Digital Barbarism by Mark Helprin (bookreader .TXT) 📗

of the differences between a price and a tax is that the latter is compelled. And to argue that copyright entitles the holder in certain circumstances to draw upon the compulsion of the law does not make copyright a tax any more than a merchant drawing upon the compulsion of the law to deal with a shoplifter makes his price a tax. Were Macaulay speaking here in a literary sense, which he is not, he might mean a burdensome charge or an unjust requirement, but how is copyright any more a burdensome charge or unjust requirement than any other price for any other product or service? I cannot understand how a man who can write such majestic prose fails so often and so disastrously to grasp the conspicuous distinctions that separate one fairly simple word from another.

I can understand, however, that his modern imitators might fail to understand distinctions, especially when they venture into what for them are the higher regions of theory. One example they have robotically imbibed from Macaulay is the notion that, “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.”68

The opponents of copyright, or its extension, including Mr. Justice Stevens (or a young insufficiently critical clerk mentally vacuuming from the petitioner’s brief), who, in Eldred, wrote of copyright’s “monopoly privileges,”69 have even less a grasp of the word monopoly, which is derived from the Greek monos, meaning single or alone, and poolein, meaning to sell. It has always been primarily understood, as the OED would have it, as “exclusive possession of the trade in some commodity,” or “an exclusive privilege (conferred by the sovereign or the state) of selling some commodity or trading with a particular place or country.” Or, figuratively, “exclusive possession, control, or exercise of something.” 70

What has Macaulay done? Well, he was speaking in Parliament, and he used a tried rhetorical trick, calling two entirely different things by the same word that in different circumstances can apply to either, and then by invisible elision transforming the one into the other as he pleases and for his own purposes. In the figurative sense of exclusive control, copyright is a monopoly, but to label it as such is meaningless, as it is no more a monopoly than the monopoly anyone exercises over his labor, or the monopoly anyone enjoys in regard to his property, or the monopoly someone might have over the sale of a watermelon he grew in his garden.

In fact, my copyright is less a monopoly than my physician’s monopoly on his labor because whereas my copyright expires, the practice he may leave to his heirs or assigns (he built a practice, I wrote books) does not. The concepts, ideas, methods, and means within a copyright are free for anyone to appropriate, whereas no one is free to appropriate the labor of a laborer. My work can be excerpted at will according to the doctrine of fair use. And the law grants my work to the blind—which I approve—whereas an ophthalmologist may, and usually does, bill them, as do their landlords, the electric company, and so on, including even the welfare state, which, while exempting them from paying for my copyright (though overlooking groceries, medical care, and everything else) then proceeds to tax them in ways both creative and virtually inescapable.

And, then, no copyright results in exclusive control of any commodity. Books are not fungible, and, even if they were, no one has a copyright over all or even a plurality of them. Surely Macaulay, whose reputation though repeatedly undermined has nonetheless endured for almost two hundred years, could not be so obviously and transparently dishonest as to skate along such slippery ice. But he does, for shortly after his declaration that copyright is a monopoly producing all the effects of monopoly, thinking that perhaps his deception will carry (and indeed it has, for some, even so many years later), he pushes ahead full bore and asks rhetorically, “Why should we not restore the monopoly of the East India trade to the East India Company?…I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case.” 71

Copyright does not create a “monopoly of books” any more than the exclusive right to sell one’s pound of tea or one’s watermelon creates a monopoly of tea or watermelon. The damaging effect of such a monopoly over the sale of tea would be that the commodity is controlled in its entirety and therefore so is its quality, or lack thereof, and its price. There is no monopoly of books, and never has been. Not even Barnes & Noble has a monopoly of books (yet). Who, exactly, in Macaulay’s estimation, had a monopoly of books at the time he made his accusations? As a holder of copyrights, did he himself, as he implies? He could not have imagined that he did, but it would have been an interesting exercise. Think of a Barnes & Noble Superstore, or one of the great English bookstores, or FNAC in Paris, or Powell’s in Portland. You enter in full expectation of an hour skimming the surface of an overwhelming treasury, but then you find—admittedly, in many languages, formats, and editions—only the works of Macaulay. Macaulay’s histories, Macaulay’s essays, Macaulay’s speeches, Macaulay’s letters. That would be a monopoly of books, a nightmare world, but hardly reality. And yet this was the world he somehow posited, and this was the condition against which he molded his grandly stated but inapplicable and immaterial argument. Thus, then, stood the case, and thus, then, it falls.

Perhaps Macaulay’s best argument is his warning—drawing from examples in regard to Richardson, Boswell, and Wesley—that someone, presumably family members left in