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The purpose of copyright law is to create incentives that "promote...Progress." But extensions of copyright for works that already exist do not promote progress. Only 2 percent of the work copyrighted during the first 20 years affected by the Sonny Bono Act have any continuing commercial life. That 2 percent is benefited by the extension, while the rest of the creative work still under copyright is thrown into a black hole of legal regulation. These extensions only harm the creative process, especially when technology makes it possible for so many more to become creators.
Shorter terms, on the other hand, would increase the lawyer-free zone that we call the public domain. They would, therefore, lower the costs to companies that want to distribute and build upon the public domain. Just as there are scores of competing editions of public domain books, there would be scores of competing content providers serving film, and eventually music, from one of the most creative periods in American history. This competition would, in turn, increase demand for bandwidth, which would fuel Internet growth.
The framers of our Constitution didn’t know about the Internet. They had no clue about the opportunity for creativity it would present. But they committed our tradition to a rule that requires that copyright terms be limited. That requirement may not have mattered much for 200 years, since for most of that time, only commercial publishers could produce and distribute creative work. But now that technology has given that power to anyone with a T1, the wisdom in the framers’ plan is again becoming obvious. Government-granted monopolies, as the framers called them, make sense when they create incentives. But even the United States Congress can’t create incentives in the past. No matter what Congress says, George Gershwin will not create anything more. We should thank and honor him and others for their extraordinary work. But we should also honor our framers' plan—that terms be limited.
Lawrence Lessig is a professor of law at Stanford Law School and the author of The Future of Ideas: The Fate of the Commons in a Connected World and Code and Other Laws of Cyberspace. His next column will appear in March.