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Mark Helprin, copyright zealot, publishes ‘Digital Barbarianism’: Medieval ‘tude at work—his!
June 21, 2009 | 8:14 am
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By David Rothman
Mark Helprin, a 61-year-old novelist in favor of eternal copyright, didn’t cotton to the barbarians who loathed his infamous op-ed on that topic in the New York Times.
So now he’s come up with new fodder for the evil masses to pirate or rant about.
Digital Barbarianism: A Writer’s Manifesto is an anti-Net book written up in the Times. Barbarianism explores other issues such as the Net vs. standard English usage, a tricky matter, given the all the geographical variations. However, copyright is apparently the one dearest to Helprin’s heart.
So what does the Times reviewer think? Helprin is a better writer than Larry Lessig. But Lessig is a better arguer on issues like this—a “Mad Hatter” who still “comes across as deeply sane” in this case.
Ross Douthat, the reviewer, himself wants longer copyright terms. So what does that say—about both Helprin and the newspaper’s use of a reviewer who in some ways shares Helprin’s radical agenda?
Saner than Helprin, at least
At least Douthat emphasizes that we should narrow copyright’s scope. "Leave the Tolkiens the rights to ‘The Hobbit’ in perpetuity, but not the right to prevent two enterprising film companies from going forward with competing adaptations."
The frustrating thing is that Heprin and Douthat aren’t entirely wrong in defending copyright. I’m all in favor of copyrights that last decades. But just how robust will the idea of copyright be in a true democracy if the property zealots prevail in the short term—merely because their corporate allies have bought up the U.S. government with campaign donations? Consider the possibility of a Reign of Terror against copyright if or when this commerce ends.
The real barbarians
Meanwhile one wonders who the real barbarians are. In pushing for longer campaign terms, Helprin didn’t even acknowledge his debt to others such Mark Twain, who favored similar malarkey. Besides, isn’t copyright more about protection of expression than of ideas per se? Shame on the Times for headlining Helprin’s original transgression, “A Great Idea Lives Forever. Shouldn’t Its Copyright?”
Beyond that, can’t the believers in copyright commit their own barbarities? And how! Just last week I received an e-mail an old friend, a prize-winning novelist in India whose publisher won’t send him royalty statement. Talk about thieves—genuine barbarians! Meanwhile a word-factory associated with the textbook industry has closed its doors without paying the writers. Who are the real barbarians, then?
That said, despite Helprin’s hypocrisy in his failure to credit Twain and/or others, I’ll not go all the way in accusing him of being a barbarian. Rather, in his over-the-top defense of property rights, he is simply medieval. Lord Helprin isn’t a Hun or other barbarian; instead, simply a believer in the copyright equivalent of droit de seigneur.
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Comments:
Hah!
Barbarians! What is best in life?
To crush your enemies, drive them before you, and hear the lamentation of such thieves.
So would Mr. Helprin prefer sword, flame, bullets, or electronics to bump him off in this life?
The New York Times contains another recent review of Helprin’s book in which Michiko Kakutani contrasts two divergent monographs: “Digital Barbarism” versus “Ripped”:
David Rothman raises the issue of Mark Twain’s attitudes toward copyright, and he criticizes Helprin for not acknowledging Twain. However, Lawrence Lessig indicates that Helprin does indeed invoke Twain in his book. But Lessig complains that Helprin portrays his beliefs inaccurately :
Twain is one of the most important American writers, and it is worthwhile trying to determine his views on copyright. I think Twain is being misunderstood by Lessig and that a careful reading of Twain’s essay here shows that he wanted copyright in perpetuity. Speaking before legislators Twain expressed pleasure that copyright might be extended:
Superficially the quote suggests that Twain is satisfied with a term of fifty years, but later in the same essay he makes clear that he is unhappy with any term limit:
He also says “Therefore why put a limit at all? You might as well limit the family to twenty-two children.” Twain concludes with the prediction that in fifty years “we” shall ask for the removal of limits on copyright term.
Thanks, Garson. Mark Helprin should be grateful to the digital barbarians for pointing out the Twain connection that he originally failed to mention in the column.
As usual, I appreciate your informative research! Would that I had the time to check out Twain’s true intent myself Thanks for broaching the issue. Ah, the glories of the many-to-many approach in appropriate circumstances like this one!
I’d like to hear others’ thoughts on Twain. Any legal scholars reading this and ready to drive in?
