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Why Conservatives Should Be Skeptical of Copyright Reform -- Part 4 Defending First Principles Series

There are many strong reasons for conservatives to be skeptical of proposed copyright reform and new entreaties for conservatives to actually lead a copyright reform effort.

  • Jerry Brito of the Mercatus Center argues the opposite in his introduction to the new book: "Copyright Unbalanced: from Incentive to Excess." In his introduction, "Why Conservatives and Libertarians Should Be Skeptical of Congress' Copyright Regime" Mr. Brito concludes that conservatives may find they "are the best situated to lead a reform" of copyright law.

While Mr. Brito's reasoned intro shows why there is a legitimate debate to be had concerning the Constitutional definition of "limited times" to authors for "their respective writings" and provides some context to justify his position, Mr. Brito does not provide the full context necessary for conservatives to make an informed decision of whether or not they should support copyright reform let alone lead the charge for it.

Let's examine the strong reasons conservatives should be skeptical here.

Copyright reform has been a top pet issue of the tech-left for over a decade. The tech-left, i.e. Professor Lessig's Free Culture/CopyLeft movement and the Google-led Internet lobby, is hostile to copyright and intellectual property rights in general because they seek a property-less, Internet commons where "information wants to be free" (of cost.) The tech-left would love for their ideological foes to lead the charge on one of their strategic issues that they could not advance themselves and let conservatives take the hits that they are unwilling to take themselves. How is it in conservative's interests to be used as human shields to advance the tech-left's Internet commons agenda?

Copyright reform, net neutrality and software patent opposition are the three legs of the stool of the tech-left's anti-property Internet commons agenda. Conservatives can see the forest for the trees that the tech-left sees property-issues as highly-politically inter-related, but tactically pursues them individually in a divide-and-conquer strategy. The tech-left's recurrent tactic is to demonize property owners that stand in the way of their Internet commons utopia. They shorthand demonize all content as Hollywood, all broadband as "opolies," and all software as Microsoft, because all three industries, media, broadband, and software, rely on property-based business and payment models that threaten the tech-left's vision for a no-cost and no-property-permission-required Internet commons. At core, conservatives understand property-rights and copyright are foundational to economically incenting the quality valuable content that the mass market demands and values.

Copyright reform is not a conservative priority. With all the urgent Big-Government reforms needed: budget reform, tax reform, entitlement reform, etc. and with the plethora of Constitutionally-suspect Big Government expansions of power facing conservatives, why would conservatives judge it smart or productive to prioritize reforming a Constitutionally-authorized property right fundamental to jobs, exports and economic growth? And why should it be a conservative priority to advance a top priority of the tech-left, who oppose most every principle conservatives stand for?

Directionally piracy-blind copyright reform is "unbalanced" and anti-property. Mr. Brito's book "Copyright Unbalanced: from Incentive to Excess" starts from the implicit premise that the real and main problem involving copyright is not the rampant problem of online piracy and counterfeiting that ravages American jobs, exports and economic growth, but the problem is too much Constitutionally-authorized economic incentives to produce quality content that people around the world demand. How is largely ignoring U.S. Constitutional rule of law, enforcement of property rights, and protecting U.S. economic activity from mass theft, "balanced" reform or conservative? And talking of "balance," why would Tea Party conservatives or libertarians be more interested in legislating pirate-amnesty than in rule of law enforcement?

In sum, let me be clear here, I am not saying that Mr. Brito is anti-copyright/property or that he does not offer some reasoned copyright analysis that is worthy of debate.

What I am saying is that Mr. Brito cannot magically deem a consensus between conservatives and libertarians or even forge one by gerrymandering an unbalanced frame of copyright reform that ignores the essential context of the rampant piracy problem and that papers-over deep ideological differences conservatives have with the tech-left's Internet commons agenda.


Defending First Principles Research Series

Part 1: "Debasing Free Speech as No-Cost Speech"

Part 2: "The Copyright Education of Mr. Khanna"

Part 3: "A Conservative-Libertarian Rift on Copyright Reform?"