that authors end up assuming
potentially life-destroying liability, are chilled from quoting
material around them, and are scared off of public domain texts
because an honest mistake about the public-domain status of a
work carries such a terrible price.

* Posterity vanishes. In the Eldred v. Ashcroft Supreme Court
hearing last year, the court found that 98 percent of the works
in copyright are no longer earning money for anyone, but that
figuring out who these old works belong to with the degree of
certainty that you'd want when one mistake means total economic
apocalypse would cost more than you could ever possibly earn on
them. That means that 98 percent of works will largely expire
long before the copyright on them does. Today, the names of
science fiction's ancestral founders -- Mary Shelley, Arthur
Conan Doyle, Edgar Allan Poe, Jules Verne, HG Wells -- are still
known, their work still a part of the discourse. Their spiritual
descendants from Hugo Gernsback onward may not be so lucky -- if
their work continues to be "protected" by copyright, it might
just vanish from the face of the earth before it reverts to the
public domain.

This isn't to say that copyright is bad, but that there's such a
thing as good copyright and bad copyright, and that sometimes,
too much good copyright is a bad thing. It's like chilis in soup:
a little goes a long way, and too much spoils the broth.

From the Luther Bible to the first phonorecords, from radio to
the pulps, from cable to MP3, the world has shown that its first
preference for new media is its "democratic-ness" -- the ease
with which it can reproduced.

(And please, before we get any farther, forget all that business
about how the Internet's copying model is more disruptive than
the technologies that proceeded it. For Christ's sake, the
Vaudeville performers who sued Marconi for inventing the radio
had to go from a regime where they had *one hundred percent*
control over who could get into the theater and hear them perform
to a regime where they had *zero* percent control over who could
build or acquire a radio and tune into a recording of them
performing. For that matter, look at the difference between a
monkish Bible and a Luther Bible -- next to that phase-change,
Napster is peanuts)

Back to democratic-ness. Every successful new medium has traded
off its artifact-ness -- the degree to which it was populated by
bespoke hunks of atoms, cleverly nailed together