Winter’s Tale author and former Bob Dole speechwriter Mark Helprin (right) entered the debate over copyright with an op-ed in yesterday’s NY Times, equating reversion of copyrighted material to the public domain with slavery. “Absent the government’s decree, copyright holders would have no exclusivity of right at all,” Helprin writes. “By that logic, should other classes of property not subject to total confiscation therefore be denied the protection of regulatory agencies, courts, police and the law itself lest they be subject to expropriation as payment for the considerable and necessary protections they too enjoy?… Why would the framers, whose political genius has not been exceeded, have countenanced such an unfair exception?” To his thinking, then, the solution is simple: The Constitution allows for extending the terms of copyright; Congress has sone so in the past, “and should do so again, as far as it can throw.” His rationale for doing so will be familiar to any anti-estate-tax conservative: “Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else?” he writes. “The answer is obvious, and transcends even justice.”
As Avram Grumer points out, Mark Twain made a similar argument over a century ago. And Lawrence Lessig has set up a wiki page for rebuttals to Helprin’s argument, although that’s going to need some work. “‘Perpetual’ copyright is just absurd,” runs one objection. “Does Helprin really think that Shakespeare’s ‘descendants’ still ‘deserved’ royalties for his writings today in some inalienable sense? What if a descendant of Martin Luther King Jr sued to enjoin all publication of his ‘I have a dream’ speech?”
Apparently, the person who wrote that has never heard of Estate of Martin Luther King, Jr. vs. CBS, which upheld the right of King’s descendants to charge licensing fees for any redistribution of any significant portion or the entirety of that speech. Oops!