Following the decision in Grokster, the Economist comes out in favor a 14-year copyright term, renewable once (Rip. Mix. Burn.). I certainly endorse shorter terms and have for some time, although I would structure it a bit differently. I don't see why there shouldn't be minimal formalities to extend copyright beyond a single year. But that's not my point. What would Grokster look like if we had a maximum 28-year copyright term?
We have to remember that currently, thanks to copyright term extension, not a whole lot of popular culture has entered the public domain since 1923. 1923! That's essentially the entire modern era as far as music and movies are concerned.
What is most interesting to me is to imagine how Grokster might have turned out differently if there had been a much shorter copyright term. For example, classic movies and music through the 1960s would have been legally shareable via these networks when they were launched. I don't have any figures, but I expect that a substantial amount of the music shared was from the 1960s, 1950s and earlier (most of the Beatles' catalog, for example, and Elvis). I also imagine that movies from this era would have been very popular as well. I don't know what the percentage might be, but I'm certain it would have made the networks look much better even to Justice Ginsburg's crew.
We also have to imagine the many mashups and remixes that would be possible with this library of music and moving pictures. Derivative works would certainly be invigorated by a much shorter copyright term and many of these works would likely be released under a Creative Commons license.
The development of the legitimate download market would probably have also benefited, as many different startups would have had access to a substantial library of works with which to entice customers. Many more companies would have entered the space, likely developing much better user interfaces. MP3 players would have come pre-loaded with many classics, greatly increasing their value proposition. Podcasts would benefit. The possibilities are limitless.
It is impossible to know what the percentages of licit and illicit materials would be in a world of original copyright terms, but we might learn a thing or two from books. After all, books have a much longer history. It would be interesting to compare the use of filesharing networks for ebooks and see what the percentages are of licit and illicit materials, since there is a much wider, more popular library of work for books. Of course, such a test wouldn't be definitive, because books are relatively nothing when it comes to bandwidth and so can't take advantage of one of the main benefits of filesharing networks. And books are substantially different from other mediums for other reasons. Nevertheless, such a study might be enlightening.
In the end, the ultimate outcome of the case might not have been any different (after all, you can induce people to infringe with a perfectly legal printing press), but we would probably have had a decision on Sony as well. I think it likely that, with a profusion of legal uses for P2P networks, at least two more justices would have shifted to Justice Breyer's concurrence.
In the many arguments surrounding Eldred v. Ashcroft, the constitutional challenge to copyright extensions for existing works, much was made of the fact that extending copyright wouldn't really encourage the creation of new works. Well, now we see some of the other costs of continual extension of copyright terms. There is collateral damage on technologies of reproduction and distribution. We know the value of this copyright extension, the proceeds of greedy rent-seeking to a small number of companies, but how to measure the cost to innovation?
And I'm not sure how well copyright law has faired thanks to term extensions.
Copyright extension is beginning to look more and more like a devil's bargain for the copyright companies. Among other things, it has probably done a whole heck of a lot to reduce respect for copyright law and encourage copyright infringement. You know, when you remove three generations of popular culture from the public domain including, essentially, two entire mediums, you're going to create tensions, not only with regard to the public at large but in law as well.
One way to look at why the Supreme Court was unable to reach agreement on a reformulation of Sony was because they were unable to reconcile the inconsistency of copyright terms that are, for nearly all intents and purposes, forever, with innovation. Of course there is going to be tension. Unless it is immediately licensed by copyright holders, any innovation in publishing and distribution is going to look illegitimate when the public domain has been so crippled.
Furthermore this tension doesn't really serve anyone, not even copyright holders (assuming they can look beyond the short-term). It increases the cost of creating legitimate businesses (which fosters illegitimate businesses), and makes it more difficult to separate the true bad actors from those whose innovations are merely caught up in the ridiculousness of our current system.
Over-extended copyright terms aren't the root of all evil in our system of copyright, but they're a key source.