the “dissemination of and future works” Ante, determinative here. n. 324-327, and 25. The industry experts majority argue to whom the refers copyright protection already existing help, say, works can publishers prices, produce music filmor distributers raise profits, consequently publish extra lead them to or dis- they might ignored. tribute works otherwise have But ordinarily monopoly copying— a it ais —since produced compared restricts dissemination of a work once competitive making simply industry market. And industry, richer does not mean that the when it makes an ordinary forward-looking economic calculus, will distribute previously industry experts distributed. The might temporary profits mean that extra will lead them to development say, by invest advertising. in the of a market, argument, But this kind of which can be made distribut- goods, ranging ers of all sorts of from kiwi fruit to Swedish anything nonrepeatable furniture, little if has to do with the special copy- costs of creation, initial which is the concern of right protection. supra, at 346. argument proves

Moreover, the too much. It is the kind argument Company might that the Stationers’ well have rejected. made and which the British Parliament Cf. Pat- (describing seeking terson 154-155 failed booksellers’ bill foreign competition through from an extension of term). argument It the kind of that could justify legislature’s withdrawing from the domain say, the works, of Hawthorne or for that matter or of Swift King publica- encourage James Bible order to further easily justify tion of works; and, it those could even more early per- similar in works, action the case of known lesser haps my not, to those of the Venerable Bede. The Court has knowledge, previously accepted a such rationale —a rationale special well that removed from the circumstances economic nonrepeatable of a surround the costs of the initial creation “Writing.” Supra, doing at 346. And I that so would fear made if cheek

read Clause as it were blank creators. who not themselves out in of those are favor representa- surprising It that holders’ not is emphasize appeared this before did not tives who (With repre- exception only argument. those one minor Copy- Hearing; generally appeared, Joint sentatives see 239.) they right testify, Rather, at focused did not id., Office By Congress had time, that on the Berne Convention itself. already protected itBut new of Berne members. all works provided pre-existing protection for- had to additional eign then the American domain. works were in Industry withdrawing such witnesses testified that copy- permit foreign from the domain would American charge to more for their consumers owners American products; be States would result, United that, persuade to American holders able to countries allow pre-existing charge foreign copyrights more of to customers (statement products. money of Eric their at 241 id., See Counsel, Director Interna- Smith, Executive and General Alliance) (“[F]ailure [comply Property to tional Intellectual ability 18] Article will... of the United undermine implement press sort States to other countries to same protection currently implementing legislation their many pending globe”); legislatures id., around (statement Congressional Gerson, of Matt President Vice Assn, America) (similar). Motion Affairs, Picture (statement Judiciary id., House Becerra, also Xavier member) (“[Rjetroactivity probably the Committee ... way works, best American ensure some of our older Boys’ anything Hardy ‘The Motown, Trek,’ from ‘Star get emerging foreign mar- in some of these important longer use kets. It is that countries no ensure copy- extending our as an U. S. law excuse for not retroactive works”). right protections id., some our own But see (statement Larry Urbanski, at 272-279 Chairman Fairness Coalition President Moviecraft Inc.) (testifying against grounds restoration on similar to 354-357). supra, out, those set argument, argu-

This whatever its intrinsic is merits, an directly private ment that concerns benefit: how to obtain money existing products. more the from sales is It argument promote an benefit, about as how to such protect process. or to the creative majority points “gives [au-

Third, the that the out statute nothing thors] during more than the benefit of their labors whatever time the remains before normal term expires.” suggests But it Ante, at 334. insofar as that general help greater should obtain mon- authors etary upon rewards than works, needed elicit new it rests primarily concepts. European, not American, but supra, at 348-349. majority argues statutory provision the

Fourth, that this necessary obligations. to fulfill Berne Convention our Treaty, says Ante, 18, at 309-313. The the Article apply “Convention shall all which, to works at the moment- coming [i. e., its into force 1989 in case of United the yet States] have not fallen into the domain in coun- try origin through expiry protection.” of the term of Literary Berne Convention for the Protection of and Artistic 18(1), Sept. Works, Art. 9, 1886, revised Stockholm July majority T. The 14, 1967, 828 U. N. S. 251. say protect we Government that this means must works at issue since the Berne Convention, here. And provides taken as a the creation of new whole, incentives for argument’s willing speculate, sake, I works, am indirectly might encourage production new statute by making place in the interna- United States’ copyright regime tional more secure. argument to save the stat-

Still, I cannot find sufficient this thing, ute. For this is a dilemma the Government’s one making. own States obtained benefits United many years despite Berne to enact a its failure statute implementing 18. United States Article But signed Agreement Trade-Related nations the other sig- Aspects Property Rights, enabled of Intellectual which Organization dispute Trade resolution to use natories World complain Con- to other Berne mechanisms about members’ al- Government, And at time the violations. that vention though successfully protecting it reservations other secured special features of American made effort law, no keep permitting to to secure a reservation the United States or all domain. some restored in the American despite it made to fact that Article Indeed, no effort do so the explicitly negotiate exceptions to authorizes countries to retroactivity 18(3), principle. ibid. the See Art. Article’s (“The application retroactivity] principle [the of shall be sub- ject special provisions to contained in conventions existing that or to be countries concluded between effect added)); (emphasis A Gervais, the Union” Golan v. Holder. Imposed by Convention, Look at Constraints Berne (2011);Gard, L. Vand. Rev. En Banc 64 Vand. 147,151-152 L. En Banc, Rev. at 206. require thing,

For another Con- Convention does not gress damage enact statute that causes much so 18(3) respec- “the domain material. Article also states that it tive countries shall each is con- determine, so far application principle.” cerned, conditions this added). (emphasis Congress S., U. T. have N. could many by, imposes alleviated statute costs requir- example, licensing, creating compulsory forms of ing copyright” necessary provide admin- “restored holders to protection, insisting istrative information as condition upon royalties.” Cong., “reasonable 2d Cf. S. 110th (2008) (legislation judi- Sess. that would have limited works); against orphan cial users H. remedies R. (2008) (House same); Cong., 110th 2d Sess. version of Composers, Society Publishers, American Authors http://www.aseap.com/licensing/termsdefined.aspx (society of offering give music owners blanket licenses that perform any users the unlimited of its members’ songs reducing negotiation for a fee, fixed thus and enforce- costs). ment say joining

To this is not to criticize the Convention or our argue it. it is to other Rather, branches of Govern- par- ment should have tried to Convention and follow flexibility. provisions offering compliance ticular its significant fact that the statute has First Amendment costs respect, ordinarily is relevant in this for that Amendment requires possi- restrictive, courts evaluate less alternative Doing bilities. so here reveals that neither nor advantage took Executive of less restrictive methods of compliance provides. Convention itself And that provide fact that the cannot means Convention the statute justification constitutionally with a sufficient that is other- lacking. wise

Ill by withdrawing that, The fact material from the important pre-existing domain, the statute inhibits an flow of information is with the other sufficient, when combined features of the statute that I have to convince me discussed, interpreted light that the Clause, in the First Amendment, does not authorize to enact this statute. contrary respectfully

I dissent from the Court’s conclusion.

Case Details

Case Name: Golan v. Holder

Court Name: Supreme Court of the United States

Date Published: Jan 18, 2012

Citation: 565 U.S. 302

Docket Number: 10-545

Court Abbreviation: SCOTUS