Learning not much about the Future of Copyright

SEATTLE, Washington - Perhaps I've marinated myself so thoroughly in the issue of digital-age copyright that I can't learn much more from short essays, but the Cato Unbound series on this issue didn't enlighten me too much.

The lead essay is by anti-copyright activist Rasmus Fleischer ("just give up, copyright cabal, you can't win and you're just becoming a pain in the ass") with reaction essays by Cato scholar Timothy Lee (who proposes a middle ground that doesn't really accomplish much), law professor Tom W. Bell (who doesn't do much besides mention a book he wrote), and law professor Doug Lichtman ("we need copyright, we will pass whatever laws we have to to enforce strong copyright, and you will like it.").

Perhaps they could interest the less marinated.

How bicycle pedals financed Nazi pseudoscholarship

SEATTLE, Washington - I'm currently reading The Master Plan by Heather Pringle, a book about the Ahnenerbe, a racial-studies institute founded by Himmler in 1935 that was eventually folded into the SS.

The Ahnenerbe did a lot of archaeological digging and rune-studying to attempt to prove that Aryans/Nordics performed much of the civilization-founding around the world. Hitler was not too gung-ho on this stuff and Himmler needed to scratch about for some additional funding.

He found a nice source of revenue for the Ahnenerbe - selling reflective bicycle pedals. Himmler got word that Anton Loibl, a former chauffeur for Hitler, had recently developed a reflective pedal. Some other guy had recently developed a similar pedal and applied for a patent. Himmler acted quickly: he buried the other guy's patent application, greased the skids for a patent application by Loibl, and got a traffic law passed that required the pedal on all new bicycles.

Well-financed expeditions around the world soon followed.

Hopefully, I have not violated any copyrights in this posting

SEATTLE, Washington - I was reminded of some recent writings and thinkings about copyright when I came across the essay Les Voleurs by William S. Burroughs while reading the Burroughs anthology Word Virus.

Les Voleurs was published in 1985, but given the way Burroughs wrote and published, it's hard to say when he wrote it. I bring up the year because Burroughs refers to words (and, implicitly, the copyright on those words) as property. The term "intellectual property" was just coming into vogue at this time and this essay probably predates widespread use of the term.

Burroughs brings up the inherently derivative nature of writing:

Writers work with words and voices just as painters work with colors; and where do these words and voices come from? Many sources: conversations heard and overheard, movies and radio broadcasts, newspapers, magazines, yes, and other writers; a phrase comes into the mind from an old western story in a pulp read years ago, can't remember where or when: "He looked at her, trying to read her mind - but her eyes were old, unbluffed, unreadable." There's one that I lifted.

He goes on to discuss various other ways in which he picked up phrases (or entire passages) and how other artists have done the same and should do the same:

Joseph Conrad did some superb descriptive passages on jungles, water, weather; why not use them verbatim as background in a novel set in the tropics? Continuity by so-and-so, description and background footage from Conrad... Take Molly Bloom's soliloquy and give it to your heroine. It happens all the time anyway; how many times have we had Romeo and Juliet served up to us, and Camille grossed forty million in The Young Lovers...

Brion Gysin (Burroughs collaborator and strident misogynist - JMR) carried the process further in an unpublished scene from his novel The Process. He took a section of dialogue verbatim from a science fiction novel and used it in a similar scene.

Burroughs notes how he had to overcome the attitude (that many still hold today, obviously) that this recycling of the culture was naughty:

I was, I confess, slightly shocked by such overt and traceable plagiarism. I had not quite abandoned the fetish of originality... I had been conditioned to the idea of words as property - one's "very own words" - and consequently to a deep repugnance for the black sin of plagiarism. Originality was the great virtue....

Brion pointed out to me that I had been stealing for years: "Where did that come from - 'Eyes old, unbluffed, unreadable'?"... he looked at me sternly.

Of course, leave it to someone like Burroughs, one of the most completely original and innovative authors of the 20th century, to tell us that much of his writing was not all that original.

All of this got me to thinking of novelist Mark Helprin's NYT Op-Ed on copyright from earlier this year. Helprin makes the case for perpetual copyright - a position that he shares with such notables as the departed Sonny Bono and his not-departed widow Mary. He notes that rights to physical property are not time limited, but copyright is:

What if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society ... to houses. Or to businesses. Were you to have ushered through the many gates of taxation a flour mill, travel agency or newspaper, they would not suffer total confiscation...

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts.

Helprin goes into more detail on the unfairness of the temporary nature of copyright, and notes that the framers of the Constitution would not have made copyright temporary if they could have foreseen the key role of "intellectual property" in the economy of the future:

And in Jefferson’s era 95 percent of the population drew its living from the land. Writers and inventors were largely those who obtained their sustenance from their patrimony or their mills; their writings or improvements to craft were secondary. No one except perhaps Hamilton or Franklin might have imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy. Now they are, and it is no more rational to deny them equal status than it would have been to confiscate farms, ropewalks and other forms of property in the 18th century.

Of course, nothing is confiscated when your copyright expires - you can still do whatever you want with your copyrighted work, but it has then passed into a legal status where others can make use of it, the kind of use Burroughs noted in Les Voleurs. Karl Fogel (whoever he is) makes this point and others in his rebuttal to Helprin's Op-Ed at questioncopyright.org:

It is precisely because great ideas and great works of art live forever that restrictions on accessing them should be temporary and limited, much more limited than they are today. This is not only because access to culture and knowledge is a public benefit in itself, but also because those who create new works build on the works of their predecessors and peers. All creation is derivative — as Mr. Helprin, himself a writer, ought to know.

Fogel bluntly rejects the conflation of physical and "intellectual" property, and notes that copyright is not an physical ownership right, but a government-granted monopoly on the reproduction and distribution of a work - in essence, a restriction on the free exchange of information. This restriction, in Fogel's view, needs to be strongly justified (and this is implicit in the wording in the Constitution that copyright and patents exist "to promote the progress of science and useful arts").

Fogel goes on to discuss the "three myths" that lead Helprin to his copyright-perpetualist position. The first myth is the idea of "ownership" of works of the mind. The second myth is Helprin's apparent lack of acknowledgment of the derivative nature of creative works. Fogel echoes Burroughs in noting how new creative works are evolutions of works that have come before:

The second myth is that of the lone genius, the solitary creator whose works spring de novo from some unique spark, owing nothing to anyone else. That's simply not how creativity works. It is sobering to realize just how many masterpieces we would be without now, had copyright laws always been as strict as they are today. Helprin cites a Mozart aria as an example of art (and let us note, in passing, that Mozart was paid through grants, commissions, and salaries, not through copyright royalties). If Helprin is fond of opera, has he considered that we would likely be without Verdi's "Macbeth", had Shakespeare's plays not been part of the public domain, accessible to all as a basis for derivative works?... Derivation is not some statistical outlier, it is the norm, and the freedom to practice it has been central to creativity for millennia. Transcription, rearrangement, quotation, and translation of other works have always been the marrow of art, as any musician, painter, or writer can testify.

The third myth is that copyright provides a necessary economic incentive for creation. Fogel notes that creative works are as old as humanity, but copyright has only existed for a couple hundred years. Artistic people clearly will create without economic incentive, and in fact only a very small minority of creators make their living via copyright revenue.

Fogel also touches on the history of copyright, a topic to which he devoted an entire long essay and that I may comment on in the future.

I should note that Burroughs and Fogel may be soulmates on this topic, but their terminology is different - Fogel would object to the notion that creating derivative works is "stealing" and notes in another essay how widespread copying and distribution makes plagiarism (that is, taking credit for someone else's work) harder, not easier.