Republicans More Radical Than Libertarian Copyright Moderates

The alleged case for copyright is that some temporary monopoly is “needed” to incentivize artistic creation. Yet given that there is no evidence that this is so,¹ and how copyright is used to censor and chill speech and expression and to justify expansions of the police state and regulations of Internet freedom,² one would think that libertarians and free marketeers would be calling for the complete abolition of copyright.

Unfortunately, this is not the case. While most Austrian-influenced libertarians, left-libertarians, and anarchist libertarians are now against IP,³ pragmatic and utilitarian-type “moderate” libertarians tend to avoid taking a radical, principled stance on IP. Most of them think the patent and copyright systems are “broken” and need to be reformed, but not abolished. They accept the basic idea that patent and copyright are necessary to stimulate innovation but that these laws have now “gone too far.” For example, libertarians Timothy Lee⁴ and Alexander Tabarrok⁵ pose as radical IP mavericks but are not in favor of abolishing patent and copyright.

In a recent Bloomberg article, A Free-Market Fix for the Copyright Racket, libertarian writer Virginia Postrel discusses growing criticism “of today’s copyright regime from intellectuals and activists on the right.” As she writes:

Making the intellectual case, the Mercatus Center at George Mason University, a hub of free-market scholarship, has just released “Copyright Unbalanced: From Incentive to Excess,” a collection of libertarian and conservative critiques. The book doesn’t oppose copyright per se, but it excoriates the current system’s lengthy terms and expansive enforcement powers.

“Whatever your philosophical position, if you are skeptical of government power, you should likewise be skeptical of the copyright system that has developed over the last century,” writes Jerry Brito, the volume’s editor, in the introduction.

Brito, who directs the center’s technology policy program and teaches law at George Mason, argues that copyright is more akin to the tradable emissions permits used to regulate air pollution than it is to traditional property in goods or real estate. Copyright is a “created order,” in which congressional action deliberately generates scarcity to produce a public benefit.

Just as an effective emissions-trading system depends on getting right the exact number of permits and total amount of emissions, so a good copyright system depends on setting the right terms, limits on fair use and enforcement mechanisms.

“If copyright is weak, then it will provide little incentive to create,” Brito writes. “But if it is too strong, then it will limit the public’s ability to enjoy and build on creative works, which after all is the reason why we have copyright in the first place.”

Striking that balance is tricky, even without political pressure. And lawmakers have shown little interest in trying to reason out the optimal solution. Instead of balancing the interests of consumers and future producers with financial incentives to create new works today, copyright has become an expanding monopoly privilege for well-connected industries.

Note the bolded text. The book from George Mason University, “a hub of free-market scholarship,” doesn’t oppose copyright “per se.” The editor, Jerry Brito, buys into the argument that “If copyright is weak, then it will provide little incentive to create”—even though there is no evidence for this contention—and even though this is not a principled way to determine which laws and property rights are justified and which are not, in the first place. Thus, he agrees that we need to “strike the right balance” and “set the right copyright term.” Apparently these free market IP reformers know that 100+ years of copyright term is “too long,” but that zero is “too short,” so we have to—somehow—find the “right term” so that we “strike the right balance.” (See also Tabarrok’s groundless “Laffer curve” type model of copyright term optimization, discussed in Patent Policy on the Back of a Napkin.)

I suppose if gasoline rises to, say, $10/gallon, the state ought to impose Nixonian price controls—after all, it’s obvious, isn’t it, that $10 is “too high.” Yet you don’t want it to be only a penny a gallon—that’s “too low” since it would not stimulate enough gasoline or oil production. We need to strike the right balance and find the right gasoline price somewhere between $0.01 and $10 per gallon. After all, what’s the point of having a government if you’re not gonna use it?

It’s pretty sad when Republicans are more radical on IP reform than libertarians are.⁶

1. See The Overwhelming Empirical Case Against Patent and Copyright. [↩]
2. See Death by Copyright-IP Fascist Police State Acronym; SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright; Where does IP Rank Among the Worst State Laws?; Patent vs. Copyright: Which is Worse?; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom. [↩]
3. See The Four Historical Phases of IP Abolitionism, The Origins of Libertarian IP Abolitionism, and The Death Throes of Pro-IP Libertarianism. [↩]
4. See Copyright Shill’s Defense of the Status Quo. [↩]
5. See Patent Policy on the Back of a Napkin. [↩]
6. See Heroic and Radical Republican Study Committee Copyright Reform Proposal Retracted under Pressure from MPAA and RIAA. [↩]