'Digital Barbarism' Wages Online Copyright Battle

Author Mark Helprin wrote the novels A Soldier of the Great War and Winter's Tale. And two years ago, he wrote an op-ed in the New York Times that inspired a huge online backlash.

In the op-ed, Helprin argued that the term for copyright protection should be extended to protect the author's individual voice from the pressures of the digital age. For his boldness, he faced the digital wrath of those who feel the term of copyright protection should be reduced or eliminated altogether.

He's responded to the backlash in the form of a book, Digital Barbarism: A Writer's Manifesto.

One of the most prominent opponents to Helprin's idea to extend copyright has been Lawrence Lessig. He's a professor of law at Stanford University and the founder of Creative Commons, a system that allows creators to opt out of certain copyright protections.

Unlike Helprin, Lessig believes in the power of group collaboration to build ideas. So instead of writing a response himself, he created a wiki and asked his followers to work together to write it.

He says that he understands Helprin's concerns about intellectual work being altered, but that as a published author, it comes with the territory.

Excerpt: 'Digital Barbarism'

'Digital Barbarism'

Chapter Five: Property As A Coefficient of Liberty: Property Is Not Antithetical To Virtue

At age fourteen, on a cheap three-speed Robin Hood bicycle that my father inexplicably (to me) provided as a replacement for a magnificent English touring cycle, the color of a Weimaraner, that I had left to rust in the rain, I set out on a trip across most of the country. A great deal happened in those months: I was not many miles away from Earnest Hemingway on a sunny July morning in Idaho at the instant of his death; in the lobby of an office building in Arizona, Barry Goldwater informed me that I was not permitted to carry the hunting knife that hung from my belt; and with what now seems like a remarkably small number of other visitors to Zion National Park, I listened to a park ranger's radio as the Berlin Wall crisis unfolded. In regard to copyright, property, and decency, the pertinent incident occurred in a field in Iowa.

As a child roaming sparsely inhabited land along the Hudson in a paradise that is now carpeted with condominia and conference centers, I had gotten into the habit of eating the fruit, berries, or other crops that in various seasons would easily come to hand, whether in the wild or at the edge of fields or gardens. Never did it occur to me that these apples, peaches, pears, corn, tomatoes, berries, watercress, and grapes were anything but a gift of nature and the common property of mankind.

No longer exactly a child, I halted my bike by the side of a corn field on a hot day in Iowa to drink from my canteen. I was at the edge of thousands of acres. You couldn't see the end of it, and the stalks, as dense as a Vietnamese bamboo forest, were heavy with young corn, probably animal corn. I helped myself to an ear, and, after shucking it, began to eat. Then appeared the farmer, as if from nowhere, as irate as Al Sharpton. Still eating, I wondered why he was agitated. Forty-seven-years ago, it went roughly like this:

"Where'd you get that corn?" he asked, throat tight.

I didn't lie, and say that I had bought it at Gristedes on Lexington Avenue, but instead made a kind of hitchhiker's gesture, pointing backward with my thumb at the thick green front of corn stalks. I wasn't able to say anything anyway, as my mouth was full.

"That's my corn. You have no right to take it. You stole it from me."

"What?" I said. "One ear of corn?" After all, he knew and I knew that there were thousands of acres of corn, and probably tens or scores or hundreds of millions of ears of corn, and that neither he nor anyone else could possibly have missed just one. Had he not seen me, he would not have known of my expropriation or been affected by it. All this was said by the simple phrase I had uttered, with the unspoken addendum, which I felt, that he was greedy and a little crazy to care about just one ear of corn, and that, although I knew he would never give it, in my view he owed me an apology.

"No," he said, taking in all arguments at once, "it doesn't matter whether you took one ear or all the corn, you have no right to do so, you've stolen from me, and you're a thief. I struggle to pay for this land, I plow it, I pay for the fertilizer and seed, and I work to cultivate and to harvest. I take the risk, I spend the time, the land is mine, the corn is mine. Who are you? What did you do?"

