A decade ago, the copyright debate seemed pretty straightforward. On the left were skeptics like Larry Lessig, who saw long copyright terms and strong copyright enforcement as a form of corporate welfare. On the right, most people saw efforts to weaken copyright protections as just another attack on private property.
But two new publications suggest that that dynamic is changing, with conservative and libertarian thinkers increasingly skeptical about strong copyrights. The R Street Institute has published a new paper by Derek Khanna making the case against ever-increasing copyright terms. And the libertarian Mercatus Center at George Mason University has published a book by Tom Bell, a Chapman University legal scholar who casts copyright not as a kind of property right but instead as a dubious form of "intellectual privilege."
These are not new positions for Bell and Khanna. Bell has taken a skeptical stance toward copyright since he directed the Cato Institute's tech policy program 16 years ago. And Khanna's R Street paper largely reiterates positions he took in a 2012 memo that got him fired from his job at the Republican Study Committee, a think tank for conservative Republicans in the House of Representatives. And, to be clear, I'm not an impartial observer to this debate, having written about copyright issues for both Cato and Mercatus.
But what's changing is that the views of skeptics like Bell and Khanna are becoming more prominent thanks to a growing interest in the subject from right-leaning think tanks. Copyright didn't used to be a major focus for Mercatus, but the think tank has now published two books on copyright skepticism in less than two years. Bell's book was highlighted at a Cato Institute event this week. And the R Street Institute is a new organization founded in 2012 in part to promote patent and copyright reforms.
Meanwhile, the organization that used to provide much of the intellectual ammunition for the right's pro-copyright faction, the Progress and Freedom Foundation, went out of business in 2010. When the American Enterprise Institute, a prominent conservative think tank, launched a new technology policy program last year, its founder told me he wanted to distinguish himself from "technolibertarians" who believed that "information wants to be free." But in practice, AEI has staked out a centrist stance on the topic. For example, while one AEI scholar made the case for strengthen the controversial "takedown" provisions of the Digital Millennium Copyright Act, another has decried its excesses. The result: no prominent right-leaning think tank is consistently championing Hollywood's side of the copyright debate.
In some ways, this shift seems overdue. Conservatives have long loathed Hollywood for the liberal values promoted in its movies and for the tendency of Hollywood celebrities to make campaign contributions to Democrats. That might be why Republicans broke ranks more quickly than Democrats in opposing the controversial Stop Online Piracy Act in 2012.
There are also genuinely conservative arguments for reining in the excesses of the copyright system. A recurring theme in both Khanna and Bell's writing is that today's laws are far more generous to copyright holders than those that existed in the early years of the republic. Bell and Khanna emphasize that the Founding Fathers viewed copyright as more a government-granted monopoly than a form of property rights.
A final factor in the shifting intellectual winds is money. A decade ago, Hollywood and the recording industry gave lavishly to conservative and libertarian organizations that promoted stronger copyright protections, while there was no real money to be raised on the other side. That didn't prevent right-leaning think tanks from publishing an occasional skeptical article, but it meant there were few opportunities for right-leaning copyright skeptics to focus on the issue.
That has changed. Today, Silicon Valley companies — especially Google — give generously to right-leaning think tanks that publish writing skeptical of copyright protection. Google has donated to almost every right-leaning think tank in Washington, including the R Street Institute, the Cato Institute, the Mercatus Center, the American Enterprise Institute, and the Heritage Foundation. So if you're a right-leaning copyright skeptic, it's easy to find organizations to publish your work.
So far, the shifting intellectual winds haven't been strong enough to reverse the trend toward stronger copyright protection, but they have slowed them down. Opposition to the Stop Online Piracy Act from right-of-center think tanks helped convince Republican lawmakers to oppose the legislation in 2012, eventually killing it. Content companies haven't tried to enact major copyright legislation since then. And internet companies like Google will only become more important to the American economy in the coming years, so Hollywood's copyright agenda is going to increasingly face bipartisan skepticism on Capitol Hill.