Digital Barbarism, page 6
The press has long done this professionally, and now does it even more, goaded by the need to work fast so as to fill the abysses of the Sorcerer’s-Apprentice news cycle and to keep floundering newspapers and media conglomerates out of the red. Let us say that you are a reporter pursuing a pursuable senator. You pull a story from (what used to be) a major newspaper stating that he likes to have sex with Jocko the Goat. That’s good enough. You’re not God. You’re not the FBI or the Warren Commission. If you have a reputable source, you’re covered, and you comfortably repeat it, even though, and probably, the senator may lust after goats no more than you lust after ostriches. The essence of it is that you can avoid responsibility for printing anything as long as someone else has printed it first.
In the internet culture, this is writ large. Relying upon error as authority has long been a flaw in almost every discipline, but when it moved at a stately pace its expansion was containable. Now it spreads geometrically and at the speed of light. It is the oxygen of the keyboard gunners, and without it they would lack sufficient speed to survive. As no one has put any brake on it, it has led to a general climate of unprecedented distortion, as one inaccuracy flows into others that flow into others, rapidly eroding the basic mechanisms of intellectual discipline that have favored civilization.
And then there is the effect of the mechanism itself on the quality of its output. How do you attract attention to your “blog”? (I put the word in quotation marks not in an attempt to delegitimatize it—it is perfectly legitimate—but to quarantine it because it is so ugly that other words should be protected from it. Were it a weaker and more vulnerable thing rather than like a brutally triumphant Teuton drunkenly trampling the undergarments of the Vestal Virgins, it might deserve some pity. But it doesn’t.) The question remains, how do you attract attention to your “blog” when there are a hundred million others? You can concentrate on quality, fill a niche or a greater need, and invest the time, money, and work to make it stand out, as many have done, although with no guarantee of success. Or, you can make it sensational, appealing to whatever it is that for obvious reasons will immediately turn our attentions from just about anything to violence, threat, insanity, or sex. That is why television’s mainstays are dead bodies, teasingly exposed bosoms, and exploding cars. And so, in “blogging,” as in much else, begins the mad race to the bottom. Blogging’s anonymity makes it the intellectual twin of road rage. But unlike road rage it is not and cannot be subject to law. The only defense against its lowliness is to know it for what it is and call it thus.
In the great scheme of things, the reaction to my article is, of course, as unimportant as the article itself. This is not false humility. I am well aware of the place an op-ed article on copyright occupies in a world of limitless heartbreak and tragedy. But what happened illustrates a not-so-slow-moving phenomenon of crucial importance, for if this is how we have educated our successors to weigh and judge, they will spitefully pull down the walls of the shelter in which they were peacefully born, and which took their and our forbears thousands of years to construct.
Is it that they cannot read, that they do not read, or both? Despite the fact that the article specifically acknowledged and accepted the Constitution’s exact and reasonable command that copyright not be perpetual, and despite my taking pains to illustrate that it is not possible to copyright an idea—thus separating my argument from Jefferson’s concern primarily about scientific innovation and patents—the Times chose the title, “A Great Idea Lives Forever: Shouldn’t Its Copyright?” This is not the first time that a title—the editor’s sacred prerogative—argues with or wanders from the content it purports to represent, my favorite being the hypothetical story about the discovery of a Renaissance triptych, titled, “Dead Model Sues Racehorse.” The severe inapplicability of title to text was as if Jefferson was given the freshly printed broadside of his Declaration of Submission to King George III.
It would perhaps have been comforting that the Times’s inaccurate choice was the face that launched three-quarters of a million protests, but it wasn’t. Certainly, a large number of people read just the title and then proceeded happily to vent their rage, but, in Lewis Carrollian twilight, even those “analysts” who purported to have read the text, and those who actually did read it, read into it what was not there, and based their arguments, rebuttals, and abuse on something that did not exist, as if they didn’t really need a text to set them off, which they didn’t, although they said they did, because that, anyway, used to be the custom. As an originalist, I accept the language and intent of the Constitution, the one crystal clear and the other evidenced in the historical record, both of which clearly rule out perpetuity. I stated this not just once but twice. “The Constitution states unambiguously that Congress shall have the power ‘To promote the progress of Science and useful arts, by securing for limited times [my emphasis] to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’” And, “It is the express order of the Constitution long imprinted without catastrophe upon the fabric of our history.”
I don’t know how this could have been misunderstood, unless one reads my further comment that “the genius of the Framers in stating this provision is that it allows for infinite adjustment,” as calling for an infinite term. Limited and infinite cannot co-exist as one. Infinite adjustment does not mean infinite extension. That your Barcalounger may be infinitely adjustable does not mean that it will take you into other universes. Nor is my wish that Congress extend copyright term “as far as it can throw” a desire for perpetuity, unless we are talking about a different Congress than the one that the last time it extended as far as it could throw exhausted its strength in adding twenty years.