David
Ultimately, Helprin, and Twain before him seem to approach the issue purely from the author’s perspective. I haven’t read all of what either Helprin or Twain has written on the issue, but they seem to view copyright as a natural right as opposed to what it actually is. Copyright, and other forms of intellectual property is distinct from the rights we have to normal property in the sense that ideas historically could not be owned. Normal property can in some sense be owned by the individual even if a government does not explicitly protect that that property. Ideas cannot be owned; prior to copyright stories were naturally freely used and adapted over and over again by other authors and or printers. Ultimately, the natural place of stories and ideas is in the possession of the public (i.e. in the public domain) where they can enrich our culture without being limited by any individual.
The purpose of copyright, and all intellectual property is not ultimately for the author’s benefit. It is to provide an incentive for the author to produce and to ultimately publish new works (in fact for a long time copyright required publication for protection). Ultimately, the only justification for any copyright law is that it might increase the incentive for authors to produce and publish. Further more that increase to the incentive to publish must be balanced against the harm it does to the public by limiting their access to copyrighted works.
When one considers the literary output of the 19th and early 20th century, it is hard for me to see how the extensions of copyright that have occurred in the last several decades has provided any increased incentive to authors to create (I will grant more is created now, but I believe that is due to other factors). Certainly, no one can argue that retroactively extending copyrights for dead authors can in any way increase the incentive on said dead authors to create new works.
Finally, ultimately perpetual copyrights actually ultimately hurt the interest of the vast majority of authors. Ultimately, most authors, I think, create to be known as much as to make money (certainly their are easier ways to make money). For these authors, the copyright system as it stands serves as a disincentive for publishers to publish their works… particularly after the author is dead and the rights are shared by several members in the estate.
That is right, Bill. It is completely and utterly self-centred. They care not at all about future authors, even, only themselves. Given they are happy to remove the public domain, and hence any opportunity for newer works using it – e.g. Pride and Prejudice and Zombies.
With this attitude, they should not expect the public to give them any more thought than any other person, whether aviator or zoo-keeper. Both of the latter of course are more important to society than the endless streams of people desperately hoping to make lots of money as entertainers.
150 years or whatever on average protection for non-fiction is even more insane. Anyone think their grandchildren will make any money out of their Java for Dummies or Brad Pitt exposes after all those years?
I’m sorry, but I simply refuse to believe that there are authors or potential authors out there, saying to themselves: “I think I’ll write this book I just thought of… oh, wait. Copyright law is too restrictive/too loose… never mind, I pass.”
I do not believe the state of copyright law is having the slightest impact on writing… only on what gets published by the big publishers, which, thanks to the internet era, is shrinking fast compared to the amount of material being released. And most of the contentiousness about copyright is really about releasing Big Pub’s stranglehold on old and orphan works, isn’t it?
Although I don’t necessarily support perpetual copyright, I will make this point: Ideas have always been own-able. The definition of one is called a “secret,” and people have used “secrets” over the millennia to buy and sell, to take advantage in a market, to control and dominate, to rule and to subjugate. Copyright law simply provided a way to add legal protection, a modern concept, to those ideas, or “secrets.”
Twain’s suggestion of copyright that extended to his children is, I think, fair. I also think it would be fair to extend copyright to a holder’s children, but only until they are of legally adult age (and at that point, able to earn a living for themselves).
But as I can also accept the concept of an original and complex idea as property, I also would consider longer terms to allow a copyright holder, and their descendants, to maintain long-term exclusive rights to that property in the same way that they could hold onto land or businesses owned by their ancestors.
Perhaps all of the above are fair… and the question must rely on more practical issues to choose which is the best answer for individuals, and for society, as a whole.
Steve,
With respect, I do believe that copyright at least gives an incentive to some authors to publish their work, if not actually write the work in the first place. If I remember correctly, the author of the Twilight series of books stopped writing the latest book in the series because some one managed to get a hold of some of the advance chapters and posted them to the internet. Likewise, I can certainly believe more than a few authors, even very famous authors, have written works simply to make money.
As for providing for minor children…while I think there might be some merit to the idea, I think it also ignores the fact that 90% of literary works will essentially be out of print with in a few years of being published (Though e-books could change this). I think a reasonable term might be something like life or 50 years, which ever comes second might be a better copyright term in the sense that it makes establishing copyright status much easier in an era when it is possible for men to father children years after their deaths.
Regarding secrets as a form of ownership… I suppose that is true, to an extent. Though one can hardly see any way to profit from a story by keeping it secret. And any attempt to make a profit from other secrets can lead to the loss of that secret. The early IBM PC clones were created by breaking the secrets that IBM hadn’t patented in the original PCs.
i have no problem with helprin’s position, because i know that he would gladly put his money where his mouth is, and compensate shakespeare’s heirs for use of ‘winter’s tale’, and every other rightful owner of every unoriginal idea he has used in his writing. his days will no doubt be 100 hours long, because he will need them to be so that he can chase down the correct source for attribution, and so that he may compensate the creator or his/her heirs.
honest to freaking god. if you ever hear someone say, “i would have written my book down and publish it, but it seemed like too much work for something from which my great-great-great-great grandchildren will reap no profits,” you can pretty well bet that they just *wish* they could write a book.
i am fully in favor of writers earning a living from their work. but in perpetuity? huh. only if i can will my pre-paid lifetime membership in my alumni association to my heirs and their heirs, etc. in perpetuity.
