The kind of thinking on copyright the GOP needs to move away from

by on November 21, 2012 · 7 comments

Over at the IPI Policy Blog, Tom Giovanetti has a new post about “Copyright and the GOP” reflecting on the recent brouhaha over Derek Khanna’s retracted Republican Study Committee policy brief on copyright. I’m afraid Giovanetti’s post is a good example of exactly what’s wrong with the Republican status quo thinking and rhetoric on copyright.

The post begins by explaining why the GOP has “historically been strong supporters of copyright protections”:

Markets simply don’t work without property rights. You can’t have contracts, or licensing, if you don’t have clear and enforceable property rights. ALL business models, not just “new” business models, rest on property rights.

Further, because the GOP believes in innovation, copyright is a natural fit, because copyright incentivizes and encourages the creation, distribution and promotion of new information. The alternative to copyright isn’t free information, but less creation, less widely distributed and marketed.

Do you see what just happened there? The implication is that Khanna in his memo, or those of us who would like to see copyright reform, don’t think there should be copyright at all or don’t think that copyright is property. That’s just not the case. In his memo, for example, Khanna explicitly proposes up to 46 years of protection for creative works. That is copyright, and that is property, and it would allow for contracts and licensing and for markets to work.

When folks say that copyright reformers are anarchists who don’t believe in property rights, don’t buy it. It’s an inaccurate and unfair characterization.

Giovanetti goes on to write,

That’s why it was jaw dropping to see a paper appear on the Republican Study Committee (RSC) website that was infused with much of the rhetoric and many of the assumptions of the CopyLeft movement. When an RSC paper is praised on the Daily Kos website, you have to wonder what’s going on.

Rather than address the merits of Khanna’s memo, Giovanetti instead tries to make Khanna guilty by association. If some on the left agree with your ideas, the argument seems to go, then there must be something wrong with your ideas. This tribal mentality is exactly what the GOP should be trying to expunge right now. Isn’t it more likely that if your up-and-coming intellectuals agree with other thinkers on the left, then there may in fact be a problem worth addressing? It’s like saying John McCain or Marco Rubio are liberal radicals because they would agree with Ted Kennedy on immigration.

It gets worse. Giovanetti argues that there’s nothing to see here since the Copyright Office regularly reviews exemptions:

In the Information Age, copyright and patents have become focal points of much criticism. And it is both appropriate and necessary to review current laws and standards to ensure they reflect changes in the marketplace and in technology. Accordingly, the Copyright Office regularly releases new exceptions to copyright that reflect those changes.

Boy, how far we’ve come when it is argued that the GOP should be in favor of an unelected regulatory bureaucracy deciding what are our rights. As Matt Schruers recently wrote,

While I’m at peace with this, it continues to baffle me that more conservatives are not skeptical of expanding intellectual property. What is regulation, if not when bureaucrats hold an administrative rulemaking and issue a triennial rule dictating how individuals must conduct their affairs with respect to media they have already purchased? That sounds a lot like regulation to me.

What is regulation, if not when bureaucracies dispense exclusive entitlements to special petitioners intentionally designed to restrict competition, because it serves the broader purpose of incentivizing the pursuit and disclosure of particular creative activity? This is what our IP law does.

Don’t fall for it folks. Copyright reform is perfectly compatible with a strong belief in property rights and markets. More than that, opposition to our bloated copyright system that serves special interests in Hollywood at the expense of the public is in fact the true conservative and libertarian position.

  • Crosbie Fitch

    It would be better if this ceased being a matter of belief.

    Property arises from natural law (the individual’s innate power to exclude others from the objects they possess and the spaces they inhabit). State granted monopolies arise from the state, and constitute abridgements of liberty.

    Unlike the unscrupulous mercenaries that exploit them, the only supporters of monopolies such as copyright and patent who possess anything remotely resembling principles are utilitarians, who claim society benefits from such ‘sacrifices’ of individual liberty.

    As far as copyright goes, the state benefits, from implicit control over an enriched and consequently beholden press, but that’s about it. The people consequently survive on a constrained culture of populist pulp and dire threats against unauthorised participation, and dutifully believe the lie that copyright’s cultural constraint is good for them (might even one day make them a star).

    Copyright cultivates couch potato cash cows.

  • Ryan Radia

    I’m with you until your penultimate paragraph.

    In many areas, perhaps including copyright, it makes good sense to entrust unelected government officials with the authority to craft certain limits on how we may use our property. For instance, the Supreme Court ruled in 1946 that landowners have no right to exclude planes from flying over their land, provided that planes don’t pass too close to any structures. I think this decision was correct. And common law judges in various jurisdictions have held that individuals may trespass on private property with impunity where a necessity exists, such as a severe storm that threatens a boat. These are just two examples of many exceptions to private property rights that unelected officials have created over the years in the name of social welfare.

    So we regulate private property in the name of social welfare all the time, for good and bad reasons. My point is not that copyright is necessarily justified, but that defining the scope of rights in real property and in expressive works entails many grey areas, and often necessitates government officials making tough judgment calls. Whether copyright is a legitimate exception to “traditional” property rules is an empirical question, and it certainly transcends a simplistic “regulation is good/bad” dichotomy.

  • Jerry Brito

    Ryan, I don’t think we disagree. I would say there is a big difference between unelected common law courts and unelected regulatory bodies. I think you would agree with me on that, no? And while I agree that some regulation is necessary, like you, I don’t think it’s always a good idea. In fact, I suspect like you, I’d say it seldom a good idea. What I was trying to do in that paragraph was point out the irony of conservatives, who are usually way or regulatory solutions, embracing regulation in this case.

  • Ryan Radia

    Fair enough; I’m of the old-fashioned view that legislators should make the law, and judges should interpret it. I’m not a fan of the “Headless Fourth Branch” of the federal government, as embodied by the rulemaking executive branch bodies such as the Copyright Office. So I appreciate the irony you observe as a matter of institutional choice.

  • Blake Reid

    It’s worth clarifying that the triennial review process referenced by Giovanetti and Schrurers only involves exemptions from the anti-circumvention measures of the Digital Millennium Copyright Act, not copyright law more generally.

  • Timothy B. Lee

    Ryan, we don’t agree on the general premise that regulatory limits on property rights are sometimes necessary. But the DMCA triennial review regime is particularly problematic from a libertarian perspective. The best executive-made regulations involve applying a general but clearly-defined principle to specific circumstances. For example, you could imagine Congress passing a law saying that airplanes can’t fly too low to disrupt those on the ground, but leave it to the FAA to decide exactly how low that is in different circumstances.

    In contrast, the DMCA’s triennial review process is based on an extremely vague standard: “likely to be adversely affected.” In practice, that means the Librarian has a ton of discretion to decide which uses he thinks are worth permitting, and he’s used that discretion in a rather capricious fashion, permitting some uses and denying others without any apparent rhyme or reason.

    The triennial review process might be something libertarians should grudgingly accept as the best we can do. But it’s certainly not something we should celebrate. So it’s a little strange for Giovanetti to cite it in an article arguing that Derek Khanna has wandered off the free-market reservation.

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