There is nothing wrong with incrementalism. Advocates of private property and free markets want patent, copyright, and other forms of IP to be abolished, but we are also in favor of measures short of abolition that move in the right direction–shortening terms and penalties, etc. Still, it’s frustrating when some commentators identify real problems with IP law but fail to make a more fundamental diagnosis. A case in point is free market economist Alex Tabarrok, who has good criticisms of the existing patent system but who nonetheless resists calls for patent abolition and advocates other statist measures to supplement or replace the statist patent system, like multi-billion dollar taxpayer-funded innovation prize systems.
In the field of copyright, we have Google attorney and copyright lawyer William Patry, whose recent book is How to Fix Copyright (see his recent Volokh post, How to Fix Copyright, Part I). Our mutual publisher, Oxford University Press, sent me a copy a while back. Unfortunately, although Patry makes some useful criticisms of the existing copyright system, his diagnosis and prescriptions are confused (though not as bad as those of Dean Baker, who, like Tabarrok in the field of inventions, recommends taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation).
Patry realizes the current copyright system is rife with problems. But he is not willing to support copyright abolition. It is not for failure to understand the law. He is a renowned copyright scholar, author of the seminal Patry on Copyright treatise. Legal credentials are not enough, however. One must have a firm grasp of economics, and one’s political views must be rooted in the propertarian principles that inform libertarian analysis. Given a grounding in Austro-libertarian analysis, it is easy to see that the only legitimate laws are those that enforce individual property rights, and that the purpose of property rights is to permit productive and conflict-free use of scarce resources. The function of law is to make peaceful, productive use of scarce resources possible, by assigning owners to these resources based on Lockean homesteading principles. Copyright law, like patent law, is a grant of monopoly privilege–the remnant of mercantilism and censorship regimes of the past and is antithetical to the free market, competition, and private property.
In the end, Patry’s latest book is not much different than his previous Moral Panics and the Copyright Wars, which I criticized here. On p. 5 he says copyright law is “necessary”; on p. 11 that “copyright laws can serve valuable purposes” (whatever this means); on p. 262 he says that “Going after the very small number of those who are doing most of the harm is entirely justified.” Why? Elsewhere he derides the proponents of stronger copyright for failing to provide evidence that stronger copyright law is needed. Where is Patry’s evidence that any copyright law is “needed”? Where is his normative argument that these laws are justified? He has none, and does nothing to produce such an argument other than repeat commonplace bromides. And so his recipes for change are tepid: reduce the term, but not to zero!
For example, in his blog post noted above, about his new book, he writes:
The title indicates that the book is both prescriptive – offering solutions (this is the “how to” part) – and attempts to be constructive: I want to fix, that is, improve copyright law’s effectiveness. I believe laws are tools, not ends in themselves, and that we should measure, empirically, their effectiveness against their stated objective.
Note the scientism and legal positivism of this approach. It poses as if it’s “scientific” because it is urges looking at the empirical evidence to see if the law is effective at meeting its “stated objective.” There are a number of problems with this approach. First is the unstated (and unscientific, scientistic) assumption that the only scientific approach is to look at evidence. This is the confused approach of monism and positivism (a better approach is the dualistic methodology of Mises; see his The Ultimate Foundation of Economic Science; Hans-Hermann Hoppe, Economic Science and the Austrian Method; and my post C.P. Snow’s “The Two Cultures” and Misesian Dualism). In fact it is impossible to sum up the utilities of such a law, as Rothbard explained in “Toward a Reconstruction of Utility and Welfare Economics.” All we know is that copyright violates some people’s property rights, even as it enriches others. Why does the later justify the former? In any case, to assume it does justify it is not a neutral, scientific approach but a value-laden, normative one.
Further, why does Patry assume that what matters is the law’s “stated objective”? Some laws are evil, such as laws ordering Japanese Americans to report to concentration camps or the Nazi laws aimed at Jews. The objectives or purpose of legislation, whether “stated” or not, may themselves be wicked. So why would the law’s legitimacy be based on how “effective” the law is at fulfilling the goals of its enactors? I, for one, would prefer that copyright law, like the drug war, to be as ineffective as possible. Further, legislated law is not organically developed like common law is, in response to real disputes and aiming at a just solution. Legislation is simply the decree of a group of politicians, each with often conflicting stated and private agendas. To speak of the “objective” of such a statute as if it can be objectively determined is naive. (See, on this, John Hasnas, The Myth of the Rule of Law; also my Legislation and Law in a Free Society and Another Problem with Legislation: James Carter v. the Field Codes.)
