View from the Empire State Building
High stakes in copyright reform? Or just desperate puns to justify arbitrary illustrations?

First posted November 20, 2012.

I tried, and perhaps had some success, in making the point right before the election that there were political — as in policy, and as in electoral — questions involving intellectual property that could be affected by the presidential election.  And maybe I was right!

No one knows quite what to make of this story, which doesn’t mean people aren’t saying they do.  This, first, was Friday, November 16th’s story:

A Republican Study Committee policy brief released today to members of the House Conservative Caucus and various think tanks lays out “three myths about copyright law” and some ways to go about correcting what many see as a broken system. Derek Khanna, the RSC staffer who authored the paper, acknowledges an important role for intellectual property while also pointing out how badly the current system has gone off track.

The paper also suggests four potential solutions:

  1. Statutory damages reform — in other words, saving granny the legal headaches
  2. Expand fair use — set those DJs free!
  3. Punish false copyright claims
  4. Heavily limit copyright terms, and create disincentives for renewal

That would be a heck of a start towards making copyright actually incentivize innovation, rather than stifling it, as it most often does today.

It’s great to at least see this issue discussed in a substantive way–complaints about rigid IP protections have until now been limited to folks like Sen. Ron Wyden. Surprise opposition to SOPA excepted, neither party has taken a strong public stance on copyright reform. If the paper suggests a new turn for the GOP on the issue–against the Chamber of Commerce and for Internet companies, DJs, and millions of consumers–that would certainly beat the protectionism of bought-off legislators like Bob Goodlatte (who knew the good people of Roanoke had such a stake in strong IP?). Read the whole thing (it’s only nine pages, and easy to digest) here.

A lot of this is stuff I have written about here — particularly the misunderstanding about what copyright statutory damages are supposed to be, and the preposterous imbalance in the litigation playing field now favoring IP stakeholders.  But coming from a major party — much less my own?  It was, it seems, to good to be true, except of course for the part where my party isn’t really in a position to push meaningful reform in Washington anyway.

One popular excerpt that ran all up and down the Intertubes was this, which addresses what the paper called three “myths” of copyright that need correcting:

1. The Constitution’s clause on Copyright and patents states [in modern language] that the purpose is to lead maximum productivity and innovation. . . .

Most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation.”

2. Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly.

3. With too much copyright protection, as in copyright protection that carried on longer than necessary for the incentive, it will greatly stifle innovation.

Then this:

From: Teller, Paul
Sent: Saturday, November 17, 2012 04:11 PM
Subject: RSC Copyright PB

We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community. Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand. As the RSC’s Executive Director, I apologize and take full responsibility for this oversight. Enjoy the rest of your weekend and a meaningful Thanksgiving holiday….

Paul S. Teller
Executive Director
U.S. House Republican Study Committee

What the?  As Glenn Reynolds writes,

THEY DON’T CALL IT THE “STUPID PARTY” FOR NOTHING:  Republican Study Committee Disowns Intellectual Property Paper. Opposing protectionist IP would help with younger voters, tech-libertarian types. It also cuts against the interest of industries — Big Entertainment, basically — that are the Dems’ key cash cow. It should be a no-brainer for the GOP, but instead, apparently, the GOP has decided not to have a brain.

Or something.  As Mike Masnick says, “The idea that this was published “without adequate review” is silly. Stuff doesn’t just randomly appear on the RSC website. Anything being posted there has gone through the same full review process. What happened, instead, was that the entertainment industry’s lobbyists went crazy, and some in the GOP folded.”

That does seem to be the consensus, although the RIAA says it wasn’t the one.  And was this, indeed, the one that got away — maybe?  Masnick thinks so.  In a subsequent post, he writes:

While there’s been plenty of attention paid over the weekend to the fact that the Republican Study Committee (RSC), the conservative caucus of House Republicans, pulled its report on copyright reform after some entertainment industry lobbyists hit the phones/emails late Friday/early Saturday (and, no, it wasn’t directly to RSC, for the most part, but to “friendly” members asking them to express their “displeasure” with the report to the RSC leadership). But we shouldn’t let that distract from the simple fact that the report was brilliant — perhaps the most insightful and thoughtful piece of scholarship on copyright to come out of a government body in decades. You can still read the whole thing as uploaded to . . .

It seems unlikely that the RSC will bring it back, despite the quality of the report. But one hopes that the massive outpouring of support (seriously, just check Twitter) will lead politicians from both parties to recognize that sensible and smart copyright reform is a topic that gets people excited — and one thing they’re sick of is decades of both parties simply falling all over themselves to distort copyright to favor a few dominant Hollywood players.

It’s always the cover-up, ain’t it?  The story of this retraction should be pretty juicy.

But substantively, can the GOP really hit undo?  As Walter Russell Meade writes:

 [T]he fact that the paper got published at all in the first place is notable, as was the rapturous way it was received across the web. There’s a real constituency for this kind of reform. And it’s part and parcel of VM‘s own reform hobbyhorse: promoting smarter, leaner, and more efficient government. Copyright law has been bloated beyond its initial, limited and useful purpose into something way beyond what the Founding Fathers intended.We encourage VM readers to take a look at the entire policy paper, hosted here by the Maryland Pirate Party. This is certainly not the last we’ll hear of these kinds of initiatives. GOPers shocked by the last election are worrying that the Party of Lincoln is becoming the Party of Out of Touch Middle Aged Men; copyright reform is an issue where the GOP potentially could be siding with the young and the hip against the Hollywood power elite.

If the GOP can’t break with the corporate money machines and the Status Quo Lobby on an issue like this one, you have to wonder what the party’s capacity to lead and to innovate really is.

I didn’t know that was even a question — until this paper came out, and then I thought it might be.  And then, again, it turned out it wasn’t.  Was it?

UPDATE:  “Copyright Shill’s Defense of the Status Quo” – whoa!

By Ron Coleman

I write this blog.