My presumption that because I was from New York I could out-debate an Iowa farmer was beginning to go the way of all flesh. "There's no sign," I said stupidly, beginning to fear that he was right, but, at fourteen, making a stand anyway.

"Do you mean to say that without a sign you have no way of knowing that this is not your field and this is not your corn? Did you think, 'Oh, this must be the corn I planted when I was passing through here last spring. Otherwise there'd be a sign telling me that it isn't'?"

"It's just one ear of corn," I insisted.

"Are you starving?" he asked. "You look pretty well fed to me."

"No."

"If you were, then you might have to steal someone's corn, but at least you'd know that you had no choice — having asked for some in the first place, having tried to plant your own, having looked for work, having suffered until you were pushed. None of these things applies to you."

"I'll pay you," I said, in one of my lowest moments. By now, I was ashamed.

"No you won't. It doesn't work that way. When a thief is caught it doesn't change things if he offers to pay. 'Sorry I robbed your bank. Here's the money. See you later.' Think of what the world would be like if that were true."

"You want me to throw it back?" I asked sheepishly, holding up the ear of corn as if it were a fish.

"And then get out of here."

"Do you own the side of the road?" I asked, voice cracking in defeat.

"Yes, I do."

The rest of the day, bicycling toward Nebraska and a night camping on grasslands beneath a sky miraculously heavy with stars, I thought of rejoinders. I would not — even after the fact — let him do that to me. The problem was that I had not a single argument better than his. My pride was shattered, I had no excuse, I had been totally in the wrong and had had neither the presence of mind nor the good grace to recognize and admit it. It didn't matter that he had thousands of acres of corn, and, perhaps like Van Gogh, would not have missed a single ear. It didn't matter that taking the corn was easy, and except by chance would have been undetectable. I stole from him. That's what mattered. And if I had been not a single kid passing through, but one of hundreds of thousands who stayed put and habitually raided his fields — simply because they could — then not only would it have been wrong, it would have been hurtful and destructive.

The farmer was right to have shamed me. Once I had made sense of it, and by the time we got to Nebraska and were camped under the sky as I had never before seen it, I felt freedom and enjoyment far superior to the corrosive delight of getting something for nothing.

Having been initially instructed in why most takings of property are unjust, I passed into adulthood nonetheless with an almost unconscious residual bias against property. (That's part of what you get from living on the Upper West Side of Manhattan, in the same way that a fish gets water when it opens its mouth). It took decades, actually, for me to understand the positive — and, for a democracy, indispensable — effects of property, and to grasp in full the theoretical proposition that property is the guarantor of liberty. Though hardly as elegant as the word guarantor, the word coefficient is perhaps more precise.

According to the Shorter Oxford English Dictionary, the adjectival meaning of coefficient is "Co-operating to produce a result." As a noun, it is "a multiplier that measures some property of a particular substance, for which it is constant." In regard to the relation of property to liberty, coefficient is thus a good predicate. This requires further explanation.

To begin, where would copyright, patent, and trademark be obviously unnecessary? Only in an entirely centrally directed economy, whether "perfect" socialism, communism, "democratic centralism," or whatever it might be called. There, for example, drug firms would not need to own the rights to their discoveries, because to raise capital they would not need to promise a return, having obtained their capitalization by decree. (How this would work in comparison to the predatory capitalist model may be illustrated by comparing the number and qualities of drugs developed in the Soviet Bloc and China with those originating in the West.) Writers and composers would draw equal salaries from their cooperatives, or, as in the U.S.S.R., "unions." As inventions would be produced only in the factories directed to do so by the central planning authority, with no possibility of competition, patents and trademarks would be unnecessary.

Is it significant that the only conditions in which such protections would not be required, or would be ill fitting at the least, and perhaps harmful, are those in the target end-states of Marxism? Of course it is, as this is the ethos from which the anti-copyright movement emerges. The theses they rely upon are sensible in their minds because they have already decided — even if not formally or consciously — against property, competition, and the free market. This is the foundation upon which their movement rests. Their arguments are mainly a subspecies of the greater and more consequential battle between those who favor a world that is planned, controlled, decided, entirely cooperative, and conducive of predetermined outcomes, and those who favor and tolerate market-based systems that admit and honor chance, competition, unexpected developments, peril, and reward. It is very easy to dispense with the structures and protections of the market economy, of which copyright is one, if you are willing to dispense with the market economy itself.

