§ 2402(a). See generally, 3 A. Deller, Walker on Patents, ch. IX (2d ed. 1964); R. Allyn, The First Plant Patents (1934)

159^ Writing three years after the passage of the 1930 Act, R. Cook, Editor of the Journal of Heredity, commented: “It is a little hard for plant men to understand why [Art. I, § 8] of the Constitution should not have been earlier construed to include the promotion of the art of plant breeding. The reason for this is probably to be found in the principle that natural products are not patentable.” Florists Exchange and Horticultural Trade World, July 15, 1933, p. 9.

160^ In 1873, the Patent Office granted Louis Pasteur a patent on “yeast, free from organic germs of disease, as an article of manufacture.” And in 1967 and 1968, immediately prior to the passage of the Plant Variety Protection Act, that Office granted two patents which, as the petitioner concedes, state claims for living micro-organisms. See Reply Brief for Petitioner 3, and n. 2.

161^ Even an abbreviated list of patented inventions underscores the point: telegraph (Morse, No. 1,647); telephone (Bell, No. 174,465); electric lamp (Edison, No. 223,898); airplane (the Wrights, No. 821,393); transistor (Bardeen & Brattain, No. 2,524,035); neutronic reactor (Fermi & Szilard, No. 2,708,656); laser (Schawlow & Townes, No. 2,929,922). See generally Revolutionary Ideas, Patents & Progress in America, United States Patent and Trademark Office (1976).

162^ We are not to be understood as suggesting that the political branches have been laggard in the consideration of the problems related to genetic research and technology. They have already taken action. In 1976, for example, the National Institutes of Health released guidelines for NIH-sponsored genetic research which established conditions under which such research could be performed. 41 Fed.Reg. 27902. In 1978 those guidelines were revised and relaxed. 43 Fed.Reg. 60080, 60108, 60134. And Committees of the Congress have held extensive hearings on these matters. See, e. g., Hearings on Genetic Engineering before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess. (1975); Hearings before the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, 95th Cong., 1st Sess. (1977); Hearings on H.R. 4759 et al. before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977).

163^ I read the Court to admit that the popular conception, even among advocates of agricultural patents, was that living organisms were unpatentable. See ante, at 311-312, and n. 8.

164^ But even if I agreed with the Court that the 1930 and 1970 Acts were not dispositive, I would dissent. This case presents even more cogent reasons than Deepsouth Packing Co. not to extend the patent monopoly in the face of uncertainty. At the very least, these Acts are signs of legislative attention to the problems of patenting living organisms, but they give no affirmative indication of congressional intent that bacteria be patentable. The caveat of Parker v. Flook, 437 U.S. 584, 596, 90 S.Ct. 2522, 2529, 57 L.Ed.2d 451 (1978), an admonition to “proceed cautiously when we are asked to extend patent rights into areas wholly unforeseen by Congress,” therefore becomes pertinent. I should think the necessity for caution is that much greater when we are asked to extend patent rights into areas Congress has foreseen and considered but has not resolved.

165^ The Court refers to the logic employed by Congress in choosing not to perpetuate the “dichotomy” suggested by Secretary Hyde. Ante, at 313. But by this logic the bacteria at issue here are distinguishable from a “mineral … created wholly by nature” in exactly the same way as were the new varieties of plants. If a new Act was needed to provide patent protection for the plants, it was equally necessary for bacteria. Yet Congress provided for patents on plants but not on these bacteria. In short, Congress decided to make only a subset of animate “human-made inventions,” ibid., patentable.

166^ If the 1930 Act’s only purpose were to solve the technical problem of description referred to by the Court, ante, at 312, most of the Act, and in particular its limitation to asexually reproduced plants, would have been totally unnecessary.

167^ Secretary Hyde’s letter was not the only explicit indication in the legislative history of these Acts that Congress was acting on the assumption that legislation was necessary to make living organisms patentable. The Senate Judiciary Committee Report on the 1970 Act states the Committee’s understanding that patent protection extended no further than the explicit provisions of these Acts:

Under the patent law, patent protection is limited to those varieties of plants which reproduce asexually, that is, by such methods as grafting or budding. No protection is available to those varieties of plants which reproduce sexually, that is, generally by seeds.

S.Rep.No.91-1246, p. 3 (1970).

Similarly, Representative Poage, speaking for the 1970 Act, after noting the protection accorded asexually developed plants, stated that “for plants produced from seed, there has been no such protection.” 116 Cong.Rec. 40295 (1970).

168^ The Court ultimately rendered judgment for Associated Press on noncopyright grounds that are not relevant here. See 248 U.S., at 235, 241-242, 39 S.Ct., at 71, 73-74.

169^ Honorable Harlington Wood, Jr., U.S. Circuit Judge for the Seventh Circuit, sitting by designation.

