Can conservatives break the copyright stalemate?

Copyright law is supposed to encourage creativity and reward artists but right now the system is a mess. Worse, the debate over how to change the law is dominated by bitter partisanship that makes real copyright reform impossible.

That’s why it’s a relief to see a new group enter the debate. In the last six months, a growing number of figures on the political right have been taking aim at our broken copyright system and offering some very sensible solutions.

The arrival of these conservative reformers, who join longtime liberal copyright critics, means the U.S. may at last get to have an honest debate over the best way to compensate content creators.

The current mess

It’s worth recalling just why the copyright system is so troubled in the first place and and who is responsible. For starters, note that U.S. copyright has ballooned from its original term of 28 years to the life of the author plus 70 years — meaning a young novelist or songwriter’s work is now likely to stay locked up until the year 2143 or beyond.

There is no justification for these absurd copyright terms other than as a form of corporate welfare to the entertainment industry. The Constitution’s rationale for copyright in the first place is to “promote .. useful Arts.”  It’s inconceivable that an artist will not pick up her pen unless she is promised 100+ years of copyright protection.

While the terms are a problem, copyright enforcement is a mess too. This is partly because Congress gave copyright owners a very big stick that lets them seek $150,000 every time someone takes their content without permission — even if the infringement led to zero economic loss. The chance to impose such big penalties for a trifling offense has led to a spate of abusive lawsuits by copyright trolls who target bloggers or file mass “John Doe” complaints intended to embarrass gay porn viewers.

Despite all this, copyright infringement still remains widespread. Call it “sharing” or call it “theft” — however you describe it, people keep helping themselves to content without offering a dime to the writers, musicians or film makers who made it.

To justify this behavior, pirates point to the mendacity of the entertainment industry to say, in effect, that content owners have it coming to them.  There is some validity to this (especially as the industry often shortchanges the artists it purports to stand for) but it doesn’t address the underlying issue: how should we pay content creators? If we agree on having a copyright system in the first place, it needs to work in a way that allows writers, musicians and photographers to make a living.

Right now, what we have instead is a copyright system that is unfriendly not only to consumers but often to individual creators as well. While big companies can flex legal muscles to chase copyright violators, the law doesn’t offer authors a simply way to seek payment when someone blatantly rips them off.

Unfortunately, for now, the debate over how to fix copyright remains dominated by industry lobbyists on one side and piracy apologists on the other. The result is an unhealthy stalemate in which those who propose a middle ground risk being labeled as a thief by the industry or as a stooge by its critics.

The conservative case for copyright

The copyright debate is not entirely controlled by the ideologues, of course. In the last decade, scholars and journalists (Lawrence Lessig, Bill Patry, Cory Doctorow and Mike Masnick to name a few) have made eloquent arguments about reforming the law.

The problem is that these copyright critics come from the same world; they’re all liberals with ties to Silicon Valley. This has made it easy for the entertainment industry to caricature them and for Washington to ignore them.

Now, though, the case for copyright reform is being made by figures on the right as well. Last fall, the famous judge and law-and-economics scholar Richard Posner declared copyright terms to be too long and warned that poorly defined fair-use rules can have “very damaging effects on creativity.”

This conservative critique heated up significantly in January when a Republican memo in the House attacked over-reaching copyright laws as an assault on laissez-faire capitalism. The entertainment industry soon stepped in to smother the memo and get its author fired but the memo’s contents are still resonating.

In late January, the American Conservative published a lengthy feature on “crony copyright” that repeated the memo’s economic arguments and also reported that the Tea Party and the Heritage Foundation are taking a growing interest in IP reform. Since then, the right-wing Washington Times printed an op-ed criticizing the White House for trying to use copyright to control public domain photographs.

So what does all this mean? The significance is that copyright reformers have powerful new allies and fresh intellectual ammunition. While the left has relied on cultural arguments to attack the copyright system, the right makes a compelling case based on economics.

Chance for a grand bargain

This conservative conversion to copyright reform comes at a crucial time. The rise of sites like Twitter and Tumblr mean it’s easier than ever to share images, music and movies. In this context, copyright that lasts more than a hundred years makes even less sense and the opportunity for abusive lawsuits is even greater.

The emergence of a combined liberal and conservative case against the current copyright system offers the chance to reach a grand bargain. Specifically, there is now an opportunity to create shorter copyright terms and to fix the enforcement regime so that it doesn’t permit content owners to wield a $150,000 hammer over every infraction. In return, a more balanced copyright law would help to undercut many of the moral justifications that lead people to turn to piracy in the first place.

(Image by Viorel Sima of Shutterstock)