The Solipsist and the Internet (a review of Helprin's Digital Barbarism)

by Lawrence Lessig: Co-founder of Change Congress, founding board member, Creative Commons

This is an insanely long review of Mark Helprin's book, Digital Barbarism (HarperCollins 2009) (Note: if you buy from that link, Creative Commons gets the referral fee). You can download a PDF of the review here.

Exactly two years ago today, the New York Times published an op-ed about copyright by a novelist. The piece caused something of a digital riot. As we learn now from his book, Digital Barbarism (HarperCollins 2009), Mark Helprin was at the time completely ignorant about the hornets nest he was about to kick. For him, the op-ed was a professional rapprochement with the New York Times, a chance to make things right once again (though why they were then wrong is a story left mysteriously (and thankfully) out of the book).

Helprin's thesis is simple and familiar to any intelligent sort who first comes to think about the way the law regulates creative work: that there's something fundamentally unjust about the law of copyright. While the law protects ordinary property forever -- your car, or the land on which your house might sit -- the law of copyright protects creative work for a limited time only. At the end of that limited time, the author's "exclusive right" (as the Constitution puts it) expires, and the work passes into the public domain. Anyone is then free to copy the work, publish the work, translate the work, make a film based upon the work, or publicly perform the work without permission from the original copyright owner.

This difference is odd. As the famous copyright scholar Melville Nimmer put it, "If I may own Blackacre in perpetuity, why not also Black Beauty?" But, as Helprin acknowledged, puzzles notwithstanding, the Constitution seems clear enough. The power Congress has is to "secure" this "exclusive right" "for limited Times" only. Perpetual terms were thus ruled out.

But like an overly precocious child who has figured a way around his father's injunction "you may take just one cookie" -- take one cookie, but five times! -- Helprin's op-ed offered a simple solution to this obvious injustice:

The genius of the framers in making this provision is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

To a certain bizarrely diverse community that has developed over the past decade, Helprin's evasion was simple incitement. It was not even five years since the Supreme Court had upheld Congress's power to extend the terms of existing copyrights, so long as each extension was "limited." (A pattern American University Professor Peter Jaszi famously called "perpetual copyright on the installment plan.") And it was just shy of a decade since Congress had last extended the term of existing copyrights -- its 11th such extension in forty years. This was a community that was enormously frustrated by the refusal of Congress to permit the Framers' bargain -- that an author gets an "exclusive right" for some number of years, and then the work enters the public domain -- to be executed. The idea that here again someone was calling for yet another term extension was a red cape in front of a bull.

I first read Helprin's essay while waiting to board a plane from Boston to Frankfurt. At first I wasn't sure whether he was serious (indeed, a colleague and friend, and strong copyright supporter tells me he routinely reads sections of the op-ed to audiences to see if they can tell whether he's serious or not). But after becoming convinced that Helprin had simply tripped into this mine field unawares, I posted a suggestion to my blog. As I wrote:

So I've gotten (literally) scores of emails about this piece by Mark Helprin promoting perpetual copyright terms. "Write a reply!" is the demand. But why don't you write the reply instead. Here's a page on wiki.lessig.org. Please write an argument that puts this argument in its proper place.

Eight hours later, a bit bleary eyed from the relatively sleepless flight, I checked my email. At the top of the list was one that said, "Wow! Pretty amazing wiki article." I quickly turned to the wiki, and sat astonished to see just what this community had done. Literally hundreds had contributed to pages and pages in reply to Helprin's op-ed. Some of it was silly. Some of it was great. But in the main, it was a powerful and comprehensive account of the many reasons for this apparent "inequality" at the core of our Constitution.

To be fair to Helprin -- and 99% of Americans if they could be brought to think about the matter -- there really is something apparently weird about the Constitution's design. Given the way we regulate ordinary property, it is completely understandable to be ignorant about the justification behind this weirdness. I spent the first five years as a constitutional law professor with no clue about the justifications for this "obvious inconsistency," as I once described it to my students. "A bit of Karl Marx slipped into an otherwise conservative text," was how it was described to me.

So I could well understand the intuition that drove Helprin to write as he did, and can even empathize with how he must have felt to see his breezy reflection on copyright policy explode on the New York Times website, and elsewhere. Helprin was ignorant. But it was an understandable, and forgivable, ignorance. The sort all of us have about most things save those few things we spend time trying to understand.

What is not understandable, however, and certainly not forgivable, is everything that has happened since. For in the months since triggering his digital riot, Helprin has been busy penning a book about his digital putdown. And while the ignorance of the essay may be forgiven, the ignorance of the book cannot. There is no excuse for the careless and uninformed screed that Digital Barbarism is.

http://www.huffingtonpost.com/lawrence-lessig/the-solipsist-and-the-int_b_206021.html

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