Boyle: were we smarter a 100 years ago

Jame Boyle has been re-reading the legislative history of the 1909 Copyright Act and come to the conclusion that

"100 years ago we were smarter about copyright, about disruptive technologies, about intellectual property, monopolies and network effects than we are today. At least, the legislative hearings were much smarter...

I find no injustice in the composers getting a share of the revenues produced by sound recordings and piano rolls — I would have voted for it myself. And the solution to the problem of the latent monopoly — namely a compulsory license — accomplished that goal without stultifying the technology or restricting distribution to the public. All in all — the fulminations of Sousa and Mauro aside — it was a pretty nice piece of legislation. The legislators actually seemed to understand the arguments made to them. The conceptual confusions of absolute property rights were repeatedly debunked. There were explicit balances made in the statute — weighing technological progress and the encouragement of the arts and culture. Constitutional arguments were weighed and taken into account. They even saw and mitigated the threat of monopoly with a compulsory license. Nowadays when a compulsory license over, say AIDS drugs, is pursued by a country like Thailand, the US Trade Representative beats them up for adopting such “radical” and confiscatory approach. Nothing could be more foreign to the American tradition of intellectual property than compulsory licenses! Hogwash. Our music industry is built on them.

The world of 1906 was hardly perfect — I wouldn’t want to live then. And the 1909 statute was full of its own boondoggles and industry grabs. But if one looks back at these transcripts and compares them to today’s hearings — with vacuous rantings from celebrities and the bloviation of bad economics and worse legal theory from one industry representative after another — it is hard not to feel a sense of nostalgia. In 1900, it appears, we were better at understanding that copyright was a law that regulated technology, a law with constitutional restraints, that property rights were not absolute and that the public would not automatically be served by extending rights out to infinity."