Arguing For Infinite Copyright… Using Copied Ideas And A Near Total Misunderstanding Of Property
from the copyright-this dept
Well, well, well. I don’t think we’ve ever had a single story submitted to us more often than Mark Helprin’s opinion piece in the NY Times over the weekend, trying (and failing) to support the idea that copyright deserves to last forever and be passed on from descendant to descendant. Before getting into the details of why he’s wrong (and confused), I should note that it certainly is interesting that just as a new “copyright alliance” has formed to push for stronger copyright laws, we start seeing articles like this one and others pushing the argument for stronger copyright and patent laws to extreme positions. A conspiracy-minded person might suggest that this is no coincidence, and that the best way to get stronger copyright and patent laws passed is to first get people arguing about ridiculously strong laws, and then get them to agree to “lesser” changes that are still much stronger than what we have today.
On to Helprin’s confused piece. Helprin makes the same mistake that many make of thinking that just because the linguistic convention is to call such things “intellectual property,” it really is the same thing as property. His entire argument is based on this simple point — and it’s why he’s wrong. It is amusing to note that some are already pointing out that Helprin’s argument is a blatant copy of Mark Twain’s — and yet we doubt he paid the descendants of Mark Twain for it. However, the key to Helprin’s problem is his total and complete misunderstanding of the purpose of property as well as the purpose of copyright law.
The purpose of property is to better manage the allocation of scarce resources. Since the resource is limited and not everyone can have it, property rights and property law make complete sense for a civilized society, allowing those with rights to the property to buy, sell and exchange their property. This allows for resources to be efficiently allocated through commerce and the laws of supply and demand. It’s a sensible system for the best allocation of scarce resources. However, when it comes to infinite resources, there’s simply no need to worry about efficient allocation — since anyone can have a copy. The purpose of copyright (and of patent law), then, wasn’t the same as the purpose of property law. It has nothing to do with more efficient allocation of scarce resources. Instead, it’s a government-granted incentive — a subsidy — to encourage the creation of new works. In other words, it was a case where the government believed there was a market failure. That is, they believed that without this incentive, certain intellectual works wouldn’t be created — and the tradeoff between locking up that idea and creating more content was one that was worthwhile. However, they always knew that it was a tradeoff — which is not at all true for real property. And, as an incentive, many would say it’s been plenty of incentive for many authors who have written books — including Helprin. As an author of 11 books, clearly the incentive was enough for him at the time. In effect, by arguing for extended copyright, Helprin is going back and asking the government to change the bargain it gave him and retroactively promise him more. It’s as if you could go back to your boss for the work you did in 1975 and say you now want to be paid again for it. Or, more realistically, it’s Helprin asking for welfare. He is asking the government to give him a greater subsidy. But, of course, copyright is not a welfare system.
The key point here is that in pretending (or simply ignorantly claiming) that intellectual property is the same as tangible property, Helprin completely misunderstands what rights copyright law gives him. It is not the same right as he has over his own property — which, after he sells it, he no longer has control over it. Instead of “property rights,” copyright gives him a monopoly right (which is what Jefferson preferred to call it) to control how his output is used even after it’s sold. That’s completely different than a property right — and, again, the reasoning is simply as an incentive for creation, not to guarantee control. Apparently, Helprin needs quite a history and economics lesson — but if he had his way, that would be much more difficult since such ideas would be locked up forever.