dated or altered versions. This in turn could improve the software available
by avoiding the loss of knowledge that was built into the original code. Or-
phans could be adopted by others who saw their special benefit.

There are other steps that Congress could take as well. One problem that
often plagues creators is the claim that a work is copyrighted when it is not.
It is a common practice for publishers, for example, to claim copyright
when under the law they plainly do not have such a right. Sheet music pub-
lishers, for example, will often put copyright notices on public domain
works.

This practice is in violation of existing copyright law. It is a crime to say
something is copyrighted when in fact it is not. But the only punishment
that the law provides for this crime is an action brought by a U.S. attorney.
Not surprisingly, U.S. attorneys have better things to do; no one has ever
been prosecuted for violations of this.[14-20]

This is a perfect claim for private attorneys general. Professor David
Lange suggests that "claims... so extravagant in relation to the reality from
which... they... spring... ought to be made the subject of a serious
counterclaim for punitive damages rooted in some sort of tort... to be
termed 'unconscionable overreaching.'"[14-21] Congress could authorize pri-
vate citizens to bring suits against false copyright claims. If successful, the
plaintiffs in these suits should earn a bounty, plus their costs. And if publi-
cized, such suits should change the behavior of publishers.

/tab\/tab\LIMITS ON CODE/tab\/tab\

As I've described, the interests that copyright law protects can be protected
by technology as well as law. As the DVD case discussed in Chapter 11
makes clear, this protection by technology can often reach far beyond the
protection of law. Copyright protection systems can limit fair use or extend
the term of protection beyond the copyright term. If there is a reason for the
balance in copyright law, then there is a reason to be concerned about the
imbalance created by this code.

How one thinks about the code on its own is a hard legal question. We
don't ordinarily think that there is an affirmative wrong in these private sys-
tems of protection. But where the law backs up this code, then there is clear
reason to be concerned. Then the protection that the copyright gets is not
just the private protection of code; it is also the protection of law. So here,
in my view, there is a clear reason to limit the protections of law. Congress

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