I’ve been thinking about the best way to respond to the news of Jim DeLong’s apparent semi-retirement from the public policy world. For the last decade, DeLong has been the most prolific, and perhaps the most influential, libertarian thinker on patent and copyright issues. He has probably done more than any other person in the libertarian think tank world to promote the view that patents and copyrights are no different than any other kind of property right, and that libertarians should therefore almost always come down in favor of broadening the scope and duration of copyright and patent rights, for stiffening the penalties for violating these laws, and for enacting new regulations of third parties to make it easier for copyright holders to enforce their rights.

I’ve criticized DeLong’swritings repeatedly on this blog, so I won’t re-hash those arguments. But I am disappointed that (with one exception I can recall) DeLong never engaged any of my criticisms. Perhaps he was offended by the derisive tone some of my posts took. Maybe my work just never made it onto his radar screen. In any event, I think it’s sad that a significant opportunity for substantive engagement on these issues was missed. DeLong often seemed to be arguing with caricatures of his ideological opponents, ignoring the more nuanced substantive work he could have found if he’d looked for it. I was particularly disappointed that he never took the time to offer a substantive critique of my DMCA paper, one work of mine that I know he did read. I doubt he would have been able to change my mind (or vice versa), but I bet I would have learned a few things from his criticisms.

One place I do have to give DeLong credit is his amicus brief (with TLF contributor Solveig Singleton) in the Teleflex case. This was probably the most important patent case in the last quarter-century, and in my view he came down on the right side of it, recognizing that the patent system becomes an obstacle to progress if patents are granted too liberally.

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In recent years there has been a trend toward the use of trade agreements as a means of bullying smaller nations into adopting copyright and patent policies favored by domestic special interest groups in the United States. Over at the EFF blog, Gwen Hinze has the goods:

In exchange for the promise of increased access to U.S. agricultural and textile markets, , U.S. trading partners are being required to rewrite their IP laws. For instance, the last nine U.S. free trade agreements signed since 2002 have required trading partners to adopt the U.S./ EU copyright term of life of the creator plus 70 years, create laws banning the circumvention of DRM (or technological protection measures) modeled very precisely on the controversial DMCA, and to treat temporary reproductions of copyrighted works (such as in computer memory) as copyright infringement. The FTAs also require trading partners to broaden their patent laws. The Central American Free Trade Agreement also required extended protection of test data, seemingly directed at precluding registration of generic pharmaceuticals.

I agree with James Surowiecki that there’s a symmetry between the “intellectual property standards” in these recent trade agreements and the “labor and environmental standards” that left-wing groups have long demanded be appended to trade deals. Free traders have always argued, correctly, that labor and environmental laws have nothing to do with trade, and that decisions about such laws should be decided by the ordinary political process in each country, not by international pressure.

Precisely the same argument applies to copyright and patent issues. I think there are good policy arguments to oppose longer copyright terms and anti-circumvention rules on their merits. But even if you think those are good policy, they certainly don’t belong in trade negotiations. Trade negotiations should be focusing on trade barriers. Failing to protect the copyright on Mickey Mouse until 2019, or permitting the sale of DVD players that will fast forward through commercials, is not a trade barrier.

We free traders should be just as outraged about these demands as we would be if a Democratic administration demanded changes to other countries’ labor or environmental laws in exchange for a trade agreement. The president and the USTR have only so much political capital in these negotiations. Had they not included the copyright and patent provisions among their demands, they most likely would have been able to obtain larger reductions in genuine trade barriers.

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