Digital Barbarism: A Writer’s Manifesto

On May 20, 2007, the New York Times published Mark Helprin’s infamous article “A Great Idea Lives Forever. Shouldn’t Its Copyright?” His editorial seeks to be a short defense of perpetual copyright. According to Helprin, after the article was published, the internet exploded in reactions against him and perpetual copyright. Even Lawrence Lessig has a dedicated page on his wiki reacting to the points raised by Helprin. After this article, Helprin wrote his longer book on copyright: Digital Barbarism, where he attempted to flush out some of his major points. While I disagree with Helprin, his article is clear and succinct and provided some interesting points that should at least be considered. However, his book, Digital Barbarism, is an exercise in a new form of non-fiction: persuasive stream of consciousness. When I was reading the book, I was never certain whether Helprin was going to argue about copyright or say why he would buy the flowers himself as Mrs. Dalloway once did. As one example, in chapter three, “Notes on Virginia,” Helprin interrupts his points on copyright law to attack lawyers and the legal field for 4 pages (pg. 121-125), which just came out of nowhere.  While he makes interesting points within the book, the points become lost within this larger stream of consciousness style. In his book, Helprin discusses how he fights for every comma and every word when he writes. In this case, he should have yielded to his editor. I admittedly disagree with Helprin on adopting a perpetual copyright, but I certainly found the occasional paragraph thought-provoking. However, I have to take umbrage with Helprin’s characterization of Creative Commons. Heprin’s primary legislative goal would be to make copyright law follow property law, which can last in perpetuity and be freely alienable. What Helprin either forgets to mention or does not know is that real property has exceptions that copyright law does not. With real property, if you accidentally kick your ball on a neighbor’s lawn, you can walk over on your neighbor’s lawn and pick the ball up. If this becomes part of the custom of the community, your neighbor may be unable to sue you. If you have a house, you can grant an easement for your neighbors to bring their car around to the backyard or maybe to allow your neighbors to go from the sidewalk to a forest trail behind your house. Copyright law has none of these granting abilities that real property does if you do not talk to the owner.  There is no “custom of the community” exception like what exists in property law. There is no ability to grant use of the copyright to the community without granting it to one member of the community at a time. The ability to grant a right to use the property without expecting monetary compensation is a fundamental property rights. Copyright law does not have this provision, so content creators must contract around this provision and thus, Creative Commons. Rather than Creative Commons being an attempt to circumvent copyright law, as Helprin suggests it does, Creative Commons actually gives content creators a bundle of rights that was unavailable to them before. His inability to see that suggests a passing and immature relationship with the real ideas of copyright and its place in the future. The most worthwhile aspect is to see Helprin and Lessig respond to each other.  Start with Helprin’s article “A Great Idea Lives Forever. Shouldn’t Its Copyright?” Then read Lessig and other’s response on Lessig’s Wiki: “Against Perpetual Copyright.” Then Helprin wrote Digital Barbarism. Lessig wrote his book review: “The Solipsist and the Internet (a Review of Helprin’s Digital Barbarism).” Finally, Helprin responds in an article on the National Review, which is available behind a paywall. His National Review Article is titled “In Defense of The Book: A reply to the critics of Digital Barbarism” from September 21, 2009. His response article is even worse than the book. His pompous bent is best illustrated by the following passage: “Perhaps because Digital Barbarism is embedded almost promiscuously with stories and anecdotes in illustration of its arguments, and because it is written densely enough that legions of critics that they can’t understand it (they can’t understand the Constitution, either), its 250 pages cannot be justly summarized in a few paragraphs.” (44). I enjoyed watching Helprin, Lessig, and others insult each other playground style but with longer words. I enjoyed it more from a rhetorical perspective than an academic or analytical one. Their works gave me new insults but little to consider. Skip the book. Just read his op/ed. Or maybe just read someone else entirely.

