...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*
Judicial resolution of what "limited times" means is a lot less hairy than judicial resolution of what "promotion of the arts and sciences" means. The former can be considered in the light of historical evidence (e.g. common law doctrines of "perpetuity", previous extensions which may indicate that the extension currently under review is part of an "infinity by induction" pattern). The latter is almost impossible to weigh without delving into public-policy questions which are more properly directed to the elected branches of government.
The problem here is that bureaucracies find it easier to say "no" than to say "yes", because the former answer is far less likely to make future trouble for the bureaucrat who signs the paperwork.