Those who do comply—like the United States—find themselves tangled up in restrictions that the makers of the law never considered. American librarians who wish to offer free electronic editions of works that had been widely enjoyed for years, now must request permission; academics who want to cite extensively from works that were once freely available, now have to pay permission fees for the privilege.

Some have rebelled: Earlier this month, the Supreme Court heard oral arguments in Golan v. Holder, a case brought forth by a group of scholars eager to repeal the Uruguay act. The plaintiffs’ primary argument is that retroactively implementing copyright protection is unconstitutional and threatens the very notion of the public domain. If the Justices reject this argument, we would lose much more than the right to free Pippi: At stake here is the concept, advanced by the Founding Fathers, that a culture can only thrive if society weighs the individual’s right to intellectual property against the public’s right to knowledge.

These twin interests were on James Madison’s mind when he drafted, together with Charles Pinckney of South Carolina, what would eventually become Article I, Section 8, Clause 8 of the United States Constitution, empowering Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The clause is a neat bit of tightrope-walking, acknowledging the importance of copyright protection, but only for a certain period of time. Madison et al believed that for the public to be educated, writings—unlike buildings or fields or horses—should only belong to their creators for so long before being made available to all for free.

Seen in this light, the Uruguay act is more than just bad legislation. By placing thousands of formerly free foreign works under what, barring the Supreme Court’s intervention, is likely to be decades of protection, Congress has dulled that most important instrument of edification and innovation, the public domain. The consequences of the act go beyond the philosophical: Getting back to Shostakovich, while no concrete data exist, it’s very likely that the Russian genius is played far less often as a result of the 1994 legislation. As the Chronicle of Higher Education reported earlier this year, “When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.” This means that orchestras that aren’t very rich—which is to say, the majority—can now only offer their audience a limited program, from which the giants of Russian modernism are sorely absent. Similarly stifled are Mexican folk singers: The library of the University of California, Los Angeles maintains a collection of more than 100,000 recordings of Mexican folk music, the use of which is now restricted to those able to visit the library in person. Preparing a collection of children’s songs from around the world, author Kevin Cooper was forced to exclude many that were previously squarely in the public domain, settling instead on a narrower and far less diverse edition. These examples, and numerous others, appear in an amici curiae brief filed in support of the plaintiffs by the American Library Association, the Association of College and Research Libraries, and other interested parties.