Against Perpetuity

Mark Helprin has an Op-Ed in the New York Times arguing that copyrights should last forever. There's not really a coherent argument so much as hints at several possible ones, but I think I've found the point where he goes off the tracks. Early on:

[The time limit on copyrights] is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

Let's set aside the argument that the "rights" of deceased creators are not a terribly compelling source of value in the first place. The problem with the exercises of power Helprin thinks are counterexamples is that the imagined government is acting arbitrarily. Copyright law, on the other hand, applies evenly to all holders. Creators whose copyrights expire seventy (70!) years after they die aren't having their rights infringed, because they don't have any copyrights seventy years after death. Unless, that is, the "rights" in question are a kind of natural right to eternal copyright protection, which Helprin seems to want to assume without actually making the case for. As a sometime student of the metaphysics of morals, let me just say good luck with that.

But look, ordinary property rights governing land and chattel have evolved at common law in order to maximize the public good. You always have to make tradeoffs between plausible-sounding "rights" like the right to have peace and quiet on your land and the right to enjoy your land by having loud parties on it. Either Helprin thinks this process is illegitimate, and adopting one rule or the other inevitably "exclude[s] from common equity the rights you seek to abrdige," or he rally just doesn't get what this "law" business is all about.