Digital Barbarism by Mark Helprin (bookreader .TXT) 📗

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