Judge Richard Posner posted on Lessig’s blog August 23rd:
“it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.”The method Judge Posner is suggesting would surely solve some of the problems with copyright law. It would result in a lot of old works, that the owners aren’t interested in anyway, entering the public domain long before they will under the current copyright law. This would make it a lot easier on people who wish to use these works in new music, books… or in Eldred’s case: a website with non-commercial publications of public domain works. But if there is no limit as to how long you can extend your copyright, some works would never enter the public domain. The most famous and lucrative works are mainly owned by multimillion dollar corporations, and their owners will undoubtedly continue to give notice of their rights. As long as the work is of considerable commercial value, someone will claim their copyright, if it is possible to continue to do so. What a shame, if the copyright of these works never expired, and it would be impossible to use these works to create new works. Eldred would never be able to publish the works of Robert Frost, whose works are still of great commercial value. And eternal copyright certainly doesn’t promote the progress of science. To prevent the copyright registry from creating new problems with copyright law, there would have to be some limit as to how long you could extend your copyright. And then we’re back to the recurrent problem: Where should we set that limit?