Response to Rep. Marsha Blackburn: A True Conservative Tech Policy

On January 18, Congresswoman Marsha Blackburn gave a speech purporting to give a conservative view of technology policy. As a strong conservative myself, I was deeply saddened to read this speech, which not only displays a deep lack of understanding about important policy issues facing the tech world, but a misunderstanding of the true tenants of conservatism in favor of the very corporate cronyism which Republicans are all too often accused of.

I have long been saddened by the fact that while I would characterize my overall political views as strongly conservative, on matters of technology, Internet, telecommunications, and intellectual property policy, my views are more in line with those more frequently advocated by liberals (though neither party actually holds to them very well). So I decided to write a response to her speech as a kind of follow up to my post a couple years ago about why conservatives should support net neutrality. It is my aim to show that while Blackburn’s goals are admirable, the tech policy that would hold truest to conservative values is nearly the exact opposite of what she has proposed.

Blackburn starts out her speech:

The casual observer sees Republican and Democrat approaches to tech policy as stylized. Republicans appear to reflexively defend big corporate interests. Democrats appear ready to smother any forward moving technology under reams of regulation. For Conservatives the challenge must be to look beyond platforms and technology to seek out those core Conservative values that are the basis of all our positions.

With this sentiment I would heartily agree. I would also say that Blackburn has accurately identified the weaknesses of both parties in this area. But unfortunately she goes on to commit precisely the same error she acknowledges Republicans are accused of–reflexively defending the interests of large corporations over the true public good.

Next Blackburn identifies the “core conservative values” that she believes a conservative tech policy should be based on:

The degree to which the economy is kept free, to which property rights are protected in the next century, to which free speech is assured; may all be shaped by tech policy. These are THE core conservative values, and we must rise to defend them in the tech policy debates in the coming decades – not to mention the coming Congress.

Another statement with which I would largely agree. Economic freedom, protecting property rights, and assuring free speech–all admirable goals and quite rightly declared to be the core principles which a conservative tech policy should aim to defend. Yet the rest of Blackburn’s speech is devoted to arguing that the government should NOT do anything to protect these values (and in fact should do other things which harm them rather than protect them). Before we go on, let us remember an important fact. Government regulation is not ALWAYS a threat to liberty, but if done rightly can in fact serve to protect these very liberties. Nor is government the ONLY threat to them; liberty can be infringed by other powerful interests as well, and corporations (especially the handful of corporations that control our entire Internet infrastructure) can pose just as great a threat to freedom of speech on the Internet as the government can.

Blackburn then sets out three central propositions to her view of tech policy through which her values can be applied:

First, what I call The Creative Economy is the emerging driver of the American economy and should be the focus of tech policy.

Second, intellectual property is the chief commodity of this new economy. For our prosperity to endure, intellectual property rights must be reinforced.

Finally, that the Internet is the primary marketplace for the creative economy. It must be kept free, predictable, and accessible.

Regarding Blackburn’s first and second propositions (which are essentially the same), no one can deny that America’s economy is becoming increasingly based on creative works and information goods rather than industrial products, and that those information goods are protected by intellectual property laws. However, is increasing intellectual property rights really the best way to greater prosperity? At their core, intellectual property laws confer exclusive ownership of information, so that no one else is allowed to use it, thus creating artificial scarcity and theoretically imparting value. In an age when freedom of information is the source of such great innovation, do we really want to pass even more restrictive laws that concentrate ownership of that information in the hands of a few large companies, whose idea of innovation is to sit on that information and sue those who attempt to actually use it (i.e. patent trolls)?

Blackburn says:

Culturally, we all differentiate between material and intellectual property rights. For the Creative Economy to thrive, we need to dissolve the barrier and ensure intellectual property rights are as strictly enforced as material rights.

This is where Blackburn is dead wrong. Has it occurred to her that there might be a good reason for this differentiation? In her very next sentence, Blackburn claims that “our founders, in Article 1, Section 8, Clause 8 [of the Constitution] explicitly established an intellectual property right to be treated with the same reverence as the material property protected by the 5th Amendment.” Yet those same founders in that same clause of the Constitution also mandated that copyrights and patents be granted only for “limited times,” while rights in physical property are perpetual. So it seems the revered Founders themselves drew a distinction between physical and intellectual property. And rightly so, for the Founding Fathers (particularly Jefferson) recognized that in order for a culture to grow, each successive generation must be free to build upon the ideas and accomplishments of the one before it.

There is very little in either art or science that is completely original. Rather art is constantly borrowing from and adapting prior art, and every new invention improves upon those previously developed. The Founders recognized that to grant complete and perpetual ownership of ideas to those of one generation to keep locked up forever leads to cultural stagnation. And so they mandated that after a certain period, copyrights and patents expire, and the ideas they protect fall into the public domain where they are free to be used by anyone.

While I agree with Blackburn that intellectual property rights should be protected, they should not be protected so strongly that no one else can ever use the ideas they protect, to the detriment of follow-on creativity and innovation. To do any less threatens the very value of assuring free speech which Blackburn cited earlier; for in the world of the Internet, intellectual property rights are headed towards a full-on collision with freedom of speech and the 1st Amendment. Blackburn however, seems not to have considered this, for later on she advocates a “war on intellectual property infringement” which she likens to the War on Terror.

