I RECEIVED THE following response to a recent column (see " Fighting the last war ," Sept. 23). The author, David H. Lynch Jr., graciously allowed me to use as much of this as I needed. Here it is, trimmed only slightly for space:
I rarely read your column. For the most part, you write about things that just do not interest me. ... In fact, way too much of the major trade press seems focused on things that are meaningless. Well, so much for insulting you and telling you that mostly you bore me.
But here you have hit on something important. You covered a broad range of related topics and only grazed some of the issues. But [those who] attempt to broaden, deepen, and strengthen intellectual property rights -- particularly the political, civil, and criminal changes we are looking at -- are not only evil and wrong, but they fail to learn from history. Organized crime in this country was created by Prohibition. Our drug laws have already cost us most of the Fourth Amendment and done little but criminalize large segments of our population. We are about to pass laws to protect greedy, monopolistic, price-fixing cartels from their own customers. Our industry in particular and way too much of business in general seems to be devolving towards trying to use the law as a way of regulating the behavior of consumers.
Intellectual property rights were a seductive idea that failed two centuries ago. Thomas Jefferson eventually concluded the effect was diametrically opposed to their purpose of protecting small authors and inventors from powerful institutions. Instead of recognizing that technology has cast a bright light on the failure of copyrights and patents, we are busily trying to reinforce their clay feet. The copyright laws of the 18th and early 19th centuries -- a time when ideas and expression held their value longer -- would have returned the works of the Beatles, even most of the music of the '70s, to the public domain. Instead, in order to protect Mickey Mouse, you need to be a lawyer and mathematician to figure out when the works of D.H. Lawrence will enter the public domain. Silent films are still copyrighted.
I prefer the moral and philosophical argument that intellectual property rights are a bad idea (maybe with good intentions) that has failed and cannot be salvaged to the more pragmatic one [that asks] why we need to pass a new set of laws to criminalize the behavior of ordinary citizens or, worse still, why we want to find a new way of disenfranchising and criminalizing our youth.
Let the RIAA (Recording Industry Association of America) and the MPA (Motion Picture Association) engage in a war of technology and wits with the youth of the world but, for God's sake, let's not commit the force of law and the resources of our government to another hopeless war against our own future.
Advancing technology does not change what is right or what is wrong. It does not convert good law to bad. It just increases the contrast and makes it more obvious that a lot of seemingly good ideas that we have made into law are not really such good ideas after all.
I am not extremely familiar with the judicial history of intellectual property rights, but it is useful to note what the Constitution that in the United States created them actually says: