January 18, 2003 · Lessig
Among the hundreds who have written, Kevin Kelly writes “[y]our stand before the court will only be a failure if we fail to follow through with what is next.” Many more ask, “what can we do next.”
Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been “published,” a copyright owner would be required to pay a copyright tax. That tax should be extremely low–this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.
If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante–98% of the public domain that our framers intended. Not bad for government work.
Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.
But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is “to follow through with what is next.” This bridge–between those who want copyright to be forever, and those who want a public domain–should be next.
If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?
There is a FAQ about the proposal that will be updated to reflect great questions raised by many.
And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here.