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Saturday, July 9, 2011

Mark Helprin on Copyright Extension

Currently listening to Mark Helprin's "Digital Barbarism: A Writer's Manifesto," in which he defends his 2007 New York Times piece recommending that Congress extend copyrights yet again.  Apparently, hundreds of thousands of comments came in response, and he has now expanded on the position in a book. The book cherry picks the stupidest comments and refutes them, and simply misconstrues and/or fails to address the intelligent comments.  I haven't followed the controversy; I'm just assuming that there were some intelligent comments, based on my knowledge that there are some very thoughtful people who have questions about the current state of copyright law, and copyright term extensions in particular.  Those people are the first to decry file sharing and blatant copyright infringement, and Helprin fails to understand this.  Instead, Heprin sees the whole "movement" as an attack on every aspect of copyright, which threatens to deprive authors of their living, and their ability to control their works and provide for their heirs.  Thus, his books breaks down into three main components (1) a misguided defense of copyright term extensions, (2) a mundane and largely undisputed defense of the notion of copyright, and (3) personal reminiscences and commentary only loosely connected to the subject of copyright, much less the subject of copyright term extension.

I haven't listened to the whole thing, but I have a feeling I'm not going to learn anything new, because he simply fails to address the arguments against copyright term extension.  [NOTE:  AS I READ FURTHER, I'LL UPDATE]

1.  The main premise of the argument against Helprin is that a work that is in the public domain, and thus free for all to use, benefits the public.  Helprin has not yet (I'm less than half way through) clearly addressed this premise, but he seems to concede it, because he talks about copyright expiration as governmental appropriation of one's property.  If the government "appropriates" it, it must have value to the government (I admit that's not always true).  An ancillary premise is that copyright is simply a social contract, and it hardly makes sense to amend the terms of that contract in a way that unilaterally benefits one party at the expense of the other.  The "retroactive" aspect of the copyright term extension did just that:  authors of existing works saw their copyrights extended, and the public got nothing in return (except the privilege of having to continue to pay for works that but for the extension would have fallen into the public domain).

2.  A major problem with copyright term extension is that it exacerbates the "orphan works" problem.  Orphan works are (roughly) works for whom the copyright owner simply cannnot be identified with reasonable efforts. Nobody knows exactly how many orphan works are out there, but one thoughtful analysis suggests that's about 580,388.  These works are not available to the public (to be clear, while some may be available through used book outlets, there is no way for a member of the public to make use of such works; e.g. reproducing a photograph, making a derivative work, etc), and are likewise not benefiting their owners.  That's a net loss to society, and it's considerable.  UPDATE:  I've now gotten to the point where he addresses the Orphan Works problem.  He simply states that technology will solve the problem -- we'll post a notice at some centralized copyright site encouraging the rightsholder to come forward, and if he doesn't, we'll make the work digitally available, with revenues received therefrom held in escrow for the copyrightholder.  Hmmm.  Sounds pretty much like the Google Books Project's way of solving the orphan works problem, to which copyright absolutists objected as turning copyright on its head, and usurping the legislative prerogative.  Assuming that Helprin is proposing this as a legislative solution, we can only note that Congress has repeatedly failed to act on even less copyright-hostile orphan works "solutions" than this one.

3.  Another significant problem are what Google (for purposes of  its Google Books Settlement Proposal) terms "neglected works."  These are works that are not being exploited and thus are not readily available to the public (in response to a comment that the vast majority of books become unavailable within 20 years of publication, Helprin points out that they are probably available at used book stores.  He's right, of course, and it's recently become true that most -- but far from all -- out of print works are now available used over the internet.  But authors gain nothing from those sales, and probably wish they didn't occur).  There is a significant economic inefficiency here -- nobody, not even the authors or heirs, is benefiting from these works.

4.  When he likens copyright expiration to confiscation of physical property (he truly seems to believe that copyright expiration is exactly the same as the government confiscating an automobile plant), he seems to completely miss the point that this is "property" that was created by the government to provide an incentive to authors.  The government doesn't have to give out copyrights at all; if it deems it in the public's interest to have them expire after 14 years -- or 28, with an extension -- it can do so (those were the original terms for copyrights in the United States).  It is only the author's "property" because of the generosity of the government; the government has the absolute right to place conditions upon that grant of property, including expiration. 

