How We Lost the Public Domain

This is a couple of years old, but I had never read it before: How I Lost the Big One , wherein Lawrence Lessig explains what went wrong in the 2003 Supreme Court case that, for all intents and purposes, ended the Public Domain for anything created since 1923.

(Briefly, the Court decided that Congress has the right to extend copyrights indefinitely despite the fact that the Constitution explicitly states that exclusive rights should only be secured “for limited Times.”)

But now, Techdirt is suggesting that Lessig might have another opportunity to fight for big changes in copyright law. Don’t hold your breath, but don’t count him out either!

If you’re wondering what’s so bad about unlimited copyrights, Lessig sums it up:

Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. Most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends. Copyrights in this context do no good.

Yet for most of our history, they also did little harm. When a work ended its commercial life, there was no copyright-related use that would be inhibited by an exclusive right. When a book went out of print, you could not buy it from a publisher. But you could still buy it from a used bookstore, and when a used bookstore sells it, at least in the United States, there is no need to pay the copyright owner anything. Thus, the ordinary use of a book after its commercial life ended was a use that was independent of copyright law. The same was effectively true of film. Because the costs of restoring a film—the real economic costs, not the attorneys’ fees—were so high, it was never at all feasible to preserve or restore film.

Digital technologies have changed that. It is now possible to preserve and offer access to all sorts of knowledge. Digital technologies give new life to copyrighted material after it passes out of its commercial life.

Sorry to get all nerdy, but this is important. And hardly anybody cares. And they should care.

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