May 31, 2007  ·  Lessig

So I posted the entry calling on people to write a reply to the Helprin piece, and then got on a plane in Boston. When I landed in Frankfurt, I got an email: “Wow! Pretty amazing wiki article.” And indeed it was (and is) — filled with useful facts and ideas, structured and accessible. A real improvement on the Lessig-averages no doubt.

I would have focused the attack in much the same way, though with some differences in emphases. In my view, the right answer comes not so much from careful attention to the metaphysics of property, but from a practical consideration of the burdens of different copyright systems. Where we know that after a very short time, the vast majority of work has no continuing commercial value at all, and that after a relatively short period of time, we’ve provided authors with all the incentives to create they could possibly need, what justification is there for the continued burden of copyright regulation? That question leads some to say “none,” and others to say (ala Posner), “well, at least require those wanting an additional term to take affirmative steps to claim it.” But all who adopt this practical perspective conclude the term should be well short of infinity.

The other thing that struck me about the essay was a point that often gets lost in the rhetoric around “originality” and “remix.” This debate is often couched in terms of “respect” for the author. The problem with the remixer, I’ve been told again and again, is that he doesn’t respect the author.

But compare Helprin’s piece with Jonathan Lethem’s, “The Ecstasy of Influence.” Lethem’s is constructed through the words of others. Helprin’s barely cites anyone. Yet Helprin’s topic is perhaps the most familiar in the history of copyright law. There must be a thousand interesting places where people have considered the same issue, and provided interesting, and compelling responses. (One favorite is Nimmer’s: “If I may own Blackacre in perpetuity, why not also Black Beauty? The answer lies in the first amendment. There is no countervailing speech interest which must be balanced against perpetual ownership of tangible real and personal property. There is such a speech interest, with respect to literary property, or copyright.” Melville B. Nimmer, Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?, 17 UCLA L. Rev. 1180, 1193 (1970).)

Yet Helprin doesn’t bother with what others have written. He wakes up one morning puzzled by a feature of law that has been with us for more than two centuries, and rather than research the question a bit, or think about it in light of what others have said, he just fires off an op-ed to the New York Times.

Now between Lethem’s piece (pure remix) and Helprin’s (pure Helprin), which is more respectful of authorship?

  • http://samgreenfield.com Sam Greenfield

    Another question is why the New York Times would choose to print an opinion piece with a shoddy foundation. Helprin has every right to fire off a note to the Times; they have no obligation to print it.

  • http://kathyandcalvin.com Dickey47

    “the right answer comes not so much from careful attention to the metaphysics of property, but from a practical consideration of the burdens of different copyright systems. Where we know that after a very short time, the vast majority of work has no continuing commercial value at all, and that after a relatively short period of time, we’ve provided authors with all the incentives to create they could possibly need, what justification is there for the continued burden of copyright regulation?”

    I think the textbook industry is one which will continue to derive commercial value. Look at the 1967 copy of SRA Reading Mastery. I used it with my son a couple years ago to teach reading. The newest version is somewhere around 2003 – they revise it every so many years. How would you explain a 30 year old textbook/curriculum not holding value? Reading First has given it a little extra boost in terms of use and publicity.

  • Guy Yedwab

    After having read “Ecstacy of Influence,” I find it hard to believe that anyone could write an essay without other the influence of other people’s ideas.

    Did Helprin write his entire essay without referencing a single legal book, legal scholar, or fellow columnist? I find this difficult to believe. More likely is that his citations are minor, incidental, and unrecognized, whereas Lethem went out of his way to attribute the originator of each of his words as he constructed his own thoughts.

