The Concept of the Fall


October 28, 2005


Browse in Intellectual Property

There is a dimension of tragedy to the events unfolding in Washington – tragedy in the classic sense. The White House’s woes are not the result of the usual partisan scheming. The President’s party runs the entire government; even the prosecutor is a Republican. Unlike Watergate, moreover, the protagonist in this case is not a crusading press.

What’s happening instead is tragedy in almost pure form. It was the hubris of the President and his aides, their belief that the rules did not apply to them, that has summoned forth the enforcement of those rules in a most unlikely way. Rarely in Washington has there been such a sense that the characters behind the deed, rather than their pursuers, were themselves evoking the punishment for them.

It’s almost as though a larger moral order is asserting itself, and that those involved are players in a script that – at this stage at least — they did not write. Whether the apparatus of the law will follow through is of course another question. But as of now, on the eve of the probable first indictments, there is a sense of cleansing in the air.

I know I’m not the only person to whom the term “Shakespearean” has occurred. Lots of people are thinking along these lines, which is significant in itself. Shakespearean tragedy is a common reference point, a part of the shared lens through which we see the world. Because it is shared, it enables us to converse with one another – to com-municate, the root meaning of which is to “share wealth.”

We can talk about events like this, increase our understanding of them, because we share the lenses through which we can see them. There could be no communication if we did not already own, in some way, that which is conveyed.

Our ability to do this – to invoke a concept such as “tragedy”, and to apply it freely – is so built into our experience that we hardly ever notice. It’s just there, a part of the mental air we breathe. It’s part of what makes us a “we” to begin with. I’m not sure we can take this all for granted any more.

If a Shakespeare were alive today, he might not be content just to get a copyright on Macbeth and Lear. He had a whole genre that he possibly could claim ownership of. Nobody had written tragedies quite like these before. They were his idea; so shouldn’t he own it? “Written narrative in the form of a drama, performed on a stage, in which a prominent man is brought down by flaws in his own character, with which those close to him conspire, as a cosmos that is fundamentally moral rights itself.”

That should do it. Henceforth anyone who wrote one of these tragedies, or even used the concept to talk about Washington big shots brought low, would have to get permission, and pay a royalty.

This thought is not far fetched. The U.S. Patent Office has been granting patents for ideas – I use that word charitably – a lot more mundane than this. I.B.M. got a patent for a method of keeping track of people waiting in line for the bathroom. A Virginia man got one for the concept of selling auctioned items at a fixed price. (He sued eBay for infringement.)

Or consider the patents now being granted on genes. In the past people could own a particular animal or plant. Now they are claiming ownership of the underlying template, in the form of a genetic sequence, from which that particular animal and all others like it have sprung. Is that really so different from owning the underlying template for a literary genre?

Then too, corporations long have been claiming ownership of pieces of the language. When I was a reporter I used to get letters from lawyers threatening to sue me if I didn’t stop using certain words without capital letters. Once I used the term “realtor” uncapitalized, which was, I soon was informed in omenous lawyer prose, an infringement of the trademark of the National Association of Realtors.

Another time I heard from the lawyers for a certain cola company, because I had used the term “coke” without a capital. (Among other things, this company apparently did not want to remind people of the original active ingredient in its family beverage.) And politicians blame plaintiff lawyers for the overlawyering in American life?

Apologists for this system say it is necessary to encourage creativity and invention. Who is going to bother to invent a cola drink, the argument goes, if any shloomp with a computer can type the name of it with a lower case letter? Actually, I can think of many billions (as in dollars) of reasons why, but leave that aside. Query, as the law professors say, whether a property right in the concept of a tragedy would bestir more literary invention or less.

If a Microspeare, say, held a monopoly on the concept of a tragedy, then literature would not flourish. It would stagnate. Political comment would stagnate too. To remove the concept of tragedy from common parlance would limit to that extent our ability to understand the ways in which such persons had brought their fate upon themselves. We’d get funneled into a conceptual system more to the liking of miscreants in high places – even more so than we are today.

It would be a private version of the kind of system that prevailed in the former Soviet Union – one in which a central authority controlled the use of words. A system such as that might be appealing to certain persons at the White House these days. But that does not commend it to the rest of us. If expression truly is to be free, then the words and concepts that comprise it must be free as well.