William Stepp does an admirable job rebutting Helprin's deeply flawed reasoning in arguing for perpetual copyrights. You might also want to check out the response from Iiya Somin over at Volokh.

Somin reiterates a thought that always comes to my mind on this issue that cuts right to the heart of the matter: Imagine the consequences of giving Shakespeare's great-great-great-great-great grandchildren the power to end distribution and performances of his work for all time. It would also prevent the creation of any derivative works (i.e., no West Side Story, RAN, and thousands of other works based on Shakespeare. All wiped out since they would violate the "property rights" of someone who has been dead for hundreds of years.).

Helprin's idea is not merely wrong - it would be utterly destructive to any semblance of artistic culture.

[Update: Lessig has put together a useful wiki page for rebutting Helprin. Hat-tip James Grimmelmann over at PrawfsBlog.

One study found that users of pirated software sufficiently influenced by word-of-mouth communication eighty percent of the software's prospects to buy the legal product and another described several scenarios in which piracy can help increase the sales of legal products. The pirated product functions as a free sample that the innovator does not have to fund.

The rest of Jerry Kirkpatrick's article, "The Market Function of Piracy," is here at the Ludwig von Mises Institute.

To the Editor:

In asserting that since a great idea lives forever, so should its copyright, Mark Helprin confuses real and intellectual property ("A Great Idea Lives Forever. Shouldn't Its Copyright?," opinion, May 20.) Information, as embodied in intangible or "intellectual property," cannot be owned, but can only be possessed or experienced, unlike tangible property, as John Perry Barlow pointed out in a 1996 essay. An ideal object, such as a book, music, or other article of property in which information is instantiated, can be owned. The information or expression (e.g., words, musical notations, pictures) contained within them, which conveys the message from the writer or producer to the reader or consumer, cannot be owned.

A tangible object is real property because it possesses three properties: it has a physical instantiation and boundaries, it can be physically possessed and used, and it can be alienated. Intangible or "intellectual property" fails the first and third criteria. An author who sells a copy of a manuscript, which is real property, still retains the ideas and word order within it even if he doesn't own them. He owns his manuscript, including the paper, ink, and cover, but does not own the words he writes and their arrangement.

He has two rights to his property, the ownership of his manuscript and to its first disposal. In a free society, he would not have the downstream right to prevent others from making copies of their own property, including copies of his work. He has two ways to prevent others from copying his work, either not publishing it or publishing it in a form that can't be copied, such as by encrypting it.

"Intellectual property" is applied to tangible property by giving a creator (or legal possessor) a state-granted monopoly to do certain things with it, such as making copies. This is accomplished by enjoining others from using their legally owned tangible property to do these things. The economists Fritz Machlup and Edith T. Penrose pointed out in a 1950 paper on the nineteenth-century patent system that the French legislature invented the term "intellectual property" and applied it to ideas that were patented to obfuscate the monopolistic origin of patents. "Intellectual property" is therefore better termed intellectual monopoly. Mr. Helprin is correct when he states that without government intervention, copyright holders would have no right to monopolize the production of copies of their protected works.

Thomas Jefferson recognized that the lack of "intellectual property" in nature (i.e., in a free market) benefited society, contrary to Mr. Helprin's belief that copyright is consistent with the "public good." The authors of the progress clause of the Constitution failed to understand that patents and copyrights impede intellectual progress, act as barriers to innovation and as rent-seeking devices, and imperil the liberties of innocent people using their own property. A creator's first mover advantage, combined with the ability to sell complementary services, enables him to reap the competitive rents that ensure the continuation of intellectual progress without intellectual monopoly.

Elaborating on Crosbie's comment: I also saw the Helprin op-ed this morning, courtesy of Bill Zame who sent me the link. Helprin confuses a gift granted him by the government with that which he earned by the sweat of his brow. A house you build with the sweat of your brow. Helprin's great masterpieces such as Memoir From Antproof Case he also built with the sweat of his brow. Suppose for the sake of argument that I had purchased a copy (for obvious reasons I have not). Then what right does Helprin have to tell me how I can use my copy? If he built a house and sold it to me, would that give him the right to tell me how to use it? Make no mistake, intellectual property is not about property, it is about monopoly. What Helprin wants is not the right to own his work in perpetuity - that right he already has. What Helprin wants it the right to monopolize his work in perpetuity - and that is a gift given him by the government that is not given to builders of houses, flour mills, travel agencies or newspapers.

Mark: nobody is forcing you to sell your great masterpieces. But if you sell them, stop trying to tell us what to do with our copies of them.

He thinks copyright should last forever.

Mark Twain only wanted it for a million years.

A rebuttal is in order.

Details here.

[Update: Wired readers submit their own suggestions for patent reform.]

Alan Sipress reports that a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco found Google didn't infringe porn-provider Perfect 10's copyrights when it showed thumbnails of its nude photos link here. Instead it fell within the "fair use" exception in copyright law because the miniatures played a role in the search process and so have a function different from that of the original photos. However, part of the case was sent back for further review, because Google, as well as Amazon, substantially assist Web sites to distribution of infringing copies to a worldwide market. The district judge is to evaluate whether Google or Amazon knew that unauthorized copies of Perfect 10's photos were being made available and failed to take steps to prevent it.

James Surowiecki sounds a cautionary note in The New Yorker about "Exporting I.P."

The U.S. has demanded in recent free-trade agreements that foreign governments import I.P. regimes even though they hinder access to protected technologies. After repeating the I.P. party line that protection is necessary to spur innovation, but that a "balance" is necessary to protect the interests of entrepreneurs, inventors, and consumers alike (excuse me while I adjust the scales...there, that's it), he points out that the American economy grew rapidly in its youth by ignoring I.P. laws. He might have pointed out that foreign authors got paid on their American sales even without an American copyright law.

He nails it at the end by pointing out that I.P. laws making the world safe for Pfizer, Microsoft, and Disney don't deserve the name free trade. Now if he could just ditch the balancing act.

Oh, boy: "Gonzales proposes new crime: "Attempted" copyright infringement", reports Cnet link here. This proposal also includes life imprisonment for using pirated software, more wiretaps for piracy investigations, computers to be seized more readily, penalties for violating the Digital Millennium Copyright Act's anti-circumvention regulations, penalties for "intended" copyright crimes, and Homeland Security to alert the Recording Industry Association of America. Prospects? According to Cnet, a similar copyright bill that the RIAA, and the Software and Information Industry Association announced with fanfare last April "never went anywhere."

Still, this sort of nonsense scares the hell out of me. Big Brother has come and is finding new fields to expand controls. Alert the Supreme Court.

Todd Bishop assesses Microsoft's monopoly gambit here.