For the same reason that the right to bear arms should not be abridged, regardless of what a 'militia' actually is. The purpose is to promote the progress of science and useful arts; but the actual power is to secure for limited times the exclusive right to inventions and discoveries. The Constitution says the times must be limited, but that, IMHO, gives Congress wide latitude to decide what those times should be. As long as Congress makes a determination, however stupid or corrupt, that lengthening the span of copyrights aids progress, the Courts, IMHO, should not be second guessing them.
The founders, in other cases, laid down a precise quantity in a Constitutional provision. They could have said in this case 'no longer than 50 years'. The fact they declined to do so means, IMHO, that the courts should likewise decline to constrain Congress.
I'm just reiterating, of course, what Nick Danger has written. I doubt he's claiming proprietorship over 'judicial restraint' either, however eloquently he's espoused it.
Well, now we're getting into semantics. The 2nd Amendment says that because of X, the right Y shall not be infringed. X is the motivation for Y but doesn't limit it. The copyright clause says that Congress has the power to do X (promote arts and sciences) by doing Y (granting copyrights and patents). I would argue this means that Congress can do Y *only* if it is related to achieving the goal of X.
As long as Congress makes a determination, however stupid or corrupt, that lengthening the span of copyrights aids progress, the Courts, IMHO, should not be second guessing them.
For lengthening copyrights on future works, I'm forced to agree. But I don't on the retroactive extension, because there is no conceivable way in which that aids progress.
But this is all moot, as 77% of SCOTUS disagrees with me. Like you, I intend to give this law every bit of respect that it deserves.
...The purpose is to promote the progress of science and useful arts; but the actual power is to secure for limited times the exclusive right to inventions and discoveries. The Constitution says the times must be limited, but that, IMHO, gives Congress wide latitude to decide what those times should be. As long as Congress makes a determination, however stupid or corrupt, that lengthening the span of copyrights aids progress, the Courts, IMHO, should not be second guessing them.I suppose greater minds can explain, but I'm mystified as to why so much fuss over "limited" and so little concern for "promotion of the arts and sciences." Only Breyer mentioned it, it seems (see bvw's #59), and without context. These words are only meaningful if together. Argument over "limited" is doomed, for there's no answer to it -- symantically. Rather, "limited" in the context of "useful" becomes tangible. Could we not, for example, weigh the dust on unused protected works and see if it adds up to more pennies than Disney's market cap?
Whatever the Court's and the Congress' view, there can be no argument that current copyright law promotes the arts and sciences any more than the original law. With these ceaseless extensions the law has effectively re-written the Constitution to say that copyright is to promote franchising of the arts and sciencs.
Here's a real world example. In a history I wrote I desired to quote passages from several works that were written in the 1930s by actors to the area of my study. These works are owned by major publishers. I submitted my requests, and got back inane restrictions on the use. The fee was the least of it. (Another example: for a History Channel interview I had to sign away all rights to it for perpetuity and for all the universe. No kidding, that's what they asked for. I made them re-write it to specify Mars, as well). When I chased down copyright owned by individuals, the only demand asked was for a copy of my book. Guess what got dropped from my history?
Certainly authors have a greater sense of how to "promote the arts and sciences" than do publishers. But there's more to it: the authors also understood that free use of their works would give those works greater value, and give greater value from those works to society.
Now, respecting the rights of a publisher to its works, I submit that the law has enhanced these rights to monopolistic, restraint-first behavior. History, however small this contribution may have been, has suffered. Every imperfection, no matter how small, destroys the perfection of the universe.
A question to the entertainment industry (and Congress): what's the difference between losing Mickey and Bogey to the public domain now, or in another fifty years? For copyright owners, dollars. "To promote the arts and sciences," less than zero.
*bumping FreedomCalls's #133*