Watch Out For the Omega Copyright Windup; Wall Street Journal, 7/30/10

Eric Felten, Wall Street Journal; Watch Out For the Omega Copyright Windup: A case about pricing timepieces could crimp library lending:

"Katharine Hepburn couldn't understand why Jimmy Stewart didn't devote himself to his art. Their characters in the 1939 movie, "The Philadelphia Story," are walking back from the local library, where Hepburn has acquired a copy of Stewart's collection of short stories: "When you can do a thing like that book, how can you possibly do anything else?" she asks (knowing that he has sunk to the rank of gossip reporter).

"You may not believe this, but there are people that must earn their living," he answers.

"Of course," she says, "but people buy books, don't they?"

"Not as long as there's a library around."

Stewart's hard-scrabble scribbler would be pleased to learn that a Supreme Court case scheduled to be argued in the coming term could put the kibosh on library lending, at least of those books published or printed outside the U.S. In a friend-of-the-court brief, the American Library Association and other library groups argue that a recent Ninth U.S. Circuit Court of Appeals decision "threatens the ability of libraries to continue to lend materials in their collections."

The librarians fear they are going to suffer collateral damage from a curious copyright case that has nothing to do with books. It's Costco Wholesale Corporation v. Omega, S.A.—a battle over whether the storied Swiss watch brand can control where and at what price its chronometers are sold in the U.S...

No doubt Omega was smart to turn to copyright law, given what an increasingly powerful tool it is. The number of years copyright lasts has been repeatedly lengthened, and juries have been known to hand down fines in the millions for illegally downloading a few dozen songs.

The strange and logically contradictory thing, though, is that copyright has been gaining in power at the very same time it has been rendered impotent. Some critics, such as Harvard law professor Lawrence Lessig, argue that copyright has become an oppressive behemoth; others, such as novelist Mark Helprin, lament that the old circle-c is being turned into a dead letter.

They are both right. In response to rampant violation of copyright, the entertainment industry, publishers and other such businesses have gotten Congress to beef up intellectual property protections. But "the worldwide copying machine called the Internet," as Suffolk University professor of law Stephen Michael McJohn puts it, continues to hum along, undeterred. The result, says Mr. McJohn, is a bizarre legal disconnect: "Almost everything is copyrightable, and almost everything is used without regard for copyright.""

http://online.wsj.com/article_email/SB10001424052748703977004575393160596764410-lMyQjAxMTAwMDMwMDEzNDAyWj.html

Curse of the Greedy Copyright Holders, Wall Street Journal, 7/9/10

Tony Woodlief, Wall Street Journal; Curse of the Greedy Copyright Holders:

"'Immature poets imitate; mature poets steal," wrote T.S. Eliot. I am neither poet nor thief, so when I wanted poems at the start of each chapter in my recently published memoir, I sought permission. The poem that best describes my experience is "The Odyssey," navigating as I did between the Scylla of non-responsive copyright holders and the Charybdis of fee-seeking attorneys.

Modern copyright practices spur artists to unmoor our work from what has inspired us. Art—along with many artists supposedly protected by these laws—is arguably poorer for it.

The modern copyright battle is more interesting than its associated legalities. Advocates of copyright restrictions found a bête noire in curmudgeonly novelist Mark Helprin, who argued that Congress should extend "the term of copyright . . . as far as it can throw."

Opponents took this to mean perpetual copyright, which Mr. Helprin denies. In turn he accuses his vocal critic Lawrence Lessig, co-founder of Creative Commons—a nonprofit that encourages art sharing consistent with copyrights—of leading a movement to ravage Western civilization.

In reality, both sides agree with the premise embedded in the Constitution, which is that people ought not enjoy art without compensating the artist, any more than one can dine without paying the chef. They also recognize that while we want to give artists incentives, we don't want the costs to be so high that art appreciation—a difficult cultural attribute to re-establish once it is lost —declines.

Mr. Lessig appears to win on the economics. Mr. Helprin claims injustice in the fact that the family of a factory owner can inherit his property through generations, while the family of a writer loses rights to his creations in a relatively short time. Mr. Lessig observes, however, that copyright holders don't pay property taxes, which evens out financial returns over the course of a 95-year copyright.

But in dollar terms, some decisions by copyright holders, rather than optimize the artist's revenue and distribution, insure the opposite. When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs.

I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests —or theirs—are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?

The copyright thicket is a growing frustration among writers and editors. One editor of a popular literary anthology (who asked to remain anonymous for fear of reprisals from publishers) confirmed that many publishers pursue illusory short-term profit at the expense of both profit and art. By demanding fees that most people won't pay, they forsake free advertising for the artists they claim to protect. If restaurants behaved that way, not only would they deny you the right to take home leftovers to your dog, they'd try to charge you for smelling their food when you pass by.

Further, this editor noted that one reason literary anthologies and college-course syllabi have replaced classics with less edifying sources like newspaper articles and diaries is simply that major artists in the American literary canon are too expensive to procure en masse, if not totally off limits. The estates of William Faulkner and Ernest Hemingway have historically restricted which stories can be used in anthologies, which means that students often have a narrow exposure to two of our country's finest writers.

For an idea of where this is all leading, note that the publishing world is being roiled by a controversy that erupted in the music industry several years ago, when musicians and record companies went after enterprises, like Napster, that facilitated music theft. It sounds noble enough, but it's not clear this actually benefited artists.

Economists Koleman Strumpf and Felix Oberholzer-Gee found that while illegal downloads deprive musicians of rightful compensation, they also advertise the artists' work to more people, many of whom subsequently go out and buy the music. The net result is revenue-neutral.

As a memoir author, I reached the height of frustration when I realized it was going to take heroic effort to use J.R.R. Tolkien's "Bath Song," which is controlled by a division of my own publisher's parent company. Between that, and fee demands or non-responses from other publishers, I turned to my poet friends.

"Will you," I asked them, "give me a poem in return for a book and dinner?" Now my book has some lovely poems by very fine poets most people don't yet know.

So perhaps I shouldn't complain. It's hard to borrow work by recognized artists, but when one door closes, as they say, another door opens.

Still, I can't help but wonder if major publishers might want to let economists, rather than copyright attorneys, govern their decisions in this area. If you agree, perhaps you might quote this essay to them. I'm sure we can work out a reasonable fee."

http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html

Free culture or "digital barbarism"? A novelist on copyright; Ars Technica, 8/4/09

Nate Anderson via Ars Technica; Free culture or "digital barbarism"? A novelist on copyright:

"In his newest book, novelist Mark Helprin sets out to single-handedly defend copyright from the barbarian freetard hordes. He advocates long-term copyright extensions and happily insults anyone who disagrees with him by comparing them to Idi Amin and Adolf Eichmann. The result is almost... uncivilized...

Given his temperament, it is unsurprising that he is no fan of "giving works back to the community," which happens when they fall out of copyright. But he recognizes that no less an authority than the Constitution says that copyrights are "for limited times" and are meant for the advancement of the community's art and science. What to do? In the op-ed, Helprin made a modest proposal.

"The genius of the framers in making this provision is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. 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? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind."

Or, to sum up: Just keep on extending copyright, baby!"

http://arstechnica.com/tech-policy/news/2009/08/one-mans-stand-against-digital-barbarism.ars

Podcast: Helprin on Copyright; Econ Talk

Podcast [1 hr. 1 min. 52 sec.] Russ Roberts via Econ Talk:

"Novelist Mark Helprin talks with EconTalk host Russ Roberts about copyright and the ideas in his book, Digital Barbarism. Helprin argues for an extension rather than a reduction in the length of time that authors have control over their work. He also argues that technology is often not attuned to human needs and physical constraints, claiming that tranquility is elusive in modern times. He sees the movement against copyright and intellectual property generally as part of an educational and social trend toward collective rather than individual work."

http://www.econtalk.org/archives/2009/06/helprin_on_copy.html

A Writer's Tale; Wall Street Journal, 7/20/09

L. Gordon Crovitz via Wall Street Journal; A Writer's Tale: Mark Helprin doesn't think his words ought to be free:

"Novelist Mark Helprin couldn't have made up what happened after an op-ed article he wrote for the New York Times in 2007 urging stronger protection for copyright. He thought this was a topic of interest only to publishing houses, authors and copyright lawyers. Instead, within a week there were 750,000 comments online criticizing him for wanting to extend authors' rights beyond the current 70 years, many of them opposing any copyright protection at all.

