 |
| Library, Riksmuseum, Amsterdam |
For those of us concerned with books, research libraries, electronic research materials and the "intellectual property" issues pertaining thereunto, the temptation may arise to consider the uses of the word "intellectual" in this case metaphorical, inappropriately metaphorical. I can live with the understanding that it is a technical term. Yet, I cannot imagine Beanie Babies being copyrighted, or patented. So this must have been a trademark dispute. It seems to have been about fake collectibles, in the book world we call them facsimile reproductions.
Yet, the pride of Judge Posner in his career, substantiated by many awards is clearly justified. He settles disputes and is not to be judged himself by the triviality of the disputes he settles. Nor are the disputes economically trivial, but trivial in every other sense of the word. He has no control over whatever unworthies approach his bench. His work is as important as that of an elementary school teacher breaking up a fight on the playground; it may seem trivial, the disputes among the small children may not require detailed analysis, but we need people who will do that, tirelessly.
In the case of Judge Posner it is not enough to dispense some minor cuffs (of course, clearly falling outside the zero-tolerance threshold of corporal punishment regulations for elementary schools) to the unruly, some intellectual structure must be established to set guidelines for judging in this area of the law. Again I must commend the Judge for providing insight into the actual workings of the law and the intellectual constructs supporting legal theories. That I cannot share his view of literature may be due to the small number of pages I have seen where he addresses literature. Yet I also feel there is a handle here that could be used to lay the law on its back, especially as far a books, especially out of print library books are concerned.
Beanie Babies and Tele-Tubbies and Cabbage Patches or whatever may be the fad of the year can generate millions in a season. Part of the strategy in marketing is to create some sense of scarcity, raising the attractiveness of the toys. It is clear that toy manufacturers can enter the market and exploit the scarcity. Books are different from toys or industrial processes or labels on hand-bags in that they represent human thought in written form, going back a few thousand years. They represent a descriptive analysis originating in a human mind that contributes, however modestly or grandly, to the understanding of the human condition. The Babylonians doubtless had their version of Beanie Babies as did the Persians, the Greeks and the Romans. However, it is their texts that still interest us, not the toys of their children - although there are specialist on that as well.
For that reason books have been collected in libraries at not inconsiderable expense to be studied by successive generations. The relations of private commercial market value, secondary market value and cultural value are quite intertwined. The laws of the United States really concern themselves only with texts written after 1923 or with text of authors who died after 1941; that are the rough temporal parameters of copyright.
Things that are grown in soil - fruits and vegetables - are sold on the market by green-grocers. Things that are grow in human minds are sold on the market for intellectual property. There are regulations governing that market. It seems, in its wisdom, the republic has evolved a market for three kinds of intellectual property - 1. expressions in word, sound and picture that are protected from copying, 2. patents that are judged for originality and protected from generating profit for others 3. trademarks. Clearly, the commercial value of a popular novel can be fixed as easily as the value of a ripe tomato in March. The commercial value of a study of Shakespeare subsidized by a 12-month writing grant and a subsidy for publication cannot be set as easily, neither can an industrial process for turning raw sewage into gourmet mineral water.
Part of the problem is that the expectations of the creator (author) originates in the same space of the imagination as his or her creation. The writer of a book has to let words flow onto the pages to be published. This is difficult without conviction of the worth of the word hitting the pages - readers are imagined, a dialog is started with imaginary readers and more words flow onto the pages. This is a natural process in writing. Having written to some small degree, I can attest that even the most hopelessly inexperienced self-publishing author engages in fantasies of sitting next to Opra and having his (in my case) creation be ordered by ten thousand mouse-clicks the second. My advantage is that I realize this is a fantasy - some do not. No doubt similar fantasies exist in the world of patents when the inventor of some whirly-gig imagines one in every household. The fantasies may also infect feverish minds awaiting the second coming of their out of print treatise.
As a writer I am automatically protected by copyright. Even if I do not register and only xerox 18 copies, some notion of common-law copyright protects my work from copying. Why someone should want to copy my work and why Congress has chosen to protect me from it as a matter of course is another puzzle. They should protect Scott Turow and not waste time on me. Of course, they are protecting Scott Turow, I and thousands are merely along for the ride.
In the world of the invention of whirly-gigs, patent protection is neither automatic nor cheap. First, I would have to prove that my thing-a-ma-jig is not derivative and not merely obvious. That costs me $600 at present; a further fee is collected to register the approved patent and fees totaling over $5,000 are collected in the first dozen years of the patent.
The question arises, why are patents expensive and limited while copyright is cheap and forever. There are many potential answers but the most obvious is that patents are meant to make money, hence it is worth funding a process to evaluate them closely. The minimum investment to get and keep a patent is $5,000. If a patent does not make more money then it is not a patent but a useless waste of time and money.
