One of the more encouraging things about James DeLong’s National Review piece on copyright was its basic agreement with copyright reformers that the current regime must change. He supports shorter terms and requiring copyrights to be registered, two of the possible solutions proposed by Derek Khanna in the memo retracted by the RSC. He concludes this even after taking the philosophical position that copyright is a natural right, rather than a limited monopoly granted by the government to incentivize innovation. Jerry Brito notes that conservatives “don’t disagree on copyright as much as our arguments on specific proposals might lead one to believe.”
Conservatives and libertarians approach intellectual property from a variety of different philosophical precepts, from Rand’s fetishization of creativity to natural rights to the view that it’s simply a type of tax or regulation, but many nonetheless agree that from whatever perspective the current system is indefensibly rigid and doesn’t serve its Constitutional purpose. (Brito tweaks me a bit for being too hard on DeLong based on these sorts of differences, and he’s probably right.)
DeLong is an adjunct scholar at the Competitive Enterprise Institute, which is also holding a panel that seems to endorse the idea of copyright reform. That got me thinking; are there any major players on the right that support the trend of increased protection of copyrights, stronger enforcement and regulation, and stiffer penalties?
The reason why this matters is that the RSC prides itself on being the voice for conservative policymaking in Congress, and they yanked and disowned Khanna’s memo on the grounds that it lacked balance, failing to represent the pro-IP conservative position. The RSC tends to take its cues from the besuited wonks at various right-wing nonprofits and think-tanks. But none of them are advocating stronger copyright terms or enforcement.
There’s Heritage’s James Gattuso, who wrote frequently in opposition to SOPA and other Internet regulations. Though I don’t know his views on copyright specifically–he called the SOPA opposition a “mutiny,” which makes sense only with the (false) understanding that a conservative position on copyright is “IP=property, therefore we should extend terms and enforce them to the hilt”–one infers that he believes, at the very least, certain efforts to enforce copyright regimes go too far. The relatively heterodox AEI published a monograph by Richard Posner in 2004 on the expansion of copyright, explicitly referring to it as a regulatory regime. Then there’s Cato, which published a paper opposing the DMCA and where folks like Julian Sanchez have pretty consistently taken an
anti-IP IP-skeptical line. It seems like the vast majority of the conservative and libertarian establishment is either ambivalent about or opposed to the way the current copyright regime is structured.
(Bolstering their case is a book released this week, edited by Brito, on conservative and libertarian opposition to copyright. I’ve only read the first three chapters so far, but it’s really good stuff.)
If the neglected position in Khanna’s memo wasn’t conservative, then–or at least didn’t come from the typical sources of right-wing policymaking–then one is left to conclude, contrary to the RSC’s assurances, that it was the content industry’s.
Still, I could be wrong. Are there any conservatives advocating longer terms and stronger enforcement of copyright? If you’re out there, leave your thoughts in the comments.