Buribunkean Copyright: The Obligation to Record

Abstract

Everything old is new again. In his 1918 essay-cum-story The Buribunks, Carl Schmitt invented social media, long before it was possible to even imagine. Schmitt described buribunkology, a science that compels its practitioners to record everything they experience, in order to preserve comprehensive knowledge of the world. The premise of buribunkology is that quantity implies quality, so the more scholarship, the better. Accordingly, buribunkologists must document everything, including their own failure to document.

Ironically, Schmitt invented social media only for the purpose of parody. He imagined our reality of compulsive and comprehensive recording not only as a dystopian horror, but also as the logical result of the absolute idealism he abhorred. His buribunks were thinly-disguised Hegelians, and their error was to believe that truth depends on rational abstraction, rather than lived experience.

Schmitt’s buribunkology purports to transcend science by recording facts about the world, rather than contemplating their meaning. For a buribunk, the record is reality, and the act of recording constitutes the real. Accordingly, buribunkology describes everything, but understands nothing. Indeed, it describes everything by understanding nothing. And by doing so, it “knows” the world by purging it of meaning. When everything is equally valuable, nothing is valuable, and when everything is meaningful, nothing is meaningful. Buribunkology is autoethnography without a subject, a reflexion that collapses into itself, a singularity.

The whig theory of history proclaims that teleology implies liberalism: “The arc of the moral universe is long, but it bends toward justice.” While the history of copyright may or may not be teleological, it is certainly Buribunkean. Initially, the subject matter of copyright comprised exclusively works of great social value. But it gradually became broader and more ecumenical. Eventually, it came to include almost any work with economic value. And today, it encompasses almost every human utterance, irrespective of its value or meaning.

A work is protected by copyright so long as it includes some “original” element. But we have defined “originality” out of existence, until it means nothing more than a trivial distinction from other works. Today, the implicit purpose of copyright is merely taxonomic. It strives to identify every potential expression, in order to attribute each expression to a speaker. Copyright doesn’t care what you say, it cares that you said it. It is historiography without history, expression without meaning.

Copyright is the great leveller. It equalizes by reifying every expression, thereby debasing them all. Originally, it lionized the canonical works by and through which societies defined themselves. Today, it reduces all works to the level of the most base and trivial. Copyright began with the Bible, and was created to protect the word of God. Now, it turns everything it touches into pornography. In theory, copyright is supposed to produce enlightenment, but in practice it merely encourages consumption, which produces only waste. It can give us everything we want, but cannot give us what we need.

And yet, perhaps technology can liberate us from the tyranny of ownership. We ask whether artificial intelligences can “own” copyrights. But we do not ask why anyone should care. Any “works” an artificial intelligence creates will just be a consumption good, intended for use and disposal. Of course, copyright itself encourages authors to produce works for the purpose of consumption, rather than enlightenment. Why should we expect anything else from robots, created in our image? Surely, it would be a relief to pass the duty to produce works intended solely for consumption to our mechanical progeny. Perhaps the son of man can once again free us from the burden of the law?