  • Josh Stratton

    Dickey–
    First, the field the textbook concerns will have a lot to do with how much economic value it retains, at least in that edition. A history textbook that was printed in 1977 would be treated as pretty sad today. But a math textbook from the 70′s would probably do just fine, since most students who use textbooks aren’t going to be studying areas of math which have seen significant improvements relevant to them in thirty years. Except for the students studying computer science, where some of the books will be changing frequently (e.g. ‘How to write code in Java’) and others less so (e.g. ‘The Art of Computer Programming’ vols. 1-3, by Knuth). Of course, we should remember that just because a book is still useful to students, that doesn’t translate directly into economic value. A work only has economic value if people are still buying new copies. I don’t know enough about the decisions that are made by school boards, but I suspect that all else being equal, they probably order newer books, or at least newer editions, even if an older book would still be perfectly serviceable. Universities behave a bit differently, frequently requiring you to get the book the professor himself wrote. But there’s also a big used market.

    Second, Prof. Lessig did say, correctly, that “the vast majority of work has no continuing commercial value at all.” Not all work, just the vast majority. There are a handful of works which have continuing value. Of course, making one of those works and having the copyright to it is rare enough that the odds are similar to winning the lottery. It is rightly regarded as foolish to do things with the expectation that you’ll win the lottery and thus be able to afford it. Likewise, an author is foolish (although perhaps usefully so) if he expects that everything, or even anything, he does will be one of these lasting works. The realistic likelihood is that his work will be a flop, or at least a modest success, for a brief period. That is true of most works, and fewer works, respectively.

    A sensible author will thus respond favorably to a modest amount of copyright-provided incentive since he knows that that’s all that is relevant to him. A foolish author will do foolish things and expect foolish things and needn’t factor into our copyright calculus. He’ll do things, or not, regardless of what we do. We’ll still treat him the same as any other author, of course, but nothing more, even if he really wants it, and even if he beats tremendous odds and could even use it.

    Getting back to textbooks, yes, the horizon for textbooks is a lot longer than for most books. However, you may be forgetting that the issue is how to provide the most incentive to authors for the least cost to the public. Even though a textbook might still have economic value after 30 years, if the author would still have written and published it if the copyright were only for, say, 25 years, then there is no need at all to offer a longer copyright; the shorter one had enough of an incentivizing effect to get that book created and published. Even if a textbook author could expect 30 years of sales, so long as he’d be willing to do it for 25, the latter figure is the better one.

  • three blind mice

    Lethem’s is constructed through the words of others. Helprin’s barely cites anyone. Yet Helprin’s topic is perhaps the most familiar in the history of copyright law.

    well professor, that is certainly the academic point of view.
    in your world one does measure the virility of his argument by the length of his citations. “look at me, look at how much i’ve read!” more so lawyers, trained to interpret law rather than create it, consider it well and proper to chain down their imagination by “precedent.”

    yawn.

    the physicist paul dirac quipped to robert oppenheimer that he never read books because “they interfere with thinking.” it may come as a surprise to you, but real creativity can never be achieved by walking over the well-trod paths of the past.

    it takes courage and not a little bit of intellectual hubris to think independently and to be original in one’s thoughts. rip, mix, and burn all you like, dear sir, but derivative efforts such as yours will never compare to the bold thinking of men who, unburdened by the thoughts of others, aspire to achieve more than adding a tiny increment to the accumulated body of tired, old ideas.

  • http://www.anthros.net www.anthros.net

    ” Another question is why the New York Times would choose to print an opinion piece with a shoddy foundation. Helprin has every right to fire off a note to the Times; they have no obligation to print it. ”

    INDEED!

  • ripley

    While the mice give the great summary of the other side (although I notice they can’t help but quote another person’s argument in it – why rely on other’s words in such a paean to “originality”? weren’t your own good enough?)

    one might just as well yawn at the heroic description of “great men” and “great ideas” .. yawn indeed!

    It’s as if the past 20 or 30 years breaking apart the tired, contingent, power-laden architectures that defined “greatness” never happened!

    I defy you to name one “great man” original thinker who did not draw on others. In fact, originality is not a useful metric of greatness – that is, one can make a great contribution while connecting or differentiating, but neither method is a good way to know how great the work is.