Modernism and Copyright

When we teach or even conceptualize copyright law, we usually do so by genre and not by time period. One of the biggest differences on the copyright debate from 2014 from 1914 is technology. However, the concept and frameworks have not budged much since 1914. Modernism & Copyright helps frame that historic debate. Those of us interested in copyright law rarely discuss how the perspective on copyright from one industry affects artistic movements or how time periods conceptualize the copyright law of the day. With his collection of essays, Paul Saint-Amour’s Modernism & Copyright tries to recreate the way that the content creators of the Modernist period thought about copyright law, primarily focusing on writers of Great Britain and the United States.

For those unfamiliar with the Modernist period, the modernist period starts in the early 20th century and ends at or before World War II. It was one of the dominant artistic movements of the early half of the twenty centuries. Modern jazz began to develop in the modernist period as did Cubism. Major artists in this movement included Matisse, Picasso, Ezra Pound, and Virginia Woolf. Interestingly, Modernism occurs during and after the Copyright Act of 1911 in Great Britain and the 1909 Copyright Act revision in America.

The book is set up as a series of juxtaposing perspectives on copyright law. The book is arranged by type of material. These juxtapositions include the written word – comparing Ezra Pound who wanted copyright in perpetuity to Virginia Woolf who would have had them expire after death; music — from modern jazz and bebop in its joy of the riff to high culture’s classical music, which considered the rift akin to theft.  The authors of the collection of essays ground the articles in the law and history and while this may get repetitive when reading the book from start to finish, it means every article or section can be read in isolation without losing the context of the larger issues. Every section should be read together to understand the point-counterpoint that Saint-Amour constructs.

One of the strongest uses is going to be to help introduce issues in copyright law to different audiences from the perspectives of the people most in line with their own voices. English majors should read the section “Portrait of a Modernist as Copyright.” Film Studies or theater students should read “The Fall and Rise of Remix Cultures.” Historian should read “Biography, Copyright, and Privacy.” None of his sections are over 50 pages and would provide a great grounding in the varying issues and how modernists felt about copyright law at the time.

Saint-Amour reminds us that the copyright fight we’re having today isn’t that much different than the copyright fight we were having 100 years ago, and that the same values embedded in these arguments were as present in the wake of the 1909 act as they are today. This is a great read for anyone interested in the perspectives on copyright from artists, interested in seeing the juxtaposition, teaching a class in an artistic area on copyright, or just interested in this long term debate.

Copyright and Development

Philip G. Altbach, ed. (1995). Copyright and Development: Inequality in the Information Age.  Bellagio Publishing Network: Chestnut Hill, MA.

As a law student, we often do not hear about the international effects of American law and policy, especially the codification of American Law in international treaties. As many others have pointed out, American copyright law did not respect international copyright law until the 1980s and since then has been a leader in the fight against international infringement. While we hear about America protecting American interests abroad, we less frequently hear about how American law harms interests or stymies development in other countries.

Copyright and Development: Inequality in the Information Age explores these issues and how the publishing industries have systematically stymied the content industries in these areas. While the book has 6 essays in it, I am going to focus on “International Copyright and Africa: An Unequal Exchange” by Henry M. Chakava. His article obviously focuses on the issues of copyright in the developing African world. Africa produces only 1.2% of the world’s books despite housing 12% of the world’s population (in 1993) (17). Chakava focuses on how the European publishing industry has maligned the African one. At the time of publication, Chakava states that 90% of the published books are textbooks, many of which are published by the publishers from Europe and America. (19). Chakava believes the solution to the African publishing crisis is for European and American publishers to allow African licenses to publish materials, which they have been disinclined to do. Chakava states, “. . .  International copyright protects the haves, not the have-nots, and is structured to serve the interests of those with something to protect” (21). His entire article focuses on the problems of Western Europe and America being the holders of copyrights and refusing to let go of their absolute control of copyrighted materials – even materials from local African writers, who found publishers abroad.

