Even before the RSC’s policy brief expressing deep skepticism toward the current copyright regime was pulled I was skeptical that it would actually result in any shift in political orientation from the GOP, let alone legislative proposals. That said, it undeniably marked a major rhetorical shift, which explains the enthusiasm with which it was received among tech activists and the blogosphere. Unless I’m missing something, it would have been the first official policy document from the party that acknowledged the overregulation of intellectual property.
The Republican Study Committee’s mission is to propose new ideas for conservative policymaking. It seems to me that conservatives ought to be at least a bit wary about government-enforced monopolies on ideas, and the threat the overextension of such things poses to a free market. Alas, apparently even discussing these heresies is beyond the pale at the RSC. The question is why. Their explanation that the paper was not properly vetted and failed to include enough different perspectives is not even remotely credible. If it appeared on the website, it was vetted, and this is the different perspective that has been desperately needed for the last ten years. It’s disappointing that the RSC was willing to throw author Derek Khanna’s credibility under the bus in what is apparently a shameless effort to placate the copyright lobby. ArsTechnica’s Timothy Lee cites an anonymous source who says that’s exactly what happened.
Even giving the RSC the benefit of the doubt that there was some sort of administrative oversight, it would do well to release a new paper on IP reform that does include a “full range of perspectives,” including a more skeptical view. According to their communications director, they intend to.
If the paper was taken down at the behest of industry lobbyists, as some have claimed, the speed with which they did it and the fact that the RSC won’t even allow dissent certainly bespeaks desperation on the part of the MPAA and RIAA. They’re probably aware that public opinion is no longer on their side and copyright reform is coming, eventually.
What I don’t understand is what the party stands to gain by caving to these people. The interests that comprise both mostly donate to the Democratic Party, for one thing. It’s also becoming increasingly clear that the current state of IP law leads to an anticompetitive environment. Why not use the issue to divide Democrats and make a pitch to Millennial voters? It also fits in well with a free market populist platform that goes after corporate welfare as aggressively as the other kind, since IP nearly always benefits entrenched interests. Tim Carney and Matt Lewis had an interesting exchange recently on this point. Carney wrote:
We can set aside the question of whether these laws are just or prudent for a moment, and conclude that, for better or for worse, they help the big guys and hurt the small guys. That doesn’t tell us whether we should change the law. But it at least informs the debate over the law, and reminds us that the standard narrative of regulation — that it curbs the excesses of big guys and protects the little guys — is a myth.
As Khanna’s paper put it:
Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value.
It’s another way in which the GOP shows itself to be more in favor of big business than free markets. There’s a perception that questioning the current IP regime means you support piracy, and that’s nonsense. One can recognize a role for intellectual property–indeed, the Constitution does–while at the same time questioning whether the current arrangement is working to incentivize innovation or whether it’s needlessly excluding people from the market, enriching the estates of long-dead celebrities, and bringing the law down on the heads of many who probably don’t deserve it. There’s a veritable buffet of reasons to do it; cynical, principled, political, or in the name of economic growth, and very few reasons not to.
It so happens that a new book edited by Jerry Brito, head of tech policy at Mercatus, and featuring a number of right-leaning policy scholars and journalists, will be released next month on the subject of conservative support for copyright reform. Brito writes:
Conservatives and libertarians, who are naturally suspicious of big government, should be skeptical of an ever-expanding copyright system. They should be skeptical of the recent trend toward criminal prosecution of even minor copyright infringements, of the growing use of civil asset forfeiture in copyright enforcement, and of attempts to regulate the Internet and electronics in the name of piracy eradication. I think our movement is very close to seeing that copyright reform is not just completely compatible with a respect for property rights, but a limited-government project.
[Update 3:03, Nov. 19:] Don’t miss this excellent post from IP lawyer and VP of Law and Policy at the Computer & Communications Industry Association about how copyright manifests itself as taxes and regulations, entitled “Copyright’s Laffer Curve: Or, Why the Republican Study Committee Was Right.” An excerpt:
Copyright was a necessary evil, [Thomas] Macaulay concluded, a required subsidy for authors. But it was a tax nonetheless, and thus should be imposed no more than necessary. In fact, copyright even manifests a sort of “Laffer Curve,” a well-known model for conceptualizing taxation. This curve is an idea often attributed to economist Arthur Laffer, but should probably be attributed to Jules Dupuit in 1844, or Edmund Burke in 1774, or any number of others, who, alas, never secured the exclusive rights to own optimal tax policy. …
Even more conspicuous than the fact that copyright functions as a tax-and-subsidy policy is that we administer IP law in an increasingly micro-managerial manner. This regime today scarcely resembles markets for property, and dramatically resembles how Washington regulates other industries.
… [I]f copyright is a property right at all, it is the property right to a government subsidy.