Last week on the American Conservative, Jordan Bloom posed the question Do any Conservatives strongly support today’s copyright regime? The post is continuation of a dialogue that re-emerged in the wake of a memo posted and retracted by the Republican Study Committee. Bloom’s post received a number of thoughtful responses. Below are postings from academics and authors who also shared their views with the Copyright Alliance (reprinted with authors’ permissions).
Mr. Bloom, here are several thoughts. First, the RSC correctly disowned the anti-private-property rhetoric of the laughably flawed Three Myths about Copyright paper. I have replied to it here.
Second, you have framed your question so the only reasonable response to it is to refuse to respond. No smart conservative responses to this question: “Have conservative supporters of copyrights stopped beating their wives yet?”
Nevertheless, here, I have reframed your inquiry so it states a question that I can answer:
“Say, Tom, during the 20 years that you have been practicing law, and the decade in which you have been studying the intersection of copyright law and Internet technologies, have you met any socialist, progressive, liberal, Democrat, Independent, Republican, conservative, or libertarian who was basically happy with almost all aspects the existing US copyright system?”
My answer to that question is “no.” I will provide more comments later. For now, these will have to do.
First, thanks to Tom Sydnor for explaining that Jordan Bloom commits the fallacy of false alternatives in his post. I reject the question as Mr. Bloom has framed it for the reasons that Tom explains.
As a legal academic with a long history of working with free market organizations, I’m happy to affirm that, yes, many conservatives and libertarians do support copyright for principled reasons. While those organizations have included IP skeptics such as Stephan Kinsella, my experience has been that pro-IP sentiments have been the mainstream view among the free market advocates with whom I have worked.
Why? Well, I give a brief explanation in response to the RSC controversy here.
I don’t have time to give a long exposition on the principles or offer numerous examples of conservatives who support copyright. Besides, long comments on somebody else’s blog tend to inspire TL; DR reactions. Nevertheless, and despite that risk, I’ll make a couple of comments.
First, I view the understanding of property rights advanced by Mr. Jordan in his blog posts and comments as impoverished, amoral, and dangerous to liberty. As I see it, finding free market advocates supporting this narrow view of property rights represents the unfortunate triumph of a project begun by the Legal Realists in the early 20th Century. They sought to deconstruct and undermine property rights, and thus economic liberty, rightly seeing them as an obstacle to state power. For more on this, I would suggest reading Adam Mossoff’s essential “The Use and Abuse of IP at the Birth of the Administrative State”
Second, the best kind of IP reform arises from private ordering. Much of the commentary from academics and pundits appears to forget that copyright law is private law, not public law. While the Copyright Act is as imperfect as anything that comes out of Washington, it is, at heart, private law. Copyright owners determine whether and how they will assert their rights, subject to the usual sorts of exceptions and limitations that apply to all property rights (e.g., real property is subject to nuisance actions while copyright is subject to fair use).
Copyright owners can and do forbear from enforcement and grant licenses all the time. They are in business to make a living, not denying people access to their works.
Creative industries self-organize via guilds, unions, private associations, and standard contracts. There are many statutory limitations and exceptions to these private rights, but we are not going to improve anything by making the creative industries even more subject to regulation and government involvement.
The appropriate question is should conservatives support this copyright reform effort? This is my basic answer that I included in a blog yesterday in my post on Mr. Brito’s book.
Copyright reform has been a top pet issue of the tech-left for over a decade. The tech-left, i.e. Professor Lessig’s Free Culture/CopyLeft movement and the Google-led Internet lobby, is hostile to copyright and intellectual property rights in general because they seek a property-less, Internet commons where “information wants to be free” (of cost.) The tech-left would love for their ideological foes to lead the charge on one of their strategic issues that they could not advance themselves and let conservatives take the hits that they are unwilling to take themselves. How is it in conservative’s interests to be used as human shields to advance the tech-left’s Internet commons agenda?
Copyright reform, net neutrality and software patent opposition are the three legs of the stool of the tech-left’s anti-property Internet commons agenda. Conservatives can see the forest for the trees that the tech-left sees property-issues as highly-politically inter-related, but tactically pursues them individually in a divide-and-conquer strategy. The tech-left’s recurrent tactic is to demonize property owners that stand in the way of their Internet commons utopia. They shorthand demonize all content as Hollywood, all broadband as “opolies,” and all software as Microsoft, because all three industries, media, broadband, and software, rely on property-based business and payment models that threaten the tech-left’s vision for a no-cost and no-property-permission-required Internet commons. At core, conservatives understand property-rights and copyright are foundational to economically incenting the quality valuable content that the mass market demands and values.
Copyright reform is not a conservative priority. With all the urgent Big-Government reforms needed: budget reform, tax reform, entitlement reform, etc. and with the plethora of Constitutionally-suspect Big Government expansions of power facing conservatives, why would conservatives judge it smart or productive to prioritize reforming a Constitutionally-authorized property right fundamental to jobs, exports and economic growth? And why should it be a conservative priority to advance a top priority of the tech-left, who oppose most every principle conservatives stand for?
Directionally piracy-blind copyright reform is “unbalanced” and anti-property. Mr. Brito’s book “Copyright Unbalanced: from Incentive to Excess” starts from the implicit premise that the real and main problem involving copyright is not the rampant problem of online piracy and counterfeiting that ravages American jobs, exports and economic growth, but the problem is too much Constitutionally-authorized economic incentives to produce quality content that people around the world demand. How is largely ignoring U.S. Constitutional rule of law, enforcement of property rights, and protecting U.S. economic activity from mass theft, “balanced” reform or conservative? And talking of “balance,” why would Tea Party conservatives or libertarians be more interested in legislating pirate-amnesty than in rule of law enforcement?
I am a legal academic, who, like Mark Schultz, believes in the free market and limited government, and I also believe in IP rights such as patents and copyright.
I have been publishing academic work for years, detailing the historical evidence of how IP rights like patents were justified according to natural rights theory (contrary to the oft-quoted letter by Thomas Jefferson to Isaac McPherson). For instance, it’s profoundly mistaken to say that John Locke and natural rights theory did not endorse IP rights. Locke explicitly endorsed copyright — and advocated in a 1695 essay for a copyright term in 1695 of life of author + 70 years (the current term length). Locke also endorsed in the Second Treatise the property rights in “inventions and arts” as exemplars of his labor theory of property.
Early American legislators, judges, and commentators widely embraced the natural rights justification for patents (and copyright), and Jefferson’s 1813 letter to McPherson was far less influential than many today assume it was. Many IP scholars and economists have discussed these issues, including Justin Hughes, Eric Claeys, and Zorina Khan, but I have also weighed in on these issues. If anyone is interested, you can read my two articles at:
Moreover, there is substantial misinformation about IP rights today, spread by people like Mr. Khanna and others, such as the speakers at the recent Cato event on copyright. For instance, it is entirely untrue that IP rights are different from property rights in land given that the former are creations of statute and the latter are solely the product of common-law court decisions. See, for instance, my blog posting today on this issue:
Lastly, as Mark Schultz explains in his comment, the economic justification for how IP rights secure the same values created through productive labor, and thereby make possible the exact same private-ordering mechanisms as we see in other areas of property is very important. The extensive commercial development created from IP rights is so vast that it could never be fully articulated in a single comment on the Internet, but it truly represents exactly what Locke was talking about that people should be reward in the fruits of their productive labors, and it’s exactly why he endorsed IP rights like copyrights and patents.