170^ Hereafter, the Copyright Act of 1976 shall be referred to by only the section number of the Act.

171^ Houghton Mifflin denies that there are passages from GWTW copied verbatim in TWDG.

172^ I believe that fair use should be considered an affirmative right under the 1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use that is not a violation of copyright. See Bateman v. Mneumonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996). However, fair use is commonly referred to an affirmative defense, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590, 114 S. Ct. 1164, 1177 (1994), and, as we are bound by Supreme Court precedent, we will apply it as such. See also David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 714 n. 227 (2000) (citing Bateman). Nevertheless, the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes.

173^ The Statute of Anne providing for copyright is introduced as “[a]n act for the encouragement of learning,” and has a preamble that states one of the purposes as “the encouragement of learned men to compose and write useful books.” 8 Anne, C.19 (1710), reprinted in 8 Nimmer § 7-5.

174^ Under modern copyright, such a right to translate would enjoy protection as a “derivative work.” §§ 101 and 106. In Folsom v. Marsh, 9 F.Cas. 342 (C.C.Mass. 1841), Justice Story created the concept of “fair use,” which actually expanded the copyright monopoly, since until that time a translation or abridgement was not considered an infringement.

175^ While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law.

176^ Originally the word “copie” was a noun, indicating the manuscript. Ownership of the “copie” thus meant ownership of the manuscript for the purposes of publishing it. Today, “copy” has become a verb, meaning the act of reproduction of a work. But in the development of copyright law it was intended to be a term of art, indicating a reproduction of a work for publication. Failure to understand and apply this distinction has confused many courts (assisted by overzealous advocates) into too expansive a view of the scope of the copyright monopoly.

177^ “Cynara” is the name of the poem by Ernest Dowson, from which GWTW’s title is derived (“I have forgot much, Cynara! gone with the wind, …”).

178^ In a piece of documentary evidence submitted by SunTrust (Thomas Hal Clarke, attorney and member of the committee established by the trust instruments to direct the plaintiff SunTrust Bank), Conroy again indicates that the Mitchell Estate was loath to license a derivative work that contained such elements:

All my resistance to your restrictions – all of them, and I include miscegenation, homosexuality, the rights of review and approval – I do because they begin inching toward the precincts of censorship.

Fax to Owen Laster from Pat Conroy, Nov. 10, 1998.

179^ [The court listed the amici in this case. Among those for reversal were the American Association of Law Libraries, the College Art Association, the Eagle Forum Education & Legal Defense Fund, the Free Software Foundation, groups of intellectual property and constitutional law professors, and the Internet Archive. Among those writing in support of affirmance were the American Intellectual Property Law Association, the American Society of Composers, Authors and Publishers (ASCAP), Amsong, Inc., AOL Time Warner, the Association of American Publishers, the Bureau of National Affairs, the Directors Guild of America, Dr. Seuss Enterprises, the Motion Picture Association of America, the Recording Artists Coalition, the Recording Industry Association of America (RIAA), the Songwriters Guild of America, Senator Orrin G. Hatch, and Representative F. James Sensenbrenner, Jr.]

180^ JUSTICE BREYER’s dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. Under his reasoning, the CTEA’s 20-year extension is globally unconstitutional.

181^ Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress’ traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act.

182^ Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.

183^ We note again that JUSTICE BREYER makes no such concession. He does not train his fire, as petitioners do, on Congress’ choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties’ presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress’ entire product as irrational.

184^ Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work’s publication, renewable for an additional 14 years if the author survived and applied for an additional term. § 1. Congress retained that approach in subsequent statutes. Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant.

185^ 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. However, our Constitution says limited times, but there really isn’t a very good indication on what limited times is. The reason why you’re going to life-plus-70 today is because Europe has gone that way … .”

186^ The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA’s enactment Associate Register for Policy and International Affairs, United States Copyright Office.

187^ See also Austin, Does the Copyright Clause Mandate Isolationism?, 26 Colum. J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with … America’s international copyright relations over the last hundred or so years”)

188^ Members of Congress expressed the view that, as a result of increases in human longevity and in parents’ average age when their children are born, the pre-CTEA term did not adequately secure “the right to profit from licensing one’s work during one’s lifetime and to take pride and comfort in knowing that one’s children – and perhaps their children – might also benefit from one’s posthumous popularity.” Also cited was “the failure of the U.S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media.”

189^ JUSTICE BREYER urges that the economic incentives accompanying copyright term extension are too insignificant to “mov[e]” any author with a “rational economic perspective.” Calibrating rational economic incentives, however, like “fashion[ing] … new rules [in light of] new technology,” is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system’s assurance of fair compensation for themselves and their heirs was an incentive to create. See, e. g., House Hearings 233-239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearing before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55-56 (1995) (statement of Bob Dylan); id., at 56-57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as JUSTICE BREYER acknowledges, reflects general “propositions about the value of incentives” that are “undeniably true.”

Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works “could … provide additional income that would finance the production and publication of new works.” House Hearings 158. “Authors would not be able to continue to create,” the Register explained, “unless they earned income on their finished works. The public benefits not only from an author’s original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary.” Id., at 165.

190^ JUSTICE BREYER agrees that “Congress did not intend to act unconstitutionally” when it enacted the CTEA, yet in his very next breath, he seems to make just that accusation. What else is one to glean from his selection of scattered statements from individual Members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, JUSTICE BREYER’S selections are not the sort to which this Court accords high value: “In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those [Members of Congress] involved in drafting and studying proposed legislation.’” The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution “clearly precludes Congress from granting unlimited protection for copyrighted works,” and disclaimed any intent to contravene that prohibition. Members of Congress instrumental in the CTEA’s passage spoke to similar effect.

JUSTICE BREYER nevertheless insists that the “economic effect” of the CTEA is to make the copyright term “virtually perpetual.” Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. If JUSTICE BREYER’S calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for – under the same assumptions he indulges – the term set by that Act secures 99.4% of the value of a perpetual term. Indeed, on that analysis even the “limited” character of the 1909 (97.7%) and 1831 (94.1%) Acts might be suspect. JUSTICE BREYER several times places the Founding Fathers on his side. It is doubtful, however, that those architects of our Nation, in framing the “limited Times” prescription, thought in terms of the calculator rather than the calendar.

191^ Respondent notes that the CTEA’s life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term “resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities.” Whether such referents mark the outer boundary of “limited Times” is not before us today. JUSTICE BREYER suggests that the CTEA’s baseline term extends beyond that typically permitted by the traditional rule against perpetuities. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.

192^ As we have noted, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus “promote[d] … Progress.” This account of the 1790 Act simply confirms, however, that the First Congress understood it could “promote … Progress” by extending copyright protection to existing works. Every subsequent adjustment of copyright’s duration, including the CTEA, reflects a similar understanding.

193^ The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our “limited Times” analysis by Congress’ repeated extensions of existing patents. If patent’s quid pro quo is more exacting than copyright’s, then Congress’ repeated extension of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.

194^ As evidence of how a VTR may be used, respondents offered the testimony of William Griffiths. Griffiths, although named as an individual defendant, was a client of plaintiffs’ law firm. The District Court summarized his testimony as follows:

He owns approximately 100 tapes. When Griffiths bought his Betamax, he intended not only to time-shift (record, play-back and then erase) but also to build a library of cassettes. Maintaining a library, however, proved too expensive, and he is now erasing some earlier tapes and reusing them. Griffiths copied about 20 minutes of a Universal motion picture called ‘Never Give An Inch,’ and two episodes from Universal television series entitled ‘Baa Baa Black Sheep’ and ‘Holmes and Yo Yo.’ He would have erased each of these but for the request of plaintiffs’ counsel that it be kept. Griffiths also testified that he had copied but already erased Universal films called ‘Alpha Caper’ (erased before anyone saw it) and ‘Amelia Earhart.’ At the time of his deposition Griffiths did not intend to keep any Universal film in his library. Griffiths has also recorded documentaries, news broadcasts, sporting events and political programs such as a rerun of the Nixon/Kennedy debate.

480 F.Supp., at 436-437. Four other witnesses testified to having engaged in similar activity.

195^ The District Court summarized some of the findings in these surveys as follows:

According to plaintiffs’ survey, 75.4% of the VTR owners use their machines to record for time-shifting purposes half or most of the time. Defendants’ survey showed that 96% of the Betamax owners had used the machine to record programs they otherwise would have missed. When plaintiffs asked interviewees how many cassettes were in their library, 55.8% said there were 10 or fewer. In defendants’ survey, of the total programs viewed by interviewees in the past month, 70.4% had been viewed only that one time and for 57.9%, there were no plans for further viewing.

480 F.Supp., at 438.

196^ “81.9% of the defendants’ interviewees watched the same amount or more of regular television as they did before owning a Betamax. 83.2% reported their frequency of movie going was unaffected by Betamax.” 480 F.Supp., at 439.

197^ It seems extraordinary to suggest that the Copyright Act confers upon all copyright owners collectively, much less the two respondents in this case, the exclusive right to distribute VTR’s simply because they may be used to infringe copyrights. That, however, is the logical implication of their claim. The request for an injunction below indicates that respondents seek, in effect, to declare VTR’s contraband. Their suggestion in this Court that a continuing royalty pursuant to a judicially created compulsory license would be an acceptable remedy merely indicates that respondents, for their part, would be willing to license their claimed monopoly interest in VTR’s to petitioners in return for a royalty.

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