So I posted the entry calling on people to write a reply to the Helprin piece, and then got on a plane in Boston. When I landed in Frankfurt, I got an email: “Wow! Pretty amazing wiki article.” And indeed it was (and is) — filled with useful facts and ideas, structured and accessible. A real improvement on the Lessig-averages no doubt.
I would have focused the attack in much the same way, though with some differences in emphases. In my view, the right answer comes not so much from careful attention to the metaphysics of property, but from a practical consideration of the burdens of different copyright systems. Where we know that after a very short time, the vast majority of work has no continuing commercial value at all, and that after a relatively short period of time, we’ve provided authors with all the incentives to create they could possibly need, what justification is there for the continued burden of copyright regulation? That question leads some to say “none,” and others to say (ala Posner), “well, at least require those wanting an additional term to take affirmative steps to claim it.” But all who adopt this practical perspective conclude the term should be well short of infinity.
The other thing that struck me about the essay was a point that often gets lost in the rhetoric around “originality” and “remix.” This debate is often couched in terms of “respect” for the author. The problem with the remixer, I’ve been told again and again, is that he doesn’t respect the author.
But compare Helprin’s piece with Jonathan Lethem’s, “The Ecstasy of Influence.” Lethem’s is constructed through the words of others. Helprin’s barely cites anyone. Yet Helprin’s topic is perhaps the most familiar in the history of copyright law. There must be a thousand interesting places where people have considered the same issue, and provided interesting, and compelling responses. (One favorite is Nimmer’s: “If I may own Blackacre in perpetuity, why not also Black Beauty? The answer lies in the first amendment. There is no countervailing speech interest which must be balanced against perpetual ownership of tangible real and personal property. There is such a speech interest, with respect to literary property, or copyright.” Melville B. Nimmer, Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?, 17 UCLA L. Rev. 1180, 1193 (1970).)
Yet Helprin doesn’t bother with what others have written. He wakes up one morning puzzled by a feature of law that has been with us for more than two centuries, and rather than research the question a bit, or think about it in light of what others have said, he just fires off an op-ed to the New York Times.
Now between Lethem’s piece (pure remix) and Helprin’s (pure Helprin), which is more respectful of authorship?