Myths and Facts about Copyright
What should a Republican policy look like?

Victory night for Obama-Biden, November 6, 2012



Progressive academics and libertarian-oriented conservatives have found an area of harmony: bashing the conservative Republican Study Committee in the House over copyright law.

Two weeks ago, an RSC staffer wrote and released a policy brief on “Three Myths about Copyright Law and Where to Start to Fix It.” The paper was skeptical of copyright as an institution, which delighted the progressives who dominate legal academia. These folks have never met a property right of any sort that they liked, but their contempt for intellectual property is particularly intense. The paper also pleased the large section of the libertarian community that embraces tangible property but opposes rights in intellectual property.

Among the less intellectual classes, the paper found favor with much of the tech industry, led by mighty Google, which has a strong interest in demolishing intellectual-property rights. Consumers buy a package consisting of the content plus a mechanism for finding it (such as a search engine) and a telecommunications pipe for delivery. If content has no rights attached to it, it can be appropriated by the other participants without payment, which leaves more of the consumers’ dollars for search and delivery.

Naturally, the paper outraged the content industry, which has the wealth and glamour to be among the most politically powerful players in Washington. While the talent supports the Democrats, the business side of the industry is more even-handed, and the Republicans get their share. The RSC soon withdrew the paper, claiming it had received insufficient review. The withdrawal has led to the blogosphere equivalent of a public flogging, with both Left and Right wielding the whip. The reversal provided the big news hook — as usual, it is not the crime but the cover-up. To support the Republican-bashing theme of the official narrative, the paper has been built up as a work of genius. Matt Yglesias epitomized the tone in Slate: “An influential conservative group released a copyright reform memo that was so smart it had to immediately disavow it.”

In fact, the paper was mediocre, and should never have been released in the first place.

The big problem was with its basic premises, which were mostly on the silly side of erroneous.

The first idea identified as a “myth” was that copyright exists to compensate the creator. Not so, said the paper, since the preamble to the Constitution’s copyright clause says that its purpose is “to promote the progress of science and useful arts.” Therefore, the scope of the property right should be determined by the public interest, not by any concept of what the creator deserves.

This issue may be novel to the paper’s author, but it is a familiar topic in copyright-law circles. As the Supreme Court has said, the purpose is to promote science and useful arts, but the mechanism for achieving this is to recognize property rights. It is not clear why, in determining the boundaries of these rights, the concept of moral deserts should be excluded. Recognition of property rights has a utilitarian component, but this does not exclude considerations of right and justice in shaping its contours.

As Professor Mark Schultz, one of the most sensible analysts of copyright, puts it:

As between creators . . . and others, who has a better claim to control and exploit a work of authorship? Of course, to a dedicated [intellectual property] utilitarian, this question is irrelevant. Nobody deserves anything; society takes what it needs, subject to the need to persuade the producer to keep producing what the takers want.

The idea that a creator, whether of crops or books, should get only the minimum that “society” decides is necessary to keep him or her working might belong in the Democratic-party platform, but surely it does not belong in a paper from the RSC.

The second proposition branded as myth in the RSC paper was that “copyright is free market capitalism at work.” The paper denies this on the ground that content creators are given a monopoly, which is then enforced with excessive levels of statutorily set damages.

The idea that a copyright is a monopoly in any meaningful sense was demolished by Professor Edmund W. Kitch over a decade ago, in an article aptly titled “Elementary and Persistent Errors in the Economic Analysis of Intellectual Property.” Basically, an exclusive right to a bit of property is a very different thing from monopoly power over an entire market. As an analogy, a homeowner has an exclusive right to his house, but this does not mean he has a monopoly over the real-estate market. Any author or musician starving in his garret wishes that he had a monopoly. But he does not.