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Eldred v. Ashcroft
Supreme Court of the United States
Argued October 9, 2002 Decided January 15, 2003
Full case name	Eric Eldred, et al. v. John Ashcroft, Attorney General
Docket nos.	01-618
Citations	537 U.S. 186 (more) 123 S. Ct. 769, 154 L. Ed. 2d 683, 71 U.S.L.W. 4052
Prior history	Eldred v. Reno, 74 F. Supp. 2d 1 (D.D.C. 1999); aff'd, 239 F.3d 372 ( D.C. Cir. 2001); rehearing and rehearing en banc denied, 255 F.3d 849 (D.C. Cir. 2001); cert. granted, 534 U.S. 1126 (2002); order granting cert. amended, 534 U.S. 1160 (2002)
Subsequent history	Rehearing denied, 538 U.S. 916 (2003)
Holding
20-year retroactive extension of existing copyright terms did not violate the Copyright Clause or the First Amendment of the United States Constitution. D.C. Circuit's decision affirmed.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer
Case opinions
Majority	Ginsburg (majority opinion, syllabus), joined by Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas
Dissent	Stevens (dissenting opinion)
Dissent	Breyer (dissenting opinion)
Laws applied
Copyright Term Extension Act of 1998; U.S. Constitution Art. I, § 8, cl. 8; U.S. Constitution amend. I

Eldred v. Ashcroft, 537 U.S. 186 (2003) was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA). Oral argument was heard on October 9, 2002, and on January 15, 2003, the Supreme Court held the CTEA constitutional by a 7-2 decision.

Background

The Sonny Bono Copyright Term Extension Act (or CTEA) extended existing copyright terms by an additional 20 years from the terms set by the Copyright Act of 1976. The law affected both new and existing works (making it both a prospective extension as well as a retroactive one). Specifically, for works published before January 1, 1978 and still in copyright on October 27, 1998, the term was extended to 95 years. For works authored by individuals on or after January 1, 1978 (including new works), the copyright term was extended to equal the life of the author plus 70 years. For works authored by joint authors, the copyright term was extended to the life of the last surviving author plus 70 years. In the case of works-for-hire, anonymous or pseudonymous works, the term was set at 95 years from the date of first publication, or 120 years from creation.

The practical result of this was to prevent a number of works from entering the public domain in 1998 and following years, as would have occurred under the Copyright Law of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

Eric Eldred, the lead plaintiff.

The lead petitioner, Eric Eldred, is an Internet publisher. Eldred was joined by a group of commercial and non-commercial interests who relied on the public domain for their work. These included Dover Publications, a commercial publisher of paperback books; Luck's Music Library, Inc., and Edwin F. Kalmus & Co., Inc., publishers of orchestral sheet music; and a large number of amici including (but not limited to) the Free Software Foundation, the American Association of Law Libraries, the Bureau of National Affairs, and the College Art Association.

Supporting the law were the U.S. government, represented by the Attorney General in an ex officio capacity (originally Janet Reno, later replaced by John Ashcroft), along with a set of amici including (but not limited to) the Motion Picture Association of America, the Recording Industry Association of America, ASCAP and Broadcast Music Incorporated.

District court

The original complaint was filed in the United States District Court for the District of Columbia on January 11, 1999. The plaintiffs' argument was threefold:

1. That by retroactively extending copyright terms, Congress had violated the requirements of the Constitution's Copyright Clause, which gives Congress the following power:

   "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (emphasis added)

   Plaintiffs argued that by reading this formulation so as to allow for any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection, thus thwarting the intent of the clause.
2. That any copyright law must be subject to scrutiny under the First Amendment, thereby ensuring a balance between freedom of speech and the interests of copyright.
3. That the doctrine of public trust requires the government to show a public benefit to any transfer of public property into private hands, and that the CTEA violates this doctrine by withdrawing material from the public domain.

In response, the government argued that Congress does indeed have the latitude to retroactively extend terms, so long as the individual extensions are also for "limited times," as required by the Constitution. As an argument for this position, they referred to the Copyright Act of 1790, the first Federal copyright legislation, which applied Federal protection to existing works. Furthermore, they argued, neither the First Amendment nor the doctrine of public trust is applicable to copyright cases.