If a book does not make money, it may still be a great or at least a significant book. Even a terrible book about wooden fortifications north of the polar circle in the 13th c. may be important for all its awfulness since it is the only one on the subject. It may not ever have made a dime; the author may have paid $4,000 to get it published and $300 per b/w illustration; yet, every historian of Scandinavia will have to have thumbed through it at the least. That is really the pity about the thoughtless extension of copyright; it inhibits the exchange of ideas that has been going on for centuries by mixing in trivial artifacts of entertainment.
There is a good bit of theory about intellectual property. Since I know only about books - and some about music and art - I always find the theory ill-fitting. For example, there is the whole thing about re-use of existing "expression" - presumably copyrighted - in new creations. Doubtless the legal foundations to this set of ideas originated in the patent evaluation process and not in the study of ancient literature. The model is when an inventor takes a whirly from here, a thinga form there, added a gig and had a new patentable invention. The patent office then decides if this is a valid claim. Copyright litigants have picked this up and are touting it as something that copyright prevents. Strangely this idea is not treated with any skepticism. Preventing derivative products is seen as a "social cost" of copyright in the "public choice" paradigm.
The assumption is that any "original expression" is derived from some already copyrighted expression. There is no denying that derivative expressions are a big deal in contemporary copyright. A novel spawns a movie; the movie spans mugs and T-shirts of the main characters; the characters become stars in a spin-off TV production. Thus the original novel has spawned many licenses including, DVD's, International Rights, possibly a comic book, whatever. Yet while derivative products may be central to milking the revenue stream of successful writing; it is not an issue in "writing" itself - at least not in writing the books that have found their way into the collections of the great research libraries scanned by Google. It may be possible that someone paid for a license to write more Tarzan stories, or more James Bond stories, but these are out of the ordinary artifacts of popular culture. The Steinbeck Foundation is not licensing the plot of "Grapes of Wrath" so some contemporary author can adapt the characters to the Irish potato famine of the 1840's with a hand-drawn cart instead of a rickety old truck. No author has licensed "The Sun Also Rises" or the "Old Man and the Sea." Spin offs are one thing; to automatically subsume all of literature as necessarily derivative is an awful misreading of the history of literature, a misreading of the judgements of scholars, and a complete misunderstanding of the nature of "literary" influences.
There is a good reason why "ideas" are not protected and only the verbatim copying is forbidden. One may recognize the ideas or the style of Hemingway in the fiction of the last decades of the 20th c. but this is not a matter for copyright lawyers. It is a matter of bringing forth a robust masculinity or a characteristic use of language or a certain way of rendering landscape. Hemingway represents a chapter in the development of American prose - an important chapter - the artists after him had to confront his way of handling dialogue, of concise, vivid description and much more. Yet it is a mistake to mix in the notion that prose after Hemingway has to be taken to the court to check for infringement.
The fact is that it is not. Judge Posner knows that it is not. Yet the plethora of derivative products, movies and posters and the Lego model of the old man, the boat and the sharks (just kidding), somehow make the derivative nature of all of literature seem plausible in a legal sense. For a legal argument, a thin veneer of plausibility is all that is required. The "influence studies" in literature certainly provided that plausibility to Judge Posner - he was not able to resist mixing what he learned at Yale as an undergraduate with his later profession, intellectual property law. We can be fortunate that Judge Posner did not get his BA in Philosophy or God forbid a double major, English and Philosophy. The list of infringing perps would twelvetuple. It is sad, but understandable since a legal education does terrible violence to a mind in the early stages of humanistic training.
On second thought, this notion of derivative expression may be central to legal writing. Although there is no copyright involved, opinions are based on extant case law other opinions and briefs or transcribed testimony - hence the automatic assumption on re-use. Originality in legal opinions is not desired, it may not even be possible.
With books we have a tradition of citations that cover this area. We do not call it re-use but rather the evolution of ideas, and we have marginalized the notion of a blue book, formerly a strictly enforced set of rules of citation codified in style manuals. In the international world of scholarship wide divergence in citation rules have exploded the idea of a uniform style for all. The formal aspect of citation is very much in motion.
It is obvious that in the area of thought, written thought, ideas are picked up from reading. The work of a scholar, by definition also a writer, is involved in citing passages of any number of works and weaving a new argument around these quotations. The author may attack some of the passages as non-sense or may grant others that they provided great insight. In any case, this is done wholly without the active involvement of the federal government, copyright statutes not withstanding. There is an international academic common law.
