When Instapundit Glenn Reynolds agrees with the New York Times editorial page, something funny is surely afoot. In this case, both are encouraging the Supreme Court to overturn--on Constitutional grounds, mind you--a 1998 law extending the duration of copyrights by an additional twenty years after the creator's death. Their argument is that the Constitution's language empowers Congress to set copyright law for "limited times", in order "to promote the progress of science and the useful arts", and that extending copyrights on existing works cuts undercuts both of these expressed intentions, by threatening to make copyright terms indefinite, and rewarding creators long after they have ceased to be able to respond to the increased incentive.

Now, I sympathize with these arguments, and freely concede that copyright protections might deserve some weakening, particularly with respect to duration. (Patents only get twenty years, after all.) But deciding the correct length of copyright terms is a matter of balancing the benefits to society from rewarding creators against those that the public garners by having free (or freer) access to their work. Gauging that balance is exactly the kind of public policy question that the courts are completely unqualified to decide, and should leave to the democratic process, in all its imperfect glory, to work out for itself. Sadly, the judiciary's hubris with respect to judging what's good for the public knows no bounds these days, and I have no confidence that the Supreme Court will exercise any uncharacteristic restraint in this case.