Digital Barbarism by Mark Helprin (best reads of all time .txt) 📕

The system allows and encourages advocates at the bar to stretch like yawning lions and propose like madmen, to say things that only the Cheshire Cat would say, and knowingly and shamelessly to take unfair advantage of gaps in the law that powerlessly admit absurdities. But it also provides judges to correct the absurdities, the unmoving text of the laws to correct the judges, the legislatures to have power over the laws themselves, some of the laws themselves to have power over the legislatures, the Constitution to be a guide for all, and, finally, the people—with various intervals of patience and procedure required of them—to have power over the Constitution itself. At times this power is exercised directly when the Constitution is amended, but mostly it is indirect, like a fleet-in-being, magically enforcing discretion, common sense, and reticence upon functionaries and practitioners who might otherwise possess inordinate power.

And no matter how much they may protest, the law is anything but the exclusive province of lawyers. The higher and more consequential it gets, the more this becomes both necessary and obvious. In fact, and thankfully, the law is no more the exclusive province of lawyers, and especially law professors, than tables are the exclusive province of Bishop Berkeley. This is important to note because of the tendency of lawyers, openly and proudly abetted by many law schools, to claims of superiority in regard to policy questions over which they have no more superior right or understanding than would a cucumber. These (questions, not cucumbers) they attempt to abduct from the public square and imprison in their seraglio awaiting a kind of involuntary sex change.

So it is with many things, not least copyright, which some lawyers have attempted to kidnap for adjudication when it is a question not of law but of policy. The slow development of the printing press over centuries was paralleled by the origination of protections for something new in the world: the ability to make many copies of a work mechanically, more or less flawlessly, cheaply, and rapidly. Such a thing had not existed before, and the new form of property at issue did not fit cleanly with the common law as it had evolved in dealing with properties of a different nature.

The difficulties of the common law in their application to copyright were ever present, and in recognition of reaction to this, copyright diverged slowly but firmly from the common law into statute law, the first great benchmark of which was the 1709 Statute of Queen Anne, “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies.”

It began:

Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing…books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment and too often to the ruin of them and their families: for preventing therefore such practices for the future, and the encouragement of learned men to compose and write….82

And with this began a divergence in English law, which is a work of geological accretion, and the cause for Madison, having written in 1785 a copyright act in the Virginia House of Delegates, and now commenting upon the constitutional provision, to write in the Federalist: “The utility of this power will scarcely be questioned [little did he know]. The copyright of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals.”83 Joseph Story follows on with the judgment that “The copyright of authors in their works had, before the Revolution, been decided in Great Britain to be a common law right.”84 Even in Britain, with its immense and glacial constitution, the British Imperial Copyright Bill of 1910 “brought British copyright entirely under statutory law and consolidated and amended all previous enactments.”85

With the founding of this country many other matters as well were just as resolutely cleaved from the common law to be made firmly a matter of statute, which is not to say that the common law no longer had a place, for the statutes were not so comprehensive as to be themselves an alternate evolution of the law, but that this place has been steadily receding as the statutory law has developed and statutory law and the regulations built upon it require adjudication. In short, statutory law trumps common law.

The copyright provision of the Constitution is beyond adjudication, and all the blather in the world cannot change the fact that it gives Congress the sole right and wide latitude in setting the term of copyright. Thus, when—in response to the Sonny Bono Act, which extended the term of copyright by twenty years—Lawrence Lessig attempted to argue the contrary in the previously cited Supreme Court case, Eldred v. Ashcroft, he lost by seven to two. Madam Justice Ginsburg, writing for the majority, summarized the court’s view in the last paragraph of its opinion: “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing CTEA’s [Copyright-Term Extension Act’s] long terms. The wisdom of Congress’s action, however, is not within our province to second guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals.”86

In a telling comment paraphrased by the New York Times, Professor Lessig states that “the experience was tantalizing because some of the justices who ruled against him conceded that long copyright terms were bad policy, if still constitutional.”87 One wonders about the nature of such a concession, and who made it. If it were a personal aside it would be irrelevant, and as an official pronouncement it would have no place. Since when is it the Supreme