There are any number of tricks around delivering a quote and then loosely paraphrasing the work quoted as though the analysis were one's own. Such techniques qualify as plagiarism and would be exposed quickly were the work widely read. Much of the problem in the fields of scholarship - humanistic or social or political science - is that the research is not published as a basis of further research but as an academic gold star for someone making hay with academic credentials in other fields. This has lead to an explosion of academic writing hard to police even with the latest computer techniques.
In the first few months of 2011, several ministers of the German Federal Republic and the European Parliament have had to resign because it was found that they had copied substantial parts of their dissertations without the attribution of sources. One of them actually sued her university for negligence in granting her the degree - a cheeky blame shifting tactic. It seems that it has become fashionable for politicians to acquire speedy doctorates from German universities where residency requirements are minimal. There is a substantial cottage industry today in taking publications of the famous or near famous or of political opponents and checking for verbatim phrases on the web. Programs that do that are easy to write and widely available.
It is OK to be influenced by great artists and by great thinkers. It is OK to write in the style of someone; in fact, often the style is so overwhelming or the thought is so convincing that style and thought are internalized and one become a disciple. Early stages of education often involve discipleship, even abject discipleship. There are followers of any number of thinkers or critics who continue on with their thought. They may even be students or assistants or collaborators or close colleagues. Each discipline will have it own annotated bibliography that will identify the degrees of derivation or originality. Some epochs are characterized by originality some as fated to be epigonal. The law knows nothing about any of that.
It is OK to cite other texts as long as the citations are in quotation marks. This has a clear purpose. If the quotation (in quotation marks and indented) extends over several pages, the dissertation adviser will reach for the red pen and suggest a footnote thus foiling any attempt to pad the text. It is generally agreed that advisers cannot be expected recognize plagiarism even if they themselves are plagiarized by their students. They simply think their students are brilliant. Nor can they be expected to read dissertations too closely.
In our humanistic past, often it was acceptable to quote running pages since part of the task was to transmit handwritten sources into printed form. Readers were grateful for access to extended quotes from rare sources. As late as the first half of the 19th century, historians did not differentiate too strictly between description of sources and verbatim quoting often not attributed, a real mess to untangle. Yet these questions were regulated in academic jurisdictions. In the 19th c., institutes and journals were funded to established the rules of citation and to create editions of hand written materials that allowed easy reference. Part of advancement in that world revolves around learning the rules. Wide access to electronic text does not only make plagiarism easier to spot, many other practices also will become more streamlined.
Today it is not methodologically sound to quote pages, for this we have footnotes referring e.g. to pages 20-43, of some book. The reader has the obligation to find that book and read those pages, preferably seamlessly contiguous to the reading of the text with the reference. Shorter quotes are copied into the text for convenience not for restraint of trade or infringement. Incidentally, in the new electronic world of texts which the courts would just as soon went away, those 23 pages will be a hot link obviating a couple of hours spent locating the actual quoted physical book somewhere. Despite the efforts of Congress, the USDC and author's associations, the future is clearly in linked webs of information. To subsume everything under property rights and to pretend there is profit in locking texts out of the web and indexing engines as a matter of routine just because Mickey cannot go public domain is very much yesterday thinking.
I do not know what the legal consequences of plagiarism are - it surely must be some sort of fraud; however, in the academic world, plagiarism is punished by loss of teaching and research privileges, and of course by public ridicule. Some prestigious historians have been caught copying pages and have blamed careless research assistants - the ridicule stuck as did the approbation of the plagiarisees and their colleagues. Of course the offending books are still read since sloppy citation is not intellectually fatal, but they are read with a superior smirk.
This digression on academic practices is intended to bend the discussion away from the strictly commercial view of library books as intellectual property just waiting for infringers to infringe. In scientific publications citations indexes determine academic advancement; if a publication is not cited it has failed. That is the only measure of success. Copyright plays no role. Judges also have a citation index to establish rank I am told. For every legitimate Beanie Baby fad, one can be sure there will be 18 concurrent imitators that have to be put in jail. New technologies give new opportunities for infringement requiring new laws. Agreed.
Yet it is a mistake to see everyone as a potential infringer. The extension of copyright into the perpetual has activated automatic legal mechanisms in force for many decades after publication and even after the death of the author that function without a "derelict property" safeguard. While everyone, including Posner and Landes know that, Judge Chin still feels that his hands are tied by the orphan problem. The blame for this lies the myopia of the discussion. Judge Posner and Professor Landes can talk for hours about their insight into intellectual property and their experience with various disputes and regale endlessly on infringers and hypothetical infringers. Inevitably their arguments pick two from column a and two from column b and an egg roll and a hot and sour soup. Arguments rendered in 2003 are put in question by actions in 2004, yet we see these same arguments again in 2011 to deny a settlement for a major piece of public good.
