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Sonny Bono lives. Indeed, Cher’s former partner may have given his most enduring performance a year after his 1997 death. That’s when Congress passed the Sonny Bono Copyright Term Extension Act, authored by and named for the musician turned congressman. For copyright owners � everyone from individual songwriters and poets to huge media conglomerates � the law was by far Bono’s biggest hit, because it increased the length of all existing and future copyrights to 95 years. But not everyone was ready to sing Bono’s praises. Since 1995, Eric Eldred had been posting classic literaure on his Web site, in order to make it easily accessible to a wider audience. With the Bono act, works that Eldred had been planning to add � because their copyrights were about to expire � were suddenly protected for another 20 years. In response, a frustrated Eldred filed suit to challenge the law’s constitutionalty. The U.S. Supreme Court gave him a hearing, but no relief. Last year the justices ruled 7 to 2 that while Congress had a mandate to limit copyrights, it could repeatedly increase these limits without restriction. The ruling was a defeat not just for Eldred, but for his lead attorney, Lawrence Lessig. A Stanford Law School professor, Lessig has written two previous books on copyright law in the digital age. He examines the consequences of the Bono act and the Eldred decision in his latest work, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. As the subtitle suggests, Lessig is especially critical of large corporations, which he maintains are pushing “extremist misinterpretations” of copyright law to control culture to an unprecedented degree. Their efforts are stifling artists’ creativity by restricting access to America’s cultural legacy. Worse, Lessig says, this clampdown has been backed by judges and lawmakers. Ordinarily, a law professor’s lament on intellectual property rights would be as anxiously awaited as a root canal. However, copyrights are being infringed like never before as new digital technologies facilitate the large-scale duplication and transmission of music, movies, and other content. Many corporate copyright owners view this as theft, and they’ve responded with America’s favorite weapon: the lawsuit. The most visible instance is The Recording Industry Association of America’s ongoing litigation campaign against individuals who download unauthorized music files from the Internet. Lessig decries the RIAA’s actions and other examples of what he considers to be excessive copyright claims. What’s needed, he says, is a reassessment of intellectual property and an acknowledgment that it differs from other forms of property. A 1945 case that two North Carolina farmers brought against the government after low-flying military aircraft scared their chickens is key to Lessig’s argument. The farmers claimed that the planes were trespassing on their land, which, they maintained, reached, to “an indefinite extent, upwards.” The Supreme Court disagreed, writing that “common sense revolts at the idea.” Lessig’s point is that all property rights have their limits, and that the same reasonable approach should be taken with copyrights. Not surprisingly, most of his proposed solutions to the current crisis are legal fixes, like centralizing the registration of copyrights and shortening copyright terms. But this approach overlooks the continuing potential of technology to undermine copyright law. The Bono act and the Eldred decision may promise perpetual and absolute control over intellectual property, but this means little as long as file swapping and disc burning continues unabated. The fact that technology is currently causing the problem suggests that it could eventually provide the solution. Indeed, Lessig’s best idea is a digital watermark that would tag content without restricting access. This would at least allow copyright owners to keep track of their intellectual property as it’s copied. Eventually, a watermark could spur the development of new distribution methods that could both be profitable and compete effectively with unauthorized copying. After all, it doesn’t matter how long the copyright lasts for “I Got You, Babe” if fans are downloading it for free.
Contributor Alec Foege writes frequently about the entertainment industry and online media.

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