    Does borrowing, reference, repetition limit the value of – to draw from the most predictable canon of greatness- Picasso (drawing on African art aesthetics), Shakespeare, etc etc?

    go read Lethem’s plagiarism, which is the greatest thing on this I’ve read recently. Perhaps you will struggle to assign “originality” to the way he uses other people’s words – but that’s just a plea for the relevance of originality as a useful category, and tells us nothing interesting about the work itself.

  • Carmelo Lisciotto

    The question of authorship and owernship has always been a contentious one.

    Carmelo Lisciotto

  • ACS

    As always, we seem to have stryed from the reality of copyright law.

    Josh – The argument that some works dont carry value to the full term of copyright protection and therefore shouldnt be protected is folly. Copyright exists to allow authors some economic control over their works, good or bad, useful or not. That a work will one day become public domain is not a justification for copyright, merely the reason that copyright cannot be granted in perpetuity.

    Mice – I admire your attitude that man can discover the truth through thought, but it is foolish not to see the implicit efficiency in taking advantage of, criticsing or building upon, the knowledge of the last generation. In any event, the notion that works may not be useful to determining the truth, if accepted, does not affect the application of copyright. The fact that lawyers and academics refer to the cannon of copyright law does not impact on their resulting conclusions which, for example Proffessor Lessig, often course away from the orthodox position.

  • Josh Stratton

    ACS—
    The argument that some works dont carry value to the full term of copyright protection and therefore shouldnt be protected is folly.

    Perhaps, but that’s not my argument.

    My argument is that the amount of protection afforded to authors should be the least amount which still incentivizes the author to actually create and publish the work. The value of copyright is economic, and so how long the work in question can provide revenue for the author is critical in determining how long the term should last. Naturally, we can’t read the mind of every author, and we can’t have the Copyright Office figuring out terms for each work individually, but we can require authors who want copyrights to periodically identify themselves so that we’re not protecting those who don’t actively want to be, and we can look at trends to determine the appropriate term length for a class of works (e.g. textbooks, software, etc.).

    I’m all for protecting works where it is beneficial to the public to do so, and nothing I’ve said conflicts with such protection, but I’m solidly against protecting them one iota more than is necessary. The concession for some degree of generalization is the most you’ll get from me, and that’s really only for reasons of practicality. I certainly wouldn’t suggest it merely to give a gift to authors.

    Copyright exists to allow authors some economic control over their works, good or bad, useful or not.

    I agree (though I don’t see why you mentioned usefulness, especially as in some cases usefulness can make a work uncopyrightable; perhaps you’re reading the wrong part of the clause?). But this isn’t an argument against providing the least protection which affords the greatest public benefit. There’s nothing wrong with the public getting the most bang for its copyright ‘buck.’

    That a work will one day become public domain is not a justification for copyright, merely the reason that copyright cannot be granted in perpetuity.

    That’s a very weird thing to say. Pretty much the entire point of copyright is to get more works to enter the public domain, even if after a time, than would if there were no copyright at all. You really can’t get more basic than that. It is _the_ fundamental justification for copyright.

  • http://www.gratis-gokkasten.com David Gokkasten

    In holland we got a system that copyright on books are for only 50 years. After that period the copyright is not longer on the document.

  • http://www.gratis-gokkasten.com David Gokkasten

    In holland we got a system that copyright on books are for only 50 years. After that period the copyright is not longer on the document.

  • ACS

    Naturally, we can’t read the mind of every author, and we can’t have the Copyright Office figuring out terms for each work individually, but we can require authors who want copyrights to periodically identify themselves so that we’re not protecting those who don’t actively want to be, and we can look at trends to determine the appropriate term length for a class of works (e.g. textbooks, software, etc.).

    I agree with that statement in respect of software. The application of copyright to software has never sat well with me. I consider that a statute somewhere between patent and copyright would be more appropriate (such as the Electronic Circuits Act or Plant Breeders Rights Act in Australia.

    In respect of other works such as books, sound recordings etc I do not agree. Copyright protection must be applied with a value neutral approach such that a person writing a text book has equal rights to a person writing a penny-novel.

