I recently read a draft of a forthcoming article by Dennis Karjala on congestion externalities as a justification for extending copyright terms indefinitely, at least as long as their owners assert an interest in controlling them. The argument advanced by Judge Richard Posner & Professor William Landes, sketched out here, is that there is a relevant sense in which a copyrighted work is subject to scarcity: if people are overexposed to it, they may get sick of it and it will lose its value, like an overgrazed plot of land. Karjala does an admirable job of debunking this theory, explaining both why this is unlikely to be a common scenario (Santa, anyone?) and why, even if the theory were true as to individual works, it would not suggest that society was in any way worse off when consumer preferences shifted from overexposed works.
My own interest is specific to a particular way in which Posner and Landes suggest a work may lose value, which might be called confusion or dilution rather than simple congestion or overexposure. The value-loss mechanism involves characters who can appear in multiple contexts, like Harry Potter or Superman; it has very little application to many types of copyrightable works. As Justin Hughes argued before them, Landes and Posner assert that, absent a single owner, different versions of Harry Potter will spring up, and his image will be diffused and/or tarnished, so people will no longer be as interested in him, even in the original format. Just as someone who’s seen L’HOOQ can no longer look at the Mona Lisa with untainted eyes, someone who’s read about Harry Potter and the Mary Sue Bloodbath can’t enjoy the original in the same way. Crucially, this is not just a harm to the copyright owner, but a harm to the class of readers who really did like Harry Potter the way Rowling wrote him.
I’m fascinated by this class of readers, who I concede exist (at least for some works). I think of them as J. Geils readers, from the 80s hit “Centerfold” – “My blood runs cold/My memories have just been sold/My angel is a centerfold.” The memories of the original work are retroactively tainted by exposure to the new work. This characterization of “originalist” readers may be unfair of me, because though the J. Geils song expresses real anguish, it’s also the anguish of a jerk – he’s upset that a girl he had a crush on, who owed him nothing, has apparently changed.
And that, of course, is one of the big problems with using copyright owners’ rights to protect the interests of originalist readers – copyright owners have visions of their own about how best to exploit the copyrighted work, and even about what the real Harry Potter would do. DC Comics authorized the Batman TV show and all the varied Batman movies, at least one of which would have to give a Batman purist fits. Anne Rice and J.K. Rowling are prominent examples of individual authors whose artistic visions have diverged with some fans’, leaving the fans feeling betrayed and violated. (Let’s not even start talking about the later seasons of The X-Files or Buffy the Vampire Slayer.)
Another way I think of originalist readers – again, without much sympathy, even though their anguish is concededly genuine – is as utility monsters. There are a couple of ways to define utility monsters – one example is a person who gets so much pleasure from hurting other people that, if we just want to maximize utility, we should let him hurt those people. But a utility monster can also be someone who gets so much pleasure from monopolizing resources that we should let him have those resources even though that means other people will starve. He might be indifferent to the starvation rather than actively pleased by it, but again pure utility maximization gives everything to him and nothing to everybody else. If it is in fact true that originalist readers get enormous utility out of having just one Harry Potter and no others, then Harry Potter is a scarce resource because of their preferences and they may be utility monsters, even if they don’t wish to harm people who like multiple ways of looking at Harry Potter.
Defining the class of originalist readers this way raises the issue of whether their preferences are really likely to outweigh the preferences of others who like or tolerate variety. Utility monsters are often more theoretical than real – your preference for torture probably doesn’t outweigh my preference for not being tortured. I strongly suspect that the same is true with variation-intolerant readers versus variation-tolerant readers. Most of us are happier being able to pick the Batman we like even though we’re aware of the existence of other Batman versions. Even people who are originalist in the sense of thinking that Miller’s Dark Knight is the only worthwhile one usually don’t suffer so greatly from the mere existence of Bat-Mite and Bizarro Batman (or fan-fictional versions of Batman having an affair with Superman) that their pleasure in the “real” Batman is destroyed. Thus, I think Hughes, Landes and Posner are wrong empirically (as well as theoretically, in that I’m not sure we should give any weight to someone’s preferences about what other people should read – another classic problem of utilitarianism).