A lot of the pro-copyright arguments conflate real and intellectual property, with Mr. Helpin’s NYT column providing a perfect example. But such conflation presents problems, as most arguments don’t recognize the differences between the two. I will attempt to illustrate a couple of differences.
Abandonment — under the current regime, a creator can deliberately “abandon” their work to the public domain (e.g. my comment here) or their work finds itself “abandoned” to the public domain once its’ copyright expires. I’ve not heard of any US jurisdiction applying a principle, and more importantly, the less favorable terms, of real property abandonment to intellectual property.
Taxation — ever hear of ad valorem? Anyone who owns a car or a home has. My home state — Georgia — determines the tax through a “fair market” valuation — based on its’ likely selling price, not necessarily on its’ income generation potential. A property that generates income — such as a vehicle for hire or a declared rental property — usually carries a higher ad valorem tax. Most importantly, the property owner must pay the tax in good times and bad, or face seizure by the state.
So I ask those who argue for treating intellectual property more like real property, “Are you prepared to handle the obligations of treating intellectual property as real property as well as you would handle reaping the benefits?”
Ken,
That’s an interesting idea, taxing intellectual property… and as a purely intellectual exercise, I could see something like that developing in the future. Sure, a creator like myself might not like having to part with my money to maintain intellectual property, but I could actually imagine that working someday.
You might want to consider why those items are taxed, however… is it strictly because they generate income… or is it because there is an infrastructure that must be supported that goes along with it… inspectors… licensors… waste disposal… database maintenance? That is why things are taxed… it’s not just done out of capriciousness (in most cases).
Personally, I think it’s not outside of the realm of possibility to consider intellectual property as akin to physical property. But obviously, there are differences, such as the lack of tangible substance applied to intellectual property. So no, you wouldn’t treat the two exactly the same. But you could use practical aspects of physical property as a guide to handling intellectual property, and aspects of other things as a guide to other aspects of intellectual property.
IP as a concept is in serious flux right now, because the nature of electronics and electronic data is in flux. So far, though, most effort is put in denying that it is this or that, instead of trying to work out what it is, or how it should be treated. When we come to some universal understandings on how we will consider IP, many of our struggles over how to treat IP copyright will be solved.
Ken Parmalee raises the issue of taxing intellectual property. I think that is a reasonable question for individuals eager to extend the duration of intellectual property rights to match the duration of property rights on tangible goods. Apparently, Mark Helprin does attempt to deal with this criticism in his book “Digital Barbarism”. I have not read Helprin’s book. I have only scanned the extraordinarily long and harsh critique of his book by Lawrence Lessig and that essay contains a sliver of Helprin’s argument:
Helprin’s statement is correct… but says little. Things other than property are taxed, and some kinds of property are not taxed. Again, he (like most people) is comparing it to other things and making statements based on those other things. It’s really beside the point.
As technology changes, our concepts of things like property, rights, cost and usage must also change. The point is to decide what IP will be considered by all concerned, and practically whether or not IP needs to be taxed.
Ken Paralee has raised an excellent point. Since my wife and I depend entirely upon book sales for our living, let me respond.
YES! I would gladly accept the idea that our “intellectual property” (I hate that term) is subject to taxes. Under the current system, the extremely long copyright terms are designed to protect the statistical anomaly of a work that generates long term income. The vast majority of works have a short period of financial viability, and should then be placed in the public domain. Laws that protect the outliers force the majority into the legal limbo of orphaned works.
I’d like to see copyright registration brought back. Most people create a lot of material, with only a small part of their production having commercial value. When we register a work as commercial property, we’re asking to keep that work away from the public domain. That should come with a cost. So, lets say registration costs a modest sum, and gives us 14 years protection. If we feel the book still has value when that time is over, let us renew the copyright, and pay a somewhat larger tax for the privelege. If we find that, 100 years down the road, a particular book is still commercially succesful, then let us continue to pay fees to keep that book out of the public domain.
This would let authors protect the rare book with long running commercial success, without locking the vast majority of works into a legal purgatory. Most authors would probably let their works fall into the public domain after the initial 14 years. I think making authors pay to keep their books out of the public domain is a marvelous solution to the current problem. Of course, we can now begin to argue about the appropriate fees . . . but that would be a huge step in the right direction.