Ruth Bader Ginsburg

“ But Sears placed no reins on Congress’ authority to extend a patent’s life. The full sentence in Sears, from which Justice Stevens extracts words, reads: “Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents.” 376 U.S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. ”

“ Catalda Fine Arts, 191 F.2d 99, 103, n.16 (CA2 1951) (The monopoly granted by a copyright “is not a monopoly of knowledge. The grant of a patent does prevent full use being made of knowledge, but the reader of a book is not by the copyright laws prevented from making full use of any information he may acquire from his reading.” (quoting W. Copinger, Law of Copyright 2 (7th ed. 1936) ) ) . In light of these distinctions, one cannot extract from language in our patent decisions—language not trained on a grant’s duration—genuine support for petitioners’ bold view. ”

“ Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. ”

“ Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. ”

“ If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extensions of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.↑ Petitioners originally framed this argument as implicating the CTEA’s extension of both existing and future copyrights. ”

“ History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. As earlier recounted, see supra, at 194, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. ”

“ As we said in Harper & Row, this “idea/expression dichotomy strike [s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” 471 U.S., at 556 (internal quotation marks omitted) . Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. See Feist, 499 U.S., at 349–350. ”

“ Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) , bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” ”

“ The wisdom of Congress’ action, however, is not within our province to second-guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals. ”

“ Congress’ exercise of its Copyright Clause authority must be rational, but Justice Breyer’s stringent version of rationality is unknown to our literary property jurisprudence.↑ Responding to an inquiry whether copyrights could be extended “forever,” Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: “There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. ”

“ For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. ”

“ As in the case of prior extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.
Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain. They seek a determination that the CTEA fails constitutional review under both the Copyright Clause’s “limited Times” prescription and the First Amendment’s free speech guarantee. ”

“ In this country, in contrast, competition among publishers, printers, and booksellers was “intens [e] ” at the time of the founding, and “there was not even a rough analog to the Stationers’ Company on the horizon.” Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37, 45 (2002) . The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in “Authors.” ”

“ Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.↑ We note again that Justice Breyer makes no such concession. See supra, at 193, n.1. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. ”

“ It is the price paid for the exclusivity secured. See J.E.M. Ag Supply, 534 U.S., at 142. For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright. Indeed, since the 1976 Act, copyright has run from creation, not publication. See 1976 Act § 302 (a) ; 17 U.S.C. § 302 (a) .
Further distinguishing the two kinds of intellectual property, copyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading. ”

“ The fair use defense affords considerable “latitude for scholarship and comment,” Harper & Row, 471 U.S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use) . ”

“ Members of Congress instrumental in the CTEA’s passage spoke to similar effect. See, e.g., 144 Cong. Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that “copyright protection should be for a limited time only” and that “ [p] erpetual protection does not benefit society”) . Justice Breyer nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” ”

“ It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.↑ Justice Breyer would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 245. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms “apparent [ly] ” fails to achieve “significant” uniformity. ”