On October 28, 1999, Judge June Green issued a brief opinion rejecting all three of the petitioners' arguments. On the first count, she wrote that Congress had the power to extend terms as it wished, as long as the terms themselves were of limited duration. On the second count, she rejected the notion of First Amendment scrutiny in copyright cases, based on her interpretation of Harper and Row Publishers, Inc., v. Nation Enterprises, an earlier Supreme Court decision. On the third count, she rejected the notion that public trust doctrine was applicable to copyright law.

Court of Appeals

The plaintiffs appealed the decision of the district court to the United States Court of Appeals for the District of Columbia Circuit, filing their initial brief on May 22, 2000, and arguing the case on October 5 of the same year in front of a three-judge panel. Arguments were similar to those made in the district court, except for those regarding the public trust doctrine, which were not included in the appeal.

Instead, the plaintiffs extended their argument on the copyright clause to note that the clause requires Congress to "promote the Progress of Science and useful Arts," and argued that retroactive extensions do not directly serve this purpose in the standard quid pro quo previously required by the courts.

The case was decided on February 16, 2001. The appeals court upheld the decision of the district court in a 2-1 opinion. In a forceful dissent, Judge David Sentelle agreed with the plaintiffs that CTEA was indeed unconstitutional based on the "limited Times" requirement. Supreme Court precedent, he argued, held that one must be able to discern an "outer limit" to a limited power; in the case of retrospective copyright extensions, Congress could continue to extend copyright terms indefinitely through a set of limited extensions, thus rendering the "limited times" requirement meaningless.

Following this ruling, plaintiffs petitioned for a rehearing en banc (in front of the full panel of nine judges). This petition was rejected, 7–2, with Judges Sentelle and David Tatel dissenting.

Supreme Court

On October 11, 2001, the plaintiffs filed a petition for certiorari to the Supreme Court of the United States. On February 19, 2002, the Court granted Certiorari, agreeing to hear the case.

Oral arguments were presented on October 9, 2002. Lead counsel for the plaintiff was Lawrence Lessig; the government's case was argued by Solicitor General Theodore Olson.

Lessig refocused the Plaintiffs' brief to emphasize the Copyright clause restriction, as well as the First Amendment argument from the Appeals case. The decision to emphasize the Copyright clause argument was based on both the minority opinion of Judge Sentelle in the appeals court, and on several recent Supreme Court decisions authored by Chief Justice William Rehnquist: United States v. Lopez and United States v. Morrison.

In both of those decisions, Rehnquist, along with four of the Court's more conservative justices, held Congressional legislation unconstitutional, because said legislation exceeded the limits of the Constitution's Commerce clause. This profound reversal of precedent, Lessig argued, could not be limited to only one of the enumerated powers. If the court felt that it had the power to review legislation under the Commerce clause, Lessig argued, then the Copyright clause deserved similar treatment, or at very least a "principled reason" must be stated for according such treatment to only one of the enumerated powers.

On January 15, 2003, the Court held the CTEA constitutional by a 7–2 decision. The majority opinion, written by Justice Ginsburg, relied heavily on the Copyright Acts of 1790, 1831, 1909, and 1976 as precedent for retroactive extensions. One of the arguments supporting the act was the life expectancy has significantly increased among the human population since the 18th century, and therefore copyright law needed extending as well. However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever," any limit set by Congress can be deemed constitutional.

A key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. ^[1]

The Supreme Court declined to address Lessig's contention that Lopez and Morrison offered precedent for enforcing the Copyright clause, and instead reiterated the lower court's reasoning that a retroactive term extension can satisfy the "limited times" provision in the copyright clause, as long as the extension itself is limited instead of perpetual. Furthermore, the Court refused to apply the proportionality standards of the Fourteenth Amendment or the free-speech standards in the First Amendment to limit Congress's ability to confer copyrights for limited terms.

