Henry and a few others suggested I was a bit hard on Douthat for not being hard enough on Helprin. Douthat may be guilty only of the venial sin of obligatory civility in the face of a bad book, not the mortal sin of Higher Broderism. (Although one hopes the critic’s motto is not ‘if you can’t say something nice, don’t say anything at all.’) It really was his last paragraph that set me off, and it’s worth saying why. I’ll leave Helprin and even Douthat mostly out of it.
Since I’ve got a bug in my ear about copyright extension, I often talk to folks about it when I’m not even on the internet. My informal but fairly extensive experience is that smart folks who just haven’t thought about the issue much (and most people haven’t) tend to default to the Helprin op-ed position. It’s spontaneous wisdom: ‘If I create something, it’s my property and I should own it outright!’ This makes people think that copyright extension at the very least makes good sense. It sounds quite moderate. Why not infinite copyright! In my experience it’s actually not hard to talk people out of this position, because offline I’m not the ball of indignance you know me to be, and people who haven’t thought about the issue genuinely are not ideologically staked out. You just raise a few simple points about the economics of rivalrous and non-rivalrous goods; point out what the Constitution actually says about copyright, and why it was probably written that way. You invite them to think about how and why language itself is a massive public good, and how we should at least think about creative works as public goods, on the analogy of language. (Not that it’s a perfect analogy, but natural language itself is one of the clearest cases.) You make a few standard moves, basically. In my experience people respond: hey, I never thought of that before. (And how often does that happen when you get in arguments about politics? There’s room to teach in this area, I say.) People are often interested to learn that this is one of those issues concerning which there is strong consensus – really across ideological lines – that the current system is counter-productive. When Hayekians and Marxists, and pretty much everyone in between, agree that something is a bad idea, economically, you should at least not assume that it’s obviously a good idea. It isn’t that hard to convince people that the range of likely reasonable positions, while quite wide – certainly there is room for argument – probably doesn’t include the system we’ve actually got, never mind anything stronger.
I don’t hold out much hope that we’ll get much improvement on the stupid system we’ve got, but I do think it should be possible to get to the point where the public knows it is a stupid system. The frame ought always to be: ‘yes, everyone knows it’s stupid, but the law says …’ That would at least make it marginally harder to make things any worse.
Since ‘copyright is too long already’ isn’t exactly news, you can’t really report it as news. But it’s a perfect subject for an op-ed, since, to repeat, lots of otherwise smart and educated ordinary folks who might read an op-ed actually don’t know this stuff. So it’s dismaying that Douthat ended by setting up his ‘perhaps we need even longer copyright, but narrowed in some unspecified way’ frame. It’s not just that this back-of-the-envelope proposal is almost certainly unworkable (as Douthat admits). It’s the very fact that it’s unworkable (how would you set up a system of perpetual easements for derivative use on all creative works?) that motivates the system we’ve got. Exclusive rights for a time. Then the stuff goes free. No muss, no fuss (relatively speaking). It’s only when you see that the sort of thing Douthat proposes would be a legal and enforcement nightmare that you really understand why limited copyright is quite logical, even though at first it sounded sort of funny. (Why not infinite copyright?) So the op-ed stops just before the point where it might actually be helpful in educating the reader about the this issue.
So I’m sorry that I accused Douthat of being too even-handed. He did communicate clearly that he thought it was a bad book. Fair enough. But that sop of ‘maybe he’s got a good point about extension’ civility he threw in, perhaps to spare Helprin from suffering a total shut-out, points-wise, was most unfortunately chosen, in my opinion.