What Mr. Helprin also does not realize, is just because something “falls” into the public domain does not mean he and his heirs can no longer profit from it. It just means there is now competition.

As others have pointed out above, IP is artificial enforced scarcity and monopoly to reward creators. Though it and “real property” both have the word “property” in them, they are very different. Exactly because today’s world is one based upon the exchange of ideas and expression, I would argue for more leniency in the use of expressions and ideas, not less.

Mr. Helprin says “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” If that does happen, without a corresponding expansion of the right of Fair Use, I shutter to think about what that might mean for Higher Education, and the exchange of ideas and scholarship in general.

Contracting with his heirs would be a problem if there was no clear heir; if more than one heir claimed to hold the rights; if the heir was uncooperative (cf. Stephen Joyce) etc., etc. Any use beyond the most obvious and trivially “fair” use would have to get cleared, thus fewer people would bother, and Twain’s cultural impact would likely diminish.

And, going back to your previous comment, “Do you think some sort of strangulation of intellectual freedom or scholarship occurs when that happens? Do you imagine his heirs would not want to print his books?”

I’d answer “certainly” and “yes, I can imagine that.”

I Mark Twain retained copyright to this day, chances are we would not read as much Twain as we do. We’d have to contract with his heirs to have a copy available.

Why wouldn’t we read as much Twain as we do? And why would contracting with his heirs be such a problem for publishers?

Expression is meant to be shared. It isn’t diminished by sharing it. I can’t build my house using timbers from yours without damaging your house. But I can write a book drawing on other people’s expression and their book is just as whole.

Shakespeare and Disney would be in deep doo doo if there were perpetual copyright. We all would be.

Lethem is talking about how we build our literary houses by drawing on one another’s expression. That’s how it works. Perpetual copyright would make copyrighted books harder to use and any form of expression extremely difficult for fear a lawyer would come after you for violation.

He says “In the contemporary world, though, the act of ‘copying’ is in no meaningful sense equivalent to an infringement—we make a copy every time we accept an emailed text, or send or forward one—and is impossible anymore to regulate or even describe.” No question he’s talking about copyright, there – using a plagiarism to make the point.

What he concludes is far more generous and healthy than Helprin’s churlish property-based approach – “the truth is that with artists pulling on one side and corporations pulling on the other, the loser is the collective public imagination from which we were nourished in the first place, and whose existence as the ultimate repository of our offerings makes the work worth doing in the first place.”

What if Mark Twain had been able to retain copyright to the present day? What difference would that make? Twain didn’t have that protection so his heirs don’t get royalties on his books; but, again, what difference would it make if they did?

And FYI Lethem is talking about plagiarism and ideas in the post you refer to, not copyright.