Helprin has got a point after all

by John Holbo on June 24, 2009

To punish myself for panning Helprin’s book without reading, I decided to go back and reread the excerpt at least. And that old op-ed. And I’ve decided: there’s more merit here than I had realized. Let me lay it out for you. (But first, ask yourself: wouldn’t you rather be reading Squid and Owl? Isn’t that a more healthful use of your time?)

Still here? Right! Intellectual property is henceforth to be understood on the ear of corn model. I made it. It’s mine. Thus, we get indefinitely extended (in effect, infinite) copyright. Second, no more public goods, where IP is concerned, because that leads to collectivism: “Where would copyright, patent, and trademark be obviously unnecessary? Only in an entirely centrally directed economy, whether “perfect” socialism, communism, “democratic centralism,” or whatever it might be called.” Stalinists. Always trying to run their planned economies by skimming all the profits from Project Gutenberg. You know what the public domain is like. Five-year plans and ‘hero workers’ exceeding their quotas for generating CC-licensed content, for which they get extra food rations. (Nothing will ever change.) Let’s say that, henceforth, the public domain is understood to be everyone’s private property. As an added bonus, people can presumably now sell their private shares in it: that is, their right to speak English, for example. Or you could just sell your right to quote Shakespeare to someone else, after which time that person could sue you if you used a cliche and it turned out to be a quote from Shakespeare. An IP lawyer’s paradise (all those sampling lawsuits from the 90’s would pale in comparison.)

But all fun and games aside, the main advantage of this scheme, as I see it, would be that it would make retroactive copyright extension impossible. Because, on the hypothesis that the public domain is actually the private property of everyone (otherwise we are on a slippery slope to collectivism) all existing creative works are already privately owned by me, you, and everyone else. Any attempt to expropriate our private property and give it back to its creators – even if this were regarded as a noble gesture of social justice – would constitute a ‘taking’. If, for example, the government wanted to give Mark Helprin an extension on the copyright for the novels he has already written, the government would need to pay everyone else, who isn’t Mark Helprin, for depriving them of their private property in this way. Presumably the cost of this would be prohibitive, so the government would think twice or thrice before enacting such a redistributive social justice scheme. As Helprin himself writes: “Property is to be defended proudly rather than disavowed with shame. Even if for some it is only a matter of luck or birth.” In our case, since we sure didn’t write Helprin’s novels, I think luck is the item that would best cover it.

Confused? Think of it this way: if IP is just like private property (an ear of corn), then existing copyright terms are like a time-share agreement. Suppose you and I have the following time-share contract. I get the the house for 95 days a year. You get it for the rest, but you are also responsible for ensuring that my rights are protected during my 95 days. If IP is understood as exactly like physical private property, then that’s precisely how things work now. The public pays, through taxes, to have copyright law enforced. In exchange, they get to own the stuff themselves eventually. So, clearly, for the government to come in and tear up and rewrite a private contract; for them to declare it’s not 95 any more, it’s 125, or 365 – well, that would amount to depriving one owner of his or her private property. It would be the clearest possible example of a ‘taking’, requiring just compensation for the injured party.

(I used to think this was actually a solid argument against copyright extension – namely, it constitutes a taking from everyone else, who already, in effect, has an ownership stake in everything that will eventually be in the public domain. But it turns out – I asked some actual law profs. – that’s pretty much not going to fly, not only because the law hates a smartass, but also because the law just doesn’t think of IP as being like private property. Holding a copyright to something is not quite like owning an ear of corn, in the eyes of the law. But Helprin’s proposal, by insisting on the strict private property model, fixes that little problem. My bad argument is made good!)



Tracy W 06.24.09 at 9:58 am

Brillantly done. :)


RWB 06.24.09 at 10:41 am

I like Helprin’s novels. I’ve read Memoirs from Antproof Case and A Soldier of the Great War. I have Winter’s Tale on my “to read” shelf–some say it’s his best.

150 years from now, if people still read novels, no one will pay Mark Helprin’s descendants for reproduction rights for these novels. No one. His descendants will have to earn their living doing work or something. If Helprin is interested in any sort of literary immortality, he better allow his books go into the public domain at some point.


Seth Gordon 06.24.09 at 2:26 pm

Isn’t this basically Nozick’s “Demoktesis” from Anarchy, State, and Utopia?


StevenAttewell 06.24.09 at 4:50 pm

Quality snark. I have to say that I now feel the temptation to go print fifty copies of his book and sell them on the street corner for a dollar, and then scream at the cops when they come to arrest me that they’re violating my rights to freedom of enterprise, and that copyright is a commie plot to fluoridate the water.


Jerry 06.24.09 at 5:21 pm

It may not be a good legal argument, but it’s not too bad as a logical one. I note with some dismay that Helprin’s editorials read like his fiction writing: big on long words strung together to elucidate some putatively noble principles, but actually mostly empty of content.


Jerry 06.24.09 at 5:22 pm

I should say that in the previous post, the “argument” I refer to is the one John makes in the OP. Not Helprin’s argument, which stinks.


lemuel pitkin 06.24.09 at 5:50 pm

But first, ask yourself: wouldn’t you rather be reading Squid and Owl?

Why yes. Yes I would.

… hey, that’s really good! Does this thing exist, or will it, in physical form? I might be persuaded to pay money for it. My only quibble is with the deaths of president and queen. Couldn’t read those bits to kids.


bianca steele 06.24.09 at 10:20 pm

I noticed the quote on Lessig’s blog about “five year plans” and all that, though I’m not sure if John means to allude to it. My take is that there may have been a kind of mashing together of somewhat recent discussions about how you should plan software projects (which actually includes the question of whether planning is even possible, and which is actually pretty interesting, though complex) with twenty-year-old debates about whether there is and ought to be an indelible animosity between people who work for commercial firms and people who work on or use or support open source. There might also be a kind of mashing together of rhetoric about the “netroots” with the way people think of open source, but I don’t know that much about it and can’t really say much about it.


bianca steele 06.24.09 at 10:26 pm

And I agree, the anecdote about the Iowa corn is stupid, stupid, stupid (IMHO, anyway). But I think it’s probably made up, and moreover probably “borrowed” from Rousseau’s obviously made up anecdote about stealing fruit from a gated orchard.


John Holbo 06.25.09 at 1:19 am

Hey Bianca, yes Lessig does make the same point. in writing the post I didn’t remember that he actually makes the exact same five-year plan joke, otherwise I would have credited him properly in the post. Either I was half-remembering or it’s just such an obvious joke in this connection that I reinvented it. Either way: it’s Lessig’s joke. He got it into print first!

Thanks for the kind words, Lemuel, glad you like S&O. It will exist in paper form soon. I’m going to bookify itself myself if I can’t find a publisher. (Yes, I’m not sure how old you have to be to hear about regicide. Part of me thinks that bit doesn’t fit with the rest, which is pretty relentlessly gentle.)

Steven Atwell: “I have to say that I now feel the temptation to go print fifty copies of his book and sell them on the street corner for a dollar, and then scream at the cops when they come to arrest me that they’re violating my rights to freedom of enterprise, and that copyright is a commie plot to fluoridate the water.”

Just so long as you sell the books in time-lock boxes, only set to open in 2070 or whenever the current term expires, Steven. (We don’t want to ruin the joke by not letting the author himself get royalties. We just want to deprive his grandkids, by the terms of his own proposal, for the sake of poetic justice.)

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