Much of DC and the blogosphere seems consumed with the palace intrigue surrounding the retraction of the "three myths about copyright" paper. Significantly less attention has been paid to understanding why, as a policy matter, it was the right decision. Conservative copyright scholar, Mark Schultz, critiqued three of the most dubious claims behind the myths, and explained why the brief was misguided both as a matter of copyright law and inconsistent with the RSC's conservative ideology.
According to Professor Schultz, the author of the RSC brief makes several critical errors:
First, the author misunderstands the Founders' intent in drafting the IP clause of the Constitution. The RSC paper argues that copyright should be justified by purely utilitarian motivations – how can we maximize the greatest innovation and productivity? But this is a collectivist (or if you prefer a term Professor Schultz would never use himself, a Marxist approach), inconsistent with the Founders' embrace of individual rights. At bottom, the Founders believed you are entitled to the fruits of your labor.
Second, the author doesn't understand what constitutes a monopoly. A monopoly requires market power, but ownership of a unique work or product does not result in market power. Every individual copyright owner must still compete with other authors of works in the marketplace. Moreover, copyrights have been considered property like any other property by legal scholars for over 200 years. One of the essential roles of government is to enforce property rights. This is not a form of subsidy or privilege – this is maintenance of civilization and the rule of law.
Finally, the author misunderstands the difference between property rights and government regulation. Because copyright is a private property right and not a centralized government regulation, it is flexible and allows people to negotiate a vast array of private social and commercial arrangements. Accordingly, copyright is in fact the very opposite of government regulation.
Read Professor Schultz' full analysis here.