My first post addressed some of the common assumptions about what copyright laws can do. The two syllogisms and one tautology were not an expression of my beliefs, but rather an expression of common views, views I believe are mistaken for reasons I detail in the introduction to and in Chapter 3 of the book. That they are mistaken doesn’t mean that copyright serves no purpose: I believe copyright can serve a purpose of protecting against free-riding and in creating conditions under which investments can be made in a stable legal environment.
Agreeing that copyright can serve valuable purposes doesn’t, though, tell us about the necessary level of protection. Chapter 8 of the book deals with the term of copyright, how long protection should last. A great deal has been written about this, and court cases have been brought and lost challenging Congress’s extension of the term of protection, most notably in the Eldred case, which challenged part of a 1998 law extending the term another 20 years.
I believe the Eldred challenge suffered from poor strategy but the outcome is likely to have been the same, nevertheless. Evidencing a deference to Congress rare in most areas, the Court seemingly granted carte blanche to extend the term of copyright to whatever length the legislature wants so long as Congress merely states a belief that doing so would provide an incentive to create. By contrast, in the area of abrogating sovereign immunity, the Court reacted quite differently, getting into the weeds of how many witnesses there were at hearings and the substance of what they said.
The Eldred Court also engaged in what I regard as an indefensible jettisoning of the Constitutional text: the grant of power in Article I, section 8 clause 8 is to promote the progress of science. […]