Consider this essay from Harper's, from the "we build on the shoulders of giants" genre. Interesting reading, to trace the details of literary allusions and "cut and paste" from the days before the mouse (that is, before computers, not before mammals). But then it tries to become a *policy* argument against the expansion of copyright, and that it is not. How can an observation be true and yet not really relevant?

The biggest problem with this approach is its lack of precision. Of course we all owe one another in some grand sense--authors build on authors and artists on artists, science on science, and authors on artists and artists on science and on and on. The question is, why? And under exactly what set of ground rules do we do so optimally? Doing the least harm and the most good? It is far from clear that that we get an optimal outcome from a free-for-all. Put it another way, if I am going to be building on the work of others inevitably, I often want a mechanism by which I pay them something concrete, so that they are most likely to factor my interest in to their output. And I want others to pay me (or my ancestors, if I'm not around) as well. Not always, and under every possible circumstance. Some deals cost more than they are worth to conclude. The whole debate about the scope of IP today is about exactly where to draw the line. The general observation that we all borrow consciously and unconsciously from others as well as buy may be true, but it is utterly irrelevant. The question is, under what precise set of ground rules should we do so.

The idea that we are engaged in fine tuning rather than a grand philosophical inquiry into the nature of information threatens to take the wind out of the sails of some of these arguments. Fine tuning is not very fun. Crisis sells more copy. But much of the "expansion" of copyright over the last decades--while genuinely troubling in some respects--simply does not amount to a cultural [added later: or consumer] crisis of the sort that Mr. Lessig bemoans. Substantively, Eldred and all that is just tinkering at the margins. Problematic, yes, but there are some problems that are not all that bad to have--the question of exactly what format the $1.00 songs we load onto our $600 iPod phones being one of them. (This is again from a consumer standpoint--for small players in the music industry, like songwriters, it is not nearly so good to have this question; which brings us to the enforcement point below.)

Now, recent developments--the tendency to criminalize copyright, for example, and to grow penalties rather than to actually catch perpetrators because there are just too darn many of the latter--do indeed point to a crisis with law (and particularly copyright) enforcement in the Internet Age. But the brass tacks of enforcement is not something with which most IP skeptics are concerned--enforcement is traditionally blue-collar stuff.

Another outstanding oddity with the "we build on the shoulders" line of argument is that those who make it really seem to think they are substantially deflating the moral claims of creators to their works as well as making some kind of economic argument. Sorry, no. Building 500 subtle and no-so subtle literary allusions into a work of fiction is still a hell of a lot of work. Animating a fairy tale while including modern touches and leaving out the medieval horrors of the Brothers Grimm is no mean feat. And furthermore this kind of thorough transformation is precisely the kind of use that copyright allows and continues to allow without licensing, a far cry from plagiarism.

Alas, that self-selected spokespersons of culture do not seem to see it clearly.

posted by Solveig Singleton @ 7:58 AM | Free Culture Movement

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