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Helprin Wants Eternal Copyright

22 May 2007
I have to respond to this. Mark Helprin, an author and occasional pundit, has really jumped the shark in his New York Times Op-Ed about copyrights (cached). He is seriously (though not too intelligently) arguing for eternal copyright protection.

Let's skip over the emotional appeals in the essay, the strange images of a copyleft junta that steals yachts from the mouths of children yet unborn. Helprin has made two errors in his thinking. One is that real property can be equated with other kinds. The other is that ideas can be easily separated from works.

The term "intellectual property" has no legal basis. There is only real property, trademarks, patents, and copyrights. Trademarks are already treated almost the same as real property (with good reason), and he does not seem to be too interested in patents, so let's stick to copyright.

A story is demonstrably different from an office building: I can copy a story with no material loss to the original copy. It is impossible to "own" or "steal" a copyrighted work, in the sense of denying others the use of it by possession. Thus most real property laws simply do not apply, and that is why they are treated differently under the law. A story cannot be contained, moved, hidden, or destroyed. Pretending otherwise is as silly as charging Xerox or Sony with grand theft. (Which, by the way, was actually tried by numbskulls such as the late Jack Valenti.)

Helprin claims that this is unfair. Ford can keep his car factory for as long as it stands. Ay, but there's the rub. Ford owns real things that must be staffed and amortized and upgraded for them to produce more value. A story has no such pesky problems -- it is indeed forever. By his own logic, wouldn't eternal ownership of maintenance-free, non-material, value-producing things be unfair to owners of material ones?

On to the second assertion: "ideas are immaterial to the question of copyright." Pardon? An entire phylum of lawyers lives off of derivative-work litigation. The separation of "idea" from "work" is a matter of judgement (ie expensive trials), not law. I invite Helprin to invest his hard-earned cash in a cartoon featuring a happy-go-lucky mouse in red shorts. I think it'll be a winner.

His conclusion that "no good case can exist for treating with special disfavor the work of the spirit and the mind" is insupportable and false-to-fact. Copyrights and patents already have extraordinary monopoly protection --enjoyed by no other kind of work-- as compensation for their immateriality. Simply by breathing an author gets exclusive right to exploit the industry called copyright, backed up by the full might of every Berne Convention government. To balance this enormous grant of power against the needs of our shared culture, the culture that enriches all of our lives, it is limited in time.

Now we have some deathless, rapacious corporations that would like to have this protection forever, to hold a veto on our culture unto the seventh generation. These same corporations take the lion's share of profit from authors, and then enlist them in their cause! The arrogance of Ozymandias was a rabbit fart in comparison.

The Financial Times weighs in savagely.

Lawrence Lessig's copyleft hordes do too.