The Rights of Man (and Mouse)

(Inspired by MB's list of records I've never heard of, today's bracketology pits the Beatles vs the Stones.)

I was listening to TWIT this morning, and the point was made that the present school generation may be growing up in an environment where free content is a given, as compared to the generation two klicks previous, where purchased content was the given, or one klick previous, where content was at best capturable. That is, at some point in the dark ages, you watched TV or listened to the radio, and there was content in that ineffable moment, which was paid for by advertising, or else you went out and paid to go to a movie or a concert or to buy a record. There was no sense of your inherent ownership of this material, much less your entitlement to it. Entertainment cost money (to someone); if you wanted entertainment, somebody had to pay for it. With the advent of tape decks (reel-to-reel in the 60s), you could copy a record, but realistically this was a private, repurposing action. There was no meaningful trading of tapes; you just copied your own records, perhaps as a mix, and that was that. This continued through music cassettes and, later, videocassettes. There was even a Supreme Court case that recognized an individual’s right to do whatever that individual wanted to do with secondary-level video content, provided it was for that individual’s private use. That is, the producers act of broadcasting the material incurred the consumers’ right to make a copy of it. We couldn’t sell it, or exhibit it, but we could watch it whenever we wanted. Time-shifting, and fast-forwarding through commercials, was announced as legal. It was the beginning of a great adventure. When mp3s came along, they took the processes of creating tapes of albums or mix tapes and turned them not only into no-brainers but no-timers. Movies quickly followed suit. But no longer was I merely copying for my own purposes; given the easy-to-distribute nature of digital files, I could be copying for anyone. We were going beyond the realm of original ownership and the original producers. It’s the middle of the great adventure. But as I’ve been maintaining, the ease of performing an action is not included in the calculus of its morality. The fact that it is easy to do something doesn’t make it right. If that were the case, performing easy actions would be morally preferable to performing difficult actions. You don’t have to be Kant to find that one a little dicey.

Anyhow, we’ve already talked about that at some length. But I’m really curious about the concept of intellectual property vis-à-vis copyright. I’m trying to get my mind around both sides of the argument. The basic idea is simple. If you create something, you’re entitled to it, and a legal process exists for you to protect that entitlement. But the Constitution would limit that entitlement. The following is listed as a power of the legislature: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” In other words, there is a belief that creators (authors and inventors) will make useful social contributions provided we protect their creations for a while. Copyright protection is seen as an incentive to produce, or maybe it’s more the other way around: if your creation is not protected, and therefore subject immediately to theft or cooption, why bother? Either way, the protection is intended to create an environment conducive to creation, with an underlying and stated assumption that this will promote social progress. The limit applied by the Constitution is unstated—“for limited times”—but that limit is there. Which raises the question, why? Why should this right be limited? My ownership of my watch, for instance, is not limited. Even after I die, that watch will go to my heirs and assignees and not to society in general. I have, in perpetuity, ownership rights to certain things, in other words. Why not to my intellectual property, if I do have this right to my physical property?

Putting aside the obvious argument that, perhaps, it is the perpetual right to the physical property that ought to be questioned, we need more purposefully to uncover why this discrepancy exists. Why did the Framers accept that, after some limited time, intellectual property no longer belonged to its creator?

The answer seems to lie in that same concept of social progress (although no doubt there is also an historical explanation to be found in the state of protection of intellectual property at the time, a subject about which I know nothing). If there is value in encouraging new ideas by protecting them for a while, there is also value in allowing those new ideas to encourage yet other ideas in a purely dialectical sense. While it was a century or so later that Mill explained with such clarity how truth could be found in the open comparison of ideas, the concept that ideas generate other ideas could not have been all that hard for the Framers to grasp, given the number of creators in their own midst. Franklin, at the Convention, and Jefferson, in Europe but certainly a member of the fraternity, were notorious tinkerers and inventors, involved with other tinkerers and inventors, living in a new country that seemed ripe for tinkering and inventing. Jefferson (who as Secretary of State was, if I remember correctly, our first patent officer) gave away his plow design for the betterment of farmers, so there was altruism not only in design but in spirit. A new type of country needed new ideas. We were already trafficking in republican democracy. We might as well go for the full gorilla.

