Christian Engström, Pirate MEP

25 december 2012

Why Conservatives and Libertarians Should Be Skeptical of Copyright

Postat i: Copyright Reform,English — Christian Engström @ 15:30

The book Copyright Unbalanced — From Incentive to Excess appears to be very interesting. From the ad for the book:

Conservatives and libertarians, who are naturally suspicious of big government, should be skeptical of an ever-expanding copyright system. They should also be skeptical of the recent trend toward criminal prosecution of even minor copyright infringements, of the growing use of civil asset forfeiture in copyright enforcement, and of attempts to regulate the Internet and electronics in the name of piracy eradication.

Copyright Unbalanced is not a moral case for or against copyright; it is a pragmatic look at the excesses of the present copyright regime and of proposals to expand it further. It is a call for reform—to roll back the expansions and reinstate the limits that the Constitution’s framers placed on copyright.

I have read the first chapter which is available freely, and that chapter made a lot of sense. It starts with a discussion of property rights:

Traditional property rights, often associated with John Locke’s theory of rights, include rights to real property, personal property, and property in one’s self. The legitimacy of these rights is not just uncontroversial among libertarians and conservatives, it is foundational to their respective political ideologies.

Traditional property rights predate the Constitution, and their contours were developed over centuries in customary law and the iterative and evolutionary process that is the common law. The main text of the Constitution doesn’t even mention a right to property, signaling that the Framers took it for granted.

So far, so good. Although the author Jerry Brito does not mention it, he could have added that property rights are pretty much uncontroversial not only among conservatives and libertarians, but in most other political camps as well.

He then continues (writing from a US perspective, where copyright is mentioned in the Constitution):

Copyright is a very different animal. In contrast to traditional property, copyright was created by the Constitution; it did not exist in the common law. Without the Constitution’s copyright clause, there would be no preexisting right in creative works. What’s more, the copyright clause does not recognize an inalienable right to copyright, but instead merely grants to Congress the power to establish copyrights. Copyright therefore stands in contrast to traditional property in that the legislature has complete discretion whether to grant the right or not.

The concept of property and basic property law developed spontaneously long before the US Constitution was drafted, whereas copyright is a system that was invented by legislators.

This does not in itself necessarily mean that copyright is wrong or evil, but it does mean that the legislators who built the system will had to base it on guesses rather than knowledge that had evolved over time. How can we be sure that the legislators (Congress, in the US case) guessed right?

Without copyright, there would still be songs written and movies made. Congress just thinks there wouldn’t be enough. So, it offers a subsidy in the form of copyright protection to incentivize more creative output. … How does Congress know we wouldn’t have “enough” creative works without copyright? And assuming it knows that, how does it know the right amount of incentive to offer?

The answer is of course that the legislators don’t know for sure what is the ”right” amount of copyright, and there are strong indications that the strengthening of copyright and copyright enforcement that has taken place for the last decade has gone much further than any reasonable arguments could support.

The author gives several examples of excesses in recent legislation, and notes that there is a mismatch between copyright legislation and the general public’s perception of what would be fair and reasonable. He makes an interesting comparison:

Donald Harris has compared the current state of affairs to the Prohibition era because law has outpaced societal norms. There might also be a comparison to the drug war.

He concludes:

Conservatives and libertarians, who are naturally suspicious of big government, should be skeptical of an ever-expanding copyright system. Congress today routinely shifts the copyright balance in only one direction: away from public access and freedom, and toward greater and deeper privileges for organized intellectual property interests. If we take economics and public choice seriously, then we should be concerned.

There is no incompatibility between respect for property and wariness of a radically unbalanced copyright system. Conservative politicians are beginning to understand this.

Speaking from a European perspective, I unfortunately can’t say that I have seen many signs in the European parliament that the conservative politicians there are beginning to understand the issue. But if it is indeed true that there is intellectual movement among conservative politicians in the US, maybe some of that will spill over to Europe in due course.

That would be very welcome.

Read the chapter Why Conservatives and Libertarians Should Be Skeptical of Congress’s Copyright Regime

12 kommentarer

  1. Hello Christian!

    I suggest that you get in touch with Derek Khanna. It could be good for future relations between Europe an US regarding copyright legislation. Why don’t you invite Derek to hold a lecture in European Parliament? :-)

    Staffer Derek Khanna was behind a influential conservative group, Republican Study Committee, that released a copyright reform memo: http://www.scribd.com/doc/113633834/Republican-Study-Committee-Intellectual-Property-Brief

    After the memo was releaed Derek Khanna get fired. The Motion Picture Association of America and Recording Industry Association of America went ballistic and hit the phones hard, demanding that the RSC take down the report.

    The Case of the Vanishing Policy Memo
    http://www.slate.com/blogs/moneybox/2012/12/06/derek_khanna_fired_by_the_republican_study_committee.html

    B.T.W
    Thanks for all work you and other hardworking pirates are doing.