Rather than defending free markets-which would swell this short chapter into a large book that has already been written many times and well-I will try, with a discursiveness I cannot suppress, to address the favorite and particular arguments the opponents of copyright bring to the fore in making their case, and which draw, apparently without consideration, upon assumptions in regard to property, liberty, and time.

While teaching at the University of Iowa thirty years ago, I went to a summer barbecue at the farm of novelist Vance Bourjaily, and his wife, Tina. It was an eventful evening. The Carvers were there, minus Ray, who had just run off. Tina came up the hill riding one and leading another of two magnificent horses, as white as clouds, as if in a giant Rosa Bonheur painting, and invited one of the guests to accompany her in taking them bareback to a higher pasture. As he mounted, a few puppies new to the farm nipped at the horses' pasterns, and quickly drove them into a frenzy. Though at first the horses went rampant they soon were sprawled in the dust like war horses felled in battle, their legs windmilling in a tangle, in the midst of which was the lady of the farm, who would have been killed had not her riding companion pulled the animals away by their halters. Nonetheless, she was severely injured, and lay for a while in a coma. Apart from that, and enough angst, loneliness, bitterness, and heartbreak to fill the pond across which, before the dinner that due to the accident was never consumed, there had been swimming races, the most notable thing and the reason (if not sufficient justification) for telling this story, was Vance Bourjaily's extraordinary control of his sheep.

On the next hillside, they looked like a mobile lake of whipped cream. From the perch of his writing cabin across the valley, where we were, he could stand with a trumpet and direct them as precisely as if they were at the end of a mechanical arm. One blast, and they would go here, two and they would go there, some tootles and they would run up the hill, a high note and they would stop short (not being a sheep, I don't remember the actual code, and am approximating). From the way they moved you would think they were Republicans or Democrats in a presidential election year. All of which is to say that, because taking refuge in words embraced by partisans who willingly glide over faults and contradictions is harmful both to one's integrity and the public discourse in general, I am uncomfortable about using the word liberty.

It is one of those words that has been freighted so heavily that it has almost lost its meaning, although not as much as freedom, fairness, or diversity. Lest anyone jump like sheep to Vance Bourjaily's horn, the scope of the word must be limited. It comes from the French liberté, a carrier of more freight perhaps than even the English word, and the Latin liber, meaning free: that is, unencumbered; without external controls or the internalization of external controls; not being subject to captivity or a will other than one's own; and untrammeled by binding requirements.

Nothing is entirely free, not even an electron (hardly an electron) or an atom floating in the inaccurately named vacuum of space. Everything that exists is subject to the pull or constraint of something else. Even God, in almost every theology, is bound by certain of His own consistencies. Freedom, and, therefore, liberty, cannot be absolute but only a matter of degree, and the liberty here endorsed is the condition in which one finds oneself when decisions of governance are made with a constant prejudice against compulsion and dirigisme rather than with persistent affection for them.

Even in the most nightmarish prisons, freedom exists in the interstices: not merely because of the impracticability of absolute control, but because it is not in the nature of man completely to ignore natural rights. (By the same token, though conversely, anarchists are marvelously organized thanks these days to their seduction by the internet, of which they are one of many classes of enthusiastic slave.)

The balance of liberty, and the nature of predilections for and against it, is legible in many forms, one of which is the level of taxation. While a small number of tax protestors believes that taxation completely lacks justification, another small number believes that, property being unjustifiable (or at least immoral), taxes should, in one form or another, be all consuming and vacuum up every form of property or possession as soon as it comes into being, as in their view property is a kind of redistributive grant or loan from the collective. In between these rims of the bell curve lies most opinion. Liberals and conservatives alike recognize that taxes are necessary for the operations of government. What distinguishes one from the other is that conservatives are always wanting and willing to put a cap on the levels of taxation, whereas liberals, believing that we are very far from the appropriate level of state intervention, generally are not.

