If This Is The Sort Of Writing That Strong Copyright Creates... I'll Pass

from the let-it-go... dept

Two years ago, we were among those who piled on in response to author Mark Helprin's NY Times op-ed piece in which he argued that copyright should last forever. We explained why this showed a fundamental ignorance of the very purpose of copyright law. Of course, rather than inform himself, it appears Helprin spent the past two years fuming against those who tried to educate him. He's written an entire book bashing the "digital barbarians" who are trying to destroy society by picking away at copyright. I'm about halfway through the book, and I'd finish it faster if I didn't have to keep whacking my head against the wall wondering how someone could fail so spectacularly at basic fundamental logic and comprehension. I'm planning to write up something of a review (along with reviews of some other, much more worthwhile books) at some point soon.

In the meantime, however, the Wall Street Journal saw fit to give Helprin space to embarrass himself royally earlier this week. The piece attacks consumer rights advocates as being advocates for "thieves" (don't get me started...) and implies that those fighting against copyright extension are all part of a plot of some big tech companies to get all information for free (and destroy society at the same time). It goes on to suggest (despite the fact that copyright law has been changed in one direction and one direction only over the years) that those of us concerned about the massive expansion of copyright have been winning battle after battle with almost no opposition:
So here we have a city -- the hypothetical city and New York itself -- deeply dependent upon what copyright protects but unaware of the threat it faces, even as, sector by sector, it begins to fall. Are you -- were you -- in publishing? Are you, or were you, a journalist? A screenwriter, composer, architect, designer, photographer, writer, or in a business that brings the work of these people to the public? What have you done to protect your life's blood and to guarantee the continued independence of your voice? As distressed as you may be now or not long from now, should copyright go the way of all flesh, some of you may soon be unable even to recognize your own profession, if indeed it continues to exist.
As ridiculous as his book is, at least his argument there is laid out with a bit more effort. This piece is just pure tripe, backed up with nothing even resembling fact. It's odd that a publication like the Wall Street Journal would allow blatant falsehoods to be published in its pages, but if that's what it takes these days to defend copyright... I guess it shows how desperate the defenders of Big Copyright have become.

K Matthew Dames from Copycense has taken an initial stab at correcting many of Helprin's errors in great detail, citing numerous sources to show just how incredibly wrong Helprin is over and over again.

Still, the thing that struck me is that Helprin's argument does what many other "defenses" of the elitist (and purely imaginary) notion that there's some war between "professional content creators" and those weak-minded "amateurs" who are trying to destroy them seem to do: it disproves its own point. For all the talk about how copyright and other tools of "protection" against the riff raff guarantees higher quality output, all we get is totally indefensible material like Helprin's. The defense of copyright produces misleading, poorly thought out, poorly defended and flat out wrong content such as Helprin's. Meanwhile, the thoughtful, reasonable, useful analysis comes from sites like Copycense. In the end, that may be the best response to Helprin's work. His own words disprove his own thesis.


Reader Comments (rss)

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  •  
    identicon
    Anonymous Coward, May 14th, 2009 @ 9:53am

    "It's odd that a publication like the Wall Street Journal would allow blatant falsehoods to be published in its pages"

    Considering the reputation of the individual who own The Wall Street Journal today it is surprising when an article based in fact is published.

     

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    Anonymous Coward, May 14th, 2009 @ 10:03am

    Wow! Mr. Danes really took Mr. Helprin to task.

    After reading what Mr. Danes had to say my reation was an immediate "Yawn...".

    If what Mr. Helprin wrote in his opinion piece is deemed "tripe", then certainly the same can be said of Mr. Danes.

     

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      Mike (profile), May 14th, 2009 @ 10:18am

      Re:

      If what Mr. Helprin wrote in his opinion piece is deemed "tripe", then certainly the same can be said of Mr. Danes.

      Why? Dames presents rather detailed evidence of how Helprin's very premise and accusations are wrong.

      I find it odd that you, our resident supporter of stronger IP at any cost, who always insists that we shouldn't speak if we can't back up our talk with cited sources suddenly thinks that all of Dames' cited sources are "tripe."

      You amuse me to no end at times with your own contradictions.