    Still, I do accept that there is room for changes to the term length (clearly the 90 years under Sonny Bono is ridiculous) and that much we can agree on.

    Pretty much the entire point of copyright is to get more works to enter the public domain, even if after a time, than would if there were no copyright at all. You really can’t get more basic than that. It is _the_ fundamental justification for copyright.

    I dont know who told you that, but its wrong. There is a lot of “its in the public good” philosophical justification for copyright but it is not legally or historically correct.

    As we all know copyright is derived from the King’s (or Queen’s) prerogative power to grant monopolies or “charters” to traders. At first this included charter for anything, such as playing cards. That approach was denied by the Courts in Darcy v Allen. The Courts found the Queen did have prerogative to grant an incentive where something new was brought to society. However, that stem of royal prerogative related to inventions and technology. It appears likely that you are confused with patents and the Statute of Monopolies. The other stem of royal prerogative, in the later printers case, was granted as a reward for literary or artistic merit – not to bring works into the public domain. It was that second stem that evolved into copyright.

    Still, public domain does seem to be the norm (and the basis for many liberal applications of copyright law) but it is at odds with reality. The fact is that an invention should be specified and rewarded to bring it into the public domain because it can be unclear how that invention works and re-engineering can create defects. On the other hand, a copyright work is open for all to see, there are no traps or defects which need to be explained by the author, it is there for all to see. Hence the different justifications for protection IE solely to reward merit.

    It may be a niggling point and I do concede that histroical development should not strictly curtail the justifications for contemporaneous protection, but, I do not concede that copyright would be invalid if the subject works did not enter the public domain. As stated before, public domain justification is merely an argument in favour of limiting copyright terms not granting of copyright in the first place.

    I note this is the reason, inter alia, that patent protection remains so limited in term whereas copyright has been freely extended.

    Regards
    ACS

  • Josh Stratton

    ACS–
    I agree with that statement in respect of software. The application of copyright to software has never sat well with me. I consider that a statute somewhere between patent and copyright would be more appropriate (such as the Electronic Circuits Act or Plant Breeders Rights Act in Australia.

    Actually, I would disagree with you. While I agree that software straddles the idea/expression line more than most things, I don’t generally have a problem with copyrights for the expressive portion of software. OTOH, I am strongly against protections for the functional portion of software, including software patents and any sui generis rights. Such protection is of recent vintage in the US, is extremely uncommon elsewhere, and yet the lack of this protection historically and even currently does not seem to be very important. There are plenty of incentives for software developers already. Adding the additional incentive of a patent doesn’t seem to have spurred on any more invention than would’ve occurred anyway. OTOH, granting rights always has a negative effect — it’s just that we hope that the positive will outweigh the negative. Since there is no material positive, the negative is having harmful effects on developers. See e.g. the disincentivizing uncertainty impacting F/OSS developers.

    Copyright protection must be applied with a value neutral approach such that a person writing a text book has equal rights to a person writing a penny-novel.

    I agree as to value-neutrality. But my proposal is value-neutral. I don’t care whether an author writes a penny dreadful or the great American novel. I’m looking at neutral categories basically along the lines of those enumerated at 17 USC 102(a): is the work a literary work, or a sound recording, or an audiovisual work, etc.

    Thus we might say that software is protected for, say, 5 years, but that a textbook is protected for 20 years. (The numbers are arbitrary for the sake of illustration, don’t read anything into them) This is because the former figure is enough to incentivize software developers, since to the extent that the economic value of a copyright is an incentive to them, the rapidly diminishing value makes a longer term no more incentivizing to them, whereas the longer horizon for textbooks makes the extra length relevant as an incentive.

    There is a lot of “its in the public good” philosophical justification for copyright but it is not legally or historically correct.

    Gosh. I guess that when Parliament enacted the Statute of Anne — the formal title of which is “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned” — they were lying. How shameless they were, to lie like that, right in the title of the act!

