Over 200 years ago, James Madison warned us that copyright and patents, being “monopolies,” “must be guarded with strictness aga[inst] abuse.” Today that abuse is manifest: Copyright terms wildly divergent from the guidelines recommended by the Founders are used to destroy innovation, hinder content creation, stifle political speech, and increase monopoly rents, rather than “promot[ing] the progress of Science” — the standard required by the Constitution’s plain text.
A work written by one of the Founders in 1790 would have received 14 years of protection, and until 1976 the average copyright term was 32.2 years. Today copyright can last over 100 years. How did things get so off the rails? Well, Hollywood essentially imported European-style copyright — and does anyone think that Europeans imported copyright as the Founders intended?
Recently, National Review Online
published a response
to a paper I wrote on copyright reform for the R Street Institute by Steven Tepp, a former lobbyist for Hollywood’s trade organization, the MPAA and a current lobbyist on expanding copyright protection for their lead ally, the Chamber of Commerce.
My recent R Street report, “Guarding Against Abuse: Restoring Constitutional Copyright,” explored the original public meaning of copyright and how Hollywood’s abuse hurts content creators and society. That report explained how and why the Supreme Court hasn’t been and can’t be the arbiter of enforcing constitutional copyright and analyzed significant research showing how destructive modern “perpetual copyright on the installment plan” has become.
But instead of defending the enormous federal expansion of copyright terms, or disputing the findings of R Street’s report that unconstitutionally long copyright terms hinder content creation, Tepp’s article just gives us intellectual dishonesty.
The first piece of spin: Tepp implies that the R Street report’s criticism of longer terms is communitarian because shorter copyright terms would take away copyright holders’ “property.” But this is ridiculous: Of course copyright isn’t their property, it’s a government-granted monopoly through a form of, at least effectively, regulation. As RedState wrote in criticizing the disingenuous attack, Tepp is the one “pushing for more government.”
Tepp claims that those who want shorter copyright terms have a “hostility to private rights in favor of communal property.” Those who wanted shorter copyright of course includep the Founders, who actually enacted copyright terms of 14 years. They were very strong supporters of property rights . . . copyright just wasn’t one of them, which is why they used a different legal term for it: “monopoly.” If your argument’s logical extension effectively makes the Founders into Marxists or at least communitarians, then you may need to rethink your talking points.
Tepp can claim that conservatives love his and Hollywood’s ideas, but the facts suggest otherwise. Milton Friedman, Friedrich Hayek, Randy Barnett, Steve Forbes, Phyllis Schlafly, and other conservatives have long been supporters of major reforms to copyright to restore the original public meaning. The American Conservative magazine even published a piece called “Do Any Conservatives Strongly Support Today’s Copyright Regime?” when the piece’s author was unable to find any conservatives who support the existing policies. (In The American Conservative’s cover story this month, “GOP: The Party of Innovation,” I call for, among other things, copyright reform.)
Tepp is certainly allowed to disagree and argue that some conservatives do support the existing regime, but he instead misleads the reader into believing that instead it is unconservative not to do so. NRO’s Ramesh Ponnuru noted that this is misguided.
The real failure of Tepp’s response is that he never argues with the R Street report. Despite the the allegation from the report and the related op-eds that the statements of the president of the MPAA, ex-senator Chris Dodd, may be potential evidence of potential quid pro quo corruption, Tepp never even disputes the analysis of Dodd’s comments.