Here are just a few of the ways she advocates increasing IP protections:

• Patent reform “with strict deterrents to infringement.” Never mind the REAL problems in the patent system, such as out-of -control software patents and patent trolls tying up every attempt at genuine innovation in endless lawsuits. Never mind the fact that nearly everyone in the software industry now considers patents a greater hindrance to innovation than help. No, obviously the current system isn’t protecting patents enough, so patent laws need to be made even stricter.
• Compromise on Orphan Works legislation, which would not even be necessary if Congress hadn’t extended the copyright term to well over 100 years, such that works remain copyrighted long after their creators are dead and no one even cares about them anymore. Why not deal with the root of the problem and decrease the scope of copyright and the length of copyright terms instead, reinvigorating the public domain in the process?
• Passage of “Rogue Website” legislation (the COICA bill), which would allow the Justice Department to yank website’s domain names and order ISPs to block websites that  have never been proven to violate any laws, with virtually no accountability; placing an unconstitutional prior restraint on online free speech and wreaking havoc with the domain name look-up system. Oh and it wouldn’t even actually work, since the measures the bill proposes are laughably easy to circumvent.

Can’t a conservative view of intellectual property rights be a little more sensible? And what about protecting the fair use rights of Internet users to make noncommercial, transformative use of their culture? What about IP policies which actually promote the grown of culture and science rather than prop up the dying business models of a few monolithic corporations, while at the same time giving the government virtually unlimited power to censor online speech in the name of “protecting intellectual property rights”? Since when was that conservative?

Finally, Blackburn attacks the FCC’s recent net neutrality rules, which she claims only address a hypothetical problem and will serve only to bog down future innovation in bureaucratic red tape. She states that:

The FCC’s actions are also narrow minded – reinterpreting online commerce as online communication in order to assert jurisdiction. They regulate what is perhaps the most incidental aspect of any creative economy – the means of transmission.

Apparently Blackburn adheres to the regular Republican line that because Internet Service Providers own the “pipes” of the Internet (its physical infrastructure of transmission), they should be free to do whatever they want with the content that flows over it. Yet ironically, she argues earlier that we should cease focusing on the devices with which online content is accessed, but rather focus on fostering the creative content the Internet carries. You cannot have it both ways. ISPs freely admit they want to be able to charge not only their own customers for Internet access, but also charge major websites for the “privilege” of transmitting content to their users. At the same time, they want to be able to work out deals for “paid prioritization,” so that, for example, Netflix can pay Verizon to make it’s streaming video load faster than Amazon’s video on demand service. And they would like nothing better than to “cable-ize” the Internet, so that consumers are forced to buy Internet service in packages of websites rather than an amount of bandwidth that they can use to access the online content of their choice. Such an ecosystem is not conducive to the grown of online content!

Earlier in her speech, Blackburn talks about protecting garage-bound entrepreneurs against having to navigate a maze of bureaucratic alphabet soup when starting up an innovative online service. What about the bureaucratic nightmare the next Google or YouTube would face if, in addition to having to pay their own ISP for Internet access, they also had to negotiate deals with every local ISP in the country just to be able to reach viewers at the other end? This is what the FCC’s rules were designed to prevent, and it’s exactly what we’ll get if Blackburn has her way and Congress kills any hope of the government being able to mandate basic rules for net neutrality (which rather than being the bureaucratic nightmare Blackburn describes, are simply enforcing the status quo condition that all websites should be treated equal by local ISPs). This is not “regulating the internet in extraordinary ways, in a manner we have not applied to other markets,” as Blackburn says. Rather it is simply laying down basic rules of the road akin to those for any other common carrier, that all comers must be treated alike on a level playing field.

So what should a true conservative tech policy look like? Here are my suggestions:

1. Keep the online economy free by passing strong net neutrality rules which preserve the Internet as an open platform for innovation, on which all web services compete on an equal playing field. Allow success on the Internet to be determined by that grand old conservative principle of competition in a free market, rather than which online services can strike the most favorable preferential deals with ISPs.
2. Promote the growth of the creative economy by lessening the scope of intellectual property laws, ensuring that everyone is free to innovate and create new information goods without the constant threat of a lawsuit for copyright or patent infringement. Take steps to prevent patent trolls for abusing the patent system by forcing true innovators to defend every invention in court against bogus and overboard patent claims by companies which don’t even produce anything of value, but only sue those who do. And craft policies which respect the rights of EVERYONE to create content online (including ordinary Internet users on user-generated content sites), rather than presuming that only the rights of large media companies are worth protecting.
3. Ensure online freedom of speech by ending attempts to censor speech in the name of protecting obsolete business models, but instead protect the rights of Internet users to remix and interact with their culture. Lessen the restrictions of copyright to make culture accessible to everyone, not just a few large media companies. These companies should still have the right to profit from their creative works, but they should be encouraged to do so in ways that reflect the reality of the digital world, rather than relying on futile attempts to use IP law to prop up dying business models. Not every “infringement” is evil, and if copyright owners would be willing to innovate and think outside the box, they may find it is perfectly possible to make money from creative content even while being less restrictive about the use of their property. Property rights are only as good as the use they are put to, and if property rights are to be respected, we must have a system of intellectual property that actually works and that people are willing to abide by.

Finally, remember that, while conservatives have always feared government power, the real danger comes from centralized power in any form, whether in government or in corporations which have every bit as much influence over our lives as the government. Instead of reflexively opposing government regulation and defending corporations at all costs, a true conservative tech policy must recognize the threats both government and corporate actions pose to our liberty. And in true conservative fashion, we should employ the tried and true system of checks and balances to protect our liberties by playing each of them against the other. Therefore let corporations restrain the government (as corporations already have tremendous political influence), and let the government restrain corporations.