A Free-Market Fix for the Copyright Racket

Bloomberg View , November 28, 2012

While most of the punditocracy was chattering earlier this month about Mitt Romney’s “gifts” gaffe, another Republican took an unexpectedly bold stand about a huge and controversial special-interest handout that largely benefits Democratic constituencies.

A young Capitol Hill staff member named Derek S. Khanna published a Republican Study Committee policy brief titled “Three Myths About Copyright Law and Where to Start to Fix It.” The paper attacked the current copyright system, particularly the continual and retroactive extension of copyright terms at the behest of entertainment-industry lobbyists.

The target wasn’t new -- today’s expansive copyright law has long been a pet peeve of many technorati and left-leaning critics of corporate power -- but Khanna’s critique was striking. He made his case in the traditional Republican language of free markets, limited government and constitutional intent.

“The Federal government has gotten way too big,” the report declared, “and our copyright law is a symptom of the expansion in the size and scope of the federal government.” The current system, it went on, “bears almost no resemblance to the constitutional provision that enabled it and the conception of this right by our Founding Fathers.”

The paper drew praise from reformers at outlets across the political spectrum, from the American Conservative to Publishers Weekly to Daily Kos. But within 24 hours, the study committee withdrew it, spiking it from its website. Hollywood, it seemed, had won again.

The fight isn’t over. The Khanna paper was a harbinger of what promises to be a sustained and substantial critique of today’s copyright regime from intellectuals and activists on the right.

“Copyright reform,” says Republican consultant Patrick Ruffini, “allows Republicans to demonstrate that they’re pro-market, not just pro-big business.”

Besides, the movie, music and publishing industries generally hate Republicans.

Making the intellectual case, the Mercatus Center at George Mason University, a hub of free-market scholarship, has just released “Copyright Unbalanced: From Incentive to Excess,” a collection of libertarian and conservative critiques. The book doesn’t oppose copyright per se, but it excoriates the current system’s lengthy terms and expansive enforcement powers.

“Whatever your philosophical position, if you are skeptical of government power, you should likewise be skeptical of the copyright system that has developed over the last century,” writes Jerry Brito, the volume’s editor, in the introduction.

Brito, who directs the center’s technology policy program and teaches law at George Mason, argues that copyright is more akin to the tradable emissions permits used to regulate air pollution than it is to traditional property in goods or real estate. Copyright is a “created order,” in which congressional action deliberately generates scarcity to produce a public benefit.

Just as an effective emissions-trading system depends on getting right the exact number of permits and total amount of emissions, so a good copyright system depends on setting the right terms, limits on fair use and enforcement mechanisms.

“If copyright is weak, then it will provide little incentive to create,” Brito writes. “But if it is too strong, then it will limit the public’s ability to enjoy and build on creative works, which after all is the reason why we have copyright in the first place.”

Striking that balance is tricky, even without political pressure. And lawmakers have shown little interest in trying to reason out the optimal solution. Instead of balancing the interests of consumers and future producers with financial incentives to create new works today, copyright has become an expanding monopoly privilege for well-connected industries.

Even as digital technology has made reproducing, remixing and repurposing creative works easier -- with potentially enormous benefits for consumers and producers of new works -- the monopoly privileges of copyright have expanded. The result is a bizarre combination of rampant copyright violations, frequent encroachment on legitimate fair use, suppression of new technologies and business models, and the ever-present threat of draconian penalties.

Consider how the law applies to Robert Frost’s classic poem “Stopping by Woods on a Snowy Evening,” first published in 1923. Back then you only got copyright privileges for works officially registered with the copyright office, and only for a term of 28 years, which could be renewed if you filed again, as Frost did in 1951.

Requiring such simple procedures reserved copyright privileges for creators with strong commercial or sentimental interests in limiting the publication of their works. Today, by contrast, copyright automatically applies to every eligible work, including your vacation snapshots and your 4-year-old’s handmade Mother’s Day card.

Under the law when Frost wrote his poem and renewed the copyright on the volume including it, it would have presumably entered the public domain in 1979, more than a decade after its author’s death in 1963. That’s not what happened. Beginning in 1962, Congress gradually extended copyright terms, and in 1976 it passed a new copyright act that gives works already under copyright a new term of 75 years from their first publication. That meant “Stopping by Woods” wouldn’t go into the public domain until 1998.

That’s not what happened either. Just as the poem’s copyright was about to expire, Congress passed the Sonny Bono Copyright Term Extension Act, which gave existing works a new copyright term of 95 years. (The 1923 Frost volume including the poem was one of the works cited in a lawsuit unsuccessfully challenging the act’s constitutionality.) So Frost’s poem won’t enter the public domain until 2018 -- assuming that Congress doesn’t pass yet another extension.

Fifty-six years of copyright was clearly enough to encourage Frost to write the poem. Anything further is just a windfall for his estate and his publisher. The Constitution, reformers are quick to note, gave Congress the right to grant copyrights “to promote the Progress of Science and useful Arts,” not to benefit producers.

A copyright isn’t supposed to be a reward. It’s supposed to be an incentive.

The good news for poetry lovers is that Frost’s estate doesn’t act like a movie studio or recording label and hurl “cease and desist” letters at everyone who reproduces the poem without permission. YouTube is full of children reciting “Stopping by Woods” as well as videos dramatizing the poem, including clay animation and Lego versions. Every one is a potential copyright violation.

Or maybe not. It all depends on the limits of “fair use.” Eugene Volokh, a law professor at the University of California at Los Angeles, notes that those cute kids rattling off Frost’s lines are “highly unlikely to be a substitute for any licensed video recordings or audio recordings.” The only way to be sure whether their performances qualify as fair use is to litigate the question and few proud parents with a video camera and a YouTube account have a fund reserved for court challenges. The costs of litigation make copyright more expansive than it is on the books. (For protection from charges of infringement, YouTube generally removes videos when someone alleges a copyright violation, even in cases of clear-cut fair use, such as a snippet of President Obama singing a copyrighted song that was used in a Mitt Romney ad.)

Vigorous enforcement of Frost’s copyright would hamper the spread of his poetry and deter new creative works illustrating it -- producing the exact opposite effect intended by the framers of the Constitution’s copyright clause.

In the concluding essay in “Copyright Unbalanced,” Tom W. Bell, a professor at Chapman University School of Law in California, argues for a radically conservative reform: a return to the original U.S. copyright law, passed in 1790, which protected only maps, charts and books and for only a renewable 14-year term. Although the “parsimonious approach” of what Bell calls the Founders’ Copyright Act isn’t likely to catch on, even among reformers, it does offer a useful thought experiment -- and a good reminder of copyright’s intended purposes.

Bell plans to make that experiment more than theoretical. He’s writing another book on copyright reform for Mercatus, titled “Intellectual Privilege,” and intends to publish it next year under the terms of the Founders’ Copyright. After 28 years it will go into the public domain.

“If it was good enough for old Ben, Tom, George, etc.,” he says, “it’s good enough for me.”