As Mr. Helprin read through many of the blog posts and other comments, he was taken aback to see that so many people opposed the centuries-old and constitutionally protected right of authors to the proceeds of their work. His newest book, "Digital Barbarism," is a sharp polemic on how the Internet makes information accessible but also creates a view among some of the digerati that what is easily accessed has little value and deserves little protection."

http://online.wsj.com/article/SB124804423491263485.html

Into the Fray; New York Times Book Review, 6/19/09

Book Review: Ross Douthat on Mark Helprin's Digital Barbarians: A Writer's Manifesto, via New York Times Book Review; Into the Fray:

"In 2007, [Mark Helprin] published an essay in the Op-Ed section of this newspaper arguing for the continuing extension of copyright, so that the rights to a novel or poem could be passed down not only to the author’s children, but to his children’s children’s children as well. Since a more latitudinarian copyright regime is a cause célèbre for a certain class of Internetista, his argument ignited a storm of criticism, and the comments appended to the online version of the article ran into the hundreds of thousands. And since this was, after all, the Internet, most of them were stupid.

Helprin could have ignored the barrage; he could have sifted it for arguments worth replying to. Instead, he decided to write a furious treatise against the comment-happy horde. The resulting book, “Digital Barbarism: A Writer’s Manifesto,” is a vindication of the aphorism about the perils of wrestling with a pig. (You get dirty; the pig likes it.) Helprin can be a wonderful wordsmith, and there are many admirable passages and strong arguments in this book. But the thread that binds the work together is hectoring, pompous and enormously tedious...

Here it’s worth contrasting “Digital Barbarism” with a book by one of the “crapulous professors” in question — Stanford’s Lawrence Lessig, whose “Free Culture,” a 2004 brief against the current state of copyright law, provides a touchstone for the movement Helprin hates. Lessig is not a tenth the writer that Helprin is, but he has other gifts — the ability to argue in a calm and ordered fashion; the capacity to at least pretend to give the other side its due; and the ability to avoid fevered prose and name-calling while making a controversial case. He may be a Mad Hatter, but he comes across as deeply sane, and it’s hard to imagine a reader new to this debate who wouldn’t find “Free Culture” more convincing than “Digital Barbarism.”

This doesn’t mean that Lessig is right and Helprin is not. On the broader question of Internet culture, Helprin’s pessimistic vision has a great deal to recommend it. Where the critics of copyright perceive the Internet age as a potential Renaissance being blocked by overconsolidated corporations, Helprin worries, plausibly, that the spirit of perpetual acceleration threatens to carry all before it, frenzying our politics, barbarizing our language and depriving us of the kind of artistic greatness that isn’t available on Twitter feeds. The fact that he gave in to the frenzy himself is regrettable, but it doesn’t make him wrong.

On the narrower question of how and whether copyright law should be adjusted, meanwhile — and it is a narrow question, the claims of both sides notwithstanding — there might actually be a middle ground. Helprin is persuasive when he argues that copyright’s disappearance would be a slow-motion disaster, and plausible when he argues that the direct costs of letting his descendants continue to profit from sales of “A Soldier of the Great War” are minor or even nonexistent. But Lessig and company are equally plausible when they suggest that the copyright laws that protect the Helprin family’s intellectual property can be misused, usually by lawyered-up corporations, to block the kind of creative borrowing and reworking that early generations of artists took for granted.