Whereas liberals find it cruel and inexplicable that someone would want to set limits before every mouth is fed and every cry comforted, conservatives find it deeply alarming that anyone can fail to recognize the danger of pressing ahead in the absence of limits. In my lifetime I have seen effective tax rates (the marginal rates were of course higher) of 88 percent. Although the argument that this extinguishes incentive is not quite true — we are configured to suck at the marrow of even the smallest bone — it cannot fail to degrade incentive. But it accomplishes far more and far worse: it extinguishes liberty. It does not do so absolutely. But because its effects are more than just material, it can be a sin on a much higher plane.

Granted, the argument is often presented solely in material terms. Cyril makes a hundred thousand, Irving ten thousand. One kind of justice dictates that Cyril be allowed to keep the fruits of his labor, talent, or luck, but another dictates that it is a great deal more than unseemly if some children of God suffer or die for lack of material goods, while others, created equally and of similar worth, luxuriate in excess. Thus, Cyril is compelled to give to Irving. In such an argument, cars, roast turkeys, antibiotics, roof repairs, etc. are often the elements of an ethical equation. But this is more than a material question.

For if Cyril is required to surrender half his income to the state, which will presumably attempt to benefit Irving, he is, therefore, laboring for the state during half his working life. Every January through June, he must hold his metaphysical breath as the product of his labor, no matter how hard or brilliant his work, vanishes from his control. Someone else, someone who, like an Egyptian bureaucrat, dreams of rooms full of seals stamps, and ribbons, with a thousand people camping meekly at the door, will decide how to use it and what to do with it, which means that this someone else, even if in the person of the state, has appropriated his time. If you spend twelve hours digging potatoes, you find it unnatural and tyrannical to go home, as you may from January through June, with an empty bucket. The counter to this is that except for the sake of theoretical illustration, the bucket will be half full. But the answer to that is that if it takes twelve hours to fill your bucket and at the end of twelve hours you go home with half a bucketful, you have spent six hours digging potatoes at the end of which the bucket is empty. And the response to this is usually, more or less, that, "It's for a good cause." It may be, but even good causes must have limits, without which they become tyrannies.

A kindly slave master who does not visit upon his slaves the particular atrocities normally associated with the ownership of human beings is still fundamentally indecent. For, no matter how beneficent he is, he presumes that the labor of his slaves belongs to him, that its product should lie within his power of disposition, that he is the owner of their time and their concentration, that whatever they make is rightfully his, to be distributed to them according to his lights.

It is no different if rather than with a plantation owner in a Panama hat the power of decision rests with ten million innocent bureaucrats each laboring so far beneath the horizon of moral alacrity that none can see the illegitimate effects of their compulsory power. Illegitimate, that is, mainly in so far as it exceeds the common agreement known as the social contract, about which many arguments of property and liberty rage like thunderstorms in the Hudson Highlands. These arguments are, unsurprisingly, an essential characteristic of democracy. We are individuals but we are not alone, and the tension of the two truths creates a perpetual dispute as natural as the tides. My purpose here is not to argue for the ideal limit in each of various circumstances (in war, for example, it would obviously be different from what it would be in peace) but rather to illustrate that property is directly related to liberty, that its existence influences more than the material, that its suppression results in the suppression of liberty, and that therefore property cannot but be one of the elemental guarantors of liberty.

As such, property cannot and should not be taken lightly, as a buzz word or a trumpet blast at Vance Bourjaily's sheep, as something that, undeserving of more than superficial considerations confers a kind of moral superiority upon whoever is "noble" enough to dismiss it. In my experience I have found that most people who think they are above property are usually swimming in it. My father was once uncomfortably on a yacht when the owner's wife turned to her husband and asked, "Michael, are we communists?" Such are the vapors of Long Island Sound acting upon a brain the size of a Gummy Bear, but the trophy wife was not straying far from the dictate of polite society, that property, ownership, profit, riches, exclusivity of possession, are forms of selfishness. One is warmly received when promoting this common conceit, and viewed with suspicion when contradicting it. It is the root of the argument against copyright, and its pedigree is as ancient as envy. But you never need be ashamed to claim what is rightfully yours — not merely as a pragmatic compromise with reality, or the expediency made necessary by an imperfect system of economy, but as a just principle morally superior to its opposite.