    Kommentar av Dennis Nilsson — 25 december 2012 @ 17:52

  2. I second the above motion.

    Also, where can one get a DRM-free PDF of the book?

    Regards, Emil
    Board member, Piratpartiet Denmark.

    Kommentar av Emil — 26 december 2012 @ 0:29

  3. ”But if it is indeed true that there is intellectual movement among conservative politicians in the US, maybe some of that will spill over to Europe in due course.”

    My hope is that the legislation in Europe will spill over to the US. Questions like

    ”Without copyright, there would still be songs written and movies made. Congress just thinks there wouldn’t be enough. ”

    will then be irrelevant. We don’t see copyright in Europe as a means for maximizing culture, it’s most important purpose is to protect the economical rights of the creators.

    Kommentar av nejtillpirater — 26 december 2012 @ 8:16

  4. @Urban/NTP

    ”We don’t see copyright in Europe as a means for maximizing culture, it’s most important purpose is to protect the economical rights of the creators”

    I see you still mix up the means with the purpose as usual.

    Kommentar av YesToPP — 26 december 2012 @ 8:50

  5. nejtillpirater:

    But there are no rights to do business in your own ”favourite way”. ”Economic rights” is just another word for protectionism and mercantilism. You have to adapt to society and the restrictions that technonogical developments allow for in competition with the new businesses and hobbies that technology allows for.

    Good culture will always have a demand, but you just can’t depend on making money on just the OLD work anymore. It is the the service of doing NEW work that has any value.

    Kommentar av forskargurra — 26 december 2012 @ 12:26

  6. @forskargurra: Good culture will always have a demand, but you just can’t depend on making money on just the OLD work anymore. It is the the service of doing NEW work that has any value.

    That was very well put and worth repeating over and over again.

    Kommentar av steelneck — 26 december 2012 @ 14:11

  7. @forskargurra

    ”But there are no rights to do business in your own ”favourite way”.”

    No there aren’t.

    ””Economic rights” is just another word for protectionism and mercantilism.”

    No, the rights only protect the works by that creator, any other creator may do whatever with their own works.

    ”You have to adapt to society and the restrictions that technonogical developments allow for in competition with the new businesses and hobbies that technology allows for.”

    Piracy is not competition, it’s breaking the law. The mafia is not competition. Shoplifting is not competition. Competition is when companies compete with each other on a legal market.

    ”Good culture will always have a demand, but you just can’t depend on making money on just the OLD work anymore.”

    Yes you can. Microsoft sell copies of Window 8 so long as there is a demand for that product.

    Coca-cola will make new cans using their very old recipe year after year as long as there is a demand for that product. Surprise – the price for one can is a lot higher than the cost for producing it. They make huge profits based on old work – the original recipe. Just as any other company will if they can.

    Kommentar av nejtillpirater — 26 december 2012 @ 14:25

  8. @ Nejtillpirater

    ”No, the rights only protect the works by that creator, any other creator may do whatever with their own works.”

    But how are the arts supposed to develop and thrive if artists are not allowed to make derivatives and remixes of each other works. And more importantly: how are the artists supposed to get any inspiration for future work if their sources of inspiration ( other artists works ) are behind locks and bars of a monopoly? Exactly the same problem is in science, scientists are unable to access each other works if they are locked behind copyrights.

    Copyrights make previously produced science and arts unncessarily expensive – at the expense of both the public and the future creators.

    ”Yes you can. Microsoft sell copies of Window 8 so long as there is a demand for that product.”

    Well, that is primarily because Microsoft has charmed the computer manufacturers into signing contracts that windows is to be shipped with new computers for quite many different brands and manufacturers.

    ”They (coca cola) make huge profits based on old work – the original recipe. Just as any other company will if they can.”

    Well, their recipe is hardly published nor is it protected by copy rights. It is a business secret – hardly ever supposed to be published. So that has nothing to to with copy rights!

    Kommentar av forskargurra — 26 december 2012 @ 18:31

  9. @ Nejtillpirater

    My hope is that the legislation in Europe will spill over to the US. Questions like

    ”Without copyright, there would still be songs written and movies made. Congress just thinks there wouldn’t be enough. ”

    will then be irrelevant. We don’t see copyright in Europe as a means for maximizing culture, it’s most important purpose is to protect the economical rights of the creators.

    The purpose of copyright has always been, and will always be, to maximize culture in our society. The purpose can never be the means. Your rhetoric is utterly flawed.

    Piracy is not competition,

    It is in the case of a competing service.

    it’s breaking the law.

    There is no contradiction here between competition and it’s legal standing.

    The mafia is not competition.

    It can surely be.

    Shoplifting is not competition.