Justice Breyer dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests. While the constitution grants Congress power to extend copyright terms in order to "promote the progress of science and useful arts," CTEA granted precedent to continually renew copyright terms making them virtually perpetual. Justice Breyer argued in his dissent that it is highly unlikely any artist will be more inclined to produce work knowing their great-grandchildren will receive royalties. With regard to retroactive copyright extension he viewed it foolish to apply the government's argument that income received from royalties allows artists to produce more work saying, "How will extension help today’s Noah Webster create new works 50 years after his death?" ^[2]

In a separate dissenting opinion, Justice Stevens also challenged the virtue of an individual reward, analyzing it from the perspective of patent law. He argued that the focus on compensation results only in “frustrating the legitimate members of the public who want to make use of it (a completed invention) in a free market.” Further, the compelling need to encourage creation is proportionally diminished once a work is already created. Yet while a formula pairing commercial viability to duration of protection may be said to produce more economically efficient results in respect of high technology inventions with shorter shelf-lives, the same perhaps cannot be said for certain forms of copyrighted works, for which the present value of expenditures relating to creation depend less on scientific equipment and research and development programmes and more on unquantifiable creativity.^[3][4]

Lessig expressed surprise that no decision was authored by Chief Justice Rehnquist or by any of the other four justices who supported the Lopez or Morrison decisions. Lessig later expressed regret that he based his argument on precedent rather than attempting to demonstrate that the weakening of the public domain would cause harm to the economic health of the country.^[5]

Related cases

• Golan v. Ashcroft
• Kahle v. Gonzales

See also

• Copyright
• United States copyright law
• Intellectual property clause
• List of United States Supreme Court cases
• Public Domain Enhancement Act
• Free Culture
• List of United States Supreme Court cases, volume 537
• List of United States Supreme Court cases

Further reading

• Austin, Graeme W. (2003). "Copyright's Modest Ontology - Theory and Pragmatism in Eldred v. Ashcroft". Canadian Journal of Law and Jurisprudence 16 (2): 163–178. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=528224.  
• Jones, Michael (2004). "Eldred v. Ashcroft: The Constitutionality of the Copyright Term Extension Act". Berkeley Tech. Law Journal 19: 85.  
• Samuelson, Pamela (2003). "The Constitutional Law of Intellectual Property After Eldred v. Ashcroft". Journal of the Copyright Society 50. doi:10.1109/ACSAC.2000.898877; (inactive 2008-06-25). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=419540.  
• Ackman, Dan. "0.2% for the Mouse!". Wall Street Journal, January 17, 2003. http://online.wsj.com/article/SB104276617127133384.html.  

References

External links

• Works related to Eldred v. Ashcroft at Wikisource
• Oral argument before the Supreme Court, in MP3 format (Transcript)
• Opinion of the Supreme Court, in MP3 format (Text)
• OpenLaw amicus briefs - also has other information including media coverage, etc.
• Text of the opinion, LII, Cornell University
• Text of the opinion, findlaw.com
• Links to various briefs filed in the case
• Symposium on Eldred from the Loyola of Los Angeles Law Review
• A timeline of U.S. Copyright
• Eldred vs. Ashcroft (eldred.cc)
• First-person narrative of the experience of attending the Oral Argument before the Supreme Court
• Lawrence Lessig's article about why Ashcroft won

From Wikisource

Court Documents
Opinion of the Court
Dissenting Opinions Stevens Breyer
Wikipedia article

(p186) The Copyright and Patent Clause, U.S. Const., Art. I, §8, cl. 8, provides as to copyrights: “Congress shall have Power…[t]o promote the Progress of Science…by securing [to Authors] for limited Times…the exclusive Right to their…Writings.” In the 1998 Copyright Term Extension Act (CTEA), Congress enlarged the duration of copyrights by 20 years: Under the 1976 Copyright Act (1976 Act), copyright protection generally lasted from a work’s creation until 50 years after the author’s death; under the CTEA, most copyrights now run from creation until 70 years after the author’s death, 17 U.S.C. §302(a). As in the case of prior copyright extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.

