The Magazine

Free Use and Abuse

The pitfalls, and potential, of copyright.

Mar 4, 2013, Vol. 18, No. 24 • By SONNY BUNCH
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Following the Republican shellacking in the recent election, David Brooks highlighted some voices shaping center-right conversation on the Internet. One of his more surprising choices was that of a Republican Study Committee staffer who had penned a (quickly withdrawn) memo for the caucus of conservative House members regarding the need to reform copyright laws.


It is unlikely that copyright reform will help the GOP reconnect with voters. But it is a sign of how rancorous the argument over copyright protection has grown among the elite class that the soon-to-be-fired author of a little-read, hastily dismissed paper on the subject would merit a mention in the New York Times as a leader of right-leaning thought.

Into the fray jumps this collection of essays, arguing that copyright is hopelessly broken. The libertarian right has grown increasingly skeptical of the institution, arguing that media corporations have perverted the Constitution’s Copyright Clause into a tool used not to “promote the Progress of Science and useful Arts” but to swell their coffers. Many libertarians see the endless extension of copyright terms, the retroactive granting of such extensions, and the increasing number of instruments that can be copyrighted as crony capitalism.

There is certainly a case to be made for copyright reform. Whereas the Copyright Act originally provided that copyrightable items—limited to books, maps, and charts—could be protected for one 14-year term, and extended for another 14-year term (if the author wished), we now have, in essence, unending, unlimited copyright: the life of the author, plus 70 years. Gone is the requirement that copyright holders actively pursue their copyright or its extensions. The effect is rather to grant copyright protection to everything created, in perpetuity. The public domain is no more.

Those wary of big government should also be wary of big government’s monkeying with copyright, writes Jerry Brito in the opening essay:

You should be skeptical of Congress’s ability to develop a rational policy given the knowledge problem copyright presents and the public choice pressures at work. You should be skeptical of the seemingly unlimited economic benefits we’re told stronger copyright protection can produce, and you should instead be concerned about its effects on innovation. You should be skeptical of the recent trend toward criminal prosecution of even minor infringements of copyright law. You should be skeptical of the growing use of civil asset forfeiture in copyright enforcement. What follows in this book 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 further expand it.

There is much to agree with here and elsewhere in this collection of essays. One example: “Fair use”—the doctrine that, for instance, allows the copyrighted text above to be quoted without fear of an infringement lawsuit—has withered in recent years. Worried about their own liability to lawsuits under the Digital Millennium Copyright Act (DMCA), companies like YouTube have adopted a ban-first/ask-questions-later policy. This has had odd consequences, as when the Romney and McCain campaigns had ads pulled from YouTube because they featured, respectively, Barack Obama singing an Al Green song and clips from news broadcasts.

“The Romney and McCain ads were not actually copyright-infringing,” notes Christina Mulligan in her piece, “Free Expression under the DMCA.”

Indeed, the inclusion of President Obama’s singing and the news clips qualify as “fair uses” of copyrighted works under the Copyright Act—meaning that Romney’s and McCain’s campaigns didn’t need the copyright holder’s permission to use the clips. Their videos weren’t illegal—yet YouTube still censored the ads for several days.

A better definition of fair use will be a key component of any copyright reform.

Were copyright protections simply a question of economic utility—a quest to discover which economic regime inspires content creators to make the most stuff—Copyright Unbalanced would be on more solid footing. But there is a moral dimension that must be accounted for. Libertarian opponents of copyright are not necessarily wrong to dodge the question; it has been a tricky one in American legal discourse. But the moral dimension of copyright has been a part of the general conversation since the days of the Founders—and before.

As Adam Mossoff of George Mason University School of Law noted in a paper last year (“Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory”), John Locke argued that authors were due protection of their intellectual property because of the labor put into their creation. Wrote Locke in 1695: