Copyright Penalties in Spider Robinson’s Short Story

As a lawyer who spends a lot of time on line with fellow book lovers I am frequently asked for my opinion on copyright matters. Sadly I am not an expert in the field. I know one or two of those guys who practice Intellectual Property (“IP”) law, and I have to say honestly that it takes a certain type of personality to thrive in that profession. I am not one of those types. But I do have an understanding of the basics of the law, and I can argue the public policy behind the law with the best of them. After reading Spider Robinson’s short story Melancholy Elephants, it is pretty clear to me that he can too. Melancholy Elephants is an unexpected gem of a story about the importance of restraint in the application of copyright law. In typical Robinsonian style the author takes a position grounded in the spiritual needs of people, and informed his character’s outlooks with Buddhist teachings. For a short story the piece is surprisingly well developed and deep, and it really misses very little in its thorough, multi-faceted examination of the problems that come with over-protective legislation.

Mrs. Martin was a lobbyist in the employ of a group of artists who opposed a senate bill that would change copyright so that it would be defensible in perpetuity. Martin has worked for years to make a pitch to a very important senator, and after much work and incredible expense including many large bribes she has finally been given thirty minutes of his time. While leaving her apartment in Washington DC for the senator’s home Martin was approached by a common mugger whom she quickly killed and stuffed under a car. She contemplated reporting the attack and the death, but she knew that she must not be late or all would be lost. Martin arrived in time for her meeting and made her pitch, but before she could begin to persuade him in earnest she was told by the senator that he had already taken a “campaign contribution” from the other side and would therefore be voting for the bill’s passage.

Moved by the look of hopelessness on Martin’s face, and confused as to why artists would want copyright laws to be weakened, the senator asked to hear Martin’s arguments. Martin explained that extending copyright would be too traumatic a burden for society to bear, and explained the folly of copyright in perpetuity by showing the Senator the mathematics of the situation. Her premise was that “there is no such thing as infinity.” The Earth’s population at the time of the story was sixteen billion. The economy was for the most part capable of providing for them all, even though 54% of them were artists and likely had irregular income. Taking her example from music in particular, Martin offered that the average ditty was some 88 notes. If one assumed that a good half of those possible combinations resulted in tunes that no ear would want to hear, and then half again would be objectionable under the law because of similarity to material that was already copyrighted, then it would not be too long before every possible and desirable tune was written, recorded and protected.

Melancholy Elephants is absolutely chock-full of well thought-out ideas about the reality of artistry. The central premise is that artistic expression is terribly limited not only by combinations of the elements that artists used in their crafts, but also by the number of senses with which we have to perceive the finished product. The implications of the story on any artistic endeavor are pretty interesting, I think. Once you can get your head around the idea that the number of permutations is in fact limited, then you are left with the conclusion that the act of “creation” of art is actually more akin to one of discovery. Take the example of music. If in the future 90% of those 88 note combinations have already been recorded and protected, then the effort for composers who want to make a living will be to “discover” those few listenable combinations that have not already been found before.

Do you know about the great split in literature at the beginning of the twentieth century? The mainstream essentially abandoned the Novel of Ideas after Henry James, and turned its collective attention to the Novel of Character. They had sucked that dry by mid-century, and they’re still chewing on the pulp today. But meanwhile a small group of writers, desperate for something new to write about, for a new story to tell, invented a new genre called science fiction. They mined the future for ideas. The infinite future – like the infinite coal and oil and copper they had then too. In less than a century they had mined it out; there hasn’t been a genuinely original idea in science fiction in over fifty years. Fantasy has always been touted as the “literature of infinite possibility” – but there is even a theoretical upper limit to the “meaningfully impossible,” and we are fast reaching it.

Personally I think that Martin is wrong about the nature of artistic expression being grounded in discovery and not creation. She was focused not on the process, but on the result, though I can see the reason for the confusion. I’m no musician, but perhaps I can make an analogy from my own profession. Robert J. Sawyer once said in his blog that the job of an attorney is to take all of the legal precepts that could apply to a broad fact pattern, and figure out how they apply to a client’s problems. To a certain degree, he is right, but there is more to it than that. Situations sometimes present themselves where the wisest course of action is in direct opposition to the weight of law, and a lawyer’s job at that point is to create a way from problem to solution. It is true that lawyers are limited by what is legal and relevant. One could reasonably conclude that case outcomes are every bit as limited as musical bridges, so I assume that someone could theorize that the number of possibilities is limited such that what is really is going on is more akin to discovery, but even if someone has figured the answer out before, how is it not creation if someone comes up with it on his own? As a lawyer I have the benefit of past cases to rely on in framing a course of action, but in many cases I am not limited by many of them. At least to me most problems that I am confronted with in my job have some original or unique elements to them.

For those few of you who are unaware copyright is the method by which authors of original works of certain types, both published and unpublished, may protect their interests in those works. In American jurisprudence copyright law originates from the eighteenth century. For most of the history of the law protections have been granted by law for 28 years, though since 1978 (as amended in 1996) the protection is either for 95 years total, if created or published before 1978, or for the duration of the author’s life plus 70 years, though there are some byzantine laws that predicate renewal requirements upon the date of creation or publishing. Anyway, the devil is in the details, but the heart is in the policy. After reading the synopsis above I am sure that a few of you are wondering why copyright law is needed at all; why doesn’t an artist have the right to protect forever the things that she comes up with, creates and publishes or performs? Those of you who ask that question should ask yourselves what things could be kept forever otherwise. I know nothing physical that could last “forever,” so why should inchoate property interests be any different? The question of what is the proper length for copyright is a question of balance. Robinson gives a great discussion of the issues that should be considered, but the critical concerns are the right of the artist to make economic use of her creations, and the right of society to reuse art that has become a part of the culture.

