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Sunday, May 20, 2007

Helprin on Perpetual Copyright

Mark Helprin has an op-ed in today’s New York Times calling for perpetual copyright terms. He acknowledges that the “limited times” requirement of the Copyright Clause would scuttle an explicitly infinite copyright term. But he then borrows a page from Sonny “forever minus a day” Bono and praises Congress’s recent strategy (upheld in Eldred v. Ashcroft), of repeatedly extending copyright terms, saying Congress should continue to extend copyright “as far as it can throw.”

Other bloggers are already busy responding to the op-ed’s policy arguments. Larry Lessig has put together a wiki page for a collaborative rebuttal, Joe Gratz points out that Helprin’s A Winter’s Tale “bears a title and a conceit appropriated from a work in the public domain,” and I’ve taken an entirely uncalled-for cheap shot at Helprin on my personal blog. But in this place of elevated scholarly discourse, I’d like to point out something very intriguing about Helprin’s op-ed: it fits comfortably into neither of the two dominant theories of copyright. His argument isn’t really about economics, and it isn’t really about authors’ moral rights.

Helprin’s central claim is that the expiration of a copyright term amounts to “expropriation” of property. Copyright economists usually trade off reward to authors against public access and defend their preferred balance by arguing that it maximizes public welfare. Helprin, on the other hand, all but pooh-poohs the public interest, writing, “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.” He makes some further arguments that term expiration is a wealth transfer rather than a wealth-increaser, but his “common equity” is really where the action is at for him. Taking property away is wrong.

That may sound a bit like a moral rights argument, but it’s not. Common moral rights discourse in copyright holds that an author has brought something unique into the world and imbued it with her personality. That is, it defends special right for creators by pointing to the special nature of creativity. For Helprin, however, the point is precisely that intellectual property is indistinguishable from other forms of property: “Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?”

It may be that he went this route because the current life-plus-70-years copyright term makes it a little awkward to advance a moral rights argument that would benefit ones’ remote descendants. Or it may be that his commitment to private-property libertarianism made it seem the natural position to take. Either way, it begs the question of whether intellectual property rights really are property rights in the relevant sense.

Most of the time, I happen to think that they are. Society recognizes property rights in all sorts of things, many of them intangible. What makes them “property” rights is the thing; even if you can’t see or touch it, provided there’s enough social consensus as to what the thing is that we can agree when someone has used it, it’s capable of being property. The exclusionary right against the world in a recognizable thing—whether a house, a handbag, a domain name, a logo, or a work of original authorship—to me, that’s “property, and it helps enormously with understanding the law to recognize how similar doctrines operate across the whole range of things that can be property.

This, however, may be one of those cases in which Mark Lemley and Richard Stallman have a point about the rhetoric of “intellectual ‘property.’” As a formal matter, the “expropriation” argument would vanish if Congress abolished copyright for all future works; there would be no property to be expropriated. Presumably Helprin would complain that this proposal would “treat[] with special disfavor the work of the spirit and the mind” to an even greater extent. But whether they are disfavored or not depends on the whole structure of the law they face and not just the shape of copyright; perpetual copyright terms, but a ban on printing presses, would be little better. What’s really at stake in Helprin’s equal-treatment argument is the opportunity open to those who write and to those who build factories. Focusing on the formal “inequality of real and intellectual property” just distracts attention from whether writers are getting a fair shake.

Posted by James Grimmelmann on May 20, 2007 at 11:32 PM in Intellectual Property | Permalink

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Comments

Two quick things:

1. I find it kind of funny that his piece is called "A Great Idea Lives Forever. Shouldn’t Its Copyright?" when in fact one of the basic tenets of copyright law is that ideas are not copyrightable, merely the expression of ideas in a tangible medium.

2. His argument about copyright as the engine of the economy is somewhat silly to me. If his piece were about IP in general, I would agree, but I think the economic impact of the patent system remains greater than that of copyright (I might be wrong on this). Yet his piece doesn't lament the 20 year patent period, nor does he argue for unlimited patent terms. What makes the economic importance of one form of IP more worthy of infinite protection than another? Ah right, Helprin is an author, so obviously some sort of genius, much more worthy of a longer term of protection than a silly scientist working in a lab.

Posted by: Garrett | May 21, 2007 10:49:27 AM

A couple quick things:

1. The Sonny Bono "forever minus a day" strategy always amused me. Isn't infinity minus one still infinity, and thus still the paradigmatic unlimited time?

2. The pure natural rights approach Helprin takes has appeal in the abstract, but as a practical matter law limits owners' rights in physical property all the time, both out of deference to private third parties (easements by necessity) and the public more generally (the public necessity doctrine). The limited times provision fits into property law's long tradition of balancing public need with private gain.

3. There is a flavor of instrumentalism in the Helprin piece, I think, in his reference to IP as the "engine" of the economy (a phrase lifted from Harper & Row, a Supreme Court case and public domain source). It's a hard one to get away from since the entirety of copyright jurisprudence, particularly in the US, is so thoroughly suffused with economic reasoning.

Posted by: Dave | May 21, 2007 12:48:44 PM

Thanks for the nice round-up of resources, James. There's a couple ways to think of this piece:

1) I think Mill once said that each side in a debate can be helped by its extremists, who push some imaginary "moderate" position further toward their own side by advancing a outlandishly uncompromising position.

2) But given the absurdity of Helprin's position, perhaps he's more like copyright expansionism's Colmes (of Hannity & Colmes); a token voice given a forum merely to humiliate his ostensible allies, or to put their case in the most unconvincing way possible.

I'd really enjoy seeing how Helprin would do on a copyright exam, given how innocent the piece seemed of niceties like derivative works, Eldred, or sequential innovation.

Posted by: Frank | May 21, 2007 1:32:25 PM

I have heard, a number of times, that there are only seven basic plots. Helprin's ideal would have only seven works in existence, with royalties to the (billions of) descendants of a few late-Iron-Age authors.

OTOH, he would have kept Disney from getting started. Not only did Walt and Co. take, without compensation, from the works of the Grimms [well, they in turn "stole" their tales from grannies who told them] but often used then-cultural materials (notably, "Steamboat Willie" traded on - if not stole from - Buster Keaton's "Steamboat Bill, Jr.").

Physical property becomes lessened if shared/distributed: intellectual property usually becomes enlarged if so treated. Copyright is a compromise.

Posted by: teqjack | May 21, 2007 1:55:14 PM

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