       

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        Anonymous Coward, May 14th, 2009 @ 1:27pm

        Re: Re:

        ...our resident supporter of stronger IP at any cost...

        Some months ago you asked me if I was a strong supporter. I provided a detailed answer about my views, but for some unknown reason you did not respond. The lack of a response was disappointing because I did take quite some time to think about the question before I answered it. I believe you would have found my answer somewhat surprising.

        As for "tripe", Mr. Danes' article sufferss from many of same things that he uses to criticize Mr. Helprin. For example, the "standing on shoulders" (my words to convey the concept) argument is a bit tiresome. Of course everything depends in part on what has come before, but this line of argument is irrelevant given that copyright requires originality and patents require novelty and non-obviousness. To ignore these requirements is a significant flaw in the arguments by "shoulders" advocates.

        Turning now to the citation of some published articles, this is interesting but certainly not reflective of views held by most academics and practitioners. Some likely agree. Some likely do not. The only thing that can surely be said is that there is no overwhelming consensus on these issues. To cite such articles to convey the idea "See, I am right!" is disingenuous.

        On a final note, only at the margins of copyright will one find persons dedicated to the proposition that perpetual copyright should be established as the norm. Obviously, it is difficult to square "perpetual" with the constitutional imperative of "limited times" set forth in Section 1, Article 8, Clause 8 of the US Constitution. However, for those who choose to rail at current terms under copyright, the Supreme Court in Eldred v. Ashcroft could have not been more clear that deference to Congress is the rule and not the exception. Do I think enactment of the Copyright Term Extension Act was a wise thing to do? No. Do I think the Congress exceeded its power under the Constitution? No. Do I think that if Congress was to extend copyright terms even longer that the Supreme Court would once again defer to Congress? Perhaps, but that issue is one for another day should Congress elect to proceed down such a path.

         

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          Anonymous Coward, May 16th, 2009 @ 9:16am

          Re: Re: Re:

          Perhaps someone can explain to me why it is that when a comment is made in response to a "Masnick Challenge" the "conversation" is abruptly brought to an end.

          It seems to proceed as follows:

          A comment is made that elicits an at times snarky comments from a techdirt principal.

          A response is made further elaborating on the subject matter to better expound on the original comment.

          The response is met with abject silence.

          End of "conversation".

           

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          Anonymous Coward, May 20th, 2009 @ 9:31am

          Re: Re: Re:

          Of course everything depends in part on what has come before, but this line of argument is irrelevant given that copyright requires originality and patents require novelty and non-obviousness.

          Mr. Danes very clearly addressed the 'originality' requirement in his article. Unfortunately, the level of originality required in order to qualify for copyright is extremely low, and thus the 'shoulder stand' argument does in fact apply.

          Copycense:

          The level of original creativity that U.S. law requires, however, is relatively slight. Helprin suggests every piece of writing is a War and Peace in the making, and thus the law should go to the extreme to protect such creative epics. But the fact is that American law does not require the proverbial opus: according to the U.S. Supreme Court’s opinion in Feist v. Rural, 499 U.S. 340 (1991), “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”

           

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    Anonymous Coward, May 14th, 2009 @ 10:21am

    date of created works

    I was always bugged by his type of logic. If you as a creator are only creating because copyright exists, you should only get rights to the limit that the copyright act provided when you created the work. It's silly that if you created a work when the term was only 50 years, you should somehow get another upteen years when they extend copyright. That's like saying your incentive to create the content 45 years ago is magically diminished if you are not granted this extension. And to argue that future incentives are required to further the creation of content is similarly ridiculous because people continued to create content for the 45 years in between.

     

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      Anonymous Coward, May 14th, 2009 @ 11:08am

      Re: date of created works

      As with being a police officer, you should only be a writer if you can't not be one. That is the only path to success.

      Yes we need copyright to protect the poor sod who took a year to create something worth buying, from someone who will simply reprint a counterfeit a few days after release, and reap the reward without the effort, but don't we already have laws about that? Go to your dollar store and see the fake batteries there--the ones that tried to cash in on the Copper Top quality but were confiscated.

      Perhaps copyright should simply be forever, and that should be accepted as an axiom. Then the laws could instead deal with the circumstances under which a work comes into or can be forced into public domain. This would be a way to deal with orphan works too.

