Category: IP in the Digital Age

Envisional Estimates Infringing Use – by “Wesley W”

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Piracy Report 2011

NBC Universal commissioned Envisional, a business specializing in protecting other businesses from fraud and piracy, to analyze bandwidth usage on the Internet. Their goal was to determine what percentage of that usage infringed upon copyright. The report was released in January 2011. The report studied global internet usage and internet usage in the United States.

Blame it on the P2P

The report estimated that p2p traffic accounted for most of the copyright infringement on the Internet traffic. Specifically Bittorrent is estimated to account for 18% of all Internet traffic and of that traffic 63.7% was infringing material. This suggests that 11.4% of the global Internet traffic was non-pornographic copyright infringement conducted through bittorrent.

The bittorrent traffic was followed by cyberlockers such as MegaUpload and RapidShare. The infringing content of cyberlockers were estimated to account for 5.1% of all internet traffic. Other forms of P2P file sharing like Gnutella, eDonkey and Usenet were estimated to contain mostly infringing content. 86.4% of the content was infringing and non-pornographic and totalled 5.8% of global Internet traffic. Video streaming brought up the rear with a measly 5.3% of all video’s being infringing totaling 1.4% of global internet traffic. As you can probably tell from the charts above the numbers for Internet usage in the United States is about the same.

Of Porn and Piracy

For the most part, the report excludes data on pornographic content because they had difficulty discerning the copyright status of the content. When the top 10,000 torrent links were investigated and sorted by type the report found that 35.8% was porn, 35.2% were films and 12.7% were television shows. The remaining 16.3% was a combination of software, PC games, music, console games, anime, sports, books/audiobook and unknown content. This confirms that bittorrent P2P is mostly used for copyright infringment and porn videos.

Pirates anyone?

While the majority of content on p2p networks was found to be infringing it was interesting to note that music was no longer the most pirated material on the Internet. The numbers and chart above were for global Internet usage but the numbers for just the U.S. are pretty similar. The whole report can be read here.

IP in an Aggregation Age – by “Ryan W”

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Aggregators are on the rise. It’s really nothing new— Google search is an aggregator after all. However there there is an important distinction between a massive, comprehensive search like Google and the new breed of content aggregators that are popping up as the go-to ‘portals’ for media and genre-specific consumption. As this occurs, places like Metacritic, Google News or Hype Machine, and their somewhat shadier contemporaries SurftheChannel, and Movie2k are organizing, analyzing and sometimes generating a host of copyrighted content and in turn a host of conflicts with content creators.

Why go to the NY Times website to read movie reviews when you can go to Metacritic and read every review by every source, an averaged rating, and reader reviews all in one place? Ideological affinity  with Steven Holden. Narrow mindedness?  It seems natural to want as many points of view as possible in order to build the most informed opinion you can about a film. However, when does the interest of the provider of such an index come into conflict with the indexee? A search engine or an aggregator is a commercial technology, not an altruistic venture. What rights does the aggregator have when it comes to displaying copyrighted content? And what if that content is explicitly intended for unauthorized, illegal access be it downloading or streaming?

In 2006 AP sued Google news for displaying images, headlines and copy from its articles. Upon pulling their content from Google, AP CEO Tom Curly said “We will no longer tolerate the disconnect between people who devote themselves — at great human and economic cost, to gathering news of public interest and those who profit from it without supporting it.” Google and the AP struck a deal in 2007. It was also decided in 2006 that thumbnails created by search engines qualify as fair use.

Take another example: HypeMachine. For its first few Years HypeMachine aggregated MP3 files from music blogs en masse. All you had to do was search for an artist’s newly leaked album and you’d instantly be linked through to a number of sites providing a track or two (or sometimes more). Last year HypeMachine signed a deal with Sound Cloud to detect streaming sound cloud players in blog posts. Sound Cloud is a centralized site that artists can use to provide authorized streams of their tracks while tracking details analytics about listeners. This year it announced it’s up to 3 million users. The deal with Hype Machine posed Sound Cloud for a major expansion of it’s blogosphere presence. Together the two companies are forging new methods of online music consumption. A hugely popular aggregator paired with legal, data mining content distribution — an ethical music consumer’s dream? Plus, analytics and data mining enable charts, which enable music discovery. The downside is that I generally don’t get to add the mp3 files to my iTunes library, which is traditionally the end game of online music consumption.

