intellectual property sophistry

http://www.nytimes.com/2007/05/20/opinion/20helprin.html

The piece is entitled, "A Great Idea Lives Forever. Shouldn’t Its Copyright?" And that is the meat of the argument. The remarkable thing about the column is that it presents the expiration of copyright as an example of governmental confiscation. The author, one Mark Helprin, even acknowledges the obvious counterargument--that no right to intellectual property precedes government protection of intellectual productions--but dismisses it by comparison to other kinds of property, which also require government protection but which are not subject to similar "total confiscation". I call this sophistry because "confiscation" is an entirely inaccurate, loaded word. Were, following Helprin's counterexample, Goldman Sachs to be "impounded", it's true, that like a work of art whose copyright expires, the company's erstwhile owners would no longer be able to profit from the exploitation of that particular bit of property. What is "confiscated", according to Helprin, are property rights. In the case of Goldman Sachs, it's largely the right to invest certain corporately owned assets freely; in the case of intellectual property, it's the right to exclusive control over the reproduction of the work. But there's something funky about this use of "confiscation," which in normal language means the taking away of something. The creator of a work still possesses the work (and as many copies as he or she has made or wishes to make); in contrast, the shareholders of Goldman Sachs, following the seizure of their company, lose all access to their former property. This is Jefferson's point when he compares ideas to fire. It's telling that Helprin resorts to empty rhetoric in his reply: "The flow and proportion of the elements of a work of art, its subtle engineering, even its surface glosses, combine substance and style indistinguishably in a creation for which the right of property is natural and becoming." That works of art have a certain individuality is a nobly Romantic sentiment, but it is entirely besides the point. What Jefferson is observing is that unlike a car company, where my using the company's factories precludes--in a very physical way--anyone else from using the machines (never mind for the moment that it's never just 'I' that exploits capital), my performing your cello sonata in no way prevents you from also performing your cello sonata. Thus, the government, in mandating the expiration of copyrights, is not "confiscating" the intellectual property in question--you can still perform the cello sonata. Instead, it is merely allowing others unrestricted access to it. Indeed, the government is not even meeting confiscation halfway--by, for example, facilitating the universal distribution of copyright-expired works.

Now, Helprin's response to all this would, I think, be that the apparent distinction between physical and intellectual property, which makes his use of the term 'confiscation' so intuitively fishy, is erroneous. This is not the same thing as the explicit conclusion of the column--that intellectual property ought not to be "disfavored"--for that conclusion, as it is presented, presupposes that the two broad classes of property are fundamentally comparable. For Helprin, property really is just the right to exploit it. Thus, the right of a owner of intellectual profit to profit by controlling access to the work of art is entirely analogous to the right of the owners of a corporation to profit from their capital. Actually, the example of Goldman Sachs is a very good one for Helprin's case, because, after all, physically, what does Goldmans Sachs actually possess? Offices? Computers? All of the assets that matter only exist on paper, and only as long as Goldman Sachs' rights to them are enforced by laws and norms. Other property rights are held for perpetuity, why not the intellectual variety as well?

My answer would be that although it's possible to think of intellectual works as commodities--as, indeed, they are, currently, for as long as their copyrights last--Helprin does nothing to show they ought to be thought of as commodities, exclusively. The key players in Helprin's argument are "those who try to extract a living from the uncertain arts of writing and composing". And of course, in a society where by and large livings are extracted by selling commodities on markets, making a living by selling works of art requires protection of the commodity-ness of their products. To perhaps reiterate the obvious point, there is no commodity where there is no scarcity, and in the absence of copyright protections, there is no scarcity of intellectual products (Jefferson's point again). But I submit that intellectual property is a fictitious commodity. Unlike the canonical fictitious commodities of land, labor, and money, the contradictions of the commodification intellectual production might not have the potential to cause social upheaval and political revolution. Still, like land, labor, and money, intellectual productions have a social existence that does not cleanly fit into the shape of a commodity market. To turn to my own empty rhetoric for a moment, works of the intellect are not merely ways for artists and writers to make a living; they also represent our--as a society, as humanity--cultural patrimony. We, as the audience of intellectual products, tolerate the monopolistic exploitation of works as intellectual property, insofar as we must, in order to make the economics of the work of the mind not prohibitive. Indeed, as with any fictitious commodity, the pure ascension of the market in intellectual products would mangle the world of the mind. A pure market would mean, of course, no "subsidies" or "protections" . . . goodbye NPR (or at least, it's non-news side), the Smithsonian, the NEA. The works most characterized by "subtle engineering" are simply not market-profitable.

I am not saying that limited-duration copyright follows from the necessity of non-market institutions to support the arts. Instead, the fictitiousness of intellectual products as strictly market entities from the side of supply ought to lead us to question its complete commodification on the side of demand. Copyrights force us to into the market to access works. But we have deep-seated feelings that the life of the mind is not to be bought and sold but instead shared, participated in, and critically examined. What we have, then, are two competing interests--in other words, a double movement. On the one hand, there is the interest in a free exchange of ideas--free in the sense of there being no barrier, including economic, to participation. On the other, there is the need to feed and clothe, in the context of a market society, those who make these intellectual products--this interest seems to push for a market of ideas in the sense of trading works as commodities. Helprin, like any good liberal-market fundamentalist, ignores the former interest, implying it should be subordinated to the necessities of the market. But the interest in an untrammeled exchange in the work of the mind is real as well, and the body politic has every right to pursue it by the means of copyright expiration.