Copyright as a government-created monopoly
Bob Zadek introduces the subject by describing copyright law as something that has existed since the country began and is specifically provided for in the Constitution. He groups copyrights, patents and trademarks together as intellectual property and characterizes copyright law as a government-created monopoly: if you invent something new and publish it, telling everybody exactly what it is and how it works, the government then says nobody can use your intellectual property without paying you a royalty. Copyrights are not forever; the law sets a finite period, after which the work enters the public domain and anybody can use it for free. The reason for the law, in his account, is incentive: without protection, someone who spends time and intellectual energy inventing could be copied by a free rider, and there would be no incentive to invent. The founders, he says, believed that to give the marketplace an incentive to create things, protection for a limited period of time with a monopoly was necessary. As an aside he notes that the formula for Coca-Cola is not patented, so anyone who knew it could use it for free, because Coca-Cola preferred not to publish it and to run the risk of somebody figuring it out Derek Khanna - What’s Stifling Innovation? (2014).
Derek Khanna adds a distinction: copyright law, in opposition to patent law, is strictly about incentivizing content creation. The word the founders used was “the sciences,” but by that they meant the creation of content — writing, books, maps, now music. It is therefore unusual, and basically an accident, that a law designed to foster content creation is now being used to protect the monopoly profits of big mobile companies; there is no real connection in the law about why a consumer unlocking their phone should fall under copyright law. Zadek coins the term “Big Cell” for the companies that, he says, take advantage of copyright law to prevent a consumer who owns the hardware from picking the carrier of their choice Derek Khanna - What’s Stifling Innovation? (2014).
The libertarian critique and the 28-year compromise
Timothy Sandefur, discussing a project to revise the Constitution, says the initial impulse was to hand back the existing US Constitution and say it is libertarian and needs no change, but that a number of things needed remedying. The project incorporated the existing amendments, leaving out things like the income tax, and wove the Thirteenth Amendment, which prohibits slavery, into the body of the document rather than leaving it at the end. Among the tinkering was intellectual property, which Sandefur treats as an example of the Founders getting something incomplete rather than wrong. He states that a lot of libertarians, including himself, have real problems with the idea of intellectual property at all, and that the US Supreme Court has said Congress can basically just renew the length of a copyright indefinitely, which he calls a real problem. The revised constitution therefore permits copyrights and patents but limits them to 28 years — the period patents lasted at the time of the Founding Fathers — so that Congress cannot keep renewing copyrights every time Mickey Mouse is threatened with becoming part of the public domain Timothy Sandefur on The Libertarian Constitution (2021).
Zadek presses the objection that a creator should be able to own a new creation for a really long time, framing the question as a surrogate for the bigger question of a libertarian approach to property rights in general. Sandefur answers that the libertarian critique of intellectual property per se is that it is not really property: it is a government-created monopoly that makes it illegal for you to imitate or copy some other person, which means it is an initiation of force against somebody who has not initiated the use of force, violating a fundamental principle of libertarian political theory. Copyright and patent, on the other hand, reward and incentivize creation. The compromise between those two positions is to allow a limited amount of time of exclusive use to creators as a way of subsidizing them, but not to allow them to indefinitely prohibit anybody from profiting off the idea of Mickey Mouse or a song. As an example of abuse he cites the 1980s Men at Work song “Down Under,” which he says was found to be a violation of copyright because it uses a few notes from “Kookaburra Sits in the Old Gum Tree” in the background, requiring the band to pay a whole bunch of money to the owners of the rights to that song — an outcome he calls ridiculous and really an injustice Timothy Sandefur on The Libertarian Constitution (2021).
Intellectual property as a trade grievance
In the Trump-era economic episodes, intellectual property appears as an American export that foreign countries take without paying. Stephen Moore says that what America produces more and more — and he notes that Zadek understands this in California and places like Silicon Valley — is intellectual property: computer software and designs and all sorts of drugs and vaccines and copyrights and patents. The United States sends it to China and, in his words, “they just steal it,” and they do not pay for it. He calls that unfair, comparing it to stealing an invention, and says China is cheating and stealing and that we need to get very tough with China; he adds that he tends to be in violent agreement with Trump on China Stephen Moore on Trumponomics (2018).
A later episode makes a similar charge in passing: the guest says that with respect to China, China is taking our intellectual property and therefore one needs a pretty stern response, and that this is not a win-win situation when they are doing that or requiring our companies. The same speaker finds it baffling that if that should be the focus, the president has not entered into other trade agreements and has chosen to fight Europe on trade instead Here Comes the Storm (2019).
Casey Mulligan supplies the historical parallel. In Reagan’s day, he says, the problem was that the Japanese were not respecting American copyrights and other intellectual properties, and neither were other East Asian tigers. Reagan threatened tariffs — he did not do so many of them — and eventually in his second term got some trade deals with Japan and the Asian tigers to respect American intellectual property rights. The same issue now arises, although it is not called Japan but China, and tariffs are being used. Mulligan notes that some economists, even Chicago-trained ones, recommended in the Reagan years that tariffs might be used to change that behavior, and that no economist recommends that now; he says he is not sure what changed in terms of professional analysis. He describes the two issues as the special interest to be served and the intellectual property problem, which he calls an important industry here in America You’re Hired! Chief Economic Adviser to Trump on What It’s Really Like to Work in the White House (2020).
Across episodes
The topic recurs across five episodes, and the treatment shifts with the setting rather than developing along a single line. In the 2014 episode with Derek Khanna, intellectual property is examined domestically as a government-created monopoly whose original purpose — incentivizing content creation — has been diverted to protect the monopoly profits of big mobile companies against consumers unlocking their own phones. In the 2021 episode with Timothy Sandefur, the same monopoly premise is pushed further: intellectual property is said not to be property at all but an initiation of force, and the proposed remedy is a constitutional 28-year limit on copyrights and patents. Between those two, the 2018, 2019 and 2020 episodes with Stephen Moore, the unnamed guest and Casey Mulligan treat intellectual property chiefly as a trade grievance, with China cast as the thief of American software, designs, drugs, vaccines, copyrights and patents, and with tariffs discussed as the instrument of response. What changes is the frame — consumer harm and constitutional design in the earlier and later episodes, national trade grievance in the middle ones — not the underlying account of intellectual property as a government-granted monopoly.
What the sources do not cover
The excerpts do not describe the constitutional clause that authorizes copyright and patents, nor any statute, bill or case by name beyond the Supreme Court’s asserted position on renewing copyrights and the “Down Under” copyright dispute. They do not state the current term of copyright protection, the mechanics of patent examination, or the institutions that administer intellectual property. No guest sets out an empirical measure of the cost of foreign intellectual property theft to the American economy, and the trade discussions do not say what tariffs were imposed or what the resulting deals with Japan, the Asian tigers or China provided. The excerpts also leave the practical operation of the proposed 28-year limit unexamined.