Petitioners, whose products or services build on copyrighted works that have gone into the public domain, brought this suit seeking a determination that the CTEA fails constitutional review under both the Copyright Clause’s “limited Times” prescription and the First Amendment’s free speech guarantee. Petitioners do not challenge the CTEA’s “life-plus-70-years” time span itself. They maintain that Congress went awry not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The “limited Tim[e]” in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspection under the heightened judicial scrutiny appropriate for such regulations. The District Court entered judgment on the pleadings for the Attorney General (respondent here), holding that the CTEA does not violate the Copyright Clause’s “limited Times” restriction because the CTEA’s terms, though longer than the 1976 Act’s terms, are still limited, not perpetual, and therefore fit within Congress’ discretion. The court also held that there are no First Amendment rights to use the copyrighted works of others. The District of Columbia Circuit affirmed. In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, foreclosed petitioners’ First Amendment challenge to the CTEA. The appeals court reasoned that copyright does not impermissibly (p187) restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for “fair use” even of the expression itself. A majority of the court also rejected petitioners’ Copyright Clause claim. The court ruled that Circuit precedent precluded petitioners’ plea for interpretation of the “limited Times” prescription with a view to the Clause’s preambular statement of purpose: “To promote the Progress of Science.” The court found nothing in the constitutional text or history to suggest that a term of years for a copyright is not a “limited Time” if it may later be extended for another “limited Time.” Recounting that the First Congress made the 1790 Copyright Act applicable to existing copyrights arising under state copyright laws, the court held that that construction by contemporaries of the Constitution’s formation merited almost conclusive weight under Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57. As early as McClurg v. Kingsland, 1 How. 202, the Court of Appeals recognized, this Court made it plain that the Copyright Clause permits Congress to amplify an existing patent’s terms. The court added that this Court has been similarly deferential to Congress’ judgment regarding copyright. E.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417. Concerning petitioners’ assertion that Congress could evade the limitation on its authority by stringing together an unlimited number of “limited Times,” the court stated that such legislative misbehavior clearly was not before it. Rather, the court emphasized, the CTEA matched the baseline term for United States copyrights with the European Union term in order to meet contemporary circumstances.

Held: In placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutional limitations. Pp. 199–222.

1. The CTEA’s extension of existing copyrights does not exceed Congress’ power under the Copyright Clause. Pp. 199–218.

(a) Guided by text, history, and precedent, this Court cannot agree with petitioners that extending the duration of existing copyrights is categorically beyond Congress’ Copyright Clause authority. Although conceding that the CTEA’s baseline term of life plus 70 years qualifies as a “limited Tim[e]” as applied to future copyrights, petitioners contend that existing copyrights extended to endure for that same term are not “limited.” In petitioners’ view, a time prescription, once set, becomes forever “fixed” or “inalterable.” The word “limited,” however, does not convey a meaning so constricted. At the time of the Framing, “limited” meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a time span appropriately “limited” (p188) as applied to future copyrights does not automatically cease to be “limited” when applied to existing copyrights. To comprehend the scope of Congress’ Copyright Clause power, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349. History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. Moreover, because the Clause empowering Congress to confer copyrights also authorizes patents, the Court’s inquiry is significantly informed by the fact that early Congresses extended the duration of numerous individual patents as well as copyrights. Lower courts saw no “limited Times” impediment to such extensions. Further, although this Court never before has had occasion to decide whether extending existing copyrights complies with the “limited Times” prescription, the Court has found no constitutional barrier to the legislative expansion of existing patents. See, e.g., McClurg, 1 How., at 206. Congress’ consistent historical practice reflects a judgment that an author who sold his work a week before should not be placed in a worse situation than the author who sold his work the day after enactment of a copyright extension. The CTEA follows this historical practice by keeping the 1976 Act’s duration provisions largely in place and simply adding 20 years to each of them.

The CTEA is a rational exercise of the legislative authority conferred by the Copyright Clause. On this point, the Court defers substantially to Congress. Sony, 464 U.S., at 429. The CTEA reflects judgments of a kind Congress typically makes, judgments the Court cannot dismiss as outside the Legislature’s domain. A key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. Additionally, Congress passed the CTEA in light of demographic, economic, and technological changes, and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works. Pp. 199–208.