Much murkier are streaming television and movie aggregations sites like SurftheChannel, SideReel and Movie2k. All of these sites are arguably generic technologies, protected by Safe Harbor status, that aggregate user submitted links to content that is hosted through a litany of file transfer services. However, SurftheChannel and Movie2k explicitly induce visitors to access copyright infringing content. Movie2k for instance has a section dedicated to ‘Cinema’ movies and often features handheld camera recordings of movies the day they are released. Unlike the landscape of music consumption, where supply and demand are much more equally abundant, demand for film is asymmetrically proportioned to a scarce supply of high production film. 3rd party file hosts such as MegaVideo deliberately incentivise piracy by paying 1500 dollars for every 1 million views of content uploaded to its services which are registered in Hong Kong. iTunes movie rentals and network hosted TV show streams interspersed with ads cannot effectively counter the instantaneous pirating of movies— especially after inducing and seducing the public into desiring them through extensive and often intrusive marketing campaigns. In this case, the proverbial hype machine of the film and television industry is in fact an engine for piracy which provides immediate access to content.

Aggregation is important because it creates a more relevant internet. Aggregation sites use the traditional mechanisms of search paired with analytics and social driven ranking and organization to display content that has meaning for the visitor beyond the externally-curated content dashboards of web 1.0 portals. However, the tools and filters for generating relevance have a tendency to take on a life of their own and a problematic position in relation to content creators. If the Hype Machine is any example of a collaborative solution, then it shows a need for ethical partnerships between aggregators and content providers — be it music bloggers, or file transfer websites.

Liveblogging Students for Free Culture NYC – by “Max C.”

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I’m here at the Students for Free Culture NYC Conference. Here are some of the speakers’ big ideas.

Pablo Ortellado

90~% of university students in Brazil have household incomes under $2800 a month, and a year of textbooks can cost them over $2000. People just can’t afford books, so they photocopy them. The publishers are pushing back, but Ortellado makes the argument that the publishers are benefiting off of public dollars and therefore should permit greater access. Most of the textbooks are written by professors working at public universities, and the publishing companies don’t pay any tax (under a free speech justification). Oretllado makes the case this is a public subsidy both in content and in production, and therefore the publishers’ desire for profit is outweighed by the public need for access to materials and education.

Open Access

The big idea: knowledge doesn’t fit a supply demand curve. Knowledge pricing set is arbitrary, supply is infinite, reproduction costs are near zero. Universities should put their materials online for free, for everyone. Why would a university want to put their material online for free? Open courseware doesn’t compete with the educational experience, and therefore are separate products that don’t cannibalize. “Transparency earns respect and trust.” Improves teaching: professors that put their materials online and are videotaped tend to produce better and more recent information.

Random aside: MIT Professor Lewin’s open courseware photo is hilarious.

Wow, Open Michigan courseware is fantastic. Want to make your open courseware like theirs? They have tutorials. The tutorials look maybe a bit intimidating though. My take? Don’t sweat the details, just dig in and get started. Ask professors if you can put a course online, set up a video camera. Go wild.

Reputation: professors (and artists) can improve their reputation with freely available content. (My question: journals currently establish reputation, how do you convince professors that the number of people visiting their paper online is the same as being published in Nature?

Fashion
Fashion is a “limited intellectual property rights” atmosphere, like jokes or rules of games, or smells of perfumes, or chef specials. How do creative people feel about not owning their works?

What is it that makes an item authentic?

Best quote: “You can’t sue the vast shadow economy of China.”

