The Liberty Papers

In today’s New York Times, Mark Helprin argues in favor of what effectively amounts to an extension of copyrights for an indefinite period. And does so by making what is, at best, an imperfect analogy:

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.

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.

The most fundamental difference, of course, is that copyrights, unlike property rights in land, are purely a creation of the Constitution, which gives Congress the power to:

[P]romote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Rather than recognizing that this provision constituted the Founders understanding that copyrights and patents, rather than merely being a recognizing of already existing property rights were, in reality, the granting of monopoly power by the state and, for that reason, their duration should be limited to a period of time deemed sufficient to reward the creators for the effort and innovation involved in their work.

Helprin ignores this however, and continues with yet another bizarre analogy:

It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

The problem with this analogy, of course, is that it ignores the distinction between individual rights (to life, liberty, property, and free speech in the case of the examples cited) and a government created monopoly grant. It is arguably the case, and certainly something that the Founders were concerned about, that grants of monopoly power such as copyrights and patents actually infringe on the liberties of others —- even if were to come up with an idea, or a song, or a poem, completely independently, I would be prevented from profiting from it by virtue of the fact that someone managed to beat me to the Patent and Trademark Office by a few hours.

More importantly, though, how can the government grant a perpetual monopoly over an idea ? Thomas Jefferson himself noted this about intellectual property:

[ideas are] “like fire, expansible over all space, without lessening their density at any point, and, like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.”

In other words, once it is in the public domain, whether protected by copyright or not, can anyone truly be said to “own” an idea ? Helprin tries to ignore this argument by making a distinction between ideas and “art”, but the point is the same.

Whether it’s the formula for Bayer Aspirin, though, or the text of To Kill A Mockingbird, there is no rational reason to extend copyright protection indefinitely.  And, more importantly, such a proposal would seem to violate the clear limitations placed on Congresses power to grant these monopolies by the Constitution.