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So, fair enough. Congress has a reason to address this problem of positive externalities. The energy devoted to addressing this problem is consistent with that reason. Some intervention is plainly needed in this context. The government has plainly intervened some. Free riders (aka the “pirates”) might want to block that intervention. But so far they’ve not succeeded in blocking this federal regulation. Congress has overcome resistance and internalized the benefits of these positive externalities.

But what about negative externalities? What has Congress done about them? As compared with its vigorous defense of the copyright industries, with thirty-two laws in sixteen years, what has it done to deal with the twenty-first century’s equivalent to the restaurant owner at the start of this chapter: carbon pollution?

For, just like the restaurant owner, there are many within our economy who claim profits only because they ignore the cost of cleaning up the carbon they spew out their virtual back door. Take power companies that use coal to produce electricity: According to the Pew Center on Global Climate Change, the cost of capturing and sequestering carbon produced by coal-fired power plants is between $30 and $90 a ton. In 2003 more than 1.9 billion tons of carbon were spewed into the air by burning coal to produce electricity.2 That means the cost to clean up the carbon those companies produced was between $280 and $840 billion in 2003 alone. The total profits of the coal and petroleum industry combined in 2003? $23.3 billion.3

These companies plainly produce negative externalities. They don’t pay for the externalities they produce. Those externalities impose significant costs on our society and ecology. The most tangible are the health costs—estimated to be $100 billion per year.4 The most profound are the contributions to the problem of climate change.

Now you might be a climate change skeptic. You might think, isn’t the science about global warming contested? Aren’t there scientists who doubt—and even deny—that carbon is harmful to our climate?

And of course, there is some contest. There are some scientists who doubt whether the harm from climate change is as great as Al Gore says it is, just as there are some economists who doubt whether the creators of culture need all the protection that the law of copyright now gives them.

But these two contests are radically different. If you took the average of every estimate by every scientist, skeptic or not, of the potential harm caused by climate change, and compared that to the average of every estimate by every economist, skeptic or not, of the harm caused to creativity by the Internet, climate change costs would be a mountain (call it Everest) and creativity costs would be a molehill (and you’ve not seen many molehills precisely because they’re so small).

So then, while passing more than thirty laws over the past sixteen years to address the alleged harm to creativity caused by the Internet, how many times in the past fifteen years has Congress passed legislation to make carbon polluters cover the cost of their pollution? Or even the past twenty-five years?

Not once.

While the copyright free riders have failed to block externality-internalizing legislation affecting creativity, the carbon free riders have repeatedly succeeded in blocking the externality-internalizing legislation affecting climate change. Where the harm is almost certain, Congress does nothing. Where the harm is at best contested, Congress races to the rescue.

As a matter of principle, there is nothing political about the point my comparison is meant to draw. No sensible Republican would defend the restaurant owner at the start of this chapter. Nor would she say that a polluter shouldn’t pay the cost to clean up his pollution. And while there’s plenty to disagree about when deciding how best to clean up carbon pollution, there couldn’t really be a principled reason to say we should not clean it up at all. Or, more strongly: if we are deploying federal courts to protect against