Susan Crawford internet czar

The Big Idea: The Choice of One among ISPs is endangering our bits! Wireless can’t compete with wired. (Shannon’s Law) 60% of the country has no competition with cable.

The Internet is like the train system: a public good that needs to be regulated.

There has to be a business model, and some of the time government intervention is needed to allow new transport systems to fight off old transport systems.

Can Communities Better Police Copyright? – by “Daniel A”

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Source: http://tctechcrunch.files.wordpress.com/2010/03/stealitshot.png

Six years ago today Youtube.com launched as a video dating site out of then-CEO Chad Hurley’s garage in Menlo Park, CA (you can see what it looked like here). In its early days the founders did everything they could think of to try to get people to start using the site, including offering money to girls via Craigslist to post videos and attract more male viewers.

After realizing that the market for video dating services wasn’t all that hot the company changed focus to a new model that centered on letting people share videos easily online. The site made a number of strategic decisions in its early days which led to enormous growth in its userbase including using Flash to encode videos on the site (making them accessible to users across browsers and operating systems), implementing social tools to better engage the community (commenting, video responses) and, probably most importantly, allowing videos to be embedded in other sites on the web.

While innovation in design definitely gave Youtube an advantage over competing video sites in its early days, another important reason for its growth was the massive amount of copyrighted content that it carried. As noted in the Viacom v. Youtube case, although the site put a number of controls in place to make sure it abided by DMCA regulations in order to qualify for safe harbor protections, early on it didn’t ban or remove content unless a copyright owner submitted a DMCA takedown notice which left policing the site up to copyright holders and allowed copyrighted content to remain on the site for extended periods of time.

Interestingly, a number of other video sites were cropping up around the same time, many of which were able to build just as active and vibrant communities as Youtube, but differed slightly in their approach. The most notable example is Vimeo.com which actually launched in the Fall of 2004. The site’s primary focus has always been on allowing people to share original content with family and friends. Although it lacked some of the features that Youtube implemented early on which prevented it from getting as wide of distribution and usage, the site also banned commercial videos from its inception and seemed more focused on curating a community of artists/videographers. As a result, the site built a community that was much smaller but also much less inclined to share copyrighted content.

The story of Vimeo seems to suggest that even though both Youtube and Vimeo had similar policies with respect to DMCA regulations that the nature of content actually changed as a result of design and community standards. Because Youtube sought broad rapid adoption, it optimized its site and its videos for getting as many views as possible across the web which may have actually hurt its ability to create a self-policing community of users to minimize copyright abuses. On the contrary, by fostering a small tight knit community with strong standards Vimeo was able to push users to share only original content.

Although Youtube arguably won the web video war it is interesting to note that, given the right incentives, a strong community-based approach to copyright management could actually lead to better outcomes for artists/creators than the caustic use of DMCA takedown notices.

Files Beware – by “Jennifer W”

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Drama for files-storage sites has sharers worried about their cyberspace security. Sure Napster is long gone, and the DMCA is old news in regard to its take-down [left-hand-on-red-circle, right-foot-on-green-square] games and processes, but the saga of cyberspace control continues with the latest filings by the Motion Picture Association of America (MPAA) against file storage and sharing sites like Hotfile.com.

After reading through a few articles, I feel that it’s important to recognize the mindset afflicting organizations like the MPAA. I’ll call it the ConFricDA [Copyright Control Freak Logic of the Digital Age] mindset.

ConFricDA minds process the current social landscape in a different manner than the rest of us. Their symptoms include believing that:

(re: the internet user)

…the internet is made up of infringers; constantly stepping on someone else’s toes in order to become famous in cyberspace.

…everyone wants to become famous just like in Hollywood & Nashville.

…internet users cannot become popular without help from professionals.

(re: the information on the internet)

…popular files become popular because they belong to professionals and professionals do not allow flagrant distribution of their intellectual property therefore popular files must also be pirated files.

