THIS NEW YORK TIMES EDITORIAL ON ELDRED V. ASHCROFT has it exactly right:
The Constitution says that Congress may authorize copyrights only for "limited times." It is always difficult for a court to determine the precise meaning of broad constitutional phrases like "limited times" or "cruel and unusual punishment," or "a speedy trial." But at some point the Constitution's words are violated. The court should hold that the latest extension goes too far.
There is clearly a correlation between copyright and creativity. No one but a blockhead writes except for money, Samuel Johnson said, and those who subscribe to that view would be unlikely to write if, the minute they completed their work, others could copy it with impunity. But it is a highly reluctant artist — and one with extraordinary concern for his heirs — who will not create unless his work is protected for a full 70 years after his death.
The purpose of the 1998 Congressional extension was not protecting artists, but enriching media companies that hold property rights in their creations, virtually in perpetuity. The founders did not envision copyright being put to this use, and the Supreme Court should not allow it.
The Times is right, even though I think they just called me a blockhead.