Public domain is lawyer-free

Article I, section 8 of the United States Constitution provides that "[t]o promote the progress of science and useful arts," Congress has the power to give "authors and inventors the exclusive right to their respective writings and discoveries" for "limited times." \nThis phrase, like the Commerce Clause, has become understood to be an almost limitless grant of authority to Congress to regulate. However, the Supreme Court has recently agreed to hear Eldred v. Ashcroft, giving themselves a significant opportunity to increase the rights of the public and decrease the control of Congress and large corporations over ideas and innovation.\nEric Eldred publishes public domain texts -- Shakespeare, Dickens, and the like -- on the Internet. In 1998 he was preparing to publish some Robert Frost poems when Congress passed the Sono Bono Copyright Term Extension Act, which extended all existing copyrights 20 years; meaning works that were set to enter the public domain in 1999 would, under this new law, not become public until 2019. Eldred sued, alleging that Congress acted beyond its authority to grant copyrights for "limited times" and infringed upon his right to use public domain material. \n"Eldred is about the public domain," Stanford Law Professor Lawrence Lessig, counsel for Mr. Eldred, told me last week. "Congress's current practice is to assure that nothing passes into the public domain. By extending the term of copyrights repeatedly, it assures that our culture remains within the control of an increasingly concentrated set of copyright holders." \nIn 1790, a copyright lasted 14 years with the possibility for renewal for another 14 years. Today, copyrights last the entire life of the author plus another 75 years. No subsisting copyrighted work has entered the public domain since 1976.\nDoes such extensive protection "promote the progress of science and useful arts?" Hardly. A vibrant public domain promotes progress, and the founders understood that because they required that copyrights exist for "limited times." Copyright terms should be just long enough to provide an incentive to create and then be sent quickly into public domain.\nFurther, Article I, section 8's guarantee of copyrights for "limited times" cannot actually have teeth as long as Congress keeps extending copyrights past their original expiration dates. Copyright owners are getting perpetual protection on "the installment plan:" 20 years at a time. \nLest there be misunderstanding, there is no dispute that authors and creators should have exclusive rights to their works. The question is how long protection is necessary to induce creation. \n Would Don Henley still write a song if someone could re-record it for free in 2090? Would Andrew Lloyd Webber still write a musical if someone could perform it without paying royalties in 2115? Surely, the answer to these questions is yes. \n Henley's and Webber's rights are important, but so is the public's right to a free and vital interchange of ideas. There is a balance to be struck, but Congress has upset this balance by putting too much power and control over ideas into too few hands. The Supreme Court, in Eldred v. Ashcroft, has a chance to help move America back toward balance.\nAs things stand today, Professor Lessig argues that "…the right to share, create, build on, critique work is something you need permission from a lawyer to do. The public domain is a lawyer-free zone. We should feed it, and let it grow"