One reason is the one John Holbo brought up: in practice people who have a maximalist view of copyright terms tend to have a maximalist view of other copyright issues, and in fact the logic does incline that way. The argument that Helprin gives for thinking that his words should still be legally controlled by his distant 34th century descendants doesn’t have any obvious limits on the size of an excerpt.

There’s also a more subtle point: alleged copyright infringements get decided in court, on a case by case basis. Even if you believe you’re doing something that a court would eventually rule to be fair use, you probably won’t want to take the chance when there’s a credible threat of a lawsuit—not unless you have some very strong and absolutely clear reason that the suit couldn’t possibly succeed, something on the order of “Are you insane? Of course it isn’t copyrighted; it’s from the 16th century.” Maybe a title isn’t copyrightable, but a large and aggressive estate, with lots of money to pay lawyers, could undoubtedly find some argument that isn’t prima facie absurd—arguing that the title suggests it to be a derived work, for example.

It’s not at all clear to me, for example, that there’s any genuine basis in the text of the law for things like “character copyright”, or for the idea that you need to ask permission to quote even a single line of a song, or for the “hot news doctrine”, but in practice those things restrict what writers and publishers do. If we did have a 400 year old estate guarding precious and lucrative works, I think they’d have every incentive to be aggressive in pushing the boundaries of legal doctrines and I think they’d have a large enough legal department, with enough institutional experience, to make some pretty credible threats. In a world like that, I’d probably stay far away from the title of any work whose copyright was owned by such an estate.

Seriously, “perpetual” is just a dumb idea, and I suspect that people who advocate for it just haven’t thought through the implications of copyright that lasts for centuries or longer. I don’t think I’ve been unfair in my example, and I haven’t chosen the most extreme case that I could have, but already we’re well beyond the time that most of us can name any of our ancestors, well beyond the lifetime of legal systems, or governments, or even countries. Haven’t these people spent a minute trying to imagine what five hundred years is like?

This seems to me at least as damaging a concession as Douthat’s.

“What the hell is a Galambosian?”

There was this individual, it seems, named Joseph Andrew Galambos who evolved a theory of “primary property rights”. Apparently, as soon as someone came up with a new idea – whether an invention or an original philosophical concept – the prototype belonged irrevocably to him and was to be regarded forevermore as his primary property. Somewhere along the line Galambos picked up the notion that Thomas Paine had invented the word “liberty,” whereupon he established the Thomas Paine Royalty Fund, and every time he gave a lecture and used the word “liberty” he dropped a nickel into his fund box as a royalty payment to Tom. How he determined that a nickel was the proper measure of homage to Mr. Paine, I have no idea. Legend even had it that Galambos was still diligently searching for Thomas Paine’s descendants so he could turn over moneys due their famous ancestor.

You’re onto something here! Drop the ‘as a function of’ and everybody has a basic income. That will suffice to support increased creativity so we can drop the copyright alltogether.

http://news.yahoo.com/s/ap/us_tec_music_downloading

Starving artists? not so much
Barbarism? you betcha

Hell, why not copyright every word in the language? Someone invented it, after all. The things don’t just grow wild, like berries in the forest. Instead of a swear jar, everyone should have to walk around with a word jar, dropping pennies in that will be sent to everyone descended from the likeliest ethnic stock. Maybe the human genome project could give us all some genetic rating of likely distance from the people most likely to have come up with the roots of the words we are using in our words. And everyone could be entitled to a cut of the royalties, as a function of their degree of genetic relation.