Three cheers for James DeLong on copyright!

by on November 29, 2012 · 2 comments

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.

Previous post:

Next post: