Glenn Kelman Gets It Wrong On Creative Rights

Glenn Kelman recently observed that Silicon Valley pundits have gone off the deep end arguing that intellectual property should be free Free FREE! Glenn’s correct- we all gotta eat, and if we can’t get paid for our work, most of us won’t do it. That applies to musicians, visual artists, computer programmers, mechanical engineers, and physicists.

But Glenn goes too far when he implies that the only issue here is “what’s mine is mine.”

He discusses the Hasbro/Scrabulous brouhaha and points out that the TechCrunch blog is hypocritical when it criticizes Hasbro’s heavy-handed tactics against the Scrabulous knock-off of it’s Scrabble game, but is outraged when Facebook is copied.

What he misses is that ownership of intellectual property should and does have limits.

On the legal side, games are not subject to copyright.

Even if they were subject to copyright, it’s clear that a lot of games are derived from other games (Scrabble itself is derived from crossword puzzles and from data on the New York Times- should Hasbro have to pay the NYT for every game? No- Scrabble is sufficiently different from crosswords that it’s really a new thing.) I haven’t played Scrabulous, and I’d stipulate that it probably IS a direct ripoff, and that direct ripoffs are sleazy (though a direct ripoff of something from 1936 is different than a direct ripoff of a new piece of art; are the modern remakes of Shakespeare’s Macbeth or of Jane Austen sleazy?)

The basic issue is of public good versus stimulating creative output. Copyright and patents were designed to have limits (in particular time limits) which would let creators profit from their labor, but would also allow others to (eventually) build on their work. There was a recognition that the individual right to profit is important, but that societal good (both in terms of reducing the price of the work, and in terms of the ability to derive works) is also important.

It’s complicated. At least part of the reason it’s complicated is that art and technology are not zero-sum games. Eli Whitney didn’t make money on the cotton gin, and that’s a shame and a crime. But he also made slavery uneconomic (though I don’t think that was his goal), and that turned out to be a very good thing. Volvo invented the modern seatbelt; would it have been reasonable to say that other automakers be disallowed by law from manufacturing seatbelts? If seatbelts had only been in Volvos (and never legislated), would we have airbags? Would we have three-point belts (instead of the early lap belts)? Maybe, maybe not.

Glenn is right to point out the moral shallowness of the simplistic “artists should work for free because people don’t want to pay them” argument. However, he’s wrong if he swings to the other side (”society should assure that only the creators of intellectual property can benefit economically from that property.”) The fair and responsible course is somewhere in the middle.

I found the photo on Sue Parrill’s site, though I believe it’s owned by Paramount.

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