"It shouldn't be surprising that Disney comes back to Congress every time Mickey Mouse is about to fall into the public domain," says Lawrence Lessig, a Harvard Law School professor. "The nature of business is to maximize profits; here's a way to maximize profits by Congress."

Lessig is challenging the CTEA on behalf of Internet publisher Eric Eldred (Eldred vs. Reno), who faces loss of the right to redistribute works such as The Great Gatsby that would have entered the public domain over the next 20 years. Last fall, the U.S. District Court for the District of Columbia granted Attorney General Janet Reno's motion for summary judgment, dismissing the case without trial. But an appeal is in the works, with oral arguments scheduled for October 5.

As Eldred sees it, allowing works to enter the public domain strengthens the cultural environment while offering potential savings to consumers.

"This act means that Disney must pay millions more to the Milne estate for rights to Winnie-the-Pooh, when if it was a bit more patient it could get the rights for free much sooner, without the copyright term extension," he says. "Hasn't Disney proven by taking works from the public domain such as Pocahontas or Pinocchio, and adding Disney's special talents, that a vibrant common culture from which to draw ideas is essential to the success of new creative works?"

A Disney representative declined to comment.

Dickens Lives

Defenders of the CTEA cite the necessity of bringing the U.S. copyright term --previously 50 years after an author's death --to parity with European law, which in 1993 extended copyright protection to 70 years after an author's death.

But Lessig points out that American law stems from a different tradition of copyright than European law.

"There's a conception that a copyright owner should have the right forever to control his work and that it's somehow criminal to imagine work being turned over to the public domain. That just sounds un-American," he says. "But the fact is that our constitutional power to grant copyright protection is founded on a fundamentally different principle. That principle was that we create an incentive for people to produce works, and once those works are produced and we've paid off the producer, those works get turned over to the public domain."

In his 1997 testimony before the House Judiciary Subcommittee on Courts and Intellectual Property, Fritz Attaway, senior vice president of government relations and Washington general counsel for the Motion Picture Association of America, claimed the law would benefit the public: "Term extension will not adversely affect the users of copyrighted material. In most cases the very opposite is true. This is because copyrights not only give owners the incentive to create works, they also provide continuing incentive to distribute them."

Eldred disagrees. He says the rationale for copyright in the Constitution is " 'To promote the Progress of Science and the useful Arts.' It is meant to be an incentive for innovation, not a means for perpetual protection of personal property. We don't believe that the CTEA does that, because it is rather difficult to incent a dead author to produce more works."

Copyright Forever

What's an appropriate term for copyright? The framers of the Constitution originally established 14 years, and it could be extended another 14 years only if the author remained alive. Today, for a corporation, under the work-for-hire doctrine, the maximum term is 95 years. For individuals it's the life of the author plus 70 years.

In the context of software, to which copyright protection has been extended, Lessig believes there's a need to rethink the law.

"The idea that software is protected for 95 years is just crazy," he says. "Ten years is forever in the context of software."

And while the law is being fought and rethought (or not), Eldred has a modest proposal. He says because he believes that the public domain is threatened by the continued expansion of the copyright term, he hopes to establish a Digital Intellectual Property Conservancy.

Eldred's conservancy would be similar to The Nature Conservancy, but instead of buying up land for public use, it would (as a nonprofit educational publisher) accept donated copyrights in exchange for a tax deduction, as well as monetary donations to purchase rights. The result would be a fertile pool of ideas available for content creators to exploit in innovative ways.

Professor Mark Lemley of the University of California, Berkeley, School of Law, who considers the CTEA bad public policy, finds merit in this idea.

"I think it's a great endeavor," he says. "It will benefit the public. But I'd sure hate for this to be our only source of public domain material --it's not a substitute for but a complement to legal protection for the public domain."

"It seems to me," Eldred says, "that corporations will eventually come around to the idea that trying to lock up all intellectual property as part of a corporate portfolio, to be traded and cross-licensed and so on, is just as bad an idea to them as ignoring the externalities of polluting the environment."

The open source movement has already demonstrated that freely available source code is economically fertile ground. But if content creators and entrepreneurs fail to make their interests known in Congress, tomorrow's innovators may wake to find the public domain has been sold . . . to the highest donor.