    Shoplifting is not a service as far as I know…

    Competition is when companies compete with each other on a legal market.

    Competition is when people compete with each other, simple as that. You can’t run around and fabricate your own interpretations of common words, like when you tried to convince people that copying and theft would be of same nature.

    ”Good culture will always have a demand, but you just can’t depend on making money on just the OLD work anymore.”

    Yes you can. Microsoft sell copies of Window 8 so long as there is a demand for that product.

    Microsoft doesn’t depend on “making money on just the OLD work”, which makes your statement quite misleading.

    Coca-cola will make new cans using their very old recipe year after year as long as there is a demand for that product.

    Coca-Cola sells physical products that have to be manufactured. Their recipe is quite irrelevant in this context. You always pay for fresh work in this case.

    It’s quite obvious that you are still having problems differentiating between physical and immaterial things. That explains why you are still (wrongly) propagating that copying and theft would be of same nature.

    Surprise – the price for one can is a lot higher than the cost for producing it.

    That’s normal economical procedure.

    They make huge profits based on old work – the original recipe.

    That’s an outright lie. Coca-Cola sells physical products that have to be manufactured. Their recipe is quite irrelevant in this context. You always pay for fresh work in this case.

    Kommentar av Professor — 26 december 2012 @ 18:46

  10. @Professor

    First of… Always like reading your posts, they have very good arguments in them.

    ”The purpose of copyright has always been, and will always be, to maximize culture in our society. The purpose can never be the means. Your rhetoric is utterly flawed. ”

    It doesn’t matter how many times we explain this to nejtillpirater, he’ll always mix the two up. It is true what you write that the PURPOSE of copyright is to maximize culture in our society, and currently the MEANS of doing this is to grant a time-limited right to the work. Nejtillpirater always turns these two around.

    Although nowadays that time-limit seems more than infinitive since nobody will see any works created in our life-time hit public domain. Why should the protection span the authorer’s life-time + 70 years? How is that helping maximizing culture? It is just a way to milk more money of old works.

    I wish I could get a job digging a trench, and get paid life-time +70 years for that work. Only in the entertainment business will you get paid for OLD work.

    Kommentar av YesToPP — 28 december 2012 @ 3:16

  11. I would say that it is in the nature of a conservative to try to conserve power by making innovation and progress more difficult. Anything that disrupts power will be a threat to a conservative. In order to make a conservative change his mind, you’ll need to show how him his investments are preserved during the transition period when copyright reform happens. Libertarians needs to be convinced that the strongest will benefit from the change (They will naturally assume that they are of course the strongest)

    @nejtillpirater ”Piracy is not competition [..]” It isn’t legitimate competition, true and in the long run probably highly corruptive. The pirate parties of the world don’t really encourage piracy in the common market, but rather encourage the need to share experiences, copy and improve. One way of making this easier is to reform the copyright legislation so that what might be called ”piracy” today in the common market won’t be called piracy after the law has changed. After the change new forms of competition will be available. As for private copying, people who don’t participate on the common market will never abide to the rules of the common market. You can try to make up what ever laws you like. They only way they’ll follow is if there is a substantial benefit to communication or if you’ll whip them to obedience. I guess you don’t really have a problem with the latter, do you?

    Kommentar av Kristofer Pettersson — 28 december 2012 @ 10:38

  12. @ YesToPP

    It doesn’t matter how many times we explain this to nejtillpirater, he’ll always mix the two up. It is true what you write that the PURPOSE of copyright is to maximize culture in our society, and currently the MEANS of doing this is to grant a time-limited right to the work. Nejtillpirater always turns these two around.

    Yes. It’s no point trying to educate someone who clearly doesn’t want to learn the fundamentals of the subject being discussed. Luckily enough my replies to him aren’t a futuile attempt to try and educate him. A person who doesn’t even bother to answer people who exposes his lies for what they are, who constantly lies about the difference between physical things and immaterial ones, who shamelessly tries to compare copying with theft, and who are now confusing the means of copyright with its purpose. Naturally, all these things he have been proved wrong on numerous times as well. There simply is no excuse to the lack of knowledge anymore.

    No. My replies are more for those other people, the readers of this blog.

    Although nowadays that time-limit seems more than infinitive since nobody will see any works created in our life-time hit public domain. Why should the protection span the authorer’s life-time + 70 years? How is that helping maximizing culture? It is just a way to milk more money of old works.

    There is absolutely nothing sensible about this at all.

    I wish I could get a job digging a trench, and get paid life-time +70 years for that work. Only in the entertainment business will you get paid for OLD work.

    And only in the entertainment business will you get arbitrary and state issued monopolies that limits peoples´ rights and freedoms. And only there will you get the state to even consider signing up on a huge witch hunt of ordinary people. Everything just to secure their status quo.

    Kommentar av Professor — 29 december 2012 @ 19:53


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