Ultimately, having any introduction to the problems of copyright law in the developing world brings an important and often ignored legal perspective to the conversation. All six of these essays give a perspective outside of the traditional copyright law classroom or discussion: like territorial rights in publishing; compulsory licensing, etc. All of the essays are under 25 pages. It provides a great perspective and easy perspective on international copyright law, and as there are articles on India, China, and Africa, it should present an interesting read for those interested in different parts of the world. Admittedly, the book is a little dated, as it was published before the internet become more widespread in the world, but ultimately still relevant to conversation. At 108 pages, the book is worth picking up and perusing for those needing an introduction to the issues surrounding international copyright law.

An Unhurried View of Copyright

Normally, when we think of legal treatises we think of current legal treatises and not historical ones. With copyright, especially, the legal treatises that existed at the time can provide an important window to the past and how legal scholars thought or would have thought about a specific legal issue at the time since the courts have decided so few copyright cases. Because of that, here at the University of North Carolina’s Scholarly Communication Office, we will be highlighting historic copyright treatises that were quoted by the Supreme Court interpreting the 1909 Copyright Act, which we still must use for historic materials. To that end, out first book review is Benjamin Kaplan’s An Unhurried View of Copyright.

Kaplan, B. (1967). An Unhurried View of Copyright. New York: Columbia University Press.

Benjamin Kaplan was a professor of Copyright Law and Civil Procedure at Harvard Law School from 1947 to 1972. He left Harvard law School to serve on the Massachusetts Supreme Judicial Court, where he served from 1972 to 1981. In 1961, Professor Kaplan wrote “Study 17: The Registration of Copyright” for the Library of Congress’ Copyright Office when Congress was considering a General Revision to the Copyright Code. He was often associated with Melville Nimmer as being an expert on copyright law during his lifetime. This book was quoted by the Supreme Court on 3 different occasions: Campbell v. Acuff-Rose Music, Inc., 510 US 569, 592 (1994); Sony Corp. of America v. Universal City Studios, Inc., 464 US 417, 465 & 468 (1984); and Fortnightly Corp. v. United Artists Television, Inc., 392 US 390, 392, 402, & 403 (1968). Its first citation in a Supreme Court opinion was two years after its original publication in 1966.

This book is a different kind of legal authority than what is normally seen. Unlike other works, which will be discussed later, this work is not a treatise. Professor Kaplan was invited to his alma mater, Columbia Law School, to speak as part of the James C. Carpentier Lectures — a series that has been discontinued.  The book is a collection of three different lectures. The first lecture is titled “The First Three Hundred Fifty Years.” Despite the title, this lecture traces the history of copyright law from its earliest theoretical concept in 1485 and ends before the 1909 Act. Although Kaplan breezes through this early history, he provides an interesting analysis often unseen in copyright legal history by starting before the Statute of Anne. This chapter would be a great introduction to non-law students or professionals who need or want an introduction to American copyright law. Kaplan’s lecture is readable and easy to follow; it should make for an easy introduction to historic copyright law.

The second lecture is a typical review of the 1909 copyright act and its effects.

Finally, the third lecture is called “Proposals and Prospects.” The final lecture is in regards to the proposed legislation that he had worked on with Congress. Kaplan advocates for what he believes the future of the Copyright Act should be, including his opinions on 89 H.R. 4347 or the “Copyright Revision Bill.” While the Supreme Court has not quoted from this section of the work, this lecture is worth the read. Congress eventually codified most of Kaplan’s advocated positions with the 1976 Act. While this work may not be legally persuasive when working with either the 1909 or 1976 Act, it provides an interesting perspective on these issues.

You should read An Unhurried View of Copyright. The book is short at 130 pages and was very influential during its time. While few courts have quoted the work in the last 10 years, cases where the courts have quoted Kaplan are still important decisions. As one example, Campbell v. Acuff-Rose Music, Inc. is a seminal copyright case. This case mostly completely recognized transformative use, and fair use analysis in academia often relies on this decision. Kaplan’s influence in copyright law is still felt to this day and his thoughts are worth the read.