The “Common Sense” Case for Copyright

I was discussing my post Whereupon Grok admits it (and AI) is severely gimped by copyright law with a friend who is generally skeptical of patents—at least “abusive” or “bad” patents (which still misses the pictures)¹ —which resulted in a brief interchange, an edited version of which is reproduced below.

Friend:

I’ve long thought that copyright terms are far too long. They should go back to what they used to be: 14 years from creation and then public domain.

Kinsella:

Yes, this is similar to the idea of the “Founders’ Copyright” Tom Bell has promoted.² 14 is bad, just less bad than 100. But sure, I’ll take anyone who wants less. I’m not against IP reform or incremental improvement.³

But I still don’t understand how or why you you think zero is better than 14. I assume your case is pragmatic and utilitarian, but in that case don’t you think that the burden of proof is on those who say we need copyright … and until they fulfill that burden with actually empirics, the default assumption should be: NO copyright, unless someone can prove that it does more harm than good? (And there is no empirical evidence in favor of patent or copyright.)⁴

I mean just as general approach?

Friend:

It’s not my argument, but I think the original one about 14 years was it gave the creator enough time to make a return on the investment in the work’s creation. If they haven’t made a return by then, giving more is not justified. I don’t think zero is better because that would allow only the distributors and creators of physical products to make money from works, and not the creator of the work itself. To be honest though, I find the whole argument a bit boring as it’s never going to move anyone, things are far too well-embedded.

Kinsella:

Got it. So your argument is sort of a “common sense,” or intuitive, or seat of the pants, version of the utilitarian or consequentialist argument—instead of trying to produce actual evidence showing that the benefits outweigh the gains, you just sort of assert that it’s common sense or obvious. But of course this is question-begging, or mere assertion. No wonder the IP confusion is so rife in society—as you say, “things are far too well-embedded.”

1. There’s No Such Thing as a Free Patent; Patent Trolls Are Preferable to “Practicing Entities”; Anti-patent-troll ads launch on radio and in print in 15 states: miss the big picture; Slate’s Farhad Manjoo: Use Crowdsourcing to Improve Patents and Kill Patent Trolls; The Patent Defense League and Defensive Patent Pooling; “Patent Trolls” Cost Productive Companies $29 Billion in 2011, Stall Innovation, and Hurt Small Businesses; “Patent Trolls Cost The Economy Half A Trillion Dollars since 1990”. [↩]
2. Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms; see also William Patry on How to Fix Copyright. [↩]
3. See How to Improve Patent, Copyright, and Trademark Law; KOL164 | Obama’s Patent Reform: Improvement or Continuing Calamity?: Mises Academy (2011); Reducing the Cost of IP Law; Do Business Without Intellectual Property (Liberty.me, 2014). See also The Patent Eligibility Restoration Act; Radical Patent Reform Is Not on the Way. [↩]
4.  “The Overwhelming Empirical Case Against Patent and Copyright”; also “Legal Scholars: Thumbs Down on Patent and Copyright” and There’s No Such Thing as a Free Patent. [↩]