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Copyright Reform or Neutering? Depends If Baby's Thrown Out with Bathwater? -- Part 5 Defending First Principles Series

Current attempts to deem consensus around copyright legislation appear contrived and one-sided because they isolate a particular copyright problem out of context of the other countervailing problems with copyright law. TechFreedom's event this week asks: "CopyRIGHT: Can Free-Marketers Agree on Copyright Reform?"

The initial question for free marketeers will be whether the goal here is true "reform" that addresses the full range of real copyright problems for copyright holders, users, and intermediaries, or if the goal is more about a one-sided "neutering" of copyright by those who don't believe in intellectual property rights at all, and/or those who politically seek a property-less and permission-less Internet commons (i.e. the "information wants to be free" tech-left of Professor Lessig's Free Culture/CopyLeft movement and the Google-led Internet lobby.)

Three Free Marketeer Copyright Fault-lines:

1) Throwing the Copyright-Baby Out with Excess-Bathwater Fault line.

The main fault-line here for free-marketeers is whether or not the "copyright baby" is thrown out with the "copyright excess" bathwater. While some may claim contrived consensus over the copyright-duration "excess bathwater," by gerrymandering the debate to ignore divisive relevant context, facts and reality, it is incorrect to imply that all free-marketeers care the same about the survival of the "copyright baby" involved here. That's because there is a philosophical divide among free marketeers over copyright as property.

  • Utilitarian-philosophy free marketeers oppose intellectual property as not "real" property and argue that ideas shouldn't be owned or controlled in the digital/internet world when the incremental cost of copying, storing and transmitting information is negligible. They also see intellectual property as man-made rights via the Constitution -- not natural rights. The extreme utilitarian view holds that: the benefits to the many that seek information always overwhelm the benefits to the propertied few. The tech left takes this view even further in viewing intellectual property's requirement -- for permission and payment to use -- as an infringement of others' freedom of speech.
  • Natural-rights free-marketeers support intellectual property and believe that it is moral and just for individuals to own and control the fruits of their labor whether that property is physical or intellectual. While natural-rights free-marketeers may narrowly agree that copyright terms have substantially outpaced the Founders "limited times" intent in the Constitution, they will not mistake this potential narrow agreement over some of the "bathwater" that may need to be thrown out, with the property-rights "baby" that they know they must protect as foundational to free enterprise and individual freedom.
  • Free-enterprisers defend the economic principle of property, physical and intellectual, as a precondition to markets and free enterprise capitalism. Liberty is property. Property is capital. Capital is property. And Capitalism is freedom. One cannot have a market, free or fettered, without property rights, because how could people buy or sell anything if they did not have a legal right to own, trade and profit from the exchange of the good or service? Free-enterprisers know that property rights are the defining difference between free market capitalism and Marxism. Simply, free-market capitalism is based on private-property, while Marxism is based on the abolition-of-property.
  • Rule-of-Law free marketeers are bottom-line business realists, not idealists. They support strong enforcement of property and contracts given the extremely painful lessons learned in trying to do free market commerce with the nations created from the dissolution of the former Soviet Union that had no property protection heritage. Given the lawlessness of rampant peer-2-peer piracy of Napster and Grokster, rule-of-law free marketeers cheered the unanimous Supreme Court MGM vs Grokster decision that ruled that the Digital Millennium Copyright Act (DMCA) safe harbor, that protects intermediaries from liability, did not indemnify those who were willfully blind to known copyright infringement and profited from it.

2) The Ignoring Piracy Fault-line.

Another fault-line for free-marketeers is the one-sided approach to copyright legislation, that ignores piracy in focusing only on scaling back intellectual property rights. Discussing copyright duration excesses absent the countervailing conditions of exceptions/limitations on copyright, and absent any effort to address the real problem of rampant piracy, is an inherently unbalanced free marketeer approach. It's akin to addressing: assets absent liabilities, benefits absent costs, and supply absent demand. Free-marketeers care not only about copyright duration, but also about all the fair use exceptions, forced regulation, and rampant piracy that limits the market freedom of creators to control and profit from the fruits of their labor.

3) The Google Copyright Infringement as Business Strategy Fault-line

Google has the most motive and financial interest to generate astroturf events and documents to divide and neutralize free marketeers on copyright, and to de-legitimize copyright as property, because of the huge willful-blindness copyright-liability Google faces with Google Books, YouTube, and Google News. Google Books has copied, and profited from, 20 million books without permission, an infringement practice that the Copyright Office, the DOJ and Court officially opposed in the Google Book Settlement.

Google-YouTube also knowingly infringed tens of thousands of copyrighted videos to ensure that Google-YouTube extended its dominance to online video distribution. Google also wants to de-legitimize the principle of copyright online in order to help defeat ancillary copyright legislation in Germany, France, Italy, Spain, Brazil, etc. that would require payment for use of headlines and snippets in Google News, which has become the dominant global news aggregator.

Interestingly, the unanimous Supreme Court MGM vs. Grokster decision, which proved strong free marketeer consensus that willful blindness to infringement for profit is wrong and illegal, is a particularly big worry and liability for Google, because the undisputed facts in Viacom vs. YouTube(Google) show that YouTube's founders were willfully infringing because they knew that ~80% of YouTube's traffic depended on copyright infringement. Moreover, the undisputed facts show that Google's executives also willfully supported YouTube's infringement model. Thus Google and its pro-piracy allies have a strong lobbying interest in discrediting and de-legitimizing copyright law.

In sum, while there is legitimate free-market concern about the current duration of copyrights, there is also legitimate countervailing free market concern about the threat to the rule of law, jobs, exports and economic growth from rampant piracy, and about the tech-left's war on property and thirst for Government intervention to secure an Internet commons.

The exit question here for utilitarian free marketeers is which "agreement" best advances free enterprise and market freedom principles overall? Aligning with free marketeers who value natural property rights, free enterprise, and rule of law? Or aligning with the tech left whose vision of a free market is a utopian commons without cost?

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Defending First Principles 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?"

Part 4: "Why Conservatives Should be Skeptical of Copyright Reform"