Before my satellite television system was destroyed by a discerning lightning bolt, I saw a series of commercials touting TIAA-CREF, the mammoth (at one time more than $400 billion) pension fund for "those in the academic, medical, cultural and research fields," whom it distinguishes with its motto of, "For the greater good." You may remember TIAA-CREF's former president, Thomas Jones ("Now the time has come when the pigs are going to die . . . ." ), serving the greater good as a leader of the armed group escorting the president of Cornell to a news conference in which he gave them the store (they had the guns), but that is almost irrelevant to the fact that certain classes of people presume that because they work "for the greater good" they are more deserving than others.

I cannot recall a time absent the received wisdom that the public sector is superior to the private; that the work of non-profit organizations is higher than the work of private industry, etc. Since I was seven, I have been exhorted to cast aside the temptation of selfishness and work "for the public good," because such work is on a morally higher plane.

Jefferson would beg to differ. He understood that the individual farmer or craftsman, and his family — who worked and defended their land, their forge, or their mill, and the right to their labor, their profit, and their property — were, not least in being the object of the state's aim to foster the general welfare, the bulwark of society and free republican government. He did not share with those who now wrongly expropriate him a contempt for what they would call the bourgeoisie. "The small landowners," he wrote to Madison, "are the most precious part of the state." Jefferson understood as a result of experience, observation, study, and wisdom that, when they worked for themselves they were cumulatively serving the greater good with more potency, efficiency, and justice than that of any other agency or from any other motive.

Actions must be judged by their effect, by the motivation of the actor, and by the conditions in which they occur. The order of importance assigned to these criteria changes with the circumstances. For instance, conditions become critically important when comparing a Sunday spent picking up litter in the park, with the saving of one's patrol by throwing oneself on a hand grenade. In comparing in this country and in this time what people do for the most part, the prime consideration must be effect, with conditions next, and motivation a distant third, especially since motivation is so often misrepresented, self-serving, and ultimately irrelevant.

What is the difference then, in effect, between surgeons who operate in non-profit or in for-profit hospitals? If the tumor is removed or the hernia repaired, the patient will be able to note the difference only in the bill. If he is charged less in the non-profit hospital, it is because he or someone else is paying indirectly. Taxpayers must pay more to make up for the non-profit's tax exemption and privilege of receiving deductible contributions. They pay for the direct government grants to the hospital. They offset the lesser amounts paid by those who contribute and receive a deduction. And, while footing the bill for services provided to the tax-exempt non-profit hospital, they also carry its share of taxes devoted to more general local expenditures. The non-profit is accorded these privileges and enjoys a special position because it produces benefits such as curing pneumonia.

The for-profit hospital also cures pneumonia, but is not afforded similar status because it may be profitable, which is seen as somehow less than admirable and puts it in a different category literally and legally. How does it dispose of its profits? It returns them to the shareholders who funded it, just as the non-profit hospital returns money (theoretically, and certainly not consistently) in the form of lower prices, to the community that funded it through tax privileges and direct grants. As in the case of the for-profit hospital, as the day follows the night, everything is paid for and someone pays for it, just as the internet did not fall from the internet tree but was paid for by taxpayer dollars apportioned to the military research that the progressive warriors of the internet might fashionably reject as unnecessary, immoral, and distasteful. The benefits and returns are highly variable, complex, and hard to predict, and they are never distributed evenly and seldom equitably. And yet of the two hospitals, one is held higher in public esteem for its supposed purity. If the indigent are treated in both, as is usually the case and usually by law; if in both the charges are more or less the same for the non-indigent; and if in both the quality of care is more or less the same, what is the purpose of the distinction? Should the answer be that the non-profit treats more of the poor, that is because in a multiplicity of ways, as explained above, it is compensated for doing so. What, then, elevates it to a higher moral plane?