5.  The equation of intellectual property with physical property is the fallacy that underlies the book, although Helprin at times pays lip service to the difference.  The bottom line is that if a copy is made that would not otherwise have been purchased, the copier (and presumably the public) benefits, and the author is not harmed.  Obviously, one can take this too far, and I don't deny that file-sharing results in lost revenues to artists and record companies.  But the basic point is that copying should not simply be equated to physical theft, which always results in a loss of value to the owner (and usually the loss to the owner is greater than the gain to the thief). Interestingly, Helprin seemed to believe until late adolescence -- even after some time at Harvard -- that stealing corn from a farm was ok.  The farmer explained to him that it wasn't, but now he has swung too far in the opposite direction.

6.  Helprin also seems to believe that a copyright will have significant value to the copyright owner after life plus 70 years.  Even assuming it does, then it still has approximately zero value in today's dollars, as explained in Justice Breyer's dissenting opinion in Eldred v. Ashcroft.  In other words, the "value" he is arguing for -- an extension by another 20 years, of copyrights that won't expire for more than 70 years -- is truly virtually worthless:  As Justice Breyer puts it, "it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today." (emphasis in original).  If Helprin truly wants to help his heirs 75 years down the road, he would do them a lot more good by simply selling all of his rights to his books right now and putting the money into an interest bearing account.  Breyer's main point was that the last copyright extension by any measure was a net social loss, compared to no extension.  Helprin simply fails to address this argument.

UPDATE:  OK, I've now gotten to the part where he addresses Breyer's opinion.  It's in his extended and illogical discussion of Macauley, who apparently argued against a "life plus 60" proposal back in the 1800s, making the point that Samuel Johnson would have preferred a "shin" of beef here and now to a few more years at the end of the copyright on his dictionary.  Even the part that Helprin quotes makes it clear that Macauley's point is that we don't need to provide the Johnsons of this world any more incentive by extending copyrights into the way-off future.  Macauley was merely saying that (1) Johnson wrote the dictionary under the then-existing copyright laws, and (2) it wasn't necessary to extend copyrights further to get him to write the dictionary.  A fairly obvious and irrefutable fact.  But instead of addressing it (e.g. by arguing that perhaps Johnson would have written an encyclopedia as well, or spent less time horsing around with Boswell and more time writing in general), Helprin goes down a series of sidetracks.  Who is to say that Johnson would NOT have wanted proceeds from his dictionary to benefit orphans into the distant future?  What gives society the write to choose where those benefits go?  And the "shin" mentioned by Macauley was actually a sizable amount of beef , so James Boyle's suggestion that everyone send a shin of beef to Helprin was pretentious and ill-informed.  Now that I think about it, I don't think he ever circled back to addressing Breyer's economic point.  Again, if the assumption is that the author "owns" the copyright as a matter of natural right, then perhaps that should be the end of the question.  But at least in our system, copyright is understood to be an artificial right, part of a social bargain that uses the copyright carrot to get (originally anyway) learned men to write learned books.  With that understanding, the main goal of copyright should be to get authors to produce many good books and to get those books into the public domain as quickly as possible without undermining the author's incentive to create.   That's what Macauley was pointing out, and it's what Helprin -- perhaps because his starting and ending point is that copyright is a "natural right" -- seems incapable of grasping.  Perhaps the fact that Congress has ignored this obvious precept through repeated rounds of copyright extension, and has permitted copyright to go to life plus 70, has blinded Helprin to the reality that, in the end, copyright law is and should be governed by principles of the social contract. 

7.  Helprin also seems to think that the owners of copyrights and their heirs should have control over their works for the longest possible time, since otherwise people will modify and distort them.  But this is hardly an argument for adding an extra 20 years to copyright term.  The underlying work will remain unchanged; if a derivative work has merit -- or doesn't -- the market will be the judge.  And again, the public domain is a valuable resource for the public. 