       

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    :Lobo Santo, May 14th, 2009 @ 10:24am

    How many strikes...

    Has this guy reached his three-strikes for print yet?

     

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    Chronno S. Trigger, May 14th, 2009 @ 10:25am

    Review

    "I'm planning to write up something of a review"

    With phrases like "If This Is The Sort Of Writing That Strong Copyright Creates... I'll Pass" and "...I'd finish it faster if I didn't have to keep whacking my head against the wall...", I don't think you need to write that review. Is his book on Amazon, because those would be great in the review section.

    Oh, Jesus, I just read the first paragraph of the WSJ article and the guy is instantly a dosh. He says that the entire planet depends on copyright. I think I'm going to be sick.

     

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      Tgeigs, May 14th, 2009 @ 10:34am

      Re: Review

      "He says that the entire planet depends on copyright"

      Well, that's actually true. The WSJ followed up on this article w/a report that research has shown that for every instance in which copyright is extended, 15 nuclear warheads are disarmed and 30 international terrorists lay down their arms and embrace their enemies.

       

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    Ima Fish, May 14th, 2009 @ 10:35am

    Even if Mark Helprin is completely correct about everything he says about copyright, he's still wrong.

    His argument is basically this: The changing market is eliminating outdated markets and those outdated markets require tough new laws in order to survive.

    Whenever anyone argues that the only way a market/business model will survives is through government regulation, they're necessarily wrong.

    Accordingly, even if every single screenwriter, composer, architect, designer, photographer, and writer on this planet loses his or her job because of the changing market, it's not the government's duty to protect those jobs. Let them find new jobs for which people are willing to pay.

    And to those ignorant about copyright, copyright is not a property right nor does it protect a property right. Copyright is merely a government granted monopoly. To put it another way, it's corporate welfare for the likes of Disney and Viacom.

     

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      DJ, May 14th, 2009 @ 2:04pm

      Re:

      "Copyright is not a property right nor does it protect a property right.": True, depending on which definition of "property" you use.

      "Copyright is merely a government granted monopoly.": False. Not only false, but a complete fallacy.

      Monopoly: 2. Law A right granted by a government giving exclusive control over a specified commercial activity to a single party.

      Copyright: The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.

      So, yes, by definition it's government granted. However, a copyright DOES NOT grant an author the exclusive rights to sell ALL books, as would a monopoly. A copyright grants an author exclusive rights to HIS/HER own work.
      The two definitions, while they are both granted/allowed by the government, the similarity ENDS there; they ARE NOT synonymous.

      Just to clarify, though, I'm not in agreement with Helprin. I just don't like fallacious arguments; even if I'm in agreement with the one making them.

       

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      ChurchHatesTucker (profile), May 14th, 2009 @ 5:25pm

      Re:

      Even if Mark Helprin is completely correct about everything he says about copyright, he's still wrong.

      No he's not! Just ask him, Mark Helprin!

      Seriously, this could be (and actually has been to some extent) codified as the Mark Helprin employment act.

      Mark, aside from your peers nobody else cares.

       

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    yozoo, May 14th, 2009 @ 10:45am

    Ill be in the conversation very soon!

    "He's written an entire book bashing the "digital barbarians" who are trying to destroy society by picking away at copyright."


    Im downloading the torrent now . . .

     

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    Fred Mulligan, May 14th, 2009 @ 10:53am

    To the point

    Title your posts so that people don't have to read 2 pages worth of them to even determine what you're writing about.

    Shorten your abstracts so that those of us who access you through your iGoogle gadget don't get nauseous every time we click the expand [+] button. What's written there is supposed to be a paragraph summary, not the entire article.

    And how about posting something that isn't a complaining rant every now and then? Honestly, it's depressing. Believe me, I know this post is a complaint as well, but after months of occasionally being interested enough in what you have to say to look into it further, I'm sick of constantly regretting clicking the link. It's such a definitive trend at this point I could make money off it.

     

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      angelica, May 14th, 2009 @ 11:03am

      Re: To the point

      Make sure you copyright that idea.

       

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      fishbane, May 14th, 2009 @ 11:06am

      Re: To the point

      Unsubscribe.

      Don't post pointless complaints.