    Further, looking into the history of copyright here in the US, I suppose that the way that the framers and founding fathers, the first Congress, the courts, and any number of scholars and learned commentators, all didn’t mean it when they talked about copyright being meant to serve the public interest, first and foremost. E.g. “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”
    Fox v. Doyle, 286 US 123, 127 (1932). Or: “The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.”
    Sony v. Universal, 464 U.S. 417, 429 (1984).

    I fear that you’re looking at pre-Anne copyright and monopoly law as though it’s particularly important. Other than that the abusive monopolies of the past resulted in there being no willingness whatsoever to tolerate things like patents or copyrights unless they served the public interest, they’re really not all that interesting to the present debates. You might want to join us in this century.

    The fact is that an invention should be specified and rewarded to bring it into the public domain because it can be unclear how that invention works and re-engineering can create defects. On the other hand, a copyright work is open for all to see, there are no traps or defects which need to be explained by the author, it is there for all to see.

    You’re wrong in a few ways.

    First, not all creative works are like that. Software binaries instantly spring to mind as a form of creative work which is not open for all to see and which does need explaining. While I respect that you’ve already said that you don’t think that software should be copyrightable, I on the other hand have long suggested a supplementary deposit requirement which would be administered by the Copyright Office, precisely to cure this sort of defect.

    Basically it’d follow a similar model as the disclosure requirements in patent law: if the primary published form of the work isn’t reasonably understandable right away by a PHOSITA, if the work would be materially difficult to make non-authorized, non-infringing uses of during the term, and to make non-authorized uses of any kind of after the term, then supplemental information would be required as part of a strict deposit requirement.

    So, for example, if you published a piece of software as a closed binary, and sought a copyright for that software, then you would have to deposit a copy of the binary, along with a copy of the source, and such comments and other information (e.g. intended platform, dependencies, compiler settings) as the Copyright Office deemed necessary.

    For most works, it wouldn’t matter. No one needs a copy of the MS of a novel in order to glean the ideas from the novel, or to quote it, or to copy it once it’s out of term. And while software is the one area where it’d certainly need to apply, I doubt it’d be an issue in other fields. Still, better to allow for the possibility than to suffer a failure of imagination.

    Secondly, the mere fact that works are generally pretty transparent isn’t enough. The public does benefit from being able to immediately take the uncopyrightable ideas from a work, sure. But the public also benefits immensely when it can take the work as is, copy it freely, adapt it freely, etc. Copyright inherently prevents the free spread and increase of human knowledge simply due to how it works. If it can outweigh that by causing more information to ultimately be freely spread, then that can justify it. But in order to do that, the term has to expire, and it has to expire with as much rapidity as possible while still providing the greatest public benefit. Indeed, a work is never so valuable to the public as when it is in the public domain. My neighbor’s land, for example, is nearly worthless to me. I can’t go there, and I derive little benefit from him being my neighbor. The town common, OTOH, is quite valuable to me, since I can actually use it. True, everyone else can use it too. But that’s only annoying in the case of land, which is rivalrous. Works are non-rivalrous. Everyone in the world can use the work and it won’t diminish the value of the work to me by one iota.

    I note this is the reason, inter alia, that patent protection remains so limited in term whereas copyright has been freely extended.

    No, I’d say that it’s due to a combination of celebrities and nonsense about romantic authorship. People act stupidly around copyright and its trappings. The patent field is simply more level headed, though not so much of late.

    It may be a niggling point and I do concede that histroical development should not strictly curtail the justifications for contemporaneous protection, but, I do not concede that copyright would be invalid if the subject works did not enter the public domain. As stated before, public domain justification is merely an argument in favour of limiting copyright terms not granting of copyright in the first place.

    No. Copyright would be utterly invalid if terms were infinite. Remember, a copyright is granted by the public, and copyright is wholly utilitarian. What sorts of things benefit the public? Having works created and published, and having freedom with regard to those works. And which scheme provides more of those benefits: no term, some term, or an infinite term? Generally the second: the first typically results in few works created and published and total freedom as to them, the second typically results in more works created and published and some freedom as to them immediately, and total freedom eventually. The third, however, results in fewer works created than under the second option (due to rent-seeking, lack of freedom for derivative authors, etc.), and only ever some freedom, and never total freedom.

