Whether Copyright Is a Property Right an Increasing Point of Contention Among Conservatives

American Commitment, Americans for Prosperity, the Center for Individual Freedom (CIF), Citizens Against Government Waste, Frontiers of Freedom, ATR affiliate Property Rights Alliance and Taxpayer Protection Alliance are some of the “core members” of the IP educational group, said McAuliffe. The IP educational group agrees that copyright is a property right, said Timothy Lee, CIF vice president-legal affairs. The group is working to hammer out principles on intellectual property rights, but hasn’t released any findings.

"There’s an increasing split within the Republican ranks over” IP and copyright issues, said James Grimmelmann, a University of Maryland law professor specializing in IP and technology. Democrats have also “been split for years between what we could loosely call the Hollywood and Silicon Valley takes on the issue,” he said. Some Republicans view “IP rights as property rights that the government should respect rather than undermining,” he said. “The other camp, which has more libertarian roots, sees IP rights themselves as governmental interventions in the marketplace.”

"There is a big split among conservatives about intellectual property,” which is “pretty divisive,” said Mitch Stoltz, Electronic Frontier Foundation staff attorney. The entertainment industry and ATR are “180 degrees from traditional conservative positions,” he said. “A fundamental conservative free market principle” says there shouldn’t be “excessive, disproportionate civil litigation penalties,” because those can be used by “opportunists in a way that penalizes and sometimes destroys small business,” he said.

MPAA gave ATR $100,000 grants in 2011 and 2012 to “protect” or “promote” the film industry, according to MPAA tax returns (http://bit.ly/1jaNGJ9) (http://bit.ly/1omvuhE) at OpenSecrets.org (http://bit.ly/1ldcziT). Google lists the Cato Institute, George Mason University’s Mercatus Center and the R Street Institute as “third party organizations” to which it provides support (http://bit.ly/1nsEwGq). Google spent $3.82 million lobbying Capitol Hill in Q1 2014, including on “limitations” and “exceptions” for the Digital Millennium Copyright Act, legislation many in the entertainment industry regard as critical to stopping piracy and infringement online. Google also lists ATR as a supported third-party organization.

Tom Bell, Chapman University law professor, recently published Intellectual Privilege: Copyright Common Law, and the Common Good. It said copyright law should take its cue from the 1790 Copyright Act as designed by the Founding Fathers. The Mercatus Center published the book. Bell is also an adjunct scholar at the Cato Institute.

The Great IP Debate

Some conservatives are confused “about whether to regard copyright like a property right or whether to regard it like a government granted privilege,” said Bell. Conservatives who think copyright is a property right have been “bamboozled by the copyright lobby,” he said. “There are some property right aspects to copyright,” but that doesn’t “make them deserving of the same protections” traditionally given to “tangible property,” he said. The Founding Fathers didn’t regard “copyright as a property right,” he said. They created a “very, very short and narrow set of restrictions” for copyright, which wouldn’t have been the case had the Founding Fathers considered copyright a property right, he said. The 1790 Copyright Act provided copyright protections for “maps, books and charts” for 14 years, with the opportunity for an additional 14-year renewal if the rightsholder were still living, he said. The 1976 Copyright Act is “kind of like welfare for artists and publishers,” with statutory damages that “go too far,” he said. “What are conservatives doing taking their marching orders from Hollywood?"

"It’s the ideas that have merit, not the people funding them,” said Digital Liberty’s McAuliffe, referencing ATR’s acceptance of MPAA funds in 2011 and 2012. Bringing up a group’s financing is an “ad hominem” attack and isn’t “legitimate,” she said. “Anyone who argues for any side makes money somewhere.” McAuliffe believes individuals should retain their estates -- whether property or copyrights for creative materials -- for their offspring, she said.

The Constitution, “all the way through modern conservative [Supreme Court] justices,” says “copyright is a property right,” said CEO Steven Tepp of Sentinel Worldwide, an intellectual property consulting firm. Tepp was formerly chief IP counsel at the U.S. Chamber of Commerce’s Global Intellectual Property Center and is not affiliated with the educational IP group. Copyright’s historical precedent as a property right is “pretty consistent” with the conservative perspective on the issue, he said. “Statutory damages existed in state law, even prior to the adoption of the Constitution,” and have “remained in our copyright system without interruption since the beginning of the Republic,” he said. The view that copyright isn’t a property right is more “communitarian than libertarian,” said CIF’s Lee. Bell is a “very smart man,” but is “incorrect,” he said.

The “conservative movement” hasn’t “traditionally supported” Hollywood policies, said Derek Khanna, Yale Law Information Society Project scholar, who recently published an article (http://bit.ly/R3DZjs) on “restoring constitutional copyright” on the R Street Institute website. Khanna, formerly a staff member at the Republican Study Committee, was fired by the committee after publishing a brief calling for comprehensive copyright changes (CD Nov 21/12 p12). “The whole conservative movement in the last 10 years has been pushing for the original meaning of copyright for the Constitution,” he told us. The Founding Fathers didn’t view copyright as a property right, he said. “No one is arguing that copyright should be repealed,” but individuals are “reconsidering policies” as digital content continues to change the copyright debate, he said. Conservative organizations like FreedomWorks, Heritage Action and the R Street Institute don’t “seem like they're included” in the educational group, all of which are “organizations that have taken a conservative approach” on copyright issues, referencing the Founding Father’s view of copyright, he said. No one knows what the educational IP “coalition is going to do,” but they might offer “useful contributions to the debate,” he said.

Digital Liberty’s McAuliffe supports copyright protections for derivative works. She analogized the architectural plans for a house versus the actual home: “The house is very valuable, but the architectural designs are more valuable.” ER was a “revolutionary show” about life in hospitals, but one “can’t copyright the idea of working in a hospital,” she said. The 1790 Copyright Act would “almost certainly not” protect derivative works, said Chapman’s Bell. “I side with the Founders on this issue,” he said by email. “Unwinding the derivative works restriction would encourage cultural development and increase freedoms of expression.” “Some business models would suffer,” but “new ones would arise to leverage the remaining copyright privileges,” he said.

"As an empirical matter,” the copyright “system is working,” said Sentinel’s Tepp. IP-related industries contribute more than “40 million jobs” in the U.S., he said. “We see growth in the copyright sector” and “growth in sectors that rely on copyrighted work,” he said. There’s been an “explosion” in the use of copyrighted works by consumers, he said. “Fundamentally, we have a good system.”