http://www.washingtonpost.com/wp-srv/technology/articles/eldredprimer_100902.htm
Eldred v. Ashcroft primer.
On balance, copyright terms should be shorter I think. (Probably much shorter.) But I think some of Eldred’s supporters are a little blind to some of the (not so beneficial) implications of a shorter term. Would the public benefit if Mickey Mouse were in the public domain, for example? I’m not sure that we would. What would it be like to live in a world with a Disney Mickey, a Fox Mickey, a Nickelodeon Mickey? Would this be confusing? Or would there be no Mickeys, because no network would be prepared to bear the risk of him being subverted, distorted, smeared by another?
I can only think of a few high-profile fictional characters in the public domain—Santa Claus, Frankenstein’s Monster, Dracula… Why are there so few? Why is Ulysses not as famous as Superman? Is it because no-one owns him? (Alternatively: is this a problem?)
I also think Jack Valenti is right in suggesting that some old films won’t get restored if no-one owns them. Why would you spend money restoring (and promoting) a film if the theatre next door can show their own copy for free if yours proves successful? (Similarly, drug companies have no incentive (economic) to investigate the possibility that existing (but out of patent) drugs can be used to treat novel illnesses.)
There are advantages and disadvantages to a longer copyright terms; I do think the advantages do outweigh the disadvantages. But one should acknowledge that just as it is true that some “moves” are only likely under short copyright terms, some “moves” are only likely with long.
(These arguments have not much to do with whether the case itself succeeds since that depends on matters of First Amendment law.)