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February 15, 2014

"You Didn't Build That" Comes to Copyright

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When President Obama performed his infamous “You didn’t build that” soliloquy during the 2012 campaign, it obviously hit a nerve. Not because there was anything particularly outrageous with the point he was trying to make, but rather because the phrase was seen to be a revealing slip, and seemed to confirm what many had long suspected about Obama—that he had a dismissive attitude toward the traditional American value of the rugged individual who, though hard work and determination, built a successful business. Your success is not due primarily to your hard work and sacrifices, you see—it’s mostly due to everyone else. Really, we all out here sitting on our behinds are responsible for your success, and we don’t recall seeing any dividend checks lately from you. So it’s time to pay up.

Parents don’t raise children, you see—schools and institutions do. Entrepreneurs don’t build businesses—taxpayers and government bureaucrats do. It takes a village, remember?

It’s just a slight step from there to conclude that, since you don’t really get the credit for your success—since we all really had more to do with it than you did—it really ought be us, not you, who gets to say how your capital gets used. After all, you didn’t build that. Next thing you know, we’re wresting control of the means of production from the capitalists, because after all, they didn’t build that—the collective we did.

This is crap. The creator and builder has always been an American hero to all but that small, disgruntled minority that believe you must take from the creator to redistribute to others. In capitalism, as in any moral system, the builder and inventor and creator is a hero, and is deserving of his or her success. Because their success is simply the fruit of their labor, and everyone is entitled to the fruit of their labor as their possession. It doesn’t get much more basic than that.

But the mob still lurks out there, demanding that they are a better judge of how the fruit of your labor should be deployed than you are. I’ve long argued that the primary locus of this essentially nihilistic and even Marxist thinking is today being focused on intellectual property, and I’m sad to say that the latest iteration showed up in, of all places, the editorial page of The Wall Street Journal. Specifically, in “Sorry, Writers, but I’m Siding With Google’s Robots,” a February 7th op/ed by James Panero, a thirty-something art snob who, ironically, doesn’t seem to have a very high view of art—or at least of art that is protected by copyright.

I’m not going to go off on a rabbit trail dealing specifically with the Google Books settlement in this blog entry, because the settlement wasn’t really Panero’s reason for writing the column. He just uses it as an excuse to go on a rant against copyright. The Google Books settlement only occupies four of the thirteen paragraphs in the piece. It’s his view of copyright I wish to scorn.

Panero starts off by illegitimately defining key terms in an inaccurate way that is convenient to his argument. The term intellectual property is a “neologism”—a newly coined term that has not yet been accepted into the mainstream language—according to Panero, which is simply incorrect. It’s not new, and it’s very much a part of mainstream language. Intellectual property is a key legal term that has been used since the nineteenth century in international treaties and in legal proceedings. And not for the first time, Panero purposely misleads by putting the term in scare quotes, as if it’s not even a legitimate term. Bad sign.

He then defines the public domain as “our creative commons where the arts are replanted and renewed.” I can almost smell the rich, moist earth and the honeysuckle.  When an author defines his key terms in such disparaging or poetically favorable ways, he is plotting to mislead you.

(The reality of the public domain is, in fact, a vast wasteland where a modest number of popular works remain in circulation, but where almost everything disappears into obscurity, because the loss of ownership and control means no one any longer has any incentive to promote the distribution of the works or to popularize them. I’m not saying the public domain is bad—I’m just saying it’s over-rated.)

Panero’s arguments are not even consistent from paragraph to paragraph. He defends Google’s book scanning as being “only for its search index (as opposed to showing the full text).” But then in the very next paragraph he praises it because “it brings literature into the online world, exposing a younger generation to books they otherwise would never encounter.” How? If the text isn’t going be shown online? I’d prefer that copyright policy be set by people who can keep their arguments straight from one paragraph to the next, thank you.

