The Conservative Turn in Copyright Politics

David Brooks had an interesting column earlier this week in which he asked, “Why aren’t there more liberals in America?” According to Gallup Poll numbers, about 41% of Americans self-identify as conservative, versus 36% moderate and 21% liberal. This strikes Brooks as a bit of a puzzle, since the financial crisis and the economic downturn would seem to support liberal beliefs in some ways. Brooks’s answer: “Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government. A few decades ago they did, but now they don’t. Roughly 10 percent of Americans trust government to do the right thing most of the time, according to an October New York Times, CBS News poll.”

Brooks goes on to speculate about the basis for that distrust: “Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.”

This all sounds very familiar. It’s essentially the basis of the current critique of copyright law: that Congress has become beholden to a few stakeholders, and as a result modern copyright law has become unmoored from any legitimate purpose and now simply apportions rents to favored dinosaur industries.

But even that description of the situation is not dark enough. The pessimism, in copyright as well as politics generally, extends to the judicial branch as well. The Supreme Court, along with conservatives generally, have essentially given up on the courts and lawsuits as an instrument for civil justice. I think this is what explains the sharp turn in recent years away from discovery as the fire in which the truth proves its mettle, away from class actions, toward summary judgement, away from jury control over punitive damages, away from lawsuits generally and toward arbitration at every opportunity. Think of the rhetoric in favor of “tort reform” — limiting tort lawsuits and especially placing damage caps on actions for, e.g., grievous injuries caused by negligence. The very idea of letting negligence determinations go to the jury — once the core function of juries — strikes many as intolerable. Tort lawsuits are said to be out of control, with liability highly unpredictable, and unreasonable, eye-popping damage awards that create a chilling effect that acts as a drag on innovation, supported only by a highly influential lobby that controls the relevant legislatures. Only the lawyers win. There’s considerable skepticism in the tort reform rhetoric about the plaintiffs, too — who are these complainers? Why can’t they just suck up the trivial misfortunes that come their way?

Concerns about copyright lawsuits are similar, which is a bit surprising, since most copyright critics are probably politically liberal. The law is said to be hopelessly nebulous, plaintiffs are out of control, the potential damages are huge, and even the faintest threat of a suit chills innovation and drags down individuals and businesses. There is no longer faith that judges and juries will sort the good cases from the bad at a reasonable price. And even if they could, the plaintiffs are looked at askance, as not really suffering an injury worth remedying at any non-trivial investment of time and resources.

Part of the common theme here is, I think, part of the long-term trend away from the common law in American jurisprudence. Once, a hundred years ago, nearly all of the law in its everyday application was non-statutory — entirely accreted from judicial opinions over the centuries, without any basis in statutes. Even where there were statutes, judges felt free to add to them with doctrines of their own making — fair use and secondary liability in copyright law are well-known examples. Indeed, much of the doctrine we have in copyright law was built during this era — substantial similarity, the idea/expression distinction, merger and scenes a faire — which explains copyright’s different feel from patent law, which was statutorily codified in 1952 in a way that did not simply preserve the judicially developed doctrines that came before.

Copyright, like tort, is to a large extent a common law subject, and the zeitgeist is moving steadily away from courts as the locus of law’s development — or, really, any legitimate decision-making control over the law at all, beyond mere application. This trend is exemplified by the Supreme Court confirmation hearings in which nominees from both parties describe the enterprise of judging as more or less a routine application of existing law to facts. For whatever reason, nebulousness and uncertainty — in tort law, in litigation costs, in copyright — is becoming less tolerable, and the practice of legislatures of kicking key legal determinations to judges or juries is getting viewed with more and more suspicion and anger. I think that’s a long-term problem, however, as the idea of being able to regulate conduct through the operation of some sort of fully specified, easy-to-apply set of rules identified in advance is just as unachievable now as it was when H.L.A. Hart made fun of it in The Concept of Law in 1961.

[Cross-posted at]

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