November 2012

Over the past couple of weeks I have been pointing out examples of conservative/libertarian thinking and rhetoric on copyright that is unhelpful and which I think we should abandon as a movement. This kind of rhetoric is usually reactionary, ad hominem, and uninformed. So, I’m very happy today to point you to an example of some excellent thinking and rhetoric from a free-market/property-rights perspective.

In National Review today, James V. DeLong has an article addressing the retracted RSC memo that sparked the recent debate over copyright among libertarians and conservatives. Now, DeLong makes some arguments with which I disagree, including about the nature of copyright as property not unlike personal property and about the just desert of authors, and I may address those arguments in a later post. But, I think it’s more worthwhile to point out where DeLong and I agree because it shows that in fact those of us who are for liberty, limited government and economic efficiency actually don’t disagree on copyright as much as our arguments on specific proposals might lead one to believe. While dinging the RSC memo as “mediocre,” DeLong nevertheless agrees:

Some of the specific problems noted in the paper and elsewhere are very real: Copyright terms are too long; rights are overly convoluted and hard to pin down; transaction costs are too high; the easy availability of copying is attriting the creative community; orphan works, for which the copyright holders are unknown, present problems. The list is long.

We probably need a clean-sheet rewrite of copyright law, but the solutions to many current problems are far from obvious, and the risks of any such enterprise are so great as to daunt everyone with a stake in the system. So we keep muddling along, with the confusion abetted by those who profit from the current mismatch between law and technology.

Confusion is also caused by the content industry. Much of it really is as greedy and rapacious as its critics contend. The only property rights it cares about are its own; it has no sympathy for anyone caught up in the toils of the EPA or the local zoning board (unless the issue involves Malibu beach property, of course).

Three cheers! I am so happy to discover so much common ground. DeLong goes on to make some concrete proposals, including this:

Many specific reforms should be enacted. My list would include shorter copyright terms; a requirement of registration and renewal, to show seriousness; a one-time requirement of registration of existing works to get rid of the orphan-works problem; and centralized databases to reduce transaction costs.

Huzzah! This is very similar to my list as well! Unfortunately, DeLong concludes that “Despite all these concerns, the temptation for Republicans to reflexively embrace the foes of copyright should be resisted, because the church of property rights is greater than its servants.” But why should Republicans accept an admittedly bad status quo when it presents a perfect opportunity for the GOP to demonstrate leadership? It need not have to “reflexively embrace” copyright reformers on the left who don’t have the same respect that we libertarians and conservatives have for property rights. It can instead provide an alternative that reforms the mess that is copyright today and also respects property rights and the Framer’s original intent when they included copyright in the Constitution.

Here’s what I say: The GOP should take the list that DeLong provides and turn it in to a bill. Such a reform would not only be compatible with strong property rights, but it would also be the true small government position.

P.S. The new book I’ve edited on copyright from a free market perspective will be available in the next few days, so stay tuned.

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I’ve come across another example of the kind of thinking and rhetoric on copyright that claims to be conservatives and libertarian, but which really does not serve the cause. I’m loathe to bring attention to it, but I think it’s important to start to renounce the kind of view that are often ascribed to conservatives and libertarians, but which don’t serve us and which only a tiny minority of us hold.

The piece in question is by Scott Cleland and it’s entitled “The Copyright Education of Mr. Khanna,” and like Tom Giovanetti before him, Cleland attacks Derek Khanna for his RSC policy brief. Cleland posits “five fundamental flaws” in Khanna’s argument. The first one is inscrutable, but if I can make out an argument it’s that Khanna is wrong because he’s questioning our existing copyright regime. I don’t see how questioning the status quo can make your argument flawed.

The second “fundamental flaw” Cleland points out is that “Mr. Khanna’s copyright views are not conservative.” He echoes Giovanetti by not addressing the merits of Khanna’s arguments but merely saying that if Khanna is agreeing with folks who are on the left, then there must be something with his argument. Cleland writes,

Mr. Khanna’s copyright views actually closely parrot the collectivist views of the famous Professor Larry Lessig who founded Free Culture and Creative Commons, championed Free Software and CopyLeft, and called for convening a new Constitutional Convention because “Democracy in America is stalled” by the “corruption” of money in politics.

It is also important to note that Marx and Engels said their theory could be summed up in one sentence: “Abolition of property.”

Do you see what just happened there? It’s the worst kind of guilt by association. First, while Khanna’s conclusions match Lessig’s, it’s not clear his reasoning can’t be distinguished. I know I can certainly distinguish my reasoning from Lessig’s in many instances. Folks on the left are more interested in equity, while libertarians are more interested in liberty and economic efficiency. The fact that we coincide on our conclusions on copyright should tell us that there’s something really wrong with out current system, not that we’re not “real conservatives.”

But never mind that, Cleland tries to link Khanna not just to Lessig’s views on copyright, but to his views on money in politics. And if that was not enough, there’s a non-sequitur about Marx and Engels and abolition of property to really drive the character assassination home.

The third flaw Cleland points out is that Khanna refers to copyright as a monopoly. This is wrong, Cleland says, because property can’t be a monopoly; after all, we don’t say you have a monopoly over your car, he says. He is right that the word monopoly is often misused, but the fact is that copyright, in an economic sense, is a grant of monopoly. In a world without copyright, creative expressions are non-rivalrous and non-excludable, unlike cars. We establish copyright in order to make expressions excludable. That is, we give creators market power where they had none before so that they may charge above marginal cost and thus have an incentive to create more than they otherwise would.

The fourth “flaw” that Cleland points out I can’t disagree with. It’s Khanna’s sentence, “Copyright violates every tenet of laissez faire capitalism.” I don’t think that’s right as written, but I also think Khanna wrote that for effect. Our current copyright system (as opposed to copyright as an idea) is certainly more crony capitalist than laissez faire capitalist.

Fifth, and finally, Cleland says that “Copyright is law not regulation.” Actually, as I pointed out in my last post, important parts of copyright are indeed administered through notice-and-comment regulation by the Copyright Office, not courts.

“In sum,” Cleland writes, “Mr. Khanna is promoting Lessigian anti-property thinking (that more American innovation and progress will emanate from the utopian altruism of a property-less system, where taking what others produce without permission is called ‘sharing),’ as superior to America’s Constitutional political and economic system of property and economic incentives.” This kind of rhetoric is exactly what has come from the more desperate and captured parts of the GOP for quite some time, and it should change for the sake of the GOP. It does not address the merits of arguments but instead tries to tar and feather innovative thinkers by asserting that if you’re for copyright reform then you must be against property, and thus a communist.

Don’t buy it folks. Criticism of our current copyright regime fits perfectly within an ideology that respects property rights. This is something that we make quite clear in our forthcoming book on copyright from a libertarian and conservative perspective. Khanna’s memo proposed a system that would grant authors a copyright term of 46 years. I don’t see how that is a “property-less system.”

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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.

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