Copyright Expansionism’s Colmes

The blawgosphere is abuzz over Mark Helprin’s sally into the copyright culture war, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” The trouble with the piece starts with its title, since copyright protects expression, not ideas. . . . and it goes downhill from there, as Ilya Somin and James Grimmelmann expertly show. To add my 2 cents: Helprin’s essay focuses on artistic works, ignoring the wide range of ways copyright ends up influencing software, architecture, consumer product design, and the transmission of information generally.

But I’d like to focus on one aspect of Helprin’s rhetoric: the blurring of the difference between IP and real property. Here’s the crux of Helprin’s argument:

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . . . they are not simply expropriated. 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.

Helprin is attempting to expand the frontiers of a burgeoning property rights movement in the U.S. But as Peter Menell has demonstrated, deep

[P]hilosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring

relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.

Here are a few of the differences Menell focuses on, in the course of critiquing Richard Epstein’s effort to parachute property rights rhetoric into IP debates:

Exclusivity in the realm of real property addresses the “tragedy of the commons.” Providing exclusive rights to land and other tangible resources limits the overuse of inherently depletable resources. By contrast, intellectual resources (knowledge) are not depletable and hence are not subject to overuse externalities.

[S]everal libertarian theorists see scarcity, and not the act of creation, as the fundamental justification for property rights. They view the recognition of property-type rights in intellectual creativity as inhibiting the freedom of others to use tangible resources and to engage in free expression.

As Menell concludes, “the Property Rights Movement is too limited and grounded in absolutist ideology to support the needs of a dynamic, resource-sensitive intellectual property system.” Can we even imagine what it would be like for Richard Loncraine to negotiate deals with the fractionated interests of descendants of the Shakespeare estate in order to do Richard III? Or to think that one errant heir of, say, dozens, could veto the production?

Perhaps Helprin is just trying to push the debate on the expansion of copyright terms toward longer protection by advancing a outlandishly uncompromising position. But given the absurdity of his argument, perhaps he’s more like copyright expansionism’s Colmes (of Hannity & Colmes); a token voice given a forum merely to humiliate his ostensible allies, or to put their case in the most unconvincing way possible.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

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3 Responses

  1. Bruce Boyden says:

    I believe the Times writes the title of an op-ed piece, not the author. Helprin shows that he knows the difference between ideas and expression, and which copyright protects, about midway through the piece.

  2. Kim Roosevelt says:

    But could he have spared us the parenthetical about writing the great American novel again? That seems a rather irrelevant pat on the back.

  3. Frank says:

    An update: and Matt Yglesias both have nice responses to the piece.

    I should have mentioned this piece as well as Menell: