Digital Barbarism by Mark Helprin (bookreader .TXT) 📗

Madison wrote a copyright act for the Virginia House of Delegates, with a term of twenty-one years, and thought the principle so useful as “rarely to be questioned.” Hamilton wanted the government “to encourage by premiums both honorable and lucrative the exertions of individuals…and to afford such other aids to those objects as may be generally designated by law.”94 This method was considered and quickly abandoned. Once rights were secured, the free market would be the most efficient judge of their value, and the entrepreneurial risk shifted from the government to the entrepreneur, without the necessity of paying for automatic back-scratchers, or the mistake of letting the transistor die on the vine. Or, what would be even more of a nightmare, the establishment of a kind of French Academy to decide the relative values and appropriate rewards for literary endeavors. Of course, we have that now, and it is called the New York Times Book Review, but at least it’s not in the Constitution.

Understanding that, as things changed, the optimal term for copyright might also change, and that finding the optimal term either empirically or theoretically is likely an impossibility in the first place, the Founders did not specify a term, leaving that to the flexible discretion of their successors. A very long—certainly a perpetual—patent would induce a technological lethargy. Either no patent at all, or a term much shorter than twenty years, would probably make the effort of invention not worthwhile. We know that a twenty-year term protects and stimulates a continual search for the next improvement, but maximally? There is no way to tell, and the question is immaterial to copyright despite the forced arguments equating literary work with the march of technology.

Copyright is different by nature. Much of the agitation against it comes from the transient backflow of objections that the copyrighting of software stifles innovation. Unlike literary works, software is closer in every aspect to that which would require a patent. It is, after all, integral to, part of, and an extension of machines (or, perhaps more accurately, machines are extensions of it). Why is it copyrighted rather than patented? Because the time taken to examine and (subsequently) litigate would be prohibitive. The inaccurate classification is an insoluble problem, but the fallout from its difficulties should not be allowed to cloud the question of literary copyright. An entire beneficial system should not be put at risk for the sake of an ascendant but more or less substanceless machine culture that represents little more—in the nonscientific, nonclerical uses of its attributes—than busywork triumphant or entertainment pushed into omnipresence.

Perhaps the failure of copyright opponents to accomplish a clear enough delineation between patent and copyright allows them to imagine an alliance with Jefferson, who was concerned primarily with patents and machines rather than with copyrights and literary work. His well known letter to Isaac McPherson (of which most is presented below) is an example both of his focus and of the importance of making this distinction. Here we find, in the perfect fluidity and arrangement of words, great writing reminiscent of the Declaration itself:

…It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possess the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and the convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.95

Were Jefferson or his heirs (not necessarily synonymous with descendants) somehow to hold this under copyright (the letter was the property of Isaac McPherson), who would be so narrow of spirit as not to be delighted to pay for its use? But, that aside, assuming that he or a successor did enjoy some form of exclusivity, neither would have any right to exclusivity in regard to the ideas it expresses. One could repeat them or enlarge upon them so long as one did not copy the means of expression, either in the exact flow of its elements or in the particularities and style of its language.

And, apart from Jefferson’s assessment that “Nations which refuse monopolies of inventions, are as fruitful as England