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The Conservative Case Against Today’s Copyright Law

Apart from the word “property,” what is it about modern intellectual property law that should appeal to conservatives?  The free-floating liability to plaintiffs’  lawyers?  The income transfers to  people who mostly hate middle America? The capture of lawmakers and regulators by a rent-seeking minority?  The enshrining of those lobbyists’ victories in international law — enforced in Geneva and immune to democratic change in this country? The law’s dramatic turn from the original understanding of the Framers of the Constitution?

Despite these features, only a handful of conservatives seem ready to rethink intellectual property law.  One young conservative in that camp is Derek Khanna, whose just-released R Street Policy Paper makes the conservative case for copyright reform.  Here’s a sample:

As with other enumerated powers of the federal government, Congress has expanded copyright far beyond what was originally intended. Just as Congress frequently neglects to abide the Origination Clause and the Commerce Clause, it likewise has ignored the Copyright Clause’s requirement that these monopoly instruments be granted only for “limited times.” Contributing greatly to this distortion has been the influence of a persistent army of special interest lobbyists, usually representing media companies, rather than the interests of cre- ators and the general public.

In order to restore the original public meaning of copyright, copyright’s term must be shortened. We must reconsider existing international treaties on copyright and not sign any treaty that either would lock in existing terms or extend terms even longer (such as the Trans Pacific Partnership Treaty). Finally, copyright terms must not be extended to “life+100” when the next copyright extension bill is expected to come up in 2018.



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Eugene Volokh · April 30, 2014

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