Using copyright debates to understand conservative economic philosophies

The three philosophical frameworks that conservative intellectuals tend to rely on are desert theory, utilitarianism, and procedural justice. Desert theory emphasizes the construction of an economy that awards each economic actor what they deserve, which conservatives usually define in terms of productivity. Utilitarians insist that the economy should be structured in a way that maximizes overall social welfare, and conservative utilitarians insist that small governments and free markets do just that. Proponents of procedural justice argue that a just economy is one that follows just processes, which for conservatives primarily means voluntary transactions and respect for individual property rights.

For most issues, these philosophical splits do not matter for policy prescriptions. For instance, when it comes to increasing taxes on the rich, proponents of each framework are opposed, albeit for different reasons. Occasionally an issue will arise that causes two of the frameworks to prefer one policy approach, and the other to prefer the opposite. For instance, utilitarians and proponents of desert theory usually support levying taxes to pay for the education of children. A widely-educated public improves overall social welfare, which the utilitarians support, and is necessary to ensure children have an equal opportunity to succeed, something the desert theory proponents support. On the other hand, conservatives supporting the procedural justice framework must oppose any taxation to fund education because the process of taxation — according to their theories — is an unjust one involving coercion, violence, and theft.

On some rare occasions, a policy issue comes around that actually causes all three frameworks to come to different conclusions. By analyzing and contemplating those issues, one can start to understand exactly how the three frameworks operate. One such issue recently thrust into the spotlight by the Stop Online Piracy Act and the Protect Intellectual Property Act is copyright. Copyright is a somewhat strange issue because it has been around so long and seems so natural that people forget what it actually is.

Plainly speaking, copyright protection involves the federal government granting copying monopolies to content creators. For certain kinds of content like music and movies, creating the first copy of the content can be hugely expensive. But every subsequent copy of the content can be produced at basically zero cost. Because nobody would ever pay what it costs to produce a movie to see one, copyright protection awards copying monopolies to movie producers so that they can spread those costs more widely and have a successful business model. One person will not pay $1 million to see a movie, but 1 million people will pay $10 to do so. In ethically neutral language then, copyright protection is nothing more than a market distortion that makes content creation profitable when it otherwise would not be.

Because of the strange mix of government action, funding useful economic production, and the enjoyment people derive from consuming media content, the three conservative frameworks all go in different directions.

Desert Theory
For the proponents of desert theory, the relevant question is whether copyright protection helps deliver to individuals what they deserve. Those who create media content are doing real work, are being productive, and are making socially-desired products. Without copyright protection, many content creators may not be able to make any money from their hard work. That is not because the work is not socially useful or being put into a product that nobody wants; rather, it is because of a market failure that makes content creation unprofitable.

Desert theorists recognize this as a problem, and thus support copyright protection. According to desert theory proponent and economist Greg Mankiw, copyrighted works should be understood as the intellectual property of their creators. Because they created the original copy, they simply deserve to own and have exclusive rights over all subsequent copies. If they can sell hundreds of millions of subsequent copies, making billions in the process, they deserve to do so. That revenue is a consequence of their productivity, which they deserve the fruits of. Those who pirate copyrighted material do not deserve to enjoy that product: they neither produced it nor paid for it.

For utilitarians, the correct policy on copyright protection requires a sort of balancing act. On the one hand, content creation does improve overall social welfare because we enjoy listening to music, watching movies, and reading books. Assuming copyright protection is needed to keep content industries alive, utilitarians must support it. On the other hand, very strict copyright protection leads to a significant amount of deadweight loss. There are people out there who could get enjoyment and increased welfare from a copyrighted product that they would not be willing to pay the price for. In those cases, because copies cost basically nothing, it makes more sense to allow those individuals to have the content for free. Those individuals are not going to pay if they are forced to do so anyways, and giving the content to them for free increases their welfare.

But there is not a very clear-cut way to implement such a two-tiered system. How do you charge those who are willing to pay for content, while not charging those who are not willing to pay for it? Constructing a system like that would quickly result in nobody paying and the destruction of the content creation industries. That would be bad for overall welfare. So the best system then for a utilitarian is the one Matthew Yglesias tacitly supports: creating copyright protection, but enforcing it imperfectly. Under this approach, we should aim to strike a balance that enforces copyright protection enough to properly fund content creators, but also allows some copyright circumvention to slip through. That ensures that enough people pay for content to make it profitable, while allowing those unwilling to pay to enjoy the content anyways.

Procedural Justice
The procedural justice view uniformly opposes government-provided copyright protection. Such protection involves government action and intervention into the economy, using processes that procedural justice advocates do not believe are just. In the place of government copyright protection, procedural justice conservatives have a few options. They could advocate — and some do advocate — the elimination of all protections against copying content altogether. Copyright does not protect tangible pieces of the owned world; instead, it restricts the flow of ideas. Content is fixed in a medium like a book, an electronic file, or on a disk, but the content itself is not physical. Copyright protection then involves the use of government violence and coercion to restrict individuals from expressing and conveying ideas and information.

Procedural justice advocates who want to preserve a kind of copyright generally want to replace the government copyright system with individual contracts. Murray Rothbard argues that instead of selling copyrighted material, content producers could merely license its use on the condition that it not be replicated and redistributed. In such a case, governments are not inventing and creating copyrights; rather, individual voluntary contracts are. Such a system then would have a similar impact as copyright protection, but without the unjust government processes that are involved in actual copyright protection. In either case, procedural justice conservatives want to dismantle government copyright protection altogether.

So, as you can see, the issue of copyright protection creates a rare three-way split along the lines of conservative economic philosophies. Desert theorists support full copyright protection because they believe it gives to content creators what they deserve. Utilitarians support a system of partial copyright protection that allows some infringement to slip through in order to reduce deadweight loss. And procedural justice conservatives want to end government copyright protection altogether, which they may or may not want to replace with copyright protection via private contract. Given this rare split, figuring out where a conservative stands on copyright may be a good indicator of which conservative philosophical framework they are most committed to.