Copyright Unbalanced: From Incentive to Excess

Copyright Unbalanced: From Incentive to Excess

Tom W. Bell, Eli Dourado, Christina Mulligan, Patrick Ruffini, Reihan Salam

Language: English

Pages: 152

ISBN: 0983607753

Format: PDF / Kindle (mobi) / ePub

Restoring the Balance between Protection and Innovation

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.

About the Editor

Jerry Brito is a senior research fellow at the Mercatus Center at George Mason University and director of its Technology Policy Program. He also serves as adjunct professor of law at Mason. He has written for both online and print publications, including the Wall Street Journal, New York Times, Reason,, Ars Technica, and The Atlantic. Brito is the co-author of Regulation: A Primer, with Susan Dudley.

About the Contributors

Tom W. Bell is a professor at Chapman University School of Law and an adjunct fellow of the Cato Institute. He is the coeditor of Regulators’ Revenge: The Future of Telecommunications Deregulation, with Solveig Singleton.

Eli Dourado is a research fellow at the Mercatus Center at George Mason University with the Technology Policy Program.

Timothy B. Lee is an adjunct scholar at the Cato Institute. He covers technology policy for Ars Technica and has written for both online and print publications, including Slate, Reason,, and the New York Times.

Christina Mulligan is a postdoctoral associate in law and a lecturer in law at the Information Society Project at Yale Law School.

David G. Post is professor of law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace. He is the author of In Search of Jefferson’s Moose: Notes on the State of Cyberspace and coauthor of Cyberlaw: Problems of Policy and Jurisprudence in the Information Age, with Paul Schiff Berman, Patricia Bellia, and Brett Frischmann. Post is a regular contributor to the influential Volokh Conspiracy blog.

Patrick Ruffini is president of Engage, a digital media firm with clients including Fortune 500 companies, presidential and statewide candidates, technology startups, and issue advocacy campaigns.

Reihan Salam is a policy advisor at Economics 21, a contributing editor at National Review, a Reuters opinion columnist, and a CNN contributor. He is the coauthor of Grand New Party: How Republicans Can Win the Working Class and Save the American Dream, with Ross Douthat.

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other Internet-connected computers. But to cope with the limited bandwidth of its day, the company took what proved to be a fatal shortcut. Rather than requiring users to upload the entire contents of a CD, it took a “fingerprint” and then instantly stocked the user’s online locker with music previously ripped from’s own copy of the same CD. A district court judge found that the service infringed copyright law, forcing it to shut down. The decision may have set back the introduction of

trade away too much manufacturing for cleaner air as it is to trade away too much clean air for manufacturing. The trick is getting the right amount of each by striking the right balance. Get it wrong, and the result is waste and inefficiency. COPYRIGHT’S KNOWLEDGE PROBLEM The knowledge problem inherent in legislatively created rights is one reason why a delicate balance is difficult to reach. Not only are the contours of copyright centrally planned, but as Richard Epstein has noted,

Group were $52.6 million.8 Annualized, this represents a decline of around $5 million in digital advertising revenues against the estimated $112 million in additional subscription revenues. As early as July 2011, Salmon had to admit that “the NYT paywall is working.”9 This is not to say that the New York Times Company is now free of financial challenges; the newspaper industry faces more competition than ever from blogs and social media, and there is of course the recession. But all things

to others without paying compensation to the losing grantees—a notion alien to the law of property (and thankfully so).59 On the other hand, though the exact question remains as yet unlitigated, Zoltek Corp. v. United States strongly suggests that copyright does not qualify for just compensation under the Fifth Amendment’s takings clause.60 Whereas property owners enjoy very strong protections against trespass, copyright holders must suffer many and various uses that the act excuses as “fair.”61

Property Clause of the United States Constitution,” Journal of Intellectual Property Law 2 (1994): 23–56 (describing the paucity of evidence from the Convention and state ratifying conventions); Karl Fenning, “The Origin of the Patent and Copyright Clause of the Constitution,” Georgetown Law Journal 17 (1929): 109, 114 (reviewing the evidence and concluding that the clause “apparently aroused substantially no controversy either in the Convention or among the States adopting the Constitution”).

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