    The first option could only be better if copyright stopped functioning as an incentive. The third option can never be better, and in fact, is inferior to the first. While having more works created and published is good, in the final analysis freedom is sufficiently important that its denial is intolerable.

  • ACS

    Bugger – you are right. I apologise and take it back.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Josh “The first option could only be better if copyright stopped functioning as an incentive” Stratton, when would you like your free lifetime membership of the copyright abolition movement to officially commence?

  • Josh Stratton

    Crosbie–
    I think that copyright abolition is on the table in that having no copyright at all is an acceptable option. Indeed, it’s the baseline against which we measure other alternatives. But I don’t think that it is currently the best option, and so you don’t see me advocating for abolition. Instead I advocate for reform, because I think that the best option is a significantly reduced copyright which is still more than no copyright at all. But I have an open mind: convince me that there is no possible copyright system which would serve the public interest more than having no copyright at all, and I’ll go abolitionist. Good luck with that. Likewise, I’m open to the idea of stronger copyright than we have now. But it’d take a hell of an argument.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Josh, it seems the first step is relatively easy, to demonstrate that “copyright has stopped functioning as an incentive”. Then it’s just a matter of demonstrating a viable alternative revenue model that operates without copyright.

    I think I’ll concentrate on the latter. You’re quite able to figure out whether copyright functions as an incentive yourself. ;-)

  • http://limnthis.typepad.com Jim S

    Helprin didn’t do the research to make the piece grounded in legal theory; is that surprising? He is an author (not a legal theorist) and it was an opinion piece.

    I agree with much of the argument against perpetual copyright; it would be a shame if kids at recital had to pay a royalty to Bach’s heirs after all.

    However, what I think is interesting here is that he DID wake up one day and think “hey, if I can keep my house in my family forever, why not the rights to my book?” In other words, a surprising number of people that create content, who are not schooled in the abstract legal theory of copyright, wake up thinking that would a just and natural state of affairs.

    It seems to me law at some level has to account for what justice would mean to the individual who is thinking in terms of first principals of personal justice and can’t just ignore it or dismiss that impulse as naive.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Jim S, the answer is that culture does not trump liberty.

    Law has to account for all individuals – not just the one.

    An author may have grown used to the idea of owning the transferable privilege of suspending the public’s liberty, but famliarity isn’t entitlement, and it does breed contempt.

    Just as the slave owner may feel their ownership should be perpetual, and include their slaves’ progeny too, this regard for the slave owner as the only individual the law should concern itself with in regard to their property rights exhibits an unethical disregard for the other individual’s involved.

    The author has no entitlement to the public’s liberty, nor should copyright law ever have been allowed to slip from monopolistic privileges over commercial printing companies, to the suspension of the liberty of individual members of the public.

    But I suspect that 300 years ago the legislators were a little too comfortable with the commercial exploitation of human liberty (even for brief and limited times), and there weren’t very many people who had printers in those days…

  • Josh Stratton

    Crosbie–
    Josh, it seems the first step is relatively easy, to demonstrate that “copyright has stopped functioning as an incentive”. Then it’s just a matter of demonstrating a viable alternative revenue model that operates without copyright.

    I’d say the opposite, really. I suspect that there is some possible copyright system — though not necessarily the same as the current system — which would provide an incentive to authors to create and publish works which they otherwise would not, and where the cost to the public of providing that incentive is less than the benefit to the public of the product of that incentive. I don’t think that there is absolutely no possible copyright system that would provide a net public benefit.

    So I think that you should probably argue that point. I’m well aware of other incentives for authors to create which have nothing to do with copyright, since after all, it’s not as though they stop working just because we have copyright. There’s no need for you to point them out to me.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    I’m sure there can be new legislation that protects authors’ rights to privacy, and accuracy in attribution and representation. This is because the people support privacy and truth. However, I wouldn’t class this as a ‘copyright’ system.

