So what if they copied; whatever; fuggettaboutit.

The IP bar deserves to be commended for its studied efforts protecting the IP of the businesses, innovators and artisans of our Country.  Instead, the legal protections sewn around IP appear to provoke more criticism of U.S. patents and copyrights, and to foment calls to slacken the bonds permitted by Art. I, Sect. 8, clause 8.

Much of critique is aimed at Congress or the Courts, but there too are some who suggest tossing away long-standing IP principles.  Some critics are idle bloggers or academics, but other voices carry more weight.  Here are some striking remarks by one worthy observer.  A “plagiarized passage in a published work can increase the pleasure of the reader.”  The “amount of sheer originality in literature and the arts is greatly exaggerated.”  “[O]ur broad and strict copyright laws …stifle creativity.”

These passages are taken from “In Defense of Plagiarism” by noted Federal Judge, Richard A. Posner, in the Jan. 29th edition of Forbes.  His Honor makes three proposals: stop extending copyright terms, add an intent element to infringement, and provide remedies only for proven harm to the “source, a competitor or an audience.”  Posner’s money quote is “No harm, no foul is what the law ought to be.”

Many may agree that legislating term extensions to existing copyrights does not serve the public good.  Posner may have that right, but it gets overshadowed by his suggestion to “bring in the concept of fraud,” to the copyright law “with its connotation of harming”.  Posner’s thesis is that copying has benign forms, “If copying is not fraudulent” and “if it thus is harmless” then why should it be “a reprobated form of copying.”  Because it is unoriginally wrong?

He adds many examples of now-famous persons who were copyists, who in his opinion, improved on the original.  Posner claims that Manet “borrowed the woman’s pose” in his painting of “Olympia” from the master Titian’s “Venus of Urbino.”  Dear Judge Posner, naked women reclined in repose might look all the same through your spectacles, but the keen eyes of others never would mistake the lissome Olympia for the full-figured Venus.  So too, no studied reader would confuse Plutarch’s “Mark Antony” with either of the retellings written by Shakespeare and by Sir Thomas North.  Again, tales of one figure in history tend to have shared content, or their tale would not be true to history.

Judge Posner, in my humble view, suggests a copyright regime built in honor of established authors.  If the work of unknowns can serve as the inspiration for others to “improve the original” then they are certain to remain unknowns.  Posner justifies his no-harm, no-foul thesis with the notion that “plagiarism is ubiquitous in Western culture.”  That same point of reference may be a solid rationale for granting copyrights, for “limited Times to Authors,” which are enforceable with remedies not excused by a lack of fraudulent intent or an absence of provable harm.