8.  Part of the problem with advocating for continual extensions is the scope of the underlying copyright laws in the first place.  Authors have not just the right to prevent in toto copying of the entire work, they also have the right to prevent others from creating derivative works (i.e. works that clearly derive from the work), works that are "substantially similar" to the copyrighted works, and satires (but not parodies) of the work.  Extending these expansive rights would almost certainly have a negative impact on future creativity -- after all, stories often build on other stories -- nearly all of Shakespeare's works would have infringed someone's copyright, if copyright then lasted as long as Helprin wishes it would, and of course, many of Disney's most-beloved animated movies would have infringed underlying copyrights in various fairy tales, etc.

9.  UPDATE:  It just gets worse and worse.  He even used "begs the question" in the "raises the question" sense (something about begs the question if one were so willing to violate a copyright a year after the author's death, then why not a year before?).  I'm sure he learned better at Harvard (admittedly, that's one of those phrases whose meaning is beginning to change from constant misuse, but given all his other attitudes, one would have expected him to be the type to try to hold the line).  But more significantly, he continues to misunderstand the positions he is attempting to refute.  Right now (i.e. I'm still listening) he's back to defending the Sonny Bono Copyright Term Extension Act.  He is positively baffled by the fact that so many of his opponents seem to be focusing on Disney, and he assumes that this is because they all want to make derivative works out of Mickey Mouse.  Wrong Wrong Wrong.  The reason that Disney is a symbol of the CTEA is because Disney spent lots of money and effort lobbying to get it enacted, simply because all of its animated movies -- starting with Steamboat Willie -- were about to start falling into the public domain.  Although that would have been nice -- i.e. kids would now be able to enjoy Snow White and Pinnochio DVDs for a dollar or less -- that's not the point at all of the "anti-Disney" sentiment.  The point is that Disney's selfish lobbying -- to protect its lucrative revenue stream -- resulted in hundreds of thousands of other works (including many of the orphan works identified above) from reaching the public domain.  Those works -- including other movies, photographs, books, articles, etc., could all have ended up essentially free to the public, with great benefits to research, as well as family budgets.  Good, currently unexploited works would inevitably have found their way in on-line databases, through the Google Books Project or through Project Gutenberg, and would have been available for free to everyone.  It is simply impossible to measure the magnitude of the damage the Disney did by pushing so "persuasively" for the extension.

10.  MORE UPDATE:  I haven't really been paying that much attention to all possible errors, but just now he gave credit to the Sonny Bono Act for the 35-year copyright reversion provision -- i.e. the provision that says that even if an author assigns his copyright to a publisher when the book is published, the author or his heirs can simply take it back after 35 years.  It's interesting that he's been an author for so long, and yet did not realize that that provision was added in the 1976 Act, and has been the law since January 1, 1978.  I don't think any of the inaccuracies for which he has criticized his opponents -- even the dumb ones -- are quite so glaringly bad.

And his nitpicking about precise definitions of "monopoly" and "tax," while loosely applying the word "theft" to copyright infringement is quite hypocritical.  It's actually quite reasonable to refer (loosely) to copyright as a monopoly, and he's just wrong to say that the term can never be used except in conjunction with "commodities."  It's also reasonable, metaphorically, to refer to the copyright premium as a "tax" -- the point is simply that for any given work, copyright causes a higher price to the customer, just like a sales tax.  Helprin wants to distinguish taxes on the grounds that a tax is forced on citizens by the government, and the citizens have no choice as to where their money goes.  But (why am I even arguing at this level?) there are certainly examples of "taxes' (including e.g. taxes on cigarettes) where the taxpayer knows where the money goes. 

11.  MORE UPDATE:  I have now read Larry Lessig's lengthy response to Helprin's book.  He makes some of the same points that I do, but in a more roundabout way.

12.  As I've already said, the many arguments in the book that are not dead wrong are simply the traditional defenses of a copyright system.  Helprin seems to think there is a vast horde of barbarians out there intent on dismantling the system, but just take one look at what's happening in Congress and the courts and you'll see that's not the case.  In the end, his dispute is not with mainstreamers like Lessig, but against extremists like Richard Stallman, whom Helprin never mentions (at least I didn't catch any mention).  And I'm not really sure that Stallman's views extend much beyond software and the free software movement anyway.

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