Consider a hypothetical lawyer with the hypothetical "Charlottesville Housing Alliance," a non-profit public service organization. On Tuesday last, he secured for his pro-bono client access to an apartment from which she was wrongfully excluded because of her race, national origin, religion, or — more likely — because she was a Hollywood screenwriter. Without the lawyer's representation, she would not have been able to exercise her legitimate rights. In righting this wrong, he has served the public generally and his client specifically. Of this he is proud and for this, and because it is "non-profit," his organization is accorded the special privilege of being tax-exempt: Federal, state, and local. As TIAA-CREF might say in its ads, he is working for the greater good.

But what of the contractor who actually built the apartment? Without his work and risk of capital and labor, the client would have no apartment and the public in general would have less expectation of a reasonably priced housing market. To say that he serves the greater good less than the lawyer is logically unsupportable. He is not afforded the same recognition and privileges because he works for profit. What is his profit? The difference between revenues and expenses (including taxes, fees, and officially extorted proffers); that is, what he takes home is profit. What does the lawyer take home? The difference between revenues (from contributions, grants, possibly even fees) and expenses (not including, of course, taxes and proffers). What then is the difference? The contractor can potentially make large amounts of money, whereas the lawyer mythologically cannot. In fact, non-profit compensation is often on a level with that elsewhere, but on the other hand the lawyer has not risked capital and his employer is insulated from taxes, which makes the lawyer's prospects brighter and more assured. The effect of what each has done is the same: both have been necessary, and neither sufficient, in providing the apartment. The contractor has not invented buildings, and is only applying previous principles; and by the same token the lawyer has neither made nor caused to be made new law, and is only applying the law that exists.

They are working more or less equally in the public interest, they suffer and enjoy different but in the end roughly balanced risks and rewards, and neither deserves to be held in higher esteem than the other or granted special status and privileges. And, yet, one is. Kings, politicians and their underlings, and all those whose faculties are amplified and actions are generalized merely by their position, often fall victim to an invidious presumption. The lawyer in this case, standing in for many others who also think this way, may believe that because of what he does he is nobler than most. He isn't.

My fate after unsuccessfully seeking a glimpse of Faye Dunaway was to spend a year reading Melville with Professor Alfred. I am glad of it, and glad as well that Professor Alfred was generously supported by Harvard for, among other things, teaching Melville to me. Harvard exists, in part, to do just that. Having now accumulated an endowment of $40 billion, it can certainly afford to do so. And during all its long life of almost 400 years it has been free of taxes. Not even the Queen of England is free of taxes anymore.

Why is it, however, that Harvard, the job of which, partly anyway, is (or was) to teach its inmates Melville, pays no tax, whereas Melville's publisher — who, just as Harvard paid Professor Alfred, paid Melville — did have to pay, and now of course would also have to pay? One produces Moby Dick, and pays tax. The other teaches it, and does not. One is for profit and the other is not, but Harvard is richer and its professors and chiefs are paid as well or better than their opposite numbers in publishing, and the money potentially distributed to the shareholders of a publisher is probably no greater than the various benefits received by the affiliates of a university, minus the costs borne by various segments of society in compensation for and to foot the privileges of a tax-exempt organization.

Though effects, conditions, and even motivations — if not self-advertisement — are comparable, a bias exists for the non-profit nonetheless, of honor accorded, support granted, and privileges awarded. In many cases, non-profit institutions, which need not respond to market forces and often lose touch with what people actually want, serve the general interest less well and less efficiently than profit-making entities that must, if they are not to vanish, heed the dictates of the public. It is not necessary to penalize the worthy non-profit, which often would not be able to function within the market, and would therefore leave a need unfilled. Rather, it is necessary to point out the disparity in treatment that does penalize profit-making activity that serves the public equally well or at times better.

The prejudice that wrongly favors one type of endeavor over another which can be equally or more virtuous and often responds more precisely to the public interest, shares a common ancestor with a disdain for property, a hostility that overlooks not merely the necessity of property but its function as a prop of liberty. As Shakespeare had Shylock say both perceptively and justly:

You take my house when you do take the prop
That doth sustain my house. You take my life
When you do take the means whereby I live.