(re: websites that host information on the internet)

…since websites have developed methods of profiting off of a user’s popularity, websites are interested in professional products being posted illegally because those  will obviously bring in more money for websites than anything else posted.

…as a result of the above, it is unhealthily for websites to promote files-sharers attempts to become popular because file-sharers will only become popular through the help of professionally owned intellectual property. Thus, encouraging users to create files that will become popular is equal to promoting illegal pirate activities.

(re: law suits)

…sue and ask questions later. Money talks and those without it shut-up and shut-down.

Editor’s note:** You should not perform business operations or surf the web while suffering from ConFricDa. If you are afflicted with ConFricDA seek the help of anyone possessing common sense immediately. Business activities conducted while affected by ConFricDA often include frivolous lawsuit filings against service providers, hosts, and other ‘enablers’ of user directed content creating headaches for dozens if not thousands of bystanders and the overall irritation of the cyber society.

Yet, businesses continue to disregard warnings over their ConFricDA driven actions due to the other major symptom of ConFricDA–a great, even overwhelming, desire for control over society’s knowledge of, and/or general awareness of, intellectual property and products.

In other words, organizations of people out of ideas have become control freaks in the digital age–afraid of the need for further idea creation for themselves to prosper. In an attempt to slow the need for their own generation of new ideas and developments, they desperately try to stop others from having progressive thoughts, claiming that new thoughts are constantly infringing on the intellectual property rights of those who have come before.

Now I know you might say, but MPAA is complaining about the distribution of its own products not derivative videos, mash-ups, etc. True, but the measures by which they are trying to enforce their rights will disrupt the ability for everyone, derivative makers, original makers, and viewers, to transfer information through digital file-storage sites. I mean if we related the MPAA’s latest suit to a physical library that found a counterfeit dollar bill on it’s third floor, we should sue and demand a closing of the library for having allowed the illegal dollar bill to sit on it’s floor–those hoping to go their for books be damned.

Who the heck would go for that? So then why are we standing for such paralyzation of our digital file-storage facilities?

The safe harbor measures of the DMCA were put into place to help elevate the ridiculous fear-mongering of organizations like MPAA who sue anyone that sneezes around something that could-possibly-maybe-in-some-way-kinda infringe on their copyrights or those of their members by even providing service to an infringer, whether they know it or not. Yet, we still have these suits being filed because the current copyright laws are so illogically distorted to fit an age that is nothing like that where they came from that we can’t avoid continuing to fight the same issues.

So have fun, legal bodies and attorneys that will chew on the endless grizzle that cyberspace provides to those who seek it. No matter how many safe harbors, procedures, or fair use generalities you generate, there’ll never be an elegant process to copyright in the digital age until the current copyright law is either expertly altered or simply abolished. But I guess for some, that means job security but for file storers, it means insecurity.

Offline Piracy, Online Security – by “Robert C”

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The internet has dramatically altered distribution for all manner of information goods, and has greatly reduced the friction and cost of sharing content to nearly zero. The flow of communication, data, and commerce online travels through a vast array of applications and services controlled by countless entities. Such Interconnectedness is made possible because all of these entities adhere to similar technological standards for communication, and because the  organizations responsible for the backbone of the web act as agnostic conduits upon which packets can flow freely (the extent to which this will remain true is debatable, but the topic of net neutrality we must save for another time).

Jonathan Zittrain’s 2006 Harvard Journal of Law and Technology piece emphasizes the importance of the passive nature of the online network of gatekeepers and distributors to the growth and development of the internet as we know it. Zittrain focuses on legal battles with ISPs and applications, and the liability that service providers face for piracy and copyright infringement. What Zittrain fails to mention are the ways in which the growth of the internet has facilitated offline counterfeiting, trademark infringement, and copyright violations.

The U.S. District Court Decision in Viacom v. YouTube refers to the case of Tiffany v. eBay, where Tiffany, Inc. sought damages from eBay because as much as 75% of the Tiffany merchandise sold on eBay was counterfeit. The case was dismissed as the court held that generalized knowledge was not sufficient to compel action on the part of eBay, lending legal creedence to the defense assertion that online marketplaces are only an agnostic platform for connecting third parties, and therefore not responsible for the actual nature of the physical goods changing hands.

