Eldred vs Ashcroft

I’ve been reading some of the eyewitness reports on the oral arguments in this case that took place yesterday at the Supreme Court, and I have a question. Maybe not a legal question, but certainly a common sense one.

If the Constitutional limits on Congress, in terms of copyright, are “copyrights must be limited in their duration, and granted for the purpose only of “promot[ing] the Progress of Science and the useful Arts.” aren’t all retrospective extensions unconsitutional? Look at it this way, if Congress is supposed to make copyright law on the basis of what would be appropriate to promote people creating works, and the copyright law at the time you created the work was, say, 50 years, than wasn’t 50 years enough to encourage you to create your work, and therefore isn’t any extension of exisiting copyright outside the realm of promoting creation of the work?

If that truly is the limit on copyright, that they can only be used to promote the creation of works, than shouldn’t the copyright duration be set at the point where people are willing to create works, and no higher? Using typical supply/demand economics, it’s easy to see that the optimum copyright point is the point at which works get put into the public domain as soon as possible, while still maintaining an incentive to create those works.

Of course that point may be moot, like Justice O’Connor is quoted as saying, “This flies directly in the face of what the framers of the Constitution had in mind, but is it unconstitutional?”

That’s my question too, and I think there’s a case that it is. Either way, it was Congress that passed these copyright extensions. You might want to check your Rep’s voting records before you go to the polls in November.

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