Mark Helprin is full of teh dumb

Okay, that's really unfair. What he really seems to be full of is greed, I guess, because that's about the only way I can explain this Op-Ed in today's NY Times.

He's trying to make the argument that a copyright ought to be treated just like a house or a business or some other form of durable good that can be passed along to one's children or other inheritors, but he's missing what I think is a crucial part of the equation here.

WHAT if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society ... to houses. Or to businesses. Were you to have ushered through the many gates of taxation a flour mill, travel agency or newspaper, they would not suffer total confiscation.


The problem here is that Helprin is just plain wrong. If you don't pay your property taxes, the government will indeed seize your house, no matter how long you've had it paid off. Same goes for your business.

But there's even more wrong with the comparison. Novels don't require upkeep like a house does. Books of poetry can and often do remain unchanged after publication. But if you don't modernize your flour mill, you won't be in business long. If you don't keep the termites out of your foundation, you won't have a house to pass on. There's good reason for treating creative works differently from concrete objects.

And then there's the major reason that copyrights are meant to be temporary. Creative writers in particular often use what has come before as an integral part of their own works, riffing on them or integrating them in some form or another. Limited copyright length encourages that practice, and allows us to take chances without having to worry if we're going to be held liable for the work.

Then there's the silliness of his comparisons:
The answer is that the Constitution states unambiguously that Congress shall have the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (The italics are mine, the capitalization was likely James Madison’s.)

It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

Right. Limited copyright periods are just like slavery, censorship, and the nationalization of private wealth. I'm just glad he didn't throw some sort of Nazi comparison in there for good measure.

Copyrights are limited--as are patents--because the reasoning is that a person should be able to exercise control over his or her work long enough to reap some personal benefit from it, and then the society as a whole gets to share in the bounty. That's the deal we make when we get into this line of work. The deal has the added benefit of forcing us to continue to produce as opposed to allowing us to rest on a single success (though these says, a single success can set a writer for life if it's big enough).

It's also interesting to note that Helprin completely ignores the reason why Congress continues to extend the copyright length. It has nothing to do protecting the individual artist and everything to do with protecting Disney Corporation's control of Mickey Mouse. They've been behind every copyright extension in the last fifty years, and will be behind every future one as well. It's because of them that filmmakers have trouble using documentary film footage whose copyright owners have been lost to time. It's because of them that books which should have entered the public domain are still out of print and are then lost to memory. Nobody's benefiting in those circumstances, and I would argue that we are all losers as a result.

Helprin concludes his Op-Ed by claiming that "No good case exists for the inequality of real and intellectual property," but his argument fails simply because real and intellectual property are so significantly different that you cannot honestly equate the two. Real property requires continued maintenance and expense in a way intellectual property does not, and further, is subject to the very confiscation that Helprin claims it isn't. I want copyright protection like any other writer, but I don't think it should extend forever. Why should my descendants reap the millions my poetry will no doubt bring? Let them write their own.

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