    I can see no future or incentive for a system that relies upon suspending the public’s liberty to share or build upon published works in order that the author or their agent can sell members of the public their liberty back, or otherwise exploit their state enforced impotence.

    The public are exercising their liberty. All that remains is for the legislature to be revised to reflect this truth.

    Given this, the only possible incentive that can be claimed for copyright is its swag of litigious extortion.

    The only people who’d call that ‘functioning as an incentive’ are those running off with the swag, i.e. lawyers enjoying their professional detachment from consideration of ethics.

  • http://limnthis.typepad.com Jim S

    Crosbie- Thanks for “the answer” but I didn’t really ask a question. I was really just (probably poorly) making the point that laws, in order to be useful, shouldn’t just make sense to legal theorists as abstract ideas; they ideally should make some innate sense to the people in the society that they are intended to regulate, in the context of the culture in which they exist.

    But since you brought it up (sort of), I don’t really think there is “an answer” where copyright is concerned. After all, we aren’t talking about gravitation or the speed of light here, we’re discussing made up human social systems; some better than others. I don’t think a first principal “answer” is going to reveal itself in the way an equation describing a physical phenomenon might. Best we can hope for is to hypothosize a good system, experiment a bit, fit the data empirically and come up with best guess solutions with at least reasonable theoretical underpinnings.

    Even with that said, your comparison with slavery is valuable to reinforce why cultural context doesn’t always result in good laws. I agree, individuals can be very selfish in their views of their innate rights. On the other hand, so can societies; forced collectivation of the kulaks is a good example of the other extreme. Still, your point is well taken, but going to the extreme of slavery as an example when we are talking about copyright is a bit like killing a roach with a jack hammer don’t you think?

    Besides, it is worth noting that law and cultural context had to change together to correct both of those extremes and as another example Turkey is still struggling to abide by the secularization of its laws when the social context in which they exist has lagged.

    I would also argue that there is an important difference of type (as opposed to degree) between slavery and copyright. In our cultural context and time slavery is about as close to a first principal bad thing as you can get in a human system; I don’t think copyright or the lack of it is anywhere near as clear cut.

    In other words, if Helprin woke up one day and said, “gee, why can’t I still own slaves?” and opined it in the New York Times, we can be pretty sure where the mass of our culture would come down on the question. But copyright is more abstract, less fundamental, and less likely to result in a clear consensus response to his opinion on it. Again, it is a question of systems where we can choose lots of answers; some better than others along a variety of dimensions (of course, that isn’t an absolute either, it’s just my opinion).

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Jim, if you know of a better example where robber barons protect the serfdom they’ve become accustomed to, I’d be very grateful.

    Slavery is the best analogy I can think of when it comes to the commercial exploitation of individuals’ suspension of liberty.

    Your Helprin analogy sucks. ;-)

    We’d have to rewind to way before the US civil war, about the same time copyright was considered a good idea, when Helprin would be complaining about the statutory maximum period of indenture, that if his servants were his property, why shouldn’t his property rights be permanent? “Yes, ‘slaves’. That’ll do. Nice and permanent. Oh, and slaves’ children – they’re also mine.”

    As for kulaks, well, that’s what you get when the geyser blows. The harder you clamp down upon people’ liberty, the greater the damage caused by the inevitable explosion. And yes, angry mobs ain’t the wisest of creatures, and nor are those who demand ownership of people’s liberty.

    If people are exercising their liberty in flagrant violation of those who believe they own its suspension, then either abolish copyright or institute ever more draconian enforcement measures.

    History tells us that we’ll adopt the latter approach.

    The introduction of the GPL and CC allows the dangerous build up of pressure to be vented, by those who recognise a problem, to the extent to which they’re willing or able to surrender all or part of the public’s liberty that is otherwise suspended (for each of the works they own the copyright to). But, unfortunately this magnanimous manumission vents a mere hiss from a minor circuit. The main chamber remains unvented and the pressure gauge is well into the red zone and rising.

