You are here

A Conservative-Libertarian Rift on Copyright? Part 3 -- Defending First Principles Series


Background for this post:


Thank you for your post and sharing your point of view on copyright, which obviously differs substantially from mine.

It is unfortunate for everyone involved that Mr. Khanna posted his brief on a site and in a manner that represented that his analysis reflected the consensus of conservative House Republicans, when that proved not to be true. Had they only been Mr. Khanna's views, and not those claiming incorrectly to be the new consensus of House Conservative Republicans, I may have not felt the need to respond at all or respond in the exact fashion that I did. The exceptionally controversial politicization of this issue for conservatives was Mr. Khanna's doing not mine. I simply pushed back on his attempt to unilaterally move the conservative "goalposts," by acclamation before a holiday weekend when few were paying attention.

And it is unfortunate for your position that most of the Internet posts immediately following Mr. Khanna's RSC postings were from the Lessigian-left celebrating gleefully that conservatives had "radically reversed their position" and not from the RSC echoing Mr. Khanna's position.

You also overlooked that I acknowledged in my third paragraph that: "While there is a perfectly legitimate copyright debate that can be had on the appropriate definition of how long "limited times" for exclusive right to "writings and discoveries" should be, Mr. Khanna's "myths" brief is fundamentally not about that, but about a frontal assault on two centuries of Congressional and Supreme Court interpretation of Article I, Section 8, Clause 8."

I also will acknowledge that there can and should be a perfectly legitimate and healthy debate about how "limited" limited government should be, because conservatives on the margin often see more value in law enforcement than do libertarians. We should not shy away from that discussion or debate because that is precisely where unhelpful confusion and unnecessary disagreement can begin to fester.

As a conservative that strongly believes in the U.S. Constitutional system of checks and balances, and protections of individuals' liberties and minority rights, especially property rights and copyright in this instance, I disagreed with Mr. Khanna's characterization that the output of our Constitutional processes for copyright were just "myths" to be dismissed, not the legitimate law of the land, if and until it is changed.

I understand that you may be uncomfortable with any discussion of Professor Lessig in discussing copyright reform since he: has championed Copyleft, Free Software, Free Culture and Creative Commons; has a pretty hostile "commons" view towards copyright and property rights online; was the main thinker and popularizer of net neutrality and the essentiality of the Internet digital commons; and is one of the single biggest purveyors of spreading the term "crony capitalism," a term which you echoed in your post. I believe I appropriately mentioned Marx and Engels' hostility to property, because Professor Moglen, one of the central thinkers and close allies of Professor Lessig in the development of Professor Lessig's property views has been Professor Eben Moglen, who wrote the "dotCommunist Manifesto" which calls for the "Abolition of all forms of private property in ideas;" and concludes with: "We commit ourselves to the revolution that liberates the human mind. In overthrowing the system of private property in ideas, we bring into existence a truly just society, in which the free development of each is the condition for the free development of all."

The reason this discussion of Professors Lessig and Moglen's views of copyright and property rights in general are exceptionally important to this discussion is that when they use the word, "free," they mean "no cost," not necessarily individual and human liberty "free" as conservatives think of "free" and "freedom." And they see expansive government as the revolutionary vehicle to reduce or take away property rights over time. Why this whole debate has gotten so confusing is that many mislead that the term "free" (as in no-cost) is interchangeable with the terms individual freedom and liberty, a conflation that I posit most conservatives would not agree with. I guess time will tell on this Jerry, that's why the debate over copyright ideology is a healthy and productive one.

Jerry, in your post you said that: "Folks on the left are more interested in equity, while libertarians are more interested in liberty and economic efficiency. The fact that we coincide on our conclusions on copyright should tell us that there’s something really wrong with ou[r] current system, not that we’re not “real conservatives. As a conservative, what I take away from what you are saying is that because some libertarians, who also call themselves conservatives, agree with "the left" on copyright, other conservatives should immediately fall-into-line unthinkingly behind the libertarians that are aligned with the left on copyright. Why shouldn't conservatives examine the copyright issue for themselves as conservatives and not follow the lead of libertarians who in this instance agree with the left? Conservatives and libertarians alike understand that they do not agree on everything, that's why they are very complementary but distinct ideologies.

I suggest it might be helpful in furthering the conservative and libertarian "cause" for you and others to delineate where conservatives and libertarians should and do embrace the broad notion of an Internet commons that argues that content, software, and bandwidth should not have full or robust Constitutional protections, including copyright and property rights, because they happen online. I think we agree on net neutrality but disagree on copyright. It would be instructive for many conservatives to learn why. If you regard my view -- that U.S. Internet activities are ultimately subject to Constitutional rule of law and property rights -- as not conservative, my guess is that many conservatives would be surprised.

I look forward to working with you to find where conservatives and libertarians can come together on these complex inter-related issues, and where we may have to agree to disagree agreeably.


Scott Cleland


Defending First Principles Series

Part 1: Debasing Free Speech as No-Cost Speech

Part 2: The Copyright Education of Mr. Khanna