I do not buy into the Robinson’s argument that ideas are finite. I think that is too narrow a view. Robinson’s character posited that the universe is closed and that artistic expression is a finite thing, but to think so ignores the way that we human beings push our culture to evolve. When we are presented with a system that is too limited either we evolve or we evolve the system around us. Perhaps I can buy that ideas that fit in with the current paradigm are finite. But I also have enough faith in the human imagination to believe that if needed, a new paradigm will be developed. Robinson’s failure here is that he assumes in a finite system of ideas every other aspect of human need will be static. So as incredible as this story is and despite the fact that its legal elements are very well presented and analyzed, at its heart I feel that its deeply flawed. Still, in the grand scheme of things this one gave a pretty pure public policy analysis that was better than most others.

I do however think that Robinson is correct on the larger-scale issue. Copyright is a hot-button issue these days, though mostly because living authors and performers are being robbed of their own rights to control distribution of their products. To fix that we have developed a system where record labels and other producers are willing to sue their artist’s own fans, which seems to me to be the height of idiocy. Back on point: The issue in this story really is about heirs’ rights to control assets developed by their decedents. It asks “how long should the familial community of which the artist or author was a member be allowed to control the creations of a dead person?” Personally I do not have much difficulty seeing the logic of a system that allows direct descendants, of one generation only, to make enough to live off of those assets. Seventy years is too long though

One of the most confusing ideas in this story has to do with the main characters willingness to fight to protect artist’s property rights, but kill with hardly a feeling of indifference. In this story the homicide issue has to do with the right of the individual to defend herself from assault, which legally is the threat of contact by another. Here Martin took the life of an assailant, a common mugger, so that she would not be late for the meeting with the senator.

She was mildly surprised, in fact, at just how calm she was, until she got out of the hotel elevator at the garage level and the mugger made his play. She killed him instead of disabling him. Which was obviously not a measured, balanced action – the official fuss and paperwork could make her late. Annoyed at herself, she stuffed the corpse under a shiny new Westinghouse roadable whose owner she knew to be in Luna, and continued on to her own car. This would have to be squared later, and it would cost. No help for it – she fought to regain at least the semblance of tranquility as her car emerged from the garage and turned north.

In our system of jurisprudence self defense is a defense to any intentional crime. Though there are different flavors of it in different jurisdictions, at common law the defense was allowed whenever a jury determined that a reasonable person in the same or similar circumstances as the defendant would have concluded that they were at risk of an assault, and then and only then would they be allowed to use essentially the same force to deter their assailant. Some jurisdictions allow a more subjective standard and judges instruct the jury that if they conclude that the defendant reasonably concluded that they would be assaulted, then the defense would be available, and other jurisdictions place less restrictions on the amount of force that may be used to protect one’s self. The analysis is very fact driven, and in this particular scenario I see no facts to determine the intent of the mugger, other than he wanted to take Martin’s money. The question then arises, was using lethal force reasonable? It is pretty obvious to me that Robinson’s world is one in which the problem with muggers is endemic (54% of them are artists, right?), and criminal culpability for killing one in the course of an attempted crime does not seem to carry the same stigma as in our society. After all, her greatest worry was paperwork and delay. It seems also that Martin’s legal problems could be great deal worse because she concealed the affair. The same notion of enhanced criminal liability exists in our own society, but still, it does not appear that her freedom was at risk.

What gives me pause though is how Martin, who is more than just a hired gun for a lobby of artists and feels some passion for the future mental health of humanity, can casually murder a human being and then conceal it. Her actions in the morning caused me to question the moral positions that she took later in the day; her morality was ambiguous at best. One fact that I have not given you yet is that Martin’s now dead husband was some kind of artist himself. This fact certainly mitigates the disconnect a bit, but it does explain somewhat why her passions for property law are so high while she is bothered not in the least by taking a life. The old adage that “money makes the world go ’round” applies to our culture in a way that it has applied to no other in the history of the world. However every criminal code in the United States recognizes either inherently or explicitly that there are two things that are more important: Life and freedom. The various venues acknowledge this because those are important cultural values that we all hold, and here Martin violates them with hardly a though. I do not have too much trouble calling her a “monster” because of that, and I really wonder what Robinson was trying to say. Was it that people in our society puts too much emphasis on material things and ignores more important values? Or was it just an odd way to start the day?

There were some other issues upon which I could have commented, but I think I’ve gone far enough for now. They are:

The Longevity issue. Longevity plays all kind of havoc in SF when it comes to legal issues. Here it was directly relevant because the longer an individual lives, the longer the copyright may be claimed.

The Libertarian issue. Libertarian thought is eventually going to get the long-shrift here, so keep your eyes open if this is your cup of tea. I think that this is a libertarian piece as it argues for less government intrusion into the lives of individuals.

The Lobbying and Corruption issues. These are two issues that come up frequently where the larger issue is legislation. We will eventually get into discussions of them, but I think its too soon, and really, I’ve rambled on enough.

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