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Copyright Reform or Neutering? Depends If Baby's Thrown Out with Bathwater? -- Part 5 Defending First Principles Series
Submitted by Scott Cleland on Wed, 2012-12-12 13:23
Current attempts to deem consensus around copyright legislation appear contrived and one-sided because they isolate a particular copyright problem out of context of the other countervailing problems with copyright law. TechFreedom's event this week asks: "CopyRIGHT: Can Free-Marketers Agree on Copyright Reform?"
The initial question for free marketeers will be whether the goal here is true "reform" that addresses the full range of real copyright problems for copyright holders, users, and intermediaries, or if the goal is more about a one-sided "neutering" of copyright by those who don't believe in intellectual property rights at all, and/or those who politically seek a property-less and permission-less Internet commons (i.e. the "information wants to be free" tech-left of Professor Lessig's Free Culture/CopyLeft movement and the Google-led Internet lobby.)
Three Free Marketeer Copyright Fault-lines:
1) Throwing the Copyright-Baby Out with Excess-Bathwater Fault line.
The main fault-line here for free-marketeers is whether or not the "copyright baby" is thrown out with the "copyright excess" bathwater. While some may claim contrived consensus over the copyright-duration "excess bathwater," by gerrymandering the debate to ignore divisive relevant context, facts and reality, it is incorrect to imply that all free-marketeers care the same about the survival of the "copyright baby" involved here. That's because there is a philosophical divide among free marketeers over copyright as property.
2) The Ignoring Piracy Fault-line.
Another fault-line for free-marketeers is the one-sided approach to copyright legislation, that ignores piracy in focusing only on scaling back intellectual property rights. Discussing copyright duration excesses absent the countervailing conditions of exceptions/limitations on copyright, and absent any effort to address the real problem of rampant piracy, is an inherently unbalanced free marketeer approach. It's akin to addressing: assets absent liabilities, benefits absent costs, and supply absent demand. Free-marketeers care not only about copyright duration, but also about all the fair use exceptions, forced regulation, and rampant piracy that limits the market freedom of creators to control and profit from the fruits of their labor.
3) The Google Copyright Infringement as Business Strategy Fault-line
Google has the most motive and financial interest to generate astroturf events and documents to divide and neutralize free marketeers on copyright, and to de-legitimize copyright as property, because of the huge willful-blindness copyright-liability Google faces with Google Books, YouTube, and Google News. Google Books has copied, and profited from, 20 million books without permission, an infringement practice that the Copyright Office, the DOJ and Court officially opposed in the Google Book Settlement.
Google-YouTube also knowingly infringed tens of thousands of copyrighted videos to ensure that Google-YouTube extended its dominance to online video distribution. Google also wants to de-legitimize the principle of copyright online in order to help defeat ancillary copyright legislation in Germany, France, Italy, Spain, Brazil, etc. that would require payment for use of headlines and snippets in Google News, which has become the dominant global news aggregator.
Interestingly, the unanimous Supreme Court MGM vs. Grokster decision, which proved strong free marketeer consensus that willful blindness to infringement for profit is wrong and illegal, is a particularly big worry and liability for Google, because the undisputed facts in Viacom vs. YouTube(Google) show that YouTube's founders were willfully infringing because they knew that ~80% of YouTube's traffic depended on copyright infringement. Moreover, the undisputed facts show that Google's executives also willfully supported YouTube's infringement model. Thus Google and its pro-piracy allies have a strong lobbying interest in discrediting and de-legitimizing copyright law.
In sum, while there is legitimate free-market concern about the current duration of copyrights, there is also legitimate countervailing free market concern about the threat to the rule of law, jobs, exports and economic growth from rampant piracy, and about the tech-left's war on property and thirst for Government intervention to secure an Internet commons.
The exit question here for utilitarian free marketeers is which "agreement" best advances free enterprise and market freedom principles overall? Aligning with free marketeers who value natural property rights, free enterprise, and rule of law? Or aligning with the tech left whose vision of a free market is a utopian commons without cost?
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Defending First Principles Series
Part 1: "Debasing Free Speech as No-Cost Speech"
Part 2: "The Copyright Education of Mr. Khanna"
Part 3: "A Conservative-Libertarian Rift on Copyright Reform?"
Part 4: "Why Conservatives Should be Skeptical of Copyright Reform"