When Margaret Mitchell published "Gone With the Wind" in 1936, the law gave her a copyright for as long as 56 years. Under that agreement, the book should have fallen into the public domain in 1993.
Why, then, was Mitchell's copyright, now owned by her estate, still powerful enough to prevent the planned publication this month of Alice Randall's "The Wind Done Gone," a retelling of that story of 19th-century Southern plantation life from an African-American viewpoint?
Following what has become a pattern, Congress had extended Mitchell's copyright, along with many others. Indeed, Congress has extended the term of existing copyrights 11 times in the past 40 years. Since the federal court decided that Randall's book derives from Mitchell's novel, the earliest publication date for the Randall book is now 2032 — unless Congress extends the term of copyrights again.
Can Congress really extend copyrights beyond the terms originally granted?
The answer should be no. The Constitution gives Congress the power to hand out monopolies over speech for "limited times." The first copyright act, in 1790, gave authors 14 years.
Under the current law, the term is the life of the author plus 70 years. In the case of a writer with the early accomplishment and long life of an Irving Berlin, for example, that could mean a copyright of 140 years.
This expansion, written into law in 1998, is largely the product of eager lobbyists. Disney and other companies have convinced Congress to ignore the framers' intent and push the term of copyright as long as possible.
So far, the courts have permitted this unrestrained distortion. But the case of "The Wind Done Gone" shows precisely why our framers got the balance right.
"Gone With the Wind" is an important part of our cultural heritage, its characters, quotations from its text and its picture of the old South familiar to almost everyone. At some point, every story — and certainly one such as this — should be free for others to use and criticize.
Instead of setting a fixed and relatively short term, however, the current system makes the right to base a story on Mitchell's novel turn on whether a lawyer can convince a judge that there is sufficient difference.
The new story may use the same ideas but may not make too much use of the same characters. It may follow some of the plot line but not the whole pattern. The rule is a mess of jargon and confusion that will only stifle the opportunity to build upon, and sometimes criticize, our cultural heritage.
The limited copyright for "Gone with the Wind" expired in 1992. Mitchell's story, which she and her estate have made millions retelling, should now be "free as the air" — as Justice Louis Brandeis wrote in a 1918 dissent — for anyone, including Randall, to remake and retell.
Lawrence Lessig, author of the forthcoming "The Future of Ideas," is a professor of law at Stanford University in Stanford, Calif.