Listen to Madison on Copyright

by Derek Satya Khanna
Steve Tepp tries to write copyright reformers out of conservatism, but the Constitution is on our side.

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.

Tepp never disputes the analysis of the original meaning of copyright, or explains how a 580 percent inflation in copyright terms, vs. 43 percent inflation for the patent terms authorized in the same clause of the Constitution, is constitutional or good for content creators and the public.

The original public meaning of the copyright cause — the direction in the Constitution being to “promote the progress of Science and useful arts” — seems to have no connection to modern copyright terms.

To give Tepp credit, he does provide one argument of substance: He claims that modern extreme copyright terms are constitutional because the Supreme Court said so once in Eldred v. Ashcroft.

But as NRO’s Jonathan Adler explained, Eldred “made a mockery of the constitutional text.” And who cares what the Supreme Court ruled once — what does that have to do with ascertaining the original public meaning of copyright? The Court ruled Obamacare constitutional, does that now mean that Obamacare is a constitutional use of the Commerce power? No. Every branch has a responsibility to interpret the Constitution.

Tepp even goes so far as to claim that the R Street report “dismisses [Eldred] as a mere technicality.” The R Street report cites the decision repeatedly and shows how it bolsters our thesis. During the case’s oral argument, as I note in the report, Justice Sandra Day O’Connor said of the policy of continual copyright extension that it “flies directly in the face of what the Framers had in mind, absolutely.”

But most important, the justices in Eldred implied that they would only strike down copyright terms that were infinite, because the Constitution’s text says “for limited times.” The Court didn’t really ascertain whether copyright of over 100 years is consistent with the original public meaning of the clause — that’s Congress’s job. Congress needs to determine whether copyright terms are consistent with the original public meaning to promote the “progress of Science and useful arts.”

Tepp’s citing the modern Supreme Court for an argument that the effectively perpetual terms of today are consistent with the original public meaning of the Constitution isn’t a strong argument when the original public meaning is quite clear.

And given that original meaning, it’s a problem that Tepp never counters the central thesis of the R Street report, which is that current copyright terms, of over 110 years, are so long that they hinder content creation, historical preservation, learning, innovation, and free speech.

Future Disneys, for example, may well not exist under current terms, because the company built their media empire on works in the public domain:

What is Hollywood’s response? What is the defense for terms over 110 years? What study shows that this is an appropriate term? In reality, empirical studies suggest that it isn’t. Here is one such assessment:

America is well off the charts for economically sound copyright terms. It would be nice to see an argument otherwise in the congressional record, but unfortunately when Hollywood won copyright extensions, it never had to make the argument because there was no major voice on the other side to “guard [copyright] with strictness aga[inst] abuse” and defend economically sane terms.

Tepp’s attack also exposes another misunderstanding of the conservative movement. He contests the use of the term “monopoly” to describe copyright, instead claim that it’s their “property.” Unsurprisingly, this position contradicts the Founders’ own words, legal treatises on copyright, and modern conservative property theory as espoused by economists like Friedrich Hayek. Hayek wrote:

It seems to me as beyond doubt that in [patents and copyright] a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required.

“Beyond doubt” . . . except to Hollywood lobbyists, who like to use the term “property” even though it’s never been their property, and certainly was not “property” to the Founders, economists, or legal scholars who use the term “monopoly” to refer to copyright.  Tepp would know that if he read the R Street report — there is an entire addendum on this point that he conveniently ignored.

Since Tepp trusts the Supreme Court as the ultimate authority on this issue, they use the term monopoly to describe copyright:

“A copyright, like a patent, is a statutory grant of monopoly privileges.”

 “We have often recognized the monopoly privileges that Congress has authorized . . . are limited in nature and must ultimately serve the public good.”

“The monopoly created by copyright thus rewards the individual author in order to benefit the public.”

“The limited scope of the copyright holder’s statutory monopoly . . . reflects a balance of competing claims upon the public interest.”

These are not isolated examples, this is how the Supreme Court refers to copyright.

Tepp claims that all property rights are monopolies — no, not in the same sense. Hayek, other conservative economists, and the Founders make a clear distinction between property rights and other monopolies. Madison has an essay on monopolies mentioning copyright and patents but not real property, because he saw them differently.

Why is “monopoly,” the Founders’ term for copyright and patents, a bogeyman to Hollywood? Because Hollywood doesn’t want to acknowledge that copyright is essentially a form of regulation by the government, which is required to be short and limited. Hollywood believes that they can manipulate conservatives who are skeptical of regulation by eliminating the vernacular of the Founders and mainstreaming their term, “intellectual property.” So much for originalism  and textualism.

Tepp finishes by citing a specific proposal for copyright terms that the R Street report never actually recommends.

The paper mentions a report I produced while working for the House Republican Study Committee in 2012. Our collective RSC report, on behalf of over 160 conservative members of Congress, called for shorter copyright terms, and then specifically outlined one proposal of what shorter terms, including registration and fees as a disincentive to renewal, could look like. It wasn’t a final bill, just a proof of concept of how this could be done for further discussion.  Worse, when Tepp criticized the 2012 report as if it were recommended by the R Street paper, he misstates the numbers badly, massively overstating the costs of the RSC proposal.

The R Street report mentions the RSC proposal as one idea among a number of proposals, while not endorsing it, because it proved enormously popular among tech groups, young people, and conservatives.  

The proposal that Tepp so gleefully attacked (with falsified numbers) received praise from The American Conservative, Tim Carney of the Washington Examiner, David Brooks and Ross Douthat, Randy Barnett (the architect of the NFIB v. Sebelius Obamacare challenge), the Wall Street Journal, Instapundit, and RedState. This is an idea that’s unconservative?

It appears that Tepp didn’t really read the R Street report. Given the original public meaning of copyright, I’d like to see him or Hollywood justify modern copyright law: Why are copyright terms over 100 years? Explain why, when patents and copyrights were included in the same clause of the Constitution and originally had the same or similar durations, the patent term has increased by just 43 percent while the copyright term has increased by almost 580 percent. Congress and defenders of existing copyright must justify why a 20-year term can provide sufficient incentive to inventors, but not to writers and artists.

As James Madison implored, it’s incumbent on us today to “guard” copyright “aga[inst] abuse” by special interests — one of the most obvious examples of modern cronyism.

— Derek Satya Khanna is a former employee of the Republican Study Committee, a 2013 Lincoln Fellow at the Claremont Institute, has spoken at the Conservative Political Action Conference, and is a fellow with Yale Law’s Information Society Project. He has never been a registered lobbyist or received money from an organization that lobbies on copyright reform.