“You didn’t write that.” (The Copyright joins the Copyleft)

“In the long run it is the majority who will determine what the constitutional rights of the minority are.” — Justice William Rehnquist

Yesterday brought news that further confirms that my wife and I made the right decision when we decided to stop pouring our blood and treasure into the production of goods that take their final form as a collection of easily duplicated, easily distributed, and (sadly) easily stolen electrons. Instead we have turned our attention to the manipulation of ideas that find their final expressions as atoms; which while somewhat more unwieldy than electrons have certain advantages in the present soci0economic landscape.

To wit; the Conservative/Libertarian Fusion, or at least a couple of the brightest young lights thereof, have taken up the cause of the length of copyright terms; coming down (not so surprisingly) on the side of shortening them.

“Not surprisingly?” you say, “Aren’t conservatives and libertarians champions of individual liberty and property rights?”

Well yes, I suppose that’s nominally true, sort of, I guess.

But the recent election has thrown the right side of the aisle into disarray, and the right side of the aisle is looking for issues that will stick.

And so now we have this. The book blurb for Copyright Unbalanced: From Incentive to Excess:

The Constitution gives Congress the power to establish copyright “to promote the Progress of Science and useful Arts.” This requires Congress to engage in a delicate balancing act, giving authors enough protection that they will be motivated to create expressive works, but not so much that it hampers innovation and public access to information. Yet over the past half-century Congress has routinely shifted the balance in only one direction—away from access and freedom and toward greater privileges for organized special interests.

Conservatives and libertarians, who are naturally suspicious of big government, should be skeptical of an ever-expanding copyright system. They should also be skeptical of the recent trend toward criminal prosecution of even minor copyright infringements, of the growing use of civil asset forfeiture in copyright enforcement, and of attempts to regulate the Internet and electronics in the name of piracy eradication.

Copyright Unbalanced is not a moral case for or against copyright; it is a pragmatic look at the excesses of the present copyright regime and of proposals to expand it further. It is a call for reform—to roll back the expansions and reinstate the limits that the Constitution’s framers placed on copyright.

Now first, I am not a property rights absolutist. I believe that zoning laws, civil forfeiture, eminent domain, and time-limited copyright all have a role to play in finding the balance between individual interests and society’s interest. Like automatic vs. semi automatic, or magazine capacity, reasonable people can disagree about what length of copyright best balances the property rights of creators against the general good of ultimately making creators’ works available to all, irrespective of how much time, money, or risk was invested in their creation.

That said, I find the blurb for this book dispiriting two reasons:

The first reason is that it is just sad to think that our Right Wing, the wing that thought it was going to win the 2012 election by taunting Barack Obama with “You didn’t build that”, this faction of our body politic is in such disarray that we find some of their brightest young lights embracing a Marxist view of the business of content creation. Here’s what I mean.

Over the past year, the readers of this blog have watched a boat come into creation. By the application of initiative, time, money, and risk-tolerance, a pile of plywood, a stack of lumber, two barrels of epoxy,  several buckets of paint, and a weekly payroll obligation to our employees has been turned into a boat.

Now it could have been that instead of witnessing the slow-motion conception and birth of a boat, you could have witnessed the creation of one of my movies.

It would have taken about the same amount of time: 12 months.

It would have taken about the same about of money: high 5-figures to low 6-figure.

It would have had a higher risk element: the boat was from a proven design; every movie is a one-off, with no guarantee of success.

Which brings me to what I mean about being depressed to see Jerry, Tom, Eli, Tim, Christina, David, Patrick, and Reihan embrace a Marxist view of the business of content creation.

The currently fashionable view of copyright is that reproduction rights do not naturally fall to a work’s creator. The currently fashionable view is that reproduction rights naturally belong to anyone with the means of reproduction, and that Copyright is a monopoly on those rights, granted by the government to “to promote the Progress of Science and useful Arts.”

Do you see what’s happening there?

I spend 12 months and $100K making something, but because the end product of what I’ve spent that time and money making is a movie,  it’s the government who “grants” me the right to reproduce my work.

So sure, if you accept the notion that I don’t actually own my work product, and that I don’t actually own the right to reproduce my work product, than, yeah, sure, an extension of the length of copyright, or more zealous enforcement of copyright is an expansion of government, because, hey, it all belongs to the state anyway, right?