While eBay was able to dodge responsibility in the case of Tiffany, pressure continues to mount to crack down on counterfeit trade online. Industry organizations, particularly the Software & Information Industry Association (SIIA) have increased pressure a great deal in recent years, even offering rewards up to $1 million for reporting software piracy. The Anti-Piracy Year-In-Review 2009 from the SIIA, the association removed 90,000 online listings for illegal software, representing over $75 million of potential sales. While this may seem significant, to put these numbers in perspective, the Adobe, the software company best known for Acrobat, Illustrator, and Photoshop (and perennial favorite target for software pirates) booked 2010 revenues of $3.8 billion.

The CEO of Adobe, Shantanu Narayen, explains that for desktop software of the nature that Adobe sells, piracy rates can reach as high as 80% to 90% in emerging markets. Narayen sees the transition of Adobe’s products from the desktop to the cloud as a major advantage in combating piracy, as web based applications are not locally stored and require authentication for usage. Surprisingly, for at least some companies, it seems as though the movement of content into the cloud represents a way to combat piracy rather than to facilitate it.

DMCA: Weapon of Scientology? – by “JeeYoung K”

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Even though in Lenz v. Universal, the court ruled that the copyright holder has to consider fair use before issuing takedown notices, it has not stopped DMCA abuses. One of the most amusing and disturbing abuses is one by the Church of Scientology.

Unlike other religions (I am mainly thinking of Christianity) which have much emphasis on spreading the words of their scriptures, Scientology is very protective of its “scriptures” both from its followers and its critics. For those of you who are not familiar with the myth of Lord Xenu, it goes as follows. (WARNING: Reading the following story without proper training, i.e. not having paid your dues to the Church of Scientology, may cause you to catch pneumonia!) The myth tells a story of Lord Xenu, who was a dictator of “Galactic Confederacy” of 75 planets 75 million years ago. After a political struggle he brought billions of people to Earth to destroy them and their floating fragments are the cause of our spiritual harm today.

Lord Xenu as depicted in BBC documentary Panorama: Secrets of Scientology (http://www.youtube.com/watch?v=l42UrHDx4lE)

The Church of Scientology keeps this information (available on Wikipedia) from its own members is by telling  them that the story is so powerful that the knowledge of it is dangerous. However, recently with more and more defectors it has been difficult to keep the information secret and Scientology has resorted to copyright and trademark laws. In September 2008 an alleged rights group called American Rights Counsel LLC issued 4,000 DMCA takedown notices to anti-Scientology videos on youtube. In order to protect its safe harbor youtube had to take down the videos until they received counter-takedown notices.

This example illustrates the loophold in DMCA. People can use it to suppress other people’s voices simply because they do not agree with them. It is true someone could file a suit against the people who have sent takedown notices without reasonable grounds to suspect copyright infringement, but more often than not the cost of litigation dissuades people from doing so. Moreover there are cases (think McCain campaign videos) where there is a window of time after which the information loses its value and the few days during which the information is unavailable can do considerable damage.

Having said that, most of anti-Scientology videos were back up following counter-takedown notices. While DMCA is not perfect, it does provide a procedure for the accused infringer to put back its content if he/she considers the accusation to be false. Jane Ginsberg makes a similar point in her essay “How Copyright Got a Bad Name for Itself” comparing the US system with that in the EU where the E-Commerce Directive allows takedown notices but no counter-takedown notices.

So what is the solution to be? How can we stop well-intentioned copyright law from being abused as a weapon to secure private injunctions? I do not know the answer, but ToryMagoo44, an ex-scientologist, says Oprah!

Click Oprah and Scientology Censorship to watch a video by ToryMagoo44 pleading Oprah to invite her to the show.

