Conservatives support constitutional copyright

Derek Khanna Technology Activist
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In the words of Ronald Reagan, “there you go again…”

Timothy Lee supported SOPA/PIPA and tried to make that bill that would have killed innovation, been ineffective and counterproductive seem conservative. In his recent Daily Caller piece, he is at it again on behalf of Hollywood.

For generations, Hollywood and the recording industry have gotten their way in Washington so easily and so often, they have forgotten how to engage in reasoned argument. As a case in point, see Tim Lee resorting to mischaracterizing my words, grossly misinterpreting the Federalist papers, and misreading the constitution.

Since Lee referred to my arguments for going back to the Constitution’s parameters for copyright as communitarian, I’m wondering which Founding Father Lee believes was also communitarian? Does Lee believe Phyllis Schafly was acting in a communitarian spirit when she spoke against the copyright extension in 1998, or when she called for limiting the DMCA? The conservative movement has essentially reached a consensus on these positions, is it communitarian too?

A modern conservative movement that claims to be serious about the Constitution and founding principles cannot disregard the one provision of it that addresses copyright and explicitly tells us its purpose.

Copyright law exists for a specific purpose: promoting progress in the sciences and useful arts. How do we know that? The Constitution explicitly tells us so in stark, unequivocal language that is nearly as clear as the minimum age for serving in Congress or how many Senators each state gets. Arguing this point does not make one a communist, it makes one a constitutionalist.

Lee may not take the Constitution seriously, but there are millions of Americans who identify with the Tea Party that do, and the conservative movement ought to as well.

We can disagree about complicated issues of policy without calling each other names; we can have more civilized discourse than a copyright red scare.

These are discussions we should have, because, Lee’s assertions of current policy being perfect aside, 7 million Americans being potential felons for unlocking and jail-breaking their phones is evidence of a system having serious collateral damage. No one has ever been able to explain what unlocking and jail-breaking have to do with copyright and the Constitution. There is no real connection; at best it is a result of sloppy law-making, at worst, it’s a malicious attempt by progressives to destroy competition and innovation.

A world where Paul Graham, founder of Y Combinator, advises innovators to avoid anything involving content because it is so legally fraught is evidence of a system having serious collateral damage. “the record labels,” he said, “are effectively a rogue state with nuclear weapons. There is nothing we or anyone else can do to protect you from them, except warn you not to start startups that touch label music.”

Conservatives support constitutional copyright.

  • Constitutional copyright does not tell innovators not to develop a start-up that deals with content, movies, music or books.

  • Constitutional copyright does not try to ban the VCR, the first iPod, and first DVR – which is what the content industry did in the name of copyright.

  • Constitutional copyright tries to compensate content holders, for a limited period of time, to give them the incentive to create movies, books and music – which seems a like a good deal for everyone when it’s not hijacked by special interests.

  • Constitutional copyright means using originalism to understand the purpose of copyright according to the Founders, and then implement it into law for the modern economy.

Constitutional copyright is informed by what the Constitution says, rather than what special interests want. Presciently, the Founders were very worried of this system being abused for novel purposes – precisely what has happened and is happening.

The Founders did indeed write copyright in the Constitution. But what we are witnessing today is a further weakening of constitutional copyright into a muddled, special interest-driven mess that ultimately hurts content creators, the public and innovators. Lee can call me a communitarian, but I think the Founders were right.

Copyright is stronger when it actually works as intended, by protecting content creators without making millions of American felons, punishing new artists, or giving government monopoly authority. It’s time for Congress to justify why they bowed to industry pressure, delegating the power to ban technology to the Librarian of Congress.

Remember, the music and entertainment industries also did well before Congress extended copyright terms to life plus 70 years and banned new technologies.

It’s interesting that the content industry tries to have it both ways. They argue, copyright is working so well that we are making lots of money therefore you can’t change anything, but concurrently we are also losing so much money that we need to extend copyright perpetually and enact policy like SOPA/PIPA.

As for Lee’s quotation of Federalist 43, this is some duplicitous originalism. This claim that Fed. 43 establishes natural rights, has been debunked by a variety of academics (see Tom W. Bell, William Patry, Edward Walterscheid).

In other concurrent quotations Madison went into detail on his actual thoughts on what copyright is, what he called a “monopoly.”

Fed. 43’s quotation is clearly giving a statement on what British law had decided, not what he actually believed it should be, which he explained elsewhere. More importantly, while Madison was giving a statement on current law in Britain – he was actually factually inaccurate. When Fed. 43 came out, the decision that Madison was referring to had been overturned by the highest court in the land in Britain (Donaldson v. Becket).

Our nation’s primary Framer deserves more respect than this cherry-picking. We know where Madison was on this issue. Natural rights were very important to the Founders, copyright just wasn’t one of them. Madison argued that copyright should be limited in length and scope.

Lee’s other data point was to cite a legal case from 1954. Citing the Supreme Court from 1954 to make an originalism argument, is like citing Wickard from 1942 on the original meaning of the Commerce Clause. This isn’t textualism or originalism. A case from 1954 does little to inform us on the original public meaning of copyright, but there are many more cases that support the originalist perspective on copyright (see Wheaton v. Peters 1834).

I do agree that technologies should be treated the same. But I don’t think that Lee agrees, as the content lobby has tried to kill almost every new technology ever developed (VCR, first iPod, DVR, satellite TV, digital AudioTape etc.).

Since Lee threw around the word communitarian for advocating going back to the Constitution, specifically its requirement for copyright being for “Limited Times” as the Constitution requires, I think it’s important to ask Lee: are Milton Friedman, Glenn “Instapundit” Reynolds, Steve Forbes, Richard Posner, Ronald Coase, Friedrich Hayek and Stewart Baker communists too for endorsing a limited copyright based upon the Constitution?