Digital Barbarism by Mark Helprin (bookreader .TXT) 📗

Court’s role to opine upon policy? The answer might be, the court makes policy when lawyers and judges manage an end run around the political process and muddy the separation of powers. Having lost his case and turned to another cause, Mr. Lessig says, “The biggest problem progressives have had is the tendency to race to the court whenever there is a big issue…. Let’s not think about a judicial solution, let’s think about a democratic evolution.”88 On this, he and I are in full agreement, although he is fashionably late and would have undoubtedly supported the opposite—his previous—position had he prevailed. Why should law professors have to be reminded that the Constitution takes precedence over what they may or may not believe, at one moment or another, to be good policy?

About that policy, the foundations and principles of which are a matter of legislative concern, and which are the people’s right to wrest from the experts, and which are unashamedly matters of open and general debate, much more can be said, beginning with the question of term. The move to elongate copyright term did not suddenly spring from the forehead of the late Sonny Bono. As tempting to snotty elitists as Sonny Bono may be as a target of ridicule—his name has lots of vowels, o’s in fact; he appeared on television dressed as a caveman; he was straight man to Cher; he had a seventies haircut; he came up the hard way; he was a Republican; he ran a bar—the Act that bears his name is part of a long and dignified tradition consonant with the history of this question; and compared to his born-yesterday critics he was as reasonable, noble, and measured as Cicero, who was also, lest they forget, an Italian with lots of vowels in his name.

The anti-copyrightists who disparage the Sonny Bono Act also often exhibit a strange fixation with Disney and Microsoft. One can see why they might be agitated by Microsoft’s power, ubiquitousness, and irritating influence on so much of their lives. But a mouse? Apparently they are deeply concerned with whether or not they may suborn this mouse to appear in their masterworks, or perhaps they believe that a check upon the use of Mickey Mouse by anyone who pleases is a threat to civilization. (Think of the explosion of culture, the renaissance, if only Mickey Mouse were freed from the Disney yoke.) And they are wont to merge their smoldering hatred of Disney with a populist jeremiad against the evil of large corporations (except Google) which, perhaps in the mind of someone educated by cartoons, Disney may represent in the same way that to auto workers General Motors once stood for industry. But, ironically, the Sonny Bono Act did more to right the imbalance between large combines and the little man—between huge publishing empires and lone writers; between Hollywood studios floating on money, and impoverished composers; et cetera—than ten thousand of their failed court cases and all umpteen billion of their subliterate blogs. Previously, a copyright assigned to a publisher or studio would remain there all the days of its life. Now, and thanks to Sonny Bono, if it is not a work for hire (which nothing should or need be), a licensee can keep it for only thirty-five years, after which the rights return to the author, the composer, the artist, or their heirs. This brings power to a place where previously it was absent, and checks it in the places where it tends to accumulate. How strange then that the “progressives” should term the act that brought this about outrageous, and mock the unpretentious man who achieved it.

Nor was he radical or thoughtless in regard to term. With the proliferation of written works and the growth of their importance to the life of civilization has come a long-extant and steady move toward their protection, including notably the extension of term. Prior to the Statute of Anne, when copyright had yet to become an important matter—because there were so few copies—term was, here and there, unlimited. The Statute of Anne then fixed it at twenty-eight years. In England by 1812 it would last for the life of the author, and in 1910 the Imperial Copyright Bill had extended it to a postmortem period of half a century.89 At that time, though Greece was laggard, with protection of only fifteen years after publication, as was New Zealand, covering only the author’s life, in Italy the extent was for the author’s life or eighty years after publication. A similar formula, allowing for variation of the postmortem period, was long used in the United States, where the maximum length of copyright (neatly doubling the term in the Statute of Anne) was fifty-six years after publication.

The U.S. Copyright Act of 1998, extending term to a date seventy years after the author’s death, merely brought American copyright protection closer in line with the worldwide trend, something that progressives usually applaud. Even in 1911, Austria, Germany, Japan, and Switzerland granted thirty years postmortem, while—along with Britain—France, Belgium, Holland, Hungary, Norway, Portugal, Russia, Sweden, and Denmark granted half a century, and Spain eighty years. By the latter part of the twentieth century most countries had regularized copyright term according to the Bern Formula of half a century, and Germany had reached seventy years.90 Thus, Sonny Bono’s rash extension was rather the rational continuation of a longstanding evolution, bringing the United States into the company of most of the advanced countries, many of which had had long postmortem periods for a century or more, and some of which, like France, have far more stringent protections of what the French perfectly and forthrightly call droits morales.

Though even on their home turf the legalists are incompetent and wrong, when they depart from the many pastures they expertly pollute they are on even shakier ground, as when they make claims and accusations about hindrances to creativity, or copyright as “monopoly.” They seem unable to forgo any opportunity to wander into