Phonograms were originally considered merely an alternate form of musical notation, such as a MIDI sequence could be thought of today. This was because the first phonograms were piano rolls, which indeed were little other than an alternative form of notation. Hence the 1909 Copyright Act did not consider them copyrightable separately from the underlying music. Recording technology quickly made this view obsolete, but it took decades for the law to catch up. This is why there is no public performance right in most sound recordings.

Creating a public performance right in all sound recordings would make the statute more consistent. But we shouldn't let the robber barons get something for nothing. The new right would be an expansion in the scope of copyright. The quid-pro-quo should be a contraction in copyright's scope elsewhere (such as an expanded margin of fair use) or a reduction in the duration of copyright, from life-plus-70 down to life-plus-60 or life-plus-50.

We (call us the "men of '98") who opposed the CTEA back in the day predicted that the special interests would be back in Congress in about 2015 asking for another extension. Their school of thought already launched a trial balloon in the form of writer Mark Helprin's call, last year, for Congress to extend copyright again "as far as it can throw."

The best thing that those who love the public domain can do right now is to prepare. Inform ourselves. Have discussions like this one. Those who live in the EU can work against the proposed extension in the "neighboring rights" applying to phonograms. If you do, you will be fighting for us here in the USA as well as for yourselves. When 2015 arrives and the new extension is proposed, if we are ready, we will be able to put up a stiffer resistance than last time.

And of course, maybe they won't propose another extension after all, and Mickey Mouse will finally become publici juris. Maybe some brave member of Congress will even propose a reduction in the term of copyright. If the White Queen can believe six impossible things before breakfast, then surely we can imagine one or two.