Plato was unquestionably brilliant, but even he thought the sun revolved around the earth. It took Copernicus's work to break out of that error -- and oh by the way all the math suddenly got a hell of a lot simpler.
So Lessig and Obama both have words of effusive praise for the man, and that's all very well, but to this armchair observer, Posner's suggestion is silly on its face for two reasons. First: As I'm sure Posner well knows, all works are copyrighted upon the instant of their creation. Every news article, every photo, every blog post, every tweet (twit?) -- all enjoy the full majesty of the copyright regime. Does that mean that everyone who hopes to publish anything needs to first become conversant in copyright law and the current state of the art in copyright litigation? Am I expected to append to every post, including this one, a hyperlink to a EULA? Absurd.
Even so, Posner's suggestion might have some arguable merit if it weren't for the other fact he appears to have skipped over -- copyrights today last effectively forever. Once you obtain a copyright on Happy Fun Ball, it's yours until well past the day you die. Copyrights throw up obstacles to creative expression. These obstacles are there to afford the artisan some isolation and breathing room to exploit their work exclusively before anyone else can horn in on it. But if copyright terms were more reasonable -- say, 28 years, as they were in the past -- then those obstacles would fall away over time and new creative forces could flow in and find and develop new ideas in the old material. But with eternal copyrights, this never happens. The obtacles that protect the creative artisan also hem him in and prevent him from moving anywhere else. You get gridlock, and once that happens the equation then devolves into who has the most money to fend off litigation when they decide to just go ahead and do what they want, anyway (*cough*Disney*cough*).
I'm not prepared to dismiss Posner entirely, however. I think he may be making the same error that Lawrence Lessig appears to have made (and recently appears to have realized), which is to argue from within the framework of the existing copyright regime ("the sun revolves around the earth"). It's fairly well established at this point that the existing regime doesn't work all that well, and cannot work well unless you want to completely sacrifice the freedom and autonomy people enjoy over their own computers. We need a Copernicus to come in and show us a new way of looking at things. I have a few meager ideas along these lines, which could benefit from spirited debate with the likes of Lessig and Posner, but I'm just a part-time armchair troll on Slashdot, and clearly beneath anyone's notice.
Schwab