Even their professional gurus, who stand upon the electronic dais of the movement like a cross between Fagin, the Pied Piper of Hamelin, and Benjamin Spock, and who, sporting elegant-sounding titles and holding elegant-sounding chairs, might be expected to comprehend a newspaper article, did not. A basically stupid person with an advanced degree (and of such people there are many) is like poison ivy with a lawyer. “In a recent article in The New York Times,” a tenured professor wrote, “Mark Helprin…argued that intellectual property should become perpetual.”10 The Chronicle of [supposedly] Higher Education summarized the argument: “If property ownership is permanent…then copyright should be too.”11 These were joined by several hundred thousand misapprehensions, their illusory authority unchecked.
Unlike many or perhaps most of my opponents in the matter, I do not think that the Constitution is a “living” document or that one can rightly ignore its commands or find in it auras or penumbras one fears to put to a legislative test. I so revere the Constitution and the Declaration, which is the conscience and fire of the Constitution, that I construct the Constitution strictly and take it literally, for which I and my colleagues at the Claremont Institute for the Study of Statesmanship and Political Philosophy are often criticized and attacked from many quarters, including those of the Visigoths of anti-copyright.
Therefore, because the Constitution unambiguously instructs that the period of copyright protection be limited, and because the record of constitutional deliberations clearly supports this, it would be inconceivable for me to champion copyright perpetuity absent amending the Constitution, something that not only would I not suggest, and have never suggested, but something that has never occurred to me. Nor would I try to foment trick formulations such as ∞ minus one (which nonetheless is infinite), or propose even tongue-in-cheek, as did Mark Twain, a term of a million years. Anyway, the tribe, being mechanical, is literal to the point of exasperation and does not apprehend any form of wit, ancient or modern.
In reacting violently to the notion of perpetual copyright, however, the opponents of copyright invite the consideration of perpetual copyright, if only in theory. Would it be really so terrible? Among other things, extension to any degree would focus attention on benefiting one’s heirs in the long term, which is possible only if a work remains in demand, and is thus an incentive to every author to strive for timelessness and greatness rather than to satisfy the transient lusts of fashion. This appears to have been entirely overlooked amid a rain of sometimes startling arguments.
No, all contracts do not expire after a ten-year statute of limitations (“Copyright needs to be brought in line with other civil contracts and reduced to ten years,”12), making even copyright as it now exists a special privilege for “content holders” who exploit oppressed “content consumers” by cruelly extracting payment. Some people seem deeply troubled by the fractionalization of rights among the descendants of authors and composers, with one poor soul apparently believing that copyright inheritance would be determined by DNA investigations, thus providing, evidently to his resentment, “guaranteed work” for “those in the DNA related sciences.”13
Of course, property has been inherited since the beginning of time, and neither fractionalization nor the absence of “the DNA related sciences” ever put a stop to this. If, hypothetically, the rights to the Iliad were hopelessly fractionated among Homer’s vast numbers of descendants (look in a phone book), I would propose that orphan revenues be shunted into a general fund employed to prosecute the violators of copyright.
I myself will not benefit from the positions I advocate, as I do not write fashionable books. Nor likely will my children or grandchildren benefit, given the present currents in fiction. Nor am I likely to be harmed—except in a general sense, as will everyone and everything—by the destructive proposals in regard to copyright, its abolition, or truncation, now just gaining ground: I’m too old. But underlying my critics’ general aversion to heritability is an apparently personal animus, or, as they elegantly posit: “Who cares about some artist’s stupid relatives? They didn’t think up the idea and we all know how much trust fund kids suck.”14 Lest you think their criticism not uniformly this elegant, consider this from the Atlantic Online: “Did anybody else get the impression that Helprin is espousing this policy because he is certain his works will become beloved classics, and if copyright is extended forever, his ancestors will be wealthy aristocrats?”15 In just a few generations, we have gone from Hazlitt to Betty Boop.
Far more intelligent than this last, as anything could be, was a friend’s challenge expressed to me directly and in a civil and constructive spirit. In regard to my plea for the (partial) equity of copyright ( it cannot be perpetual) and a flour mill or Victoria’s Secret, he asked: “Do you equate what you have written with Victoria’s Secret?”
My answer is, first, yes, in that the qualities of the various properties should be largely irrelevant in the blind eyes of the law, unless we want a kind of Gong-Show judiciary that metes out legal treatment according to criteria of taste. This might be superficially attractive to some, until a judge’s taste proved uncongenial to their own. One man’s red lace brassiere could be another man’s Hamlet, and vice versa. And, second, no, in that I would hope that what I produce is in at least some ways (though perhaps not in utility and certainly not in popularity) superior to what Victoria’s Secret produces (or sells), and therefore not deserving of less protection than, say, a garter belt. And, third, neither, because a more apt and closely aligned comparison would be with a publishing house or a bookstore. The product is exactly the same, although the writer is stage one, the publisher stage two, and the bookstore stage three. Stage three can be passed on in perpetuity to the heirs of the bookstore owner. Stage two can be passed on in perpetuity to the heirs of the publisher (many people are surprised to learn that Harold Macmillan, protégé of Churchill, prime minister, chancellor of the University of Oxford, was heir to the publisher Macmillan). For stage one, upon which stages two and three utterly depend, not. “Ah,” you might say. “The publisher must print and ship, the bookseller open, attend, and sell, whereas when the writer’s work is done all he does is collect royalties.” But neither the publisher nor the bookstore have to build new buildings every year, or make a new good name, or new goodwill, to benefit from the revenues these generate. And if such an argument—that is, that on your figurative bicycle you are disqualified because although you may have pedaled uphill, you have coasted downhill—is valid in regard to book royalties, it should be valid elsewhere, meaning that all classes of ownership, whether stocks, bonds, partnerships, real estate, et cetera, that generate income passively should therefore be subject to the same limitations, which they most certainly are not.
