Overextended

Copyrights out of control.

Irving Berlin wrote the original version of "God Bless America" in 1918, when Woodrow Wilson was president and transatlantic airlines were still a dream. The song was published 20 years later. Under current law, which gives works produced before 1978 a copyright term of 95 years, "God Bless America" will not enter the public domain until 2033.

Now imagine another composer who, like Berlin, writes his first big hit at 23 and dies at 101. If his breakthrough single came out today, no one could legally perform, record, publish, broadcast, or distribute it without paying for the privilege until 2150, 70 years after his death.

That's assuming Congress does not once again extend copyright terms, something it has done 11 times in the last four decades. If 148 years of exclusivity seems reasonable, why not 200 or 300?

Officially, Congress is trying "to promote the Progress of…useful arts," as the Constitution puts it, "by securing for limited Times to Authors" an "exclusive Right" to their works. But it's hard to see how extending the copyright on "God Bless America," as Congress did in 1998, serves that purpose. Even if he were still alive, Berlin couldn't exactly write the song again.

The disconnect between the intent of the Copyright Clause and its implementation by Congress is at the center of a case the Supreme Court recently agreed to hear. "By repeatedly extending the terms of existing copyrights," argue several publishers of public domain material, Congress can "achieve a perpetual copyright 'on the installment plan.' "

If intellectual "property" were morally indistinguishable from tangible property–as copyright holders suggest when they equate infringement with theft–there would be nothing wrong with a perpetual copyright. We take it for granted that ownership of a house or a diamond ring does not simply expire after a set number of years and that such assets can be passed on to descendants indefinitely.

A song, a movie, or a book is not quite the same, as the very existence of the Copyright Clause suggests. The Framers did not give Congress the power to grant people rights to their homes, farms, or personal possessions because such rights already existed. Indeed, protecting those rights was one of the main reasons for establishing a government in the first place.

Copyrights, by contrast, were understood to be a legal invention, and the justification for them was utilitarian: to promote progress and enrich the culture by giving authors an additional incentive to create. But the Framers recognized that copyrights could also impede progress and impoverish the culture by preventing people from building on the work of others. That is one reason copyright terms–originally set at 14 years, renewable for another 14–had to be limited.

Even with limits, copyrights were criticized by such luminaries as Thomas Jefferson, who recognized them as government-granted monopolies that would invite corruption. James Madison agreed that monopolies are "justly classed among the greatest nuisances in Government" but suggested they could be justified "as encouragements to literary works and ingenious discoveries."

Today copyright law is unmoored from the goal Madison had in mind, while the corruption Jefferson feared is evident every time Congress votes to line the pockets of big media companies by extending their monopolies. The hypocrisy of the entertainment giants makes this spectacle even harder to stomach: Disney, which has made a fortune by recycling other people's stories (Beauty and the Beast, The Little Mermaid, The Hunchback of Notre Dame), can't bear the thought of letting early Mickey Mouse cartoons slip into the public domain.

In the case the Supreme Court has agreed to consider, the plaintiffs argue that using copyright law to to reward influential corporations is not just unappetizing but unconstitutional. Although their argument was rejected by the U.S. Court of Appeals for the D.C. Circuit, at least one judge found it persuasive.

The Copyright Clause "is not an open grant of power to secure exclusive rights," Judge David Sentelle wrote in his dissent. "It is a grant of power to promote progress….Extending existing copyrights is not promoting useful arts, nor is it securing exclusivity for a limited time."

This reading of the Copyright Clause would not address all the problems associated with intellectual property. But it would restore some balance to a debate that has been dominated for too long by the uncompromising, moralistic rhetoric of monopolists.