Some notes on the Public Imagination – by “Daniel S”

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The image, the imagined, the imaginary – these are all terms that direct us to something critical and new in global cultural processes: the imagination as a social practice. No longer mere fantasy (opium for the masses whose real work is elsewhere), no longer simple escape (from a world defined principally by more concrete purposes and structures), no longer elite pastime (thus not relevant to the lives of ordinary people), and no longer mere contemplation (irrelevant for new forms of desire and subjectivity), the imagination has become an organized field of social practices, a form of work (in the sense of both labor and culturally organized practice), and a form of negotiation between sites of agency (individuals) and globally identified fields of possibility. -Arjun Appadurai, Disjuncture and Difference, Modernity at Large


Before we tackle the specific (specifically legal) questions of copyright, I’d like to jot down some notes on a broader subject: the processes of communal imagination (that we know as Culture) that are fundamental for a discussion of the “public domain”.

In a video linked from James Boyle’s The Public Domain, Wikipedia’s Jimmy Wales explains that the public domain is “a new kind of folk culture”, another speaker adds that it is “a shared culture.” I believe that, by definition, any culture is shared (and in a way, folkloric). Culture is precisely a set of signs, symbols, values and customs that a group of people have in common. For the Yoruba, all myths, songs, stories and historical accounts (all “cultural artifacts” intrinsic to their culture) are grouped together under the term “itan”; certain classical Arabic poets were so instrumental in defining genres that any later author who wrote in the same mode simply signed with the same name; holy books, though touched by many hands, are often attributed to a single “Spirit”. In the West, we are much more concerned with the “owners” of ideas, the individual authors who created (and copyrighted) the bits and pieces that make up our imagination. Nonetheless, it would seem that Jefferson was very conscious of the relationship between the part and the whole (thoughts and the cultures they inhabit) when he spoke of “an idea, the fugitive fermentation of an individual brain”. A thought, unlike an object, isn’t grounded in the physical world, and has the ability to spread like fire through individual minds until it is appropriated by an entire community. In this way, an idea cannot be owned and controlled like physical property, as soon as it is communicated it is in the public realm, and the limits of the public realm are almost impossible to trace.

I grew up in Colombia, where symbols of fervent religiosity (imported from Spain) and confused nationalism exist side-by-side with endless amounts of stolen (and beautifully perverted) images from US American culture. Bart Simpson taking a piss is a common motif airbrushed on the buses of my city. Obviously nobody pays attention to the illegal use of this copyrighted character, its makers and users are too far away from the real markets, but what will never cease to shock me is how popular it is, how communicable and significant the symbol “Bart Simpson” is to a people who are so distant from those who created it.

Theorists of modernity have often explained this through the rise of film and television (which in so many ways prefigured our use of the internet). Miriam Bratu Hansen (who died this week), claimed that Hollywood cinema was instrumental in the creation of a “modernist vernacular”, a sort of coherent visual language of types that could be communicated across nations and beyond tongues. This isn’t as Utopian as it sounds: it implies the creation of Mickey Mouse but also of the rigid stereotypes used to represent all cultures deemed foreign and exotic by Hollywood. But things have changed since Hollywood’s “Golden Era”, and though entertainment is still controlled by a few corporations (the same ones that desperately need copyright for their survival), more people are capable of speaking (and subverting, and reinventing) the common tongue. My point is that simply speaking the language implies using (stealing?) its parts. The (terrifying) essence of this is made obvious in Pop art: Marylin’s face is a powerful sign for an entire culture, and so it doesn’t belong to Warhol or MGM or even herself. It is simply another particle of a language and languages, strictly speaking, cannot be owned.

Chaotic tongue:

http://www.youtube.com/watch?v=59o6xtcM28U

The Purpose of Copyright and the Purpose of Law: Benefiting Society – by “Brian S”

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Mark Helprin makes an interesting point in his 2007 op-ed piece, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” Arguing exactly what the title suggests, Mr. Helprin draws an analogy to property, noting that it would seem silly to us were someone’s property rights to be taken away by the government at a set point in the future.

