Digital Barbarism: Afterthoughts

by John Holbo on June 24, 2009

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.



Matt Austern 06.24.09 at 3:14 am

What I don’t get: why the hell would someone who makes a habit of taking his book titles from Shakespeare think that infinite copyright was a good idea? Does he think that hiring a detective to track down the heirs to Shakespeare’s property rights would make his life better?

Forever is a very long time. It’s just a transparently stupid idea if you spend a minute or two thinking about the implications.


The Raven 06.24.09 at 4:30 am

Oddly enough, Matt, titles can’t be copyrighted. Now, if trademarks had existed in the Bard’s time, Helprin would perhaps be short on titles. I am starting to suspect that Helprin, sadly, is probably one of those people who advocates outlawing his own conduct. I wonder why?


ChrisB 06.24.09 at 4:40 am

Titles can’t be copyrighted – a rare piece of sense, considering that there are a finite number of words. P.G. Wodehouse once commented that having made some enquiries his hope now was to be listed in the ‘Top 100 books named “Summer Lightning”‘.


John Holbo 06.24.09 at 5:00 am

I still think the irony of the title point stands. By Helprin’s logic, titles should be copyrightable. After all, he apparently has an argument that there wouldn’t be any practical downside to encumbering creative works with private ownership forever more, and provision of public goods is just pernicious creeping collectivism. Titles are creative works. Why should titles be different? It’s welcome money in the pockets of Shakespeare’s descendants (whoever they may be) and no bother to anyone else. Which is, of course, absurd.

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.


andthenyoufall 06.24.09 at 5:42 am

Paging Sir Robert Filmer…


Steve 06.24.09 at 6:02 am

John, EXACTLY. The economic costs on society of restricting what people do continues to grow, because administering the penny jar quickly becomes unsustainable. 100+ year copyrights were dumb and unworkable back before the internet, and in modern times it’s even worse!


Matt Kuzma 06.24.09 at 6:27 am

I think this thread is hitting on the counter-argument I find most compelling, which is what would the world look like if infinite copyright were figured out and implemented by the Romans and maintained to this day? The idea gets even sillier if you extend the argument to patents. Interested in building anything? You better pay for the rights.


Shawn Crowley 06.24.09 at 7:02 am

I doubt very much that Congress imagined vast media conglomerates when considering copyright protection.

Starving artists? not so much
Barbarism? you betcha


JoB 06.24.09 at 8:13 am

And everyone could be entitled to a cut of the royalties, as a function of their degree of genetic relation.

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.


Stuart 06.24.09 at 9:52 am

JoB of course unless you think rich people talk/write a whole lot more than poor people, it would be a very regressive way of raising a basic income.


Tracy W 06.24.09 at 10:05 am

Why should this apply only to copyright? How about intellectual property in scientific laws? Does Helprin want to pay a fee to the Germans in Kirchoff’s honour and to the Americans for Edison’s sake whenever he turns on an electric light?


JoB 06.24.09 at 10:10 am

Stuart, it was a joke; that being said, what’s regressive about a basic income? (I didn’t say every soul had to pay as much royalties, rich people clearly should pay lots more royalties – because they are benefiting most from the splendid innovations carried out daily by just about anyone, in fact we should forget about consumption based royalties – we can have progressive taxation as there is no way of telling who is consuming precisely what of whom’s inventions).


Seth Gordon 06.24.09 at 2:32 pm

From Jerome Tuccille, It Usually Begins With Ayn Rand:

“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.


roger 06.24.09 at 6:22 pm

I suppose Disney, under Halperin’s plan, owes big bucks to the descendents of John Smith and the Brother’s Grimm. But in turn do the Bros. G and John Smith owe Old Marie Mueller’s descendents and Powhattan’s?
Halperin’s suggestion is sorta like making IP into Kurt Vonnegut’s Ice-9 – it is a formula for freezing the world as it now stands. The death of intellectual life will surely follow.


lemuel pitkin 06.24.09 at 6:33 pm

I don’t hold out much hope that we’ll get much improvement on the stupid system we’ve got

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


Matt Austern 06.24.09 at 9:49 pm

I was actually aware that titles aren’t copyrightable, and I thought about explaining why I thought this was fair criticism despite that fact. Maybe I should.

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?

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