Online publishing has pushed though a whole forest of weird snares, and one of the most persistent has been copyright. From Google Books to Napster to academic publishing, the legalities of intellectual property have slowed fast-rushing online initiatives to a crawl. Dan Cohen and Roy Rosenzweig call copyright “an ever-evolving set of principles” that must be “actively engaged by historians.”¹ But “engaging” with our arcane copyright laws is easier said than done.

Napster. A distribution model ahead of its time.

Steven Seidenberg details a handy example of copyright gone too far: the inventor William Savory left behind a collection of unreleased recordings from the golden age of jazz music, but the collection is stuck in “copyright limbo.” So many different parties might have a claim on royalties from the performances, it could be impossible to make the collection available to the public, even as part of a museum installation. Seidenberg points out that in these situations, holders of potentially-infringing media either have to hold back or “gamble” on their chances of being sued. It’s clear evidence that the mere threat of copyright litigation has had a chilling effect on the flow of culture.

In a 2007 article for the New York Times, Mark Helprin lays out an argument for infinite copyright. It’s hard not to imagine he’s taking the piss out of the reader, but it sets up an argument worth having. Physical property, he argues, isn’t “subject to total confiscation” after a certain run of years, so why should intellectual property be? Isn’t the government seizing the hard-earned rights of authors and artists just one more great big tax? I think Lawrence Lessig gets at the heart of the question in his response² when he argues that “confiscation,” in reference to copyright, has a radically different meaning than confiscation of physical goods. To pick an example on my desk, when Nieburh’s Moral Man and Immoral Society entered the public domain, its content wasn’t yanked out of anyone’s head. The presumptive difference is that a copyrighted work can be sold any number of times and still remain in the author’s possession, while a physical good can only pass from its creator’s hands once.

If you’re interested in a snarky conference presentation, I’m a fan of this one: the speaker runs an online archive of content from the BBS days (ask your mom,) and got slapped with a hefty lawsuit for his troubles:

While I side with Lessig’s argument, it does hinge on a division between intellectual and concrete property that may be facing a sea change as more and more people become able to reproduce books, CDs and the like. If I buy your album, am I taking possession of a physical object, the data encoded onto it, or a license to use it? If you design a physical object, do you own the design itself, or just the right to reproduce the object? These were exercises for philosophers when our copyright law was written, but as 3D printing enters the mainstream and ‘remix culture’ becomes the norm, the problems of copyright become more pressing. Cory Doctorow turns to the emergence of an “information economy”³ to explain the rise of global copyright in its present form. We may witness an equally disruptive change in the meaning of intellectual property long before the law catches up to the present century.

Just a small slice of the license agreement for an ebook from Amazon.

I’m a believer in a middle road: people should own what they create, and they should wield that ownership in a way that doesn’t frustrate anyone else’s inquiry or innovation. Clearly, the devil is in the details. Creative Commons offers a very helpful set of tools for ironing out those details at the level of individual works. And when rights holders do catch up with the realities of the internet, the results can be very positive–books, movies and music have all managed the leap, eventually. But if we expect eighteenth-century law to govern the twenty-first century’s flow of information, we’d better be ready for some disappointments.