(b) Petitioners’ Copyright Clause arguments, which rely on several novel readings of the Clause, are unpersuasive. Pp. 208–218.

(p189) (1) Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. Critically, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. Pp. 208–210.

(2) Petitioners’ dominant series of arguments, premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author, are unavailing. The first such contention, that the CTEA’s extension of existing copyrights overlooks the requirement of “originality,” incorrectly relies on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345, 359. That case did not touch on the duration of copyright protection. Rather, it addressed only the core question of copyrightability. Explaining the originality requirement, Feist trained on the Copyright Clause words “Authors” and “Writings,” id., at 346–347, and did not construe the “limited Times” prescription, as to which the originality requirement has no bearing. Also unavailing is petitioners’ second argument, that the CTEA’s extension of existing copyrights fails to “promote the Progress of Science” because it does not stimulate the creation of new works, but merely adds value to works already created. The justifications that motivated Congress to enact the CTEA, set forth supra, provide a rational basis for concluding that the CTEA “promote[s] the Progress of Science.” Moreover, Congress’ unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works overwhelms petitioners’ argument. Also rejected is petitioners’ third contention, that the CTEA’s extension of existing copyrights without demanding additional consideration ignores copyright’s quid pro quo, whereby Congress grants the author of an original work an “exclusive Right” for a “limited Tim[e]” in exchange for a dedication to the public thereafter. Given Congress’ consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the protection offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 25, 229, and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146, both of which involved the federal patent regime, are not to the contrary, since neither concerned the extension of a patent’s duration nor suggested that such an extension (p190) might be constitutionally infirm. Furthermore, given crucial distinctions between patents and copyrights, one cannot extract from language in the Court’s patent decisions—language not trained on a grant’s duration—genuine support for petitioners’ quid pro quo argument. Patents and copyrights do not entail the same exchange, since immediate disclosure is not the objective of, but is exacted from, the patentee, whereas disclosure is the desired objective of the author seeking copyright protection. Moreover, while copyright gives the holder no monopoly on any knowledge, fact, or idea, the grant of a patent prevents full use by others of the inventor’s knowledge. Pp. 210–217.

(3) The “congruence and proportionality” standard of review described in cases evaluating exercises of Congress’ power under §5 of the Fourteenth Amendment has never been applied outside the §5 context. It does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization. Section 5 authorizes Congress to “enforce” commands contained in and incorporated into the Fourteenth Amendment. The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U.S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6. It would be no more appropriate for this Court to subject the CTEA to “congruence and proportionality” review than it would be to hold the Act unconstitutional per se. Pp. 217–218.

2. The CTEA’s extension of existing and future copyrights does not violate the First Amendment. That Amendment and the Copyright Clause were adopted close in time. This proximity indicates the Framers’ view that copyright’s limited monopolies are compatible with free speech principles. In addition, copyright law contains built-in First Amendment accommodations. See Harper & Row, 471 U.S., at 560. First, 17 U.S.C. §102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author’s expression. Harper & Row, 471 U.S., at 556. Second, the “fair use” defense codified at §107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes. “Fair use” thereby affords considerable latitude for scholarship and comment, id., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569. The CTEA itself supplements these traditional First Amendment safeguards in two prescriptions: The first allows libraries and similar institutions to reproduce and distribute copies of certain published works for scholarly purposes during the last 20 years of any copyright (p191) term, if the work is not already being exploited commercially and further copies are unavailable at a reasonable price, §108(h); the second exempts small businesses from having to pay performance royalties on music played from licensed radio, television, and similar facilities, §110(5)(B). Finally, petitioners’ reliance on Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641, is misplaced. Turner Broadcasting invalidated a statute requiring cable television operators to carry and transmit broadcast stations through their proprietary cable systems. The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. The First Amendment 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. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See, e.g., Harper & Row, 471 U.S., at 560. Pp. 218–222.

239 F. 3d 372, affirmed.

Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O’Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., and Breyer, J., filed dissenting opinions.

Lawrence Lessig, for petitioners.

Theodore B. Olson , Great Falls, VA, for respondent.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).