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Abstract

Copyright protections encourage the production of intellectual property by temporarily restricting free public access, a constitutional design that Justice Stephen Breyer has called a “two-edged sword.” Yet, the Copyright Clause really enshrines a triangular relationship among authors, consumers, and commodifiers, a third constituency that has always interposed itself between author-creators and consumer end-users. Though the Copyright Triangle is nothing new, a fundamental reordering of these constituencies is in progress, with digital commodifiers such as Google assuming a dominant role. Though they sometimes proclaim themselves champions of free public access to culture, these commodifiers have instead aggrandized themselves at the expense of intellectual property creators and, ultimately, consumers, damaging the Copyright Clause’s delicate balance of private incentives. This Note demonstrates how copyright law increasingly serves the interests of a limited subset of commodifiers at the expense of authors and the public. It shows how two recent Supreme Court decisions that ostensibly benefited authors, Eldred v. Ashcroft and Golan v. Holder, instead exacerbated this trend. The Note advocates two fundamental changes to copyright laws that may help protect authors’ rights in the expanding digital universe, and also protect the public’s right to gain timely, free access to intellectual property. First, Congress should allow authors to more rapidly reclaim the rights they grant to third parties, such as publishers. Second, Congress should dramatically reduce copyright durations for certain kinds of intellectual property, including books, injecting these works into the public domain more rapidly. These changes may not only bring equilibrium to the three sides of the Copyright Triangle but also restore the grand bargain enshrined in the Copyright Clause.

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