Some cynics claim Congress passes copyright laws mostly to protect Mickey Mouse. While that might be overstating things, there’s no question the trend over the past thirty years has been to expand the rights of copyright owners, Disney included.

A recent article in Wired talks about a new legal challenge (Kahle v. Ashcroft) to expansive copyright laws. While I don’t think the challenge will succeed, it does raise interesting questions prompted by changes in the way information is now distributed.

The argument — and I think there’s some merit to it — is that it’s now virtually impossible for copyrighted works to return to the public domain. Unlike in the past (i.e., prior to 1976) copyright owners don’t have to take action to obtain and renew copyrights on their works. Thus, long forgotten works sitting in libraries around the country might well remain protected under copyright laws. What then happens when someone republishes these works on the Internet, say? Checking records in the Copyright Office won’t help because renewals occur automatically — nothing needs to be filed with the Office. Thus, these works remain in a sort of legal limbo wherein there is no practical way to find out if they are in the public domain or remain the property of someone else. (You will, of course find out after you are sued, but some folks prefer to avoid this method of notice for some strange reason.)

Given that copyrights, like patents, are supposed to confer some public benefit through ultimate entry of the protected matter into the public domain, there is legitimacy to the argument that copyright owners aren’t holding up their end of the deal if they, in essence, keep extending their rights in perpetuity. This argument, however, was shot down by the Supreme Court not long ago in Eldred v. Ashcroft. It’s unlikely the courts will see thing differently so soon after that decision.