This site has been quiet for about three weeks; for much of that time I was in South Africa, first as a tourist and then to attend the Berlin 10 Conference on Open Access that was held in early November at the University of Stellenbosch. I hope to write about the conference and the South African context in the near future. But today I could not resist a foray into politics.
On Friday, the U.S. House Republican Study Committee, which is described as a policy development group for the more right-wing Republican members of the House, issued a memo on copyright reform. I admit that I flipped out when I saw it; I have never been a one-issue voter, but this memo had the potential to turn me into one. As I will explain in a minute, it was, in my opinion, a home run explanation of what is wrong with copyright policy making in the US today and what solutions would look like. It suggested a radical rethinking for the Republican party about its approach to intellectual property law, one that is actually much more in step with other values that are supposed to motivate the GOP.
Alas, however, it was not to be. By Saturday afternoon the Executive Director of the Study Committee issued a memo withdrawing the document and apologizing for its release. His explanation was that it had not been properly “reviewed,” but the far more convincing explanation, offered by Mike Masnick of TechDirt, was that the lobbyists for the recording and motion picture industries had gotten very busy very fast and threatened the GOP with the loss of lots and lots of campaign donations if the memo was not retracted.
There are two ironies in this story of realpolitik over reason. The first is that Derek Khanna, who wrote the memo, really got the analysis right. The other is that sticking to their guns on the topic might have been a very fruitful political strategy for the GOP as they seek ways to capture the hearts and minds of younger voters. The politics of the situation is nicely explained in this article from Slate (which has its own take on the politics, of course). But I would like to look at the substance of the memo for a minute.
Khanna’s memo is built around three “myths” about copyright that he debunks. The first is that copyright is primarily intended to compensate creators. The second is that copyright is all about free market competition. And his final myth is that the current copyright regime is the best way to foster innovation and productivity. To me, it is very obvious that the first and three of these are, indeed, myths. A quick glance at the clause authorizing Congress to pass copyright laws makes it clear that the purpose for those laws is the public good, and that compensation for authors is an instrumentality that is justified when, and only when, it helps serve that public purpose. And there are few people who are not employed as lobbyists for the content industries who would seriously maintain that our current regime is actually the best balance of protection and access to foster innovation. Take a look, for example, at this blog post by federal Circuit Court Judge Richard Posner for a concise explanation of how badly our current patent and copyright laws over-protect and therefore hamper productivity.
To me the real surprise was that this policy strategist even had to address the myth that says that “copyright is free market capitalism at work.” Copyright, of course, is a government-granted monopoly; the very antithesis of free-market capitalism, it is government protectionism. Indeed, one of the reasons that copyright has to be so carefully balanced is because it can so easily have anti-competitive effects, lending government support to favor one industry or type of business over others. This is why our anti-trust laws have actually developed special rules to address claims of restraint of trade in industries that rely on the artificial monopoly conferred by IP laws.
For a political party that advocates free-markets and the reduction of government interference, copyright reform seems like a perfect platform, especially as it would appeal to younger, tech-savvy voters. It was refreshing to see that at least one policy strategist recognize that this was not just an important issue, but one that could capture the attention of the electorate. Unfortunately, the strength of the content-industry lobbyists appears to have won out, at least for now. But I am hopeful that the Republicans, and maybe even Democrats (although they have traditionally been even more dependent than the GOP on money from Hollywood) will continue to wake up to the fact that our current laws create an artificial thumb of the scale of markets in the US, putting the government in the position of supporting legacy content industries at the expense of new and innovative businesses.
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For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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