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