On copyright, conservatives and libertarians should focus on what unites us

by on November 30, 2012 · 2 comments

Yesterday I [heaped praise](http://techliberation.com/2012/11/29/three-cheers-for-james-delong-on-copyright/) on James V. DeLong for articulating a reasoned conservative defense of copyright that also highlighted just how much common ground he shares with those conservatives and libertarians that are concerned with the current copyright system’s infirmities. I also said that I disagreed with some of the arguments he made in his essay and that I might address those in a later post. That’s no longer necessary because Jordan Bloom of the *American Conservative* [has put his finger](http://www.theamericanconservative.com/james-delong-vs-thomas-jefferson-there-is-no-natural-right-to-intellectual-property/) on just about everything I would have taken issue with in DeLong’s column.

Bloom has been doing yeoman’s work covering the retracted RSC memo story. I believe that he was the first person to write about the memo before it was retracted. For that I thank him. But, I have to disagree with some of his response to DeLong. While he (correctly in my view) takes DeLong to task for conflating copyright with traditional property rights, he treats this intellectual position as make-or-break for copyright reform. This is wrong.

Bloom writes, “Republicans will get nowhere on this issue without drawing a clear distinction between both types of property.” And he concludes:

>We won’t be able to proceed to a serious discussion about what balance of IP protection we ought to have until we stop pretending intellectual property is the same as other types of property and that it’s a God-given right to have the government enforce its exclusivity, in the case of copyright, 70 years after the creator’s death.

I take his point, that there is a confusion about the nature of copyright as property and that it often makes discussion about reform difficult. Many conservatives employ the logic of “property is good, copyright is property, therefore more and stronger copyright is great.” We need to point out why that logic is flawed, as Bloom does in his response. But, we should not excoriate folks like DeLong when they ultimately agree with us.

As I said yesterday, in his article DeLong agrees with the likes of me and Bloom that we should reform copyright to have shorter copyright terms and formalities like registration and renewal. That common ground is what we should be focusing on, not the first principles distinctions that divide us. Even Ayn Rand, a property rights absolutist if there ever was one, agreed that there must be limits on copyright.

Whatever paths DeLong, Bloom and I took to get to our positions, it shouldn’t matter for the practical project of reforming copyright. Some of us are natural rights types and others utilitarians, some of us are Objectivists and others paleoconservatives. If we can all agree, whatever our first principles, that *the current copyright system* is an out-of-control federal program that is beset with terrible public choice problems, then I think we should put aside our philosophical disagreements about the *ideal of copyright* and get to work on fixing the broken system we have now.

There is more common ground among conservatives, libertarians and Republicans on the need for paring back copyright than our squabbling lets on. Instead of arguing about the extremes, I think we should work hard to reach consensus and then provide leadership.

  • http://profiles.google.com/daviddfriedman David Friedman

    I think if you look at the history of not only copyright but also patent and trademark, you see a continuing tension between the “this simply enforces a natural property right” approach and the “this violates the natural property rights of those it restricts but may be justified by its desirable effects” approach. I don’t see a really convincing argument for either side of that, and the former approach does lead to something like a “copyright is good, so more copyright is better” approach.

    For the consequentialist analysis, you might want to look at the two chapter sequence in my Law’s Order on property and intellectual property, where I discuss why it makes sense to treat some things as property and some as commons, and how that analysis applies to I.P.

  • Pingback: Do Any Conservatives Strongly Support Today’s Copyright Regime? | The American Conservative

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