A Right Wing Perspective on Copyright

From a right-wing perspective, copyright is an unnecessary and unwarranted intrusion of government power on individual liberty. According to the US constitution, the ostensible power for Congress to issue laws on copyright is “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” We agree with this as a goal. But as economists, we know from theory and evidence that copyright does not “promote the Progress of Science and useful Arts”. Hence Congress (and the Supreme Court) should ensure that the limited time during which exclusive rights are available is very close to zero.

First the evidence: We believe that promoting “the Progress of Science and useful Arts” means increasing either the quantity or quality of the types of works – books, music, movies – that are subject to copyright. In our 2008 book Against Intellectual Monopoly, we showed that music sharing on the internet has provided us with a simple test case. The ability of copyright holders to prevent copying has effectively been nullified by internet piracy. If indeed copyright is useful in increasing either the quantity or quality of music, then less or lower quality music should have been produced after the advent of Napster in June 1999. The fact is that neither has happened. A reasonable economic measure of the output of music is the number of musicians. If we examine data from the Survey of Current Population we find that in the five years leading up to the widespread use of peer-to-peer file sharing (1996-2000) the ratio of the employed population working as musicians was 0.13%, while in 2006-2010 the ratio was… still 0.13%.

Despite the rhetoric of intellectual property, copyright is not about the right to own, to buy, or to sell books, music or movies. We are strongly in favor of private property and the right to own, buy and sell things including books, music and movies. However copyright isn’t about that – it is about a government-enforced monopoly over a particular book, song or movie. That is, copyright gives the copyright holder the right to tell people who have legitimately obtained copies what they can and cannot do with them. This includes making copies, but also creating new works based on the old. Regardless of claims that copyright is merely a monopoly over a particular expression of an idea, in fact copyright is very broad – it covers sequels to existing works, and in the case of music as few as four notes can be subject to copyright. Indeed, a great deal of litigation over copyright is not about copying, but about making derivative use of the ideas (not the expression of ideas) from a copyrighted work. A good case in point is the successful lawsuit by J. K. Rowling against a librarian, Vander Ark, who released a lexicon of Harry Potter (Rowling had initially given her blessing before taking Mr Ark to court).

What copyright does represent is an effort of special interests like the Disney Corporation and other large music, movie and publishing companies to use the authority of the government to profit at the much greater expense of the rest of us. It is instructive to ask what we have to give up so that government action can sustain these monopolies. Let us start first with the American Digital Millennium Copyright Act – the DMCA. One component of the DMCA is the so-called “take-down notice”. Anybody who objects to content on the internet can claim that they hold copyright to the material and send a takedown notice to the Internet Provider (ISP) that hosts the material. To avoid legal liability, ISPs remove the material without further question. The threat to free speech should be self-evident. One surreal example: Footage of the Democratic National Convention filmed by and posted by the Democratic Party to YouTube was removed because news agencies covering the convention claimed that they held the copyright for the material.

Perhaps most egregious of all is the claim by the government that the content you upload on the internet does not belong to you (although apparently it may belong to big media companies). The case in point is that of Kim Dotcom and his web hosting site Megauploads, a site that provided ad-supported storage for files. The U.S. Government – doing the bidding of the big movie companies, and in violation of several laws – had Kim Dotcom arrested in New Zealand. They also seized the Megauploads domain, effectively blocking access to all files on that site. This occurred on January 19, 2012. As we write, nearly a year later, none of the people with files stored on the site have been permitted access to their files, and the U.S. Government asserts that it is under no obligation to provide it. It is probably true – although not proven in any court of law – that there were files on Megaupload that violated copyright. It is certainly true that many files did not. It is as if you parked your car in a parking garage and the U.S. Government seized all the cars in the garage on the grounds that some of them had been stolen, and nearly a year later asserted that because the garage is located on the internet your car doesn’t actually belong to you and so they are under no obligation to return it. Such is the absurdity to which we have been reduced by copyright law.

By Michele Boldrin and David K. Levine