Patry goes on:
We do not inherently need strong laws or weak laws anymore than we inherently need strong or weak medicines. We need laws and medicines that are fit for their purpose. What are copyright laws supposed to do? The most popular things copyright laws are said to do are: (1) provide incentives for authors to create works they would not create in the absence of that incentive; (2) provide the public with access to those works; and, (3) in some countries, provide respect, via non-economic rights, for those who create cultural works.
The analogy to medicine is problematic. We humans acknowledge the value of medicine because of its usefulness at promoting human health and well-being, which we value. Those who discuss the efficacy of a given medicine already agree on the general goal of promoting human health. But here Patry takes for granted that people discussing the efficacy of copyright law will all agree on the enumerated “purposes” of copyright that he identifies. It is “said” that a main purpose of copyright is to provide incentives to create? So what if it’s “said”? Said by whom? Well some of us “say” that a main purpose of copyright is to enrich Big Media and to provide a means to certain people and companies that allows them to legally censor other people. Why do we want this purpose to be efficiently fulfilled by copyright law? I don’t.
Probably the most valuable part of the book is Patry’s argument that since the current copyright regime is so obviously broken, and since we have paltry evidence for extending the current copyright system, that no new copyright law should be enacted until further studies are done. If this advice were heeded, at least measures like ACTA and SOPA could be slowed down. But in the end, Patry’s 336 page book is 335 pages too long. All it really needs is one line: “get rid of it.” That’s how to fix copyright. Asking how to fix copyright is like asking how to fix taxes or how to fix slavery. The obvious answer is: get rid of it. Not to call for “more studies.”
Patry assumes that one reason copyright seems to be “broken” now is that it was designed for the pre-digital age. Thus, “To be effective, our copyright laws must be based on the world of digital abundance.” This misconceives the nature of the problem. The problem with patents is not patent trolls or software patents. It is the patent system itself. The problem with copyright is not that we now have a digital age–though it is true that in our digital age the injustice of the copyright system is more visible and has been magnified. It has been magnified simply because the Internet is the world’s biggest copying machine, so people are doing more copying now. A law aimed at stopping people from copying, emulating, learning, communicating, competing, and using information will of course come into conflict with the copying machine known as the Internet. But there is no way to “fix” an anti-copy law to make it compatible with the Internet and “digital abundance.” The Internet and digital culture and commerce will always be in tension and conflict with copyright of any form. Copyright should be abolished. But as noted, there is nothing wrong with incremental improvement, either. How should copyright be changed to make it less incompatible with property rights, free and open culture, and the digital age? Easy: stop enacting new copyright laws (as Patry says), stop increasing penalties for copyright infringement, don’t “crack down” on piracy; instead, reduce copyright penalties, shorten the copyright term, and require active registration instead of the automatic grant of copyright we have now. Here are a list of obvious reforms I proposed in How to Improve Patent, Copyright, and Trademark Law:
- Radically reduce the term, from life plus 70 years to, say, 10 years
- Remove software from copyright coverage (it’s functional, not expressive)
- Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use “orphaned works“
- Provide an easy way to dedicate works to the public domain — to abandon the copyright the state grants authors
- Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems
- Expand the “fair use” defense and clarify it to remove ambiguity
- Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use
- Reduce statutory damages
Requiring registration would make the copyright system “opt-in,” similar to how the patent system works now, where you get no patent for your invention if you do not actively apply for it. But an incremental step in this direction would be to first make the copyright system opt-OUT. As it is now, copyright is granted automatically, and you cannot get rid of it, as I explain here.
This is how to fix copyright law. Kill it, or weaken it. To understand this, one must recognize that copyright is censorship, it is anti-competition, it is anti-Internet. It is a bizarre and harmful state-granted monopoly which is now threatening to turn the US into a police state in the name of protecting “property rights” and to shackle the Internet, one of the greatest tools of freedom in human history. (See Down with Gatekeepers: Hillary Clinton and the Obama Administration vs. Internet Freedom; Why We Must Stop SOPA.)