Why Conservatives and Libertarians Should Be Skeptical of Congress's Copyright Regime

Abstract

Whatever your philosophical position, if you are skeptical of government power, you should likewise be skeptical of the copyright system that has developed over the last century. It is possible to have a deep respect for copyright and still recognize that a particular implementation of the idea of copyright can be flawed. The current copyright regime should give us pause for several reasons: First, copyright is very different from traditional forms of property. Therefore we should be cautious about how we create such a property right and how we define that right. If copyright is weak, then it will provide little incentive to create, but if it is too strong, then it will limit the public’s ability to enjoy and build on creative works. Second, Congress is supposed to represent the public’s interest, but it has abdicated that responsibility: it has turned over the responsibility of crafting copyright law to the representatives of copyright-affected industries. Third, in the name of further strengthening copyright, Congress has moved to place restrictions on technology. Furthermore, the past decade or so has seen a dramatic rise in the criminal enforcement of copyright. These observations should lead us to ask ourselves, How much is enough protection? And how much is enough enforcement? We should not only be skeptical of the inevitable calls for yet stronger protections, but we should seek serious reform as well.