In a previous post I addressed the tone of Mark Helprin’s Digital Barbarism: A Writer’s Manifesto, and acknowledged that it was vitriolic. But as the New York Times reviewer pointed out, there are some real gems hidden amongst his criticisms of copyright opponents. I’ve exercised my fair use rights of commentary to extract a few and I address them individually below.

Most copyrights aren’t worth very much in monetary value, or if they prove to be, it is seldom initially apparent. Value is determined by demand that will undergo changes that cannot be foreseen. Although a few works will generate large royalties, the vast majority will be unproductive. What is at issue is mainly something other than money. In their febrile deliberations, copyright abolitionists focus on economics, but only touch upon the heart of the matter, and then only in reverse, when they protest what they call the author’s monopolistic right to control his own work… Without copyright at all, the author loses control of his work. (pp. 49-50)

This is a critical point that too often is overlooked. We do not have moral rights in this country, but copyright is about more than profit, or the potential for profit. It is what prevents a gospel recording artist from having her recording used as the background in an adult film. (Unfortunately, a government compulsory license could permit a pornographer to record a cover of a songwriter’s gospel number. Sigh.) Also, Helprin correctly notes that the value of a work is not only apparent. Many “overnight sensations” in music and publishing actually have a large backlist of copyrighted works that netted little upon release but now are quite valuable due to the “sudden” success of the creator. It seems only fair that the author or musician benefit from his hard work.

In the figurative sense of exclusive control, copyright is a monopoly, but to label it as such is meaningless, as it is no more a monopoly than the monopoly anyone exercises over his labor, or the monopoly anyone enjoys in regard to his property, or the monopoly someone might have over the sale of a watermelon he grew in his garden. (p. 115)

Here again he is absolutely right, and that is our Canard #7.

One can write parodies at will, and make fair use, but even the president of the United States cannot legitimately change so much as an apostrophe in a work under copyright. This is far more important and consequential than money, and the shield behind it which it finds protection is the copyright that some might abolish for the sake of an ill-defined collectivist ideology that is not much more than a poorly wrought and self-indulgent excuse for downloading music and movies without charge. (p. 58)

I’m not entirely comfortable with his apostrophe analogy, but his invocation of a “collectivist ideology” should not be dismissed out of hand. Don’t believe me? Take the word of Kevin Kelly, writing recently in Wired.

As often happens with new technologies, digital technology being a rich example, its stewards become so intoxicated with the adventure they are living that they forget that mechanism must adjust to man rather than vice versa. (p. 152)

I’ve made this argument many times, although without the eloquence.

But why must widespread or even universal access, which is unquestionably good, be “open”? That is, what makes the licensing of payment for works not in the public domain, and apart from fair use, a bar to universality of access sufficient to change the quality of universality? Nothing, of course. Universal access needs no more to be free of licensing and payment than a transportation system, to be comprehensive and excellent, or a communications system, to be all pervasive, must be free of charge. One pays for access to the internet. One pays for hardware and (presumably) for software. One pays for telephones and PDAs. One pays for advertising on the internet—with money if one is an advertiser and with time and distraction if one is an internet user. None of these things is free. To facilitate fluidity of information, why must “content” be free? (p. 201)

Indeed. I’m still not sure what my comfort level is with the Google Book Search settlement, but I disagree with those in the library community who argue that the ideal solution would have been for all of these works to be available online in their totality without the authorization of the copyright owner. It boggles the imagination that anyone would even argue that, but we hear it repeatedly. We can achieve widespread dissemination of creative works and still allow rightsholders to compensate and guide the process.

They may protest that they are not against copyright itself but rather its abuses, extensions, and unnecessary conveniences. This is an artful dodge. Not only the persistent undercurrents of their logic and commentary; but their unselfconsciously expressed arguments show their true colors. If, as they assert, copyright stifles culture and intellectual advancement, if it is a tax, a monopoly, injurious to the public good, and of marginal legitimate purpose, why would they be for it? If what they argue were true, I wouldn’t be for it either. (pp. 33-34)

There are many crusaders on the other side who are not afraid to admit they oppose copyright in all forms. And there are some who, I believe, genuinely feel there is some role for copyright but that the law has gone too far. By and large, I feel the rollback they often endorse on copyright law would essentially render creators’ rights impotent, but we can debate that until the end of time and we’ll still be dealing with hypothetical scenarios. Still, I believe Helprin is right, namely that there are some advocates for copyright reform who are a wee bit disingenuous who begin by saying they believe in copyright when in fact they do not. That is, of course, speculative, because we can’t read the minds of others (well, I can’t anyway).

Given that so many of these people are purposefully ignorant of any but a communal approach, and that they rank individual authorship below collaboration, it is not surprising that they view the rights of authorship, as these have been understood for most of our history, not as encouraging of civilization but as a discouragement, as in the case of a monopoly, a word they often use to describe copyright. (pp. 58-59)

On the money. See the collectivist and monopoly points above.

I apologize for not being a lawyer, except that it may allow me to comment sensibly upon the law. There is the law as it is intended, which, granted, can never be perfectly understood and would not subject to flawless interpretation even were it to have originated in one clear mind, much less in hundreds of legislative minds—which is why it is necessary to have lawyers. And there is the law of lawyers; that is, law as it was originally intended but then tortured for the rest of its life like a prisoner in the Chậteau d’If. (p. 121)

Absolutely brilliant observation, again done more articulately than me.

Please don’t rely on this post as a definitive guide on Helprin’s views and observations on copyright from the perspective of a creator. Purchase the book yourself and give a weekend to it.

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This entry was posted on Thursday, May 28th, 2009 at 1:07 pm by Patrick Ross and is filed under copyright law, copyright opponents, creators, internet, licensing, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.