    This time it’s global…

    G8 Summit Declaration
    “The benefits of innovation for economic growth and development are increasingly threatened by infringements of intellectual property rights worldwide. We therefore strongly reaffirm our commitment to combat piracy and counterfeiting. Trade in pirated and counterfeit goods threatens health, safety and security of consumers worldwide, particularly in poorer countries.”
    http://tinyurl.com/2ebsde

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Jim, if you know of a better example where robber barons protect the serfdom they’ve become accustomed to, I’d be very grateful.

    Slavery is the best analogy I can think of when it comes to the commercial exploitation of individuals’ suspension of liberty.

    Your Helprin analogy could be improved considerably…

    We’d have to rewind to way before the US civil war, about the same time copyright was considered a good idea, when Helprin would be complaining about the statutory maximum period of indenture, that if his servants were his property, why shouldn’t his property rights be permanent? “Yes, ‘slaves’. That’ll do. Nice and permanent. Oh, and slaves’ children – they’re also mine.”

    As for kulaks, well, that’s what you get when the geyser blows. The harder you clamp down upon people’ liberty, the greater the damage caused by the inevitable explosion. And yes, angry mobs aren’t the wisest of creatures, and nor are those who demand ownership of people’s liberty.

    If people are exercising their liberty in flagrant violation of those who believe they own its suspension, then either abolish copyright or institute ever more draconian enforcement measures.

    History tells us that we’ll adopt the latter approach.

    The introduction of the GPL and CC allows the dangerous build up of pressure to be vented, by those who recognise a problem, to the extent to which they’re willing or able to surrender all or part of the public’s liberty that is otherwise suspended (for each of the works they own the copyright to). But, unfortunately this magnanimous manumission vents a mere hiss from a minor circuit. The main chamber remains unvented and the pressure gauge is well into the red zone and rising.

    This time it’s global…

    G8 Summit Declaration
    “The benefits of innovation for economic growth and development are increasingly threatened by infringements of intellectual property rights worldwide. We therefore strongly reaffirm our commitment to combat piracy and counterfeiting. Trade in pirated and counterfeit goods threatens health, safety and security of consumers worldwide, particularly in poorer countries.”
    http://tinyurl.com/2ebsde

  • http://limnthis.typepad.com Jim S

    Crosbie said:

    “Jim, if you know of a better example where robber barons protect the serfdom they’ve become accustomed to, I’d be very grateful.

    Slavery is the best analogy I can think of when it comes to the commercial exploitation of individuals’ suspension of liberty.”
    -

    Crosbie,

    If you are saying that use of copyright to protect creative work is analogous in kind or degree to slavery, and that freedom to copy is a first principal fundamental right; well, all I can say is good luck in your quest. Really isn’t much more for me to say since I fundamentally disagree with both of those premises and doubt there is much common ground to be found.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Aside: I guess it wasn’t my use of ‘sucks’ that held my above comment for moderation. :-/

    Evidently there are some artists who believe they have a fundamental right to exchange and build upon mankind’s cultural commonwealth.

    And then there are some people who believe they have a fundamental right to prosecute, punish and imprison the above.

    Bit of a problem really, eh?

    It is clear to which group each of us considers they belong.

    However, that is immaterial to our quest for a better comparator to the situation than slavery, and the god given right to own slaves that some people used to think they had.

  • http://limnthis.typepad.com Jim S

    … “It is clear to which group each of us considers they belong.”

    Wow, bit of a stretch Crosbie. Feel free to claim your beliefs, but leave me free to express my own if I choose to.

    I used to have a tee shirt that said “isms suck.” I don’t really wear it too much anymore because I like the one better that says “god save us from the true believers” better.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Sorry, I thought you meant you were in fundamental disagreement with the idea that freedom to copy was a fundamental right?

    Maybe I misunderstood.

    Please express your beliefs clearly so that we are in no doubt.

    Which do you consider more fundamental?

    1) The free exchange and derivation of published works
    2) A transferable monopoly over the exchange of, and derivation of new works from, the works that one publishes