Jay Reding.com

No Perpetual Copyrights

Mark Helprin has a provocative article in The New York Times on extending copyright protections to works indefinitely. As a practical matter, this has already been done in the wake of the Eldred decision. Eldred v. Ashcroft, 537 U.S. 186 (2003). Helprin argues:

Absent the government’s decree, copyright holders would have no exclusivity of right at all. Does not then the government’s giveth support its taketh? 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? Should automobile manufacturers be nationalized after 70 years because they depend on publicly financed roads? Should Goldman Sachs be impounded because of the existence of the Securities and Exchange Commission?

The problem with Helprin’s argument is that property rights and intellectual property rights aren’t the same thing. The Constitution’s allowance for limited copyrights is to preserve a strong and vital public sphere. Information is different from personal or real property in that the public intellectual commons is more in the public interest than the physical public commons. Eternal copyrights are invitations to rent-seeking behavior — authors and publishers would have more incentives to sit on an unprofitable work rather than release it into the public domain. Alternately, popular works could become cash cows that require no further work on the part of the author, creating a disincentive for the creation of new works. The language of the Copyright and Patent Clause makes the Founders’ intentions quite clear: it is a utilitarian Clause that seeks to “promote the progress of science and the useful arts” — not to provide a set of sweeping IP rights as the current system does.

Certainly authors and publishers deserve to have some protections of their work — the idea that information “wants to be free” ignores the reality that information isn’t free. It takes time and effort to develop and market a book, software program, song, or other work. That time and effort should be rewarded. However, the principle is stretched too far to make that argument that copyrights and patents should be extended without end.

Even in the context of real property, courts don’t give absolute and eternal protection. The Rule Against Perpetuities (the bane of every first-year property student’s existence) prevents property owners from passing on their estates to very distant beneficiaries. Courts are highly reticent to uphold deeds with unreasonably restrict the alienation of property — which means that a court won’t let you restrict the ability of a future beneficiary to sell your property unless the limitations are reasonable. All these restrictions are designed to prevent “dead hand” control and ensure that property is put to the best and highest use.

The same principle applies with intellectual property, which is why eternal copyrights are such a bad idea. They would foster a climate in which dead hand control would rule — while no doubt the Walt Disney Corporation would love to own Mickey Mouse in perpetuity, is it really good for the rest of society? The Founders’ wisdom when it comes to copyrights is no less relevant today than it was then — and the explosion of wasteful and ridiculous IP litigation is an example of what happens when the Courts ignore that wisdom in favor of catering to moneyed special interests. The Courts need to start taking the Copyright and Patent Clause seriously, or the problem of rent-seeking is only going to get worse.

UPDATE: Ilya Somin of The Volokh Conspiracy also has a detailed and cogent argument about why Helprin’s ideas don’t work, practically or constitutionally.

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