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The RSC should not have pulled the Copyright paper

The Republican Study Committee backed off on copyright reform after publishing what was an important paper on the topic. The excuse is that the paper needed further review, but what I fear is that the paper actually went further than rent-seeking allies of squishy centrist Republicans are willing to go. I have no evidence to sustain this. It’s just my gut feeling. The paper went out, industry groups had to have seen it, given all the attention it got. Over the weekend they complained, and down the paper went on Monday.

I have a copy of the paper, and if we go point by point, it’s hard to find a real reason to oppose it though. So if there is another reason, I’d love to hear it.

Here are the points attacked in the paper

The purpose of copyright is to compensate the creator of the content. This is easy to attack, as all the paper has to do is go to the Constitution, which says “The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Therefore, Constitutionally we must craft copyright for the purpose of encouraging content creation.

Copyright is free market capitalism at work. This is clearly false. It is, by definition, a government-created monopoly. We find it valuable to create such monopolies, when they encourage the creation of works. With no copyright, the incentive would be diminished to create many works now enjoying copyright protection. However it is a government-backed monopoly. It’s a Constitutional subsidy. I don’t see how this can be disputed.

The current copyright legal regime leads to the greatest innovation and productivity. This is a key point. The paper says this is not the case, and finds five ways that we currently give so much copyright protection that we actually hinder the creation of works.

Likewise, the proposed new policies make sense:

Statutory Damages Reform. The numbers rack up ridiculously fast. The paper suggests the intent is to scare people into settling, which wouldn’t surprise me a bit.

Expand Fair Use. The paper points out that the law has diverged from social norms. Much like when speed limits were too low and so made the law seem ridiculous in the eyes of the public, fair use is currently too narrow.

Punish false copyright claims. This is the DMCA reform that is probably the clearest and most obvious to make. Copyright holders are capable of systematizing many, many takedown notices, and can attack in a way that the average person cannot defend against. False claims, which have gotten so extreme that there have been cases of NASA having takedown notices filed against it for its own broadcasts from Mars. There must be balance. DMCA’s greatest virtue was its attempt at balance. Let’s fix it.

Again, it all goes back to Article I, Section 8. When we let existing copyright holders bully smaller, newer content creators out of the market, we are defying the Constitutional mandate to let copyright encourage content creation.

Heavily limit the terms for copyright, and create disincentives for renewal. This made Disney flip out to read from Republicans, I’m sure. But the framers clearly did not envision copyright that lasts a century. Keep in mind that the first Copyright Act 1790, which gives us a clear window into the minds of the framers and the ratifiers of the Constitution, gave copyright for up to 28 years. That’s all. Contrast with the Sonny Bono Copyright era, which extends copyright for over 100 years.

And let’s be clear about this: if they could have gotten away with it, they’d have made copyright perpetual. Said the now-outgoing Representative Mary Bono Mack, back in