Even were copyright perpetual, the extent of its heritability would be a separate question entirely, governed by the law as it pertains to property in general. Though the widely expressed general objections to heritability are irrelevant to the question, they demand a riposte. Very often, those who object to property itself (copyright being a particular form of property) do so in the belief that by exhibiting their “unselfishness” they achieve a certain moral superiority. In theory, at least, they are willing to sacrifice for the common good, though more often than not the level at which they would recommend confiscation in whole or in part rests just above the point to which their own assets have risen. Their argument is that society benefits if all infants start from the same position.
But if, for example, your infant has cerebral palsy and needs as much care as money can buy for the rest of his life, and you are willing to work yourself to the bone and do without to provide for him, tough. This is trumped by the belief that the state should take care of all such people—whether it does or not—and that if in fact it does, as it does not necessarily, you have no right to supplement his care if that would mean the affront of dying and leaving behind, if it exceeds a certain amount, the money for which you have labored and sacrificed. These are the workings of statist compassion: the idea as applied to the collective always trumps the individual person. Thus, it is possible, in pursuit of the “principle” that all children should have milk, self-righteously to create conditions in which no children have milk. With collectivism, it’s the thought that counts.
What law, in what system, would obstruct the most natural thing in the world—the desire to help one’s children, and their children, through the trials and difficulties of life? Only envy could engender the view that one person’s good fortune in this regard is another’s deprivation. In a city of houses and shacks, justice is not tearing down houses but replacing shacks with houses newly built. Further, if educating and providing for future generations is a worthy and stabilizing goal for the state, why is it not so for an individual, especially when, as the history of the twentieth century has shown, individual action is generally more successful and efficient than state planning?
Then there is the matter of actual justice. Consider the case of two families, one that eats sparingly and cheaply at home, forgoes entertainment and vacations, knows no luxuries, and keeps the family store open eighteen hours a day; and another that drinks, gambles, vacations, borrows, spends beyond its means, works intermittently or not at all, and indulges itself with debt for which, when relieved by bankruptcy, everyone else becomes partially responsible. When the elders of the first family make their final bow, their descendants are left with the wealth they created and for which all of them exercised discipline and self-denial in their lifetimes. The elders of the second family leave nothing but debt. Where is the justice—assumed by the opponents of heritability—in rewarding the second family by confiscating the assets of the first?
And if one insists upon perceiving justice in this, why does it recommend itself only upon death? Why are the assets of the first family not taxed immediately, lest they give advantage to the children—in education and health, for example—before the demise of their parents? For that matter, what about the heritability of things other than money? Why not an equalization tax on height, strength, vigor, appearance, and musical or mathematical talent? If outcomes are to be engineered by evening legacies, what justifies selective enforcement?
Although the question of inheritance is separate from and immaterial to the question of copyright term, even were it not, copyright would by its nature fall into a somewhat different category. Most copyrights aren’t worth very much in monetary value, or if they prove to be, it is seldom initially apparent. Value is determined by demand that will undergo changes that cannot be foreseen. Although a few works will generate large royalties, the vast majority will be unproductive. What is at issue is mainly something other than money. In their febrile deliberations, copyright abolitionists focus on economics, but only touch upon the heart of the matter, and then only in reverse, when they protest what they call the author’s monopolistic right to control his own work, expressing their horror that, having inherited this control, the heirs to copyright might use it to distort or suppress the works that are their patrimony.
But the heirs are without doubt more apt to guard the integrity of these works than a vast number of people with less or no stake in them, emotional and otherwise, who, in the absence of copyright, can do what they wish. Without copyright at all, the author loses control of his work. Not just its revenues or disposition, but its substance. Better to leave the work in the hands of heirs the author has chosen because they have a connection and an obligation, than to expose it to a million geeks in airless basements who would rewrite Doctor Zhivago to make it more like “Dungeons and Dragons.” Why not allow any visitor to the National Gallery to tinker with the Raphaels? The opposition’s counter to this question is that whereas the Raphaels are unique originals, Zhivago, with a nature sufficiently abstract to be reproducible, can be run off in the billions. That’s just the point. No particular copy of it is inherently superior to another, which is why the integrity of each deserves protection equally, the very fact that brought copyright into existence in the first place. The copyright abolitionists, however, find this less compelling than the appeal of the false equality they champion.