We all know why this happens, though; we want “to promote the Progress of Science and useful Arts.” But as Mr. Helprin points out, we are harming innocent artists in the meantime. There is a balancing act in play: if the copyright protection is too great, then we hamper the creativity of new artists who want to draw on old material without licensing it or risking a lawsuit; too little, and we give artists, scientists and authors no incentive to create new works at all, as the public will steal them. One might argue that 70 years is, in fact, much too long; most artists will no longer be around to enjoy their royalties by then anyway, and we stunt creativity in the meantime. Mr. Helprin would disagree. Think of the families, the descendants, and perhaps even the family friends and third cousins of a brilliant author such as Mr. Helprin. How cruel it is to remove this source of income and sense of pride that comes from owning a copyright! After all, in America we encourage people to become phenomenally wealthy to the point where their descendants do not have to do a day’s work in their lives. This privilege, however, seems doomed to run out for the children of authors and artists, but not of the children of corporation owners, whose stock in the corporation will never be eliminated or lose value as long as the business continues to prosper.


Surely this is a massive disincentive for artists and authors to create new works! Just because some creators are willing to work for free does not mean that we can inhibit the capitalist rights of those artists who choose to do it for a living. Or can we?

Lessig’s communist hippies henchmen boys want everything to be freely shared. They argue that creativity is hampered by current copyright, noting that music, science and art have always evolved in the past by building on the work of other people. “If I have seen further, it is by standing on the shoulders of Giants,” a famous man once said, but did he ever stop to consider the royalties he owes to the Giants? If he cannot pay a licensing fee, he cannot stand on their shoulders. This is how our country works. An alternate solution that Lessig’s copyright terrorists boys might consider is maintaining copyright forever, but drastically increasing the bounds of fair use, and clarifying those bounds so that progress can occur. A reasonable man might see that the Progress of Science and useful Arts is the goal here – not only what the founding fathers intended, but also what is of greatest benefit to society. Mr. Helprin, however, sees The One Truth: that this is all a set-up to ensure that the creator of an idea can get not only credit for it, but also the ability to profit from the idea for the rest of time, never mind the cost to society. He defends this by noting that Congress cannot infringe other people’s rights just because it is for the public good. If Mr. Helprin paid a licensing fee to stand on the shoulders of a Giant, he might see that Congress actually does this sort of thing all the time. For example, Congress takes the money of every citizen with an income and uses it for the public good, calling this ridiculous notion “taxation.” The government also reserves the right to take one’s house, if it is blocking an important road; the homeowner is given compensation, but it is still a clear example of the public good trumping an individual’s rights. Mr. Helprin’s argument about the “infringement of individual rights” could, in fact, be used as a justification for doing away with laws entirely. Laws exist to balance individual rights with public good. The police infringe my right to drive 100 mph all the time, citing “public good” as a reason for the existence of the speed limit.

Finally, there is an important distinction between physical and intellectual property which escapes Mr. Helprin. By building something on top of a house, the house and its occupants are adversely affected. By making a piece of property useable by the public, it affects the pleasure of its owner. With intellectual property, there is no harm done to the original work when it is modified or cited. We don’t want to do away with copyright entirely; it’s important to give the author credit and the ability to profit from his creation. This is why copyright exists: to incentivize the creation of new work by protecting it. But there is no reason to make this protection last forever, or even as long as 70 years. Plenty of people create art for free with no expectation of financial remuneration, nor any intention of ever using a copyright to protect it at all. Other artists want their dues, but recognize that they all mix and remix and that this is an essential part of the growth of culture. 70 years is already a huge damper on this. As long as we can ensure that the truly talented artists are able to make a comfortable living (and thus can devote their lives not, for example, to a second job but rather to doing the absolute best job they can with their art) and are appropriately credited (because fame is a better drug even than money), we should keep the benefit of society as our primary concern.