So ideas beget ideas, and begotten ideas are seen as beneficial to society. But the begetting of ideas is also beneficial to society, so we set up a system where if you beget an idea, it’s protected for a while, but then it’s allowed to go off and beget other ideas. This makes some sense. There are certainly many specific arguments regarding the copyright of a film or a book that are not covered by this, but at least in the patenting sense, as compared to the copyrighting sense, the concept seems sound enough. Patent is a much shorter protection than copyright, at least in present-day America. You invent something, you have some time to manufacture it and get rich, and then it belongs to society. This applies to drugs, widgets, the look and feel of software (talk about dubious), most things you’d expect and some you don’t. A patent, which is different from a copyright, is also different from a trademark. I don’t feel a need to go into all the distinctions here: look them up for yourself if you don’t know them.

What has happened over the years is that copyright was extended numerous times, to the point where, today, it is beginning to look eternal. We have legislated (and according to our constitution, this is a congressional power) that copyright will last for practically a century after the creator is dead. No doubt the next time the law comes up before Congress, whoever is running Disney and like corporations will push for yet further extensions. According to the laws extant in 1928, his birthday, if we hadn’t extended copyright protection, Mickey Mouse would now be in the public domain. This means two things. Anyone could market and sell Mickey Mouse cartoons created before a certain date, and the concept of Mickey Mouse would belong to anyone, for use in any way. That is, today, if I want to, I can write a book about Snow White, a character hundreds of years old, and I don’t have to pay anyone anything. I can write about Snowy and the Seven Dwarfs, or I can write about Snowy running for governor of California. It doesn’t matter. She’s in the public domain. (Note that I’m not talking about Disney’s version of the tale, but simply the characters and the tale itself.) If Mickey were in the public domain, I could do likewise with him. I could tell any Mickey Mouse tale I want and not have to pay anyone anything. I could make my own Mickey Mouse movies. In my stories I could have him run for governor of California. In other words, I would have free access to previous intellectual creative property. And this free intellectual access is perceived as a good thing. It is creative progress. It is rooted in the Constitution (albeit through logical extension).

Disney’s argument is not merely that their corporation benefits from Mickey et alia and should continue to do so, but that since their corporation actively protects and maintains and develops and creatively progresses those intellectual properties, therefore keeping them original, it ought to have the right to continue to do so. It’s not merely the fact that they own them and should continue to do so (which is, to some extent, a perfectly reasonable argument if you compare it to the watch that I can leave to my heirs—why can’t Disney leave Mickey to his heirs?), but that they are continuing to work on them, and/or that they have corporate meaning beyond their simple existence as the properties originally created. The counterargument is that, if we allow ownership of ideas in perpetuity, we ultimately do stifle creativity. Anyone who knows the history of Disney knows that the corporation’s success (and even survival) was based on the release of Snow White, which is an example of Old Walt doing exactly what his corporation wouldn’t want anyone doing today, which is taking a story and characters in the public domain and working a new angle on them.

The more you go into this subject, the harder it gets. There are no easy answers. I find it hard to understand why both my watch and my writing can’t go to my heirs, and I find it hard to figure where to draw the line at which the legacy ends, since there seems to be an inherent logic that ownership of ideas can’t possibly be forever by the very nature of ideas. And that’s what we really haven’t discussed. An idea is different from a watch. A book or a movie is about halfway between an idea and a watch. Without my explaining the differences, I’m sure you have no difficulty agreeing with me. Therein lies the problem. As bad debaters like to say, there’s no bright line. But the fact that there is no bright line does not mean that we can’t have a hazy line: we draw hazy social lines all the time (compare maturity: you drive younger than you vote, you vote younger than you drink, we’ve got all sorts of unbright lines for measuring your adulthood). In a way, the haze here is the fun part. It gives us something to argue about, and the conflict between the rights of individual ownership and the rights of society couldn’t be more straightforward.

You know, this would make a good LD topic.