      And how about posting something that isn't a complaining rant every now and then? Honestly, it's depressing. Believe me, I know this post is a complaint as well, but after months of occasionally being interested enough in what you have to say to look into it further, I'm sick of constantly regretting clicking the link. It's such a definitive trend at this point I could make money off it.

      OK, I take it back. I'm still giggling about that.

       

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      lulz, May 14th, 2009 @ 11:29am

      Re: To the point

      I use the iGoogle app in question, and the title takes up 2 lines. Why are you pissing and moaning about that?

      It all depends on the width you set in the page settings.

       

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        lulz, May 14th, 2009 @ 11:44am

        Re: Re: To the point

        Sorry, my reading comprehension is horrid today.

        Just widen the page width so the paragraph takes up less vertical space. I was a little perplexed at how the title applied... probably just to attract eyes.

         

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    Tor, May 14th, 2009 @ 12:36pm

    Digital Barbarians

    ... doesn't sound scary at all. Why not use the wording of the president of the Swedish Copyright Association: Digital Maoism. (btw. this is the same association that Pirate Bay judge was a member of and the article mentioning Digital Maoism was actually cited in the TPB verdict)

    Lessig setup a wiki where people could gather their arguments against eternal copyright at the time of that article of Helprin's. It's a good reference.

     

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    zcat, May 14th, 2009 @ 12:48pm

    facepalm

    http://westrum.files.wordpress.com/2009/02/holy-facepalm.jpg

    Some people just don't get it. The really persistent ones write books where they explain how they just don't get it at great length.

    Let's have another article on what NiN are doing, hey?

     

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    Nick (profile), May 14th, 2009 @ 11:28pm

    Here is my remix of Helprin's quote:

    So here we have a city -- the hypothetical city and New York itself -- deeply dependent upon what innovationright protects but unaware of the threat it faces, even as, sector by sector, it begins to fall. Are you -- were you -- in the buggy whip business? Are you, or were you, a typesetter? An alchemist, town crier, scribe, lamp lighter, telegraphist, miller, or in a business that brings the work of these people to the public? What have you done to protect your life's blood and to guarantee the continued independence of your old ways? As distressed as you may be now or not long from now, should innovation go the way of all flesh, some of you may soon be unable even to recognize your own profession, if indeed it continues to exist.

    I can't help but read this and hear it in my head as lo-fi audio with a man's voice narrating in 1950's American accent.

     

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    Jerry in Detroit, May 15th, 2009 @ 4:00am

    Copyright Forever?

    Oh, I'm all for a forever copyright...for a price. Let's say the creator gets the first 7 years for free. After that, they must pay a progressively increasing renewal fee for each and every work. The creator gets their forever copyright on successful, paying works. The rest would go to public domain as the original copyright expires. Congress would love this as they contemplate the income from copyright renewal fees. We would actually come out ahead as a great many works would simply be abandoned to the public domain.

     

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    johnos, May 15th, 2009 @ 6:42am

    Need For Copyright

    The "nothing would be created without copyright" enthusiasts forget that there was lots of culture before there was copyright. People are literally willing to do it for free because its part of human nature. The ability to create compelling music, writing, painting or whatever is so central to humans that you can't turn it off. Did Homer have a book and movie deal for The Oddyssey? Did Bach have a record deal?

    Obviously, people all over the world, since the beginning of time, have wanted to express themselves. Some are good enough to make a living at it. But the value of the content comes from the degree to which it is popular. The artist has no control over what resonates with the audience. Artists don't make popular, valuable content. Audiences do.

    This is not an argument for no copyrights. But the present property-like approach assumes the value is inherent in the content. Some is, but the commercial value is not.

     

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    H. S. McMinn, May 18th, 2009 @ 6:30am

    Book Review

    The WSJ Books section reviewed the book -- http://online.wsj.com/article/SB124113465026375169.html
    The review was very positive.....
    I found it interesting (and pointed out in my blog) that the book reviewer was

    'Mr. Philips is executive vice president of News Corp., which owns HarperCollins and Dow Jones & Co., the publisher of The Wall Street Journal. '

    I also wondered how many other books Mr. Phillip takes the time to review.

    One wonders if there is more here than meets the eye....

     

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