Code Breaking: Racing Against Time

In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, which extended the term of existing and future copyrights by 20 years—from 75 to 95 years for corporate works, and life plus 50 to 70 years for literary works by authors. This was the eleventh time in 40 years that Congress extended copyright terms. Its effect is to stop, or "toll" the passing of copyrighted work into the public domain. When it expires, the public domain will have been tolled for 39 out of 55 years, or 70 percent of the time since 1962.

These perpetual extensions of existing terms harm Internet growth. They make it harder for content to be deployed on the Internet; they increase the cost of innovation. Thus, in a constitutional challenge to the Sonny Bono Act, argued before the Supreme Court in October, the Internet was offered as Exhibit 1 against the statute. The Internet, the court was told, makes it critically important that copyright terms actually be, as the Constitution requires, "limited."

This is a hard argument to make. I know, because I argued the case before the U.S. Supreme Court in October, on behalf of plaintiffs who depend upon the public domain for their livelihood. It is difficult for lawyers and for businesses to see how the Internet changes things—hard for lawyers because they are typically far removed from the Internet, and difficult for businesses because they often don’t see just how the law really regulates. But it is crucial for the future of innovation and growth that both sides come to see why a new technology makes an original constitutional value so much more important.

Copyright law is a crucial part of the system of incentive necessary to spur creative work. But the law affects creativity differently in cyberspace than in real space. Content owners have been quick to argue that cyberspace weakens copyright protection, since digital copies are so easy to make and distribution costs are so low. That may be true. But it is also true that the Internet can strengthen the power of copyright owners far beyond anything imagined by the framers of our copyright act.

Think, for example, about the difference between a book and an e-book. When a book is published in real space, copyright law controls who may print and initially distribute the book. If you reprint John Grisham’s latest novel and sell copies without permission, you will be hunted down and prosecuted—and rightfully so. Copyright properly assures that the author, or copyright holder, has an "exclusive right" to the profits from the initial sale of the book. Thieves who invade that right are punks.

But once the book is out there, ordinary uses of the book in real space are untouched by the law. If you read the book 10 times, copyright law doesn’t care. If you buy a copy at a local used bookstore, or borrow it from a library, the author doesn’t get a royalty (in the U.S., at least). These uses are unregulated by copyright law. They are not "fair uses" of copyrighted works; they are simply unregulated.

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