|Assault on IP Rights Should Alarm Conservatives and Libertarians|
By Timothy H. Lee
Thursday, January 24 2013
“The Congress shall have the Power 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.” (Constitution of the United States of America, Article I, Section 8, Clause 8)
Our Founding Fathers considered Intellectual property (IP) rights so foundational to liberty and prosperity that they specifically secured them in the text of the Constitution.
Not only does IP protect the natural right to enjoy the fruits of one’s labor, it also incentivizes innovation and investment. As James Madison noted in Federalist 43 and the United States Supreme Court recognized in Mazer v. Stein (1954), “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and the useful Arts’; and [s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.”
Unfortunately, the traditional recognition of IP protection remains under attack, both abroad and here in the United States.
Even more unfortunately, many of those attacks originate from activists claiming the label “conservative” or “libertarian.” Such attacks, however, are more accurately characterized as communitarian.
The latest The American Conservative magazine provides a recent example.
In a piece entitled “Crony Copyright,” Jordan Bloom celebrates as “martyr” former Republican Study Committee staffer Derek Khanna, who was recently terminated for publishing a slipshod memorandum indicting IP protections. Mr. Bloom characterizes the termination as a “behind-the-curtain machinations aimed at stifling conservative debate over copyright,” despite the deficient work quality and apparent lack of authorization to publish.
Beyond creating a synthetic “martyr,” however, Bloom grounds his indictment on a common but preposterous claim. Namely, he alleges that, “the lengthening terms and harsher enforcement of copyright over the last 30 years has taken us from a system that incentivizes innovation to one that stifles it.”
In the entirety of human history, has there been a 30-year period that has witnessed as much innovation as the most recent 30 in the United States? Indeed, does there exist any period remotely close? Yet Bloom, Khanna and their ideological fellow-travelers would have us believe that IP protections constitute some sort of creativity-suffocating anachronism. The claim doesn’t withstand prima facie scrutiny.
Two other common claims of anti-IP crusaders are similarly untenable.
First, IP antagonists slur advocates of vigorous IP protection as mere apologists for the entertainment industry. Bloom himself levels the claim, and so-called “conservative” New York Times columnist David Brooks labels IP advocacy as a “lobbyist-driven position.” Not only is that allegation false, it is ironic. Small innovators such as app developers are among those most reliant upon IP protections. Conversely, powerful organized interests like Google, who possess transparent self-interest in undermining others’ IP protections and disregarding creators’ rights, provide massive funding for anti-IP lobbyists inside the Beltway.
The bigger the irony, the more likely it will be believed, apparently.
Second, IP antagonists attempt to conceptually decouple physical property from intellectual property as worthy of legal protection. More specifically, they claim that physical objects are finite and “rivalrous,” whereas intellectual creations are not. In other words, they claim, taking a physical object deprives its owner of enjoyment but copying or distributing an intellectual creation does not.
As we have noted, that attempted distinction fails on several grounds. For one thing, physical property isn’t always rivalrous. If my automobile sits in a garage while I work or sleep, then its social utility would allegedly increase if others could simply use it for their own purposes while I do not. Why force them to purchase their own cars when they could use mine? Moreover, intellectual creations most certainly can be rivalrous. Try telling a performer who has invested significant resources to secure expensive studio engineers and top vocal and instrumental talent that the public has a “right” to simply copy and distribute the recorded product at will.
Fortunately, proponents of IP protections continue to hold the stronger intellectual ground.
In conjunction with former Solicitor General Paul Clement, former Assistant Attorney General for Legal Policy Viet Dinh and Bancroft PLLC litigator Jeffrey Harris, we at CFIF recently published a primer entitled “The Constitutional and Historical Foundations of Copyright Protection.” As the authors cogently summarize, “Copyright was seen not merely as a matter of legislative grace designed to incentivize productive activity, but as a broader recognition of individuals’ inherent property right in the fruits of their labor.” We could not be more honored by association with them and their work.
Also worthy of note, the Federalist Society hosts on January 30 a symposium introducing a new book by Hon. Ronald A. Cass and Prof. Keith N. Hylton entitled “Laws of Creation: An Examination of Intellectual Property Rights.” As the publisher summarizes, IP supports innovation and furthers prosperity:
“While innovative ideas and creative works increasingly drive economic success, the historic approach to encouraging innovation and creativity by granting property rights has come under attack by a growing number of legal theorists and technologists. … But Cass and Hylton explain how technological advances only strengthen that case. In their view, the easier it becomes to copy innovations, the harder to detect copies and to stop copying, the greater the disincentive to invest time and money in inventions and creative works. The authors argue convincingly that intellectual property laws help create a society that is wealthier and inspires more innovation than those of alternative legal systems. Ignoring the social value of intellectual property rights and making what others create and nurture ‘free’ would be a costly mistake indeed.”
The book arrives at a critical moment, and conservatives and libertarians alike should beware the communitarian anti-IP assault masquerading in their names.
Related Articles :