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The Right Way to Fix Copyright

Since 1790, copyright in America has moved reliably in the direction of longer terms and stronger enforcement without much public outcry or legislative opposition. Until this year.

In May of 2011, a new copyright bill passed the House Judiciary Committee with little fanfare, and was expected to sail through congress with the rare bipartisan support copyright bills tend to engender. In particular, this bill extended some of the powers granted under the Bush-era PRO-IP Act, and charged Internet Service Providers (ISPs) with the responsibility to police foreign websites involved in alleged copyright infringement. The tech industry began to sound the alarm about its unintended consequences when the bill was introduced in the House, and after much fanfare and the largest internet blackout in history, it was killed.

The effort to stop SOPA was a watershed moment for two reasons. First, it was successful, unlike every other attempt to oppose copyright expansion. Second, it had the wide support of Tea Party conservatives and libertarians, marking the first time any significant faction on the right has taken a strong stance on intellectual property. To Jerry Brito, tech policy chief at the Mercatus Center, that was a sign the time was right to make the free-market case for copyright reform. The result is a new volume entitled Copyright Unbalanced, which argues persuasively that the proper conservative and libertarian position is to oppose what the copyright system has grown into.

It’s worth noting what the book isn’t. It isn’t one of those effusive paeans to Internet-enabled free culture, popular circa 2004. Its arguments arise from familiar first principles, that copyright and the means used to enforce it are corrosive of the rule of law, free markets, and innovation.

IP can be an especially difficult issue among conservatives and libertarians because they approach it from several different perspectives. There are those who treat copyright as a natural right, like Ayn Rand, there are those who  support limited copyright to provision a public good, and there are those that oppose the institution entirely on the grounds that it is an artificial government-granted monopoly. Moreover the more pragmatic view is utilitarian, never comfortable rhetorical ground for the right, though in this case it jibes best with Constitution’s authorization of copyright “To promote the Progress of Science and useful Arts.” From whatever perspective they might agree (1) copyright must have limits, and (2) that the current copyright regime, as in the book’s title, lacks balance. On the details, Brito writes they might find “agreement about the excesses and deficiencies of our current system,” such as excessive criminal penalties or enforcement tactics that undermine the Internet, and they “may also find that we are best situated to lead a reform.”

That latter point is important when you consider the political context. One might even call it the inevitable conclusion of these essays. The Republican Party, that unreliable champion of the free market, only stands to gain by making copyright a partisan issue, and this book assures they can do it without compromising their principles. By forcing a debate on an issue where there was once a bipartisan lobbyist-driven consensus, they could split the Democratic fundraising hubs of Silicon Valley and Hollywood (the former tending to be in favor of a more open approach to IP) and begin to build a more congenial relationship with young people and the tech community.

As National Review’s Reihan Salam and strategist Patrick Ruffini point out in their co-authored chapter, it was House Majority Leader Eric Cantor that denied SOPA a floor vote, and progressive Democrat Al Franken that clung to it until the bitter end. Though some Democratic constituencies care deeply about copyright reform, contributions from Hollywood and the content industry are enough to buy the quiescence of all but one or two legislators. In contrast, conservatives were “quicker to rally to the side of the rebels” during the SOPA debate.

There are deeper cultural factors at work behind the recent spat of IP-skepticism, among them the rise of the internet as the main medium of entertainment consumption. The dominant players of the music and film industries have declined in influence for reasons that can’t entirely be attributed to piracy, even as the industry as a whole has grown. Since embattled interests tend to lobby for government privileges more than healthy, competitive ones, the result tends to benefit incumbent players. For copyright this dynamic is obvious; an iconic song languishing in some long-dead musician’s estate, or a remix artist spending hundreds of dollars to clear a five-second sample.

Eli Dourado’s chapter on “weak copyright enforcement” takes stock of these changes, observing that some businesses intentionally allow a certain amount of “infringement,” not as a grocer budgets for loss from shoplifting, but as a form of price discrimination. The New York Times, for example, has an interest in maintaining its subscription base but also in being as widely read and widely cited as possible, and its paywall is designed to accommodate both goals. That success, Dourado writes, is evidence of the “need to embrace a stronger role for informal norms than for formal law to ensure that content producers are compensated,” an approach contrasts sharply with that of the DMCA, under which ripping DVDs or, say, creating a software patch to circumvent the Times paywall could be treated as a criminal offense.

Though most of the contributors take a consensus-building, big-tent approach to copyright, Tom Bell’s final chapter might raise the hackles of those who consider government-enforced exclusivity in creative works a natural right. He argues for no less than reconceiving the institution as a privilege, rather than property, and proposes some fairly radical reforms like returning to the 1790 copyright act, withdrawing the U.S. from the Berne Convention, and basing copyright policy on its cost to consumers rather than its benefit to industries.

A few weeks before the book was set for release the GOP made an ultimately illusory feint towards just this sort of privilege-over-property approach. The Republican Study Committee published a widely-praised paper describing copyright as an overgrown regulatory scheme rather than a right worth protecting at any cost, a political gambit Matt Yglesias described as a “fascinating move on the coalitional chessboard.” Writing at the popular law blog Volokh Conspiracy, former DHS Asst. Secretary for Policy Stewart Baker called the memo “the most head-turning change of direction in decades for either party on intellectual property issues.”

Alas, within 24 hours the RSC retracted the brief and (implausibly) denied that it had ever been officially approved. After pressure from Nashville Republican Marsha Blackburn, who receives thousands of dollars in campaign contributions from the industry and whose chief of staff is a former RIAA lobbyist, Derek Khanna, the staffer who authored the paper, was promptly fired. The MPAA and RIAA hit the phones after the memo’s release, Ars Technica’s Timothy Lee (who also contributes a chapter) reported, and members weighing in on individual staffing decisions at the RSC, bespeaks desperation on the industry’s part. They know they’re fighting a rear-guard action, against new modes of distribution, against a growing but decentralizing entertainment market, and against backlash to their ever-increasing government privileges, which is why it was so important to shut down any discussion at all.

Call it the Streisand Effect or Pandora’s Box or what have you, but that strategy isn’t likely to work. Conservative bloggers generally support some kind of IP reform, there’s next to nobody in the right-wing intellectual universe that will make a robust defense of the current copyright regime, and the electoral benefits to taking up the issue have increased. As Virginia Postrel wrote, Khanna’s paper “was a harbinger of what promises to be a sustained and substantial critique of today’s copyright regime from intellectuals and activists on the right.” This book is the second salvo.

Jordan Bloom is TAC‘s associate editor. Follow him on Twitter.

about the author

Jordan was TAC's associate editor. He also reviews music for Tiny Mix Tapes, is a contributor at The Umlaut. His work has appeared elsewhere at the Washington Post, Washington Times, The Daily Caller, and Doublethink magazine, among others. He is a graduate of the College of William & Mary and lives in Washington DC. Follow him on Twitter

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