Monday, November 19, 2012

House Republicans and I Agree on Copyright Reform ... for 20 Hours Only

Come on, guys and gals, I was going to write this gushing blog post about how I finally agreed
with you all for once - and then you had to go and ruin it by being utterly spineless.

Well, that was short-lived.

Saturday morning, I came across some amazing news - an extremely influential group of Congressional Republicans called the Republican Study Committee (yes, House Republicans, even - you know, the ones that this blog has often pointed to as being the particularly crazy ones) published an astonishingly, shockingly, awesomely clear and smart briefing about how to reform U.S. copyright law to make it sensible again.

This blog has previously discussed how U.S. copyright law is an abomination and a total affront to the intentions of the Constitution as written by the Founding Fathers. Suddenly, briefly, I had hope that perhaps this was going to change - here was a large group of Republicans (170+, a majority of House Republicans, in fact), coming out in favor of sensible copyright reform. I'll let Techdirt summarize the contents of the report:
To give you a sense of where the document heads, note the final line:
Current copyright law does not merely distort some markets -- rather it destroys entire markets.
There is a lot in this document, and we can't go through it all, but I highly recommend reading through it. The three "myths" it attacks are:
  1. That the purpose of copyright is to compensate the creator. No, it correctly notes, it's about benefiting the public:
    Thus, according to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation. 

    This is a major distinction, because 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. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights.
  2. That copyright is a representation of free market capitalization. The paper properly notes that the reality is the exact opposite:
    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. That the current copyright regime leads to the greatest level of innovation and productivity. That makes no sense at all, the paper says:
    Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.
From there, it goes on to look at some of the specific harms of today's copyright law, including harming remix culture and a lot of commercial activity around it, that it "hampers scientific inquiry," discouraging value added industries and others. 

Finally, it puts forth suggestions for copyright reform that go way, way, way beyond anything we've seen legitimately discussed in Congress, ever. Below I just show some snippets from the recommendations, so go read the full thing.
  1. Statutory Damages Reform: 

    Copyright infringement has statutory damages, which most copyright holders can and do use in litigation (rather than having to prove actual damages). The government sets a range – which is $750 to $30,000 per infringement – but that goes up to $150,000 if the infringement is "willful." Evidence suggests that the content holder almost always claims that it is willful. This fine is per infringement. Those rates might have made sense in commercial settings (though even then they arguably seemed high), but in a world where everyone copies stuff at home all the time, the idea that your iPod could make you liable for a billion dollars in damages is excessive. 
  2. Expand Fair Use: 

    Right now, it's somewhat arbitrary as to what is legally fair use based upon judicially created categories. One example: parodies are considered protected by fair use but satire is not. There's an excellent book (and a shorter paper) called Infringement Nation that details how things you do every single day are infringing and leave every single person liable for billions in damages each year (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1029151). 
  3. Punish false copyright claims: 

    Because there is minimal or nearly non-existent punishment for bogus copyright claims today, false takedown requests are common and have a chilling effect upon legitimate speech. While those filing a takedown request have to swear on the threat of perjury, that swearing is only in regard to whether the work is theirs but not whether the work is actually infringing. The court has said that their needs to be “subjective bad faith” in order to be sanctioned for false takedown requests. This often leads to de facto censorship. 
  4. Heavily limit the terms for copyright, and create disincentives for renewal: 

    Current public policy should create a disincentive for companies to continue their copyright indefinitely because of the negative externalities explained in this paper. Unlike many forms of government revenue, generating revenue by disincentivizing activities with negative externalities is one way for the government to pay for its operations. This is a far superior way for the government to generate revenue rather than having a tax system that disincetivizes work.
It goes on to suggest a sliding scale for copyright renewal, after a free initial term of 12 years. The fee for renewal would be a percentage of revenue from the work, and that percentage increases with each additional renewal term. Under such a system, those who are still exploiting the copyright can continue to hold one, but for most, where there is greater benefit to have the work in the public domain, the work goes into the public domain.
Amazing! Astonishing! Visionary!

Techdirt was right in calling this a watershed moment - I was so happy that Congress was talking about accomplishing something truly remarkable and productive, and I was even happier that it was coming from the faction of Congress with whom I most often and most vehemently disagree!

I even had fleeting visions of U.S. patent system reforms that would accompany these copyright reforms, as the U.S. patent system is also a total failure. Ooh, I was giddy with excitement, I tell you, in ways that I almost never get giddy about politics, since everything in me tells me that it's far wiser to be horribly cynical about politics than hopeful and giddy.

It was a good day. Well, it was a good morning and early afternoon, anyway. Alas, but yet not surprisingly, it was to be short-lived. Cue cynicism being right:

Less than 24 hours later, under a withering onslaught from MPAA and RIAA lobbyists, the Republican Study Committee folded, tucked its tail between its legs, and withdrew the report.

Sigh.

House Republicans, I WANTED to agree with you on this. I was EXCITED to agree with you on this. And then you go and snatch my happiness and excitement away when your corporate masters demanded that you heel and return to serving them at their beck and call.

As Techdirt points out, pulling this kind of crap is exactly how NOT to try to win back the tech-savvy youth vote that you have lost so completely to the Democrats for the past several years - this kind of bait-and-switch just means that they (and I) won't believe you next time, when perhaps you publish a sensible solution that we can get behind, because we'll just be waiting for you to double-cross and screw us.

Oh well, maybe next time, House Republicans - when you've managed to grow a spine.

In case you want to read the Republican Study Committee's report yourself, it's been mirrored here (.pdf warning) - obviously, it's been removed from the RSC's website on house.gov.

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