Helprin has got a point after all

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!)