Media Relations: media commentary and criticism

Monday, May 21, 2007

media and society

-- media and society -- copyright eternal, or, mark helprin either loses his mind or gets provocative

A Great Idea Lives Forever. Shouldn't Its Copyright? - New York Times By MARK HELPRIN May 20, 2007 Charlottesville, Va.

...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. Though they may be divided and diminished by inflation, imperfect investment, a proliferation of descendants and the government taking its share, 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. 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. And, second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who, other than a handful of literary plutocrats (manufacturers, really), are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo....

It's a stunningly badly argued piece; if it weren't for its headline, it would be unclear precisely what he's arguing for.

In general, he seems to be arguing that intellectual property rights -- including, probably, copyrights, patents and trademarks -- should all be protected in the same way that real property rights are. To be sure, he sets up a few straw men in his argument; for example, I can't recall that anyone has precisely argued that because something is trashy, it should automatically lose its legal protections, but he defends that side premise as though someone has done so.

He also draws parallels between real and intellectual property, stating that you're allowed to keep real property more or less intact (taxes aside), while intellectual property rights lapse after set amounts of time. I confess, while I think there's something wrong with that argument, I'm not entirely sure what it is or how to express it.

In any event, it may well be true that the distinction between intellectual property rights and real property rights lies in the fact that when this country started, there were relatively little of the former being generated, while many people had very recent, very unpleasant memories of having their rights to their real property violated. It would make sense that the protections afforded to real property would be stronger. That said, it's worth noting that, apart from noting that private property shall not be taken for public use without just compensation (eminent domain), the Constitution is rather profoundly silent about the disposition of real property. If it were not a direct government taking -- and the lapse of intellectual property rights would probably not be such, since the government doesn't profit directly in any way -- then it might be entirely Constitutional for the government to say, "Your rights to all real property cease at your death, and your property and effects must be distributed and sold in some fashion." The government could even then step in and purchase everything you own without offending the Constitution, as long as the compensation was "just".

It's also worth noting that, absent a constitutional amendment, you actually couldn't extend copyright eternally. The Constitution does, after all, say "for limited times". While it's possible to make the argument that life + 90 years is "limited", even this individual-rights-hostile Supreme Court might have problems with the idea that "limited" means Eternal.

Questions, Comments, &c over here

Posted by iain at 11:10 AM in category media and society