Like I said I find it depressing to hear Conservatives and Libertarians embracing this conception of content creation and copyright.

I would like to propose an alternative theory of Copyright that is consistent with Libertarian and Conservative values that I believe frames the question of time limits on copyright in a more pro-social way.

Creative work belongs to those who create it, under the terms by which the work was made, and by those terms, ownership of a work is established, with whatever sub-obligations are contractually incumbent upon the work, ie actors residuals, song-writer royalties, etc.

As a matter of principle, it is understood that the copyright holder has the unlimited and exclusive right to reproduce her work. Copyright is not a “government-granted monopoly”, it is title.

As a matter of reality, we understand that this title may be impinged upon or even completely revoked in the name of  promoting “the Progress of Science and useful Arts.” Examples of this would be those already understood to fall under the rubric of “fair use”. Another example would be the extinguishing of copyright after a certain number of years.

The best analogue for fair use are easements. The best analogue for the ultimate extinguishing of the natural rights of the content creator is eminent domain, wherein the title-claims of a property owner are superseded by the public interest.

Through this rubric we are not faced with the distasteful conjecture that those who engage in content creation do so only to have the fruits of their labor liceensed back to them by the state.

Except no, I don’t expect this completely reasonable framing of creators rights, a framing that acknowledges that those rights are not absolute, but rejects that those rights are held by the state and then licensed back to the creator to gain any traction on the left or the right. The genie is out of the bottle, and she won’t be talked back in.

Which brings me to the second reason I find the blurb dispiriting.

Any clear-eyed person recognizes that all this fuss about length of term or “egregious” copyright enforcement is a Trojan horse. The ultimate goal is not to unleash great pent up forces of creativity that till now have been stifled because of their inability to (legally) appropriate Mickey Mouse.

The ultimate goal is to turn public sentiment against content creators and towards content distributors. And since most people who use the internet are de-facto content distributors who profit vastly by the diminishment of creator’s rights at no harm to themselves, it’s an easy sell.

The villain in the copyright-as-monopoly narative is the initiator, the risk-taker, the person who bought the script, the person who hired the crew, the person who rented the gear, the person who bought the film stock, the person who now depends on government “largesse” for the “right” to reproduce their own work . The villain in this narrative is the not-assured-of-success-but-now-successful-creator who has the temerity to suggest that it is not unreasonable that after his (timely or untimely) death that his heirs profit from his efforts and from his success (as they would if he built a boat or a rental building), and the reasonableness that his kin profit from his efforts need be balanced against whatever general societal benefit might arise from extinguishing his, and their property claims.

Now it’s not surprising that it’s easy to vilify content creators, especially content creators who work is worth stealing years, even decades after it was first unleashed upon the world.

Those who are risk-averse tend to both overestimate the role of risk in their own lives and underestimate the role of risk in the lives of the less risk averse. To the risk-averse, successes seem happenstantial, even undeserved; and the suggestion that risk-takers and their heirs are entitled to profit from it can seem, well, greedy. Remixing Reihan Salam on Symbolic Exclusion:

We are in a sense living through a cultural war in which some who’ve chosen [distribution] are waging a symbolic struggle against those who’ve chosen [creation] — the object is to devalue [creation], to characterize [profiting from] it as “greedy,” etc… Naturally, risk-averse people and people who are inclined to embrace the “greed” narrative are more inclined to [see copyright as a government franchise] while risk-taking people who, say, like the idea of achieving some modicum of economic stability for their families by building their private wealth will be more inclined to sort into [think they have a natural right to the fruits of their initiative].

The fit’s not perfect, but it’s good enough to make the point. By the reckoning of some of the brightest and most listened to voices on both the left and the right, even as I sit here typing away, I am doing The State’s work. When I hit PUBLISH, my morning’s effort will come under the dominion of the state, who will then license it back to me for life, plus 70 years, or whatever it is now. In this case I don’t worry about it too much because by the time the sun’s set I don’t expect what I’ve typed will be of much interest to anyone ever again.

And after I hit post, I’m going down to the marina to spend some time working on MON TIKI, in the hopes of achieving some modicum of stability for my family. If MON TIKI doesn’t get pressed into mine-sweeping or submarine patrol duty*, I might even build a little private wealth!

*To be engaged in coastwise trade, a vessel must be documented. A la Dunkirk, in time of war, documented vessels and their crews may be pressed into military service.