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Responding to Pro-IP Conservatives

It sure is amusing to have comments from one of your copyright posts [1] copied [2] and recirculated by a pro-copyright trade group [3]. C’est la vie, fair use and all that.

The Copyright Alliance represents most [4] of the major players in the content industry. The four comments they copied were responses to a question I posed, asking whether conservative scholars, think tanks, or other intellectual heavyweights outside the industry itself actually support the current copyright regime. It seemed to me there weren’t many, and frankly, despite these few dissents, it still seems that way. But let’s take a look at some of the commenters’ claims.

First there’s Tom Sydnor, of the Progress and Freedom Foundation. Snydor believes “the RSC correctly disowned the anti-private-property rhetoric of the laughably flawed Three Myths about Copyright paper,” and makes a more lengthy case here [5]. While Derek Khanna’s paper was far from perfect, a line-by-line legal refutation is a bit like taking a gun to a knife fight, and the fact that he feels the need to do so while ignoring some of the more basic claims of IP-skeptics is telling. Snydor also relies heavily on the canard that IP skeptics including Derek Khanna are “anti-private-property,” which is completely untrue. It’s worth noting that the founder of the PFF’s Center for the Study of Digital Property is James DeLong, who conceded [6] in National Review recently that copyright needs a complete overhaul.

Mark Schultz writes [7]:

As a legal academic with a long history of working with free market organizations, I’m happy to affirm that, yes, many conservatives and libertarians do support copyright for principled reasons. While those organizations have included IP skeptics such as Stephan Kinsella, my experience has been that pro-IP sentiments have been the mainstream view among the free market advocates with whom I have worked.

I admire much of Stephan Kinsella’s work but the label IP-skeptic doesn’t really fit. He is decidedly anti-IP; opposed to the institution as a whole, damn the Constitution. There is a more moderate IP-skeptical position that holds that copyright is justifiable under some circumstances and allowed under the Constitution but the current system has metastasized into something indefensible. This is the position held by many free-marketers including James DeLong and Jerry Brito (and myself, FWIW), and Kinsella often criticizes [8] it.

Schultz goes on to freak out about how IP-skeptics hate property rights, arguing that the position is “impoverished, amoral, and dangerous to liberty.” In a longer post, he says [9],  “Many modern copyright scholars and commentators have embraced a severe utilitarian view of copyright. In this view, the sole justification for copyright is the benefit that creators provide to society.” This is also the view of the Founders, based on the very clear utilitarian language of the copyright clause.

Schultz also says that IP-skeptics “appear to forget that copyright law is private law, not public law.” That’s generally true, but one of the troubling developments of the last 15 years of copyright law has been the introduction of criminal penalties for infringing activities, starting with the DMCA. Surely he knows this.

Scott Cleland is a hack [10] who gets paid by telecom companies to bash Google and tar IP-skeptics as crypto-Marxists. He is not a serious man [11]. He objects to right-wing IP skepticism because some folks on the left are also skeptical (so what?), because copyright shouldn’t be a conservative priority (it should [12]), and because he thinks any copyright reform that doesn’t specifically tackle piracy is “directionally” anti-property (it’s not). Combating piracy is a legitimate policy goal. But even RIAA senior VP Mitch Glazier reluctantly conceded at the Cato Institute last week that the issue of sample clearinghouses and fair use was “difficult.” So to say reform that doesn’t move in the direction of greater exclusivity and stronger penalties is illegitimate is to be completely ignorant of the unbroken upward trend in copyright protection since 1790.

The most persuasive argument comes from GMU’s Adam Mosoff, who’s written extensively on the nuances of copyright through history. Specifically, he argues that a natural-rights conception of copyright was far more common than one might expect given the phrasing of the copyright clause and Thomas Jefferson’s letter [13] to Isaac McPherson, and that the distinction drawn between traditional property rights in land and IP rights is a fallacy [14] from a legal standpoint (Masoff is also an Objectivist [15], and there is no such thing as a utilitarian Objectivist). That makes sense to me, though I’d be interested to read a different take. However, regardless of their legal status and historical provenance, IP and regular property differ greatly for other reasons, and it doesn’t follow that governments should commit ever-greater resources toward fighting every instance of copyright infringement, take down websites in violation of due process (and property rights), and undermine the architecture of the Internet, as SOPA promised to do. Even Ayn Rand agreed that a natural-rights conception of IP still implies limits.

The question is where those limits ought to be. But we’ve never been able to have an honest debate about that, because the framework of copyright law has always been set by the industry, which understandably wants ever-longer terms, stronger enforcement, and greater exclusivity.

Be sure to check out Brito’s interview with Reason’s Nick Gillespie:

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#1 Comment By Geoff Guth On December 13, 2012 @ 2:56 pm

I’d have a few observations:

1) I generally object to using the umbrella term “intellectual property” on two grounds. My big objection is that it lumps together ideas that traditionally have been treated very differently. Trademarks are different from copyrights are different from patents. For instance, I have no problem with a corporate entity having a monopoly on a trademark for as long as they wish. That’s not true of patents or copyright.

My other objection is that “IP” is not property like a vehicle or a building or money or whatever. It’s a monopoly that is awarded as a privilege (not a right) in exchange for expanding human technical expertise, contributing to the culture, or (in the case of trademarks) helping keep the marketplace honest.

2) Patent law is probably the most broken of the three. We’ve reached the point where Apple can successfully defend a patent for rounded corners and where patent trolling is a way of life. The patent office has nowhere near the resources it needs to assess all the applications it receives. This is a system that’s retarding innovation and in serious need of reform.

3) By contrast, copyright would be relatively easy to fix, if the political will existed. Terms are way, way too long, but as long as the RIAA and MPAA control the legislative process (which they’ve bought lock, stock and barrel), that will never happen.

But at a bare minimum, some kind of provision for orphaned works, which currently exist in a copyright limbo of no use to anyone, should be doable. Simply asking copyright holders to actively renew copyright at regular intervals (say every ten years) would go a long way towards fixing this problem while still protecting the interests of the likes of Disney.

#2 Comment By Ethan C. On December 13, 2012 @ 4:39 pm

Mr. Guth, I think what you’re saying is very important. There’s a real problem with conflating very different legal problems under the broad heading of “IP”.

In addition to the differences between patents, trademarks, and copyrights, I think there are further distinct issues within each one.

For example, there are at least two different issues within copyright law: excessive term lengths and lack of renewal requirements on one hand, and penalties for piracy on the other. These are quite different issues, and one could quite reasonably advocate for different policy solutions to each one.

Personally, I happen to believe that current terms are too long, and I also believe that current piracy penalties are excessive and counterproductive. But neither of these positions requires the other for consistency.

#3 Comment By Jennifer On December 13, 2012 @ 9:14 pm

Agree completely with Guth, you frame the issue well. Any reasonable person who has been following these issues could come up with some commonsense simple reforms–perhaps not game-changing but a start. The real problem is the amount of money behind this protectionism is mind-boggling. Forget about the tech companies, big pharma has nothing without the twisting and manipulation of patent law. And this an absolutely be a joint project of the left and the right, note that this is a favorite topic of Dean Baker of the Center for Economic and Policy Research (liberal group). He writes about this extensively in The End of Loser Liberalism (available for free download from their website).

#4 Comment By NGPM On December 14, 2012 @ 11:51 am

The most important thing, before proposing reforms, is to first understand what the goals are. My opinion is that we want to avoid two extremes:

1. On the one hand, we want to avoid incentivizing the making of an easy living by copying, distributing and selling things that one did not invent, which itself would tend to disincentivize the creation of new cultural works and new technological innovations.

2. On the other hand, we want to put an end to the kind of terroristic mentality that pressures kiddies who downloaded MP3s into paying out huge and in most cases undeserved settlements.

Yet these two goals are not in such terrible conflict as they might at first appear. After all, the massive muscle of the RIAA and the MPAA is derived from the massive amounts of money they make selling works that they did not themselves create. Here we might look across the border for some interesting clues for points of departure.

For example, in France, where I live, it is much more difficult to cede ownership of an original work of art or literature than it is in the United States. (Actually, I think French law goes too far: an advertisement page created by a marketing agent working on company time as a salaried employee is still considered said agent’s intellectual property even after his paycheck has arrived, unless he signs a release document authorizing the departure of THAT WORK and on fair terms. But that’s another story.)

I am not sure how it works in France with regards to recording artists, but I do know that in the U.S. a recording artist signed on to a major label typically receives less than $1.00 for each disc sold. One way to start would be to come up with solutions that would limit corporations’ ability to acquire the intellectual property of non-shareholders, even with the creator’s consent. If they were bound by constraints that forced them to agree to fairer terms for artists, then perhaps they would be less able to build up such massively profitable and wasteful acts as Gaga.

(For my part, I am strongly against requiring registration as a prerequisite for the existence of copyright, as I think this would actually tend to play into the hands of large corporations, who are likely to be better-informed of the procedure and more likely to have the resources to comply without too much hassle.)

#5 Comment By Bob Jones On April 28, 2013 @ 1:27 am

Abolish IP. Completely and entirely.