Panero has a beef with copyright term, as do a lot of folks. I’m not going to get into the term debate, frankly, because it’s boring. It’s over. In Eldred v. Ashcroft, the Supreme Court found, in a 7-2 verdict, that term is set by Congress, and that’s that. The copyright critics sent Larry Lessig, the Justin Bieber of the free culture movement, to argue the case, and he got his drawers handed to him. It’s over.

If you want to try to change term, have at it. But one thing I know with absolute certainty is that if we reduced term down to something much less, the copyright critics would still be complaining about the idea of creators retaining control of their creations. Because it’s really control over creative works that is the crux of the issue, not term. As we shall see.

In a later paragraph where Panero again puts intellectual property in scare quotes, he derides copyright as a “utilitarian measure to protect creative work through a temporary government-granted monopoly.” Now, I’m not going to quibble with the technical accuracy of Panero’s language here, but when we’re talking about a clause in the Constitution, we’re supposed to do some investigation into what the Constitution’s authors meant when they wrote those words, right? And when people (even copyright proponents) describe copyright as a utilitarian creation of government, they are missing out on the rich understanding that the Founders had behind their words in that clause.

The authors of the Constitution believed that the rights of authors and inventors to own and control their work proceeded from the natural right of men to own the fruits of their labors. This is incontrovertible from any study of the writings of the Founders, especially Federalist No. 43. I’ve always thought that the most overlooked word in the Copyright Clause is the possessive pronoun “their.” Yes, the Founders clearly saw the danger of a monopoly on creative works and thus inserted the phrase “for limited Times,” but they did not start from an assumption that the right was a creation of government. The Founders did not believe that rights were creations of governments. They believed that rights are natural, and that it is government’s job to recognize and to protect rights, not create them. So the Constitution in no way creates the right to intellectual property protection—it recognizes a natural, pre-existing right, protects it, and formulates it in a way that balances the creator’s right with public benefit. But let’s have no more of this idea that authors’ and creators’ rights are a creation of government.

Panero says that we should be able to translate works into other languages or to create Braille or audio versions of works, but that “Too bad: Under current law, you can’t.” That’s a lie. You can translate a work into another language or make a Braille or audio version of it—it happens all the time—you just have to get a license in order to do so. It’s a lie to say that current law prevents that from happening. Apparently what Panero thinks is that anyone should be free to alter or republish in a different form the creative property of its owner without the owner’s permission. That’s that chafing under the idea of control that I was talking about.

If you don’t think the owner of a creative work has a right to own and control it, then you don’t believe it is property, and thus apparently you disagree with the Founders that creative works are the fruits of the labors of their creators. This is a fundamentally un-American perspective.

Indeed, it’s Marxist. Essentially what is being argued is that we cannot allow capitalists to own and control the means of production of creative works. In the Bolshevik revolution, they took the factories away from the owners, because the public had a right to that capital and was a better judge than the owner of how it should be deployed. This is the same logic that Panero and his Free Culture ilk are applying to copyright. The public knows best what should be done with this, so we’re going to wrest control of it away from its capitalist owner.

I’m 1,500 words into this blog entry and I haven’t yet gotten to the thing that really set me off, but I’m there now. In the concluding paragraph, Panero quotes Northrop Frye as saying “Poetry can only be made out of other poems; novels out of other novels.”

There you have it. When you create, you don’t really do anything really special. You’re just remixing other people’s work. Really, there’s no such thing as creativity, or if there is, it’s nothing special. Frye, of course, argued that literary critics were in a better position to understand and interpret a work of literature than even the author himself. Which is nuts, but is of a piece with a nihilistic view of creativity.

These are at least some of the reasons I battle the CopyLeft: The view is un-American, nihilistic, and even Marxist. It denigrates the very idea of creativity, and thus denigrates in some way human dignity, since creativity is a unique and exceptional aspect of the dignity of man.

Yes, I really did create that, and it belongs to me. It is a unique product of my imagination, my experiences, my agony and my determination. I want you to enjoy it and be moved in some way by it, but I also want my creativity recognized and respected. So if you want to do something with it, you have to have my permission. And that is not too much to ask.

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