It is true that compared to our higher nature property is base, but as we are creatures of the material world our base imperfections require a material structure so that our spirit may be free. Too ready and too careless a seizure of property — whether by eminent domain, taxation, "progressive legislation," or simple theft — impinges not merely upon well established and utilitarian rights, but is a partial taking of life itself.

We are hardly familiar with the maxims of Louis IX, the Pious, who prayed like a dervish and wore a hair shirt, but it was he who wrote, in strikingly Chinese style for a medieval French king: "If a poor man has a quarrel with a rich man, support the poor rather than the rich — at least until the truth can be ascertained."

This makes sense in light of the probable advantages a surfeit of resources might bring to the rich man, and it is why one of the common suggestions for tort reform, that the loser bear all the costs, is fundamentally unjust. Very few would dare sue or defend when faced with an adversary possessing great financial resources. Such a "reform" would mean that the powerful would be virtually unaccountable and the ordinary citizen would look upon the justice system as something so dangerous as to be even more forbidding to his interests than it is already. A bias for the poor is commendable where appropriate, as a compensating weight in an imbalanced world. But even in the thirteenth century, when animal skins were hung in the heights and on the walls of the cathedrals of Europe, Louis knew enough to state, "at least until the truth can be ascertained." That is, compensatory bias as an instrument of justice cannot live beyond the facts, and must be subject to continuous and searching consideration. If it becomes merely habitual, it becomes an instrument of injustice. If it is a matter of rote, of formula, and, worse, of self-satisfaction — a means to preen and glow for the public — it becomes insufferable, not least because the judgment of who is rich and who is poor is entirely relative.

I once returned to my apartment in Cambridge, pedaling ten miles home early in the morning after my night shift. Passing through the Brattle Street neighborhood, I saw a group of young men and women my age walking from a van, with surfboards on its roof rack, into one of the mansions there. They were sunburnt and relaxed, and everything about them said money — their brand-new vehicle, their fashionable beach clothes, their hair, their languid gait. Though I was working two jobs in Boston's hottest summer ever, I had neither envy nor a quarrel, until I saw a bumper sticker on their van that said, "Eat the Rich." These were the predecessors of the Creative Commons movement, which suffers the illusion that if ownership is abolished, everything will be free, when the opposite is true; and thinks that in opposition to copyright it is the ally of the little man, even as it fights the battle in behalf of the great combines and business powers of the imminent future.

Anyone who blithely recommends expropriation as a means of "economic justice" should first divest himself of most of what he has and give it to those who have less — and there are certain to be those who have less and are greatly afflicted for it. We tend to look up rather than at ourselves when surrendering to such passions of righteousness. The assault on copyright is a species of this, based on the infantile presumption that a feeling of justice and indignation gives one a right to the work, property, and time (those are very often significantly equivalent) of others, and that this, whether harbored at the ready or expressed in action, is noble and fair.

It is neither. It is, rather, a cowardly self-indulgence and a depredation of the public interest as much as it is destructive to the interest of the individual, for in truth these are in many respects one and the same: that is, the public interest is served when the rights of the individual come first rather than vice versa. When individual rights are pre-eminent, everyone is served. When they are not, the only thing that is served is an abstraction. Whereas community can be only an idea, concept, construct, or fiction, the individual actually exists in flesh and blood. One can claim to love the collective or the community, but it is the sterile, sick love of one who can love nothing, or, rather, no one. Love that is not echoed in a human heart is apt to petrify into tyranny, and so often in history a devotion to the abstraction of man has been a blind for hideous oppression.

Property is to be defended proudly rather than disavowed with shame. Even if for some it is only a matter of luck or birth, for the vast majority it is the store of sacrifice, time, effort, and even, sometimes, love. It is, despite the privileged inexperience of some who do not understand, an all-too-accurate index of liberty and life. To trifle with it is to trifle with someone's existence, and as anyone who tries will find out, this is not so easy. Nor has it ever been. Nor should it ever be.

Excerpt courtesy of HarperCollins.

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