Why not, then, simultaneously extend copyright and narrow its scope? Let the Helprins continue to earn royalties into the distant future, but let adaptations, derivations, parodies and borrowing flower more quickly and completely than the current system allows. Leave the Tolkiens the rights to “The Hobbit”in perpetuity, but not the right to prevent two enterprising film companies from going forward with competing adaptations. Leave the Mitchells the rights to “Gone With the Wind,” but not the right to tie up a would-be parodist in court for years on end because they don’t like what she’s doing to their Scarlett. Leave the Lucas family the right to “Stars Wars,” but not the right to prevent me from writing my own competing version of Anakin Skywalker’s life story.

Maybe this sort of system would turn out to be impractical. But it’s only one of the many bridges one could imagine between a principled defense of artistic property rights and a principled defense of artistic freedom. It’s a shame that Helprin was too busy wrestling with the monkeys and mouth-breathing morons to try building it."

http://www.nytimes.com/2009/06/21/books/review/Douthat-t.html

Taking Sides in the Digital Revolution, Where Copyright Is the First Casualty; New York Times, 5/19/09

Michiko Kakutani via New York Times; Taking Sides in the Digital Revolution, Where Copyright Is the First Casualty:

"Such questions are being increasingly asked, as old and new media clash in cyberspace, and issues of copyright have become the subject of hotly contested debates. Two new books offer very different partisan takes on these arguments. In “Ripped” Greg Kot — a music critic at The Chicago Tribune since 1990 — contends that peer-to-peer file sharing and CD burning has empowered music consumers, while providing musicians with more “opportunities to be heard”: “In this world, the fringe players could more easily find and build a dedicated audience, and a musical ecosystem encompassing thousands of microcultures began to emerge.” In “Digital Barbarism” the novelist and sometimes political writer Mark Helprin argues that “copyright is important because it is one of the guarantors of the rights of authorship, and the rights of authorship are important because without them the individual voice would be subsumed in an indistinguishable and instantly malleable mass.”

The problem with both books is that the authors fail to come to terms with arguments that run counter to their own opinions."

http://www.nytimes.com/2009/05/19/books/19kaku.html?_r=1&scp=1&sq=copyright&st=cse

Lawrence Lessig responds to Mark Helprin's argument; Podcast [9 min. 49 sec.] via NPR's All Things Considered, 4/26/09

Podcast [9 min. 49 sec.] via NPR's All Things Considered; Lawrence Lessig responds to Mark Helprin's argument:

http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=103508516&m=103505647

'Digital Barbarism' Wages Online Copyright Battle; Podcast [7 min. 34 sec.] via NPR's All Things Considered, 4/26/09

Pocast [7 in. 34 sec.] via NPR's All Things Considered; 'Digital Barbarism' Wages Online Copyright Battle:

"Author Mark Helprin wrote the novels A Soldier of the Great War and Winter's Tale. And two years ago, he wrote an op-ed in the New York Times that inspired a huge online backlash [see A Great Idea Lives Forever. Shouldn’t Its Copyright?http://www.nytimes.com/2007/05/20/opinion/20helprin.html?_r=1&pagewanted=all.]

In the op-ed, Helprin argued that the term for copyright protection should be extended to protect the author's individual voice from the pressures of the digital age. For his boldness, he faced the digital wrath of those who feel the term of copyright protection should be reduced or eliminated altogether.

He's responded to the backlash in the form of a book, Digital Barbarism: A Writer's Manifesto.

One of the most prominent opponents to Helprin's idea to extend copyright has been Lawrence Lessig. He's a professor of law at Stanford University and the founder of Creative Commons, a system that allows creators to opt out of certain copyright protections.

Unlike Helprin, Lessig believes in the power of group collaboration to build ideas. So instead of writing a response himself, he created a wiki and asked his followers to work together to write it [see http://wiki.lessig.org/index.php/Against_perpetual_copyright].

He says that he understands Helprin's concerns about intellectual work being altered, but that as a published author, it comes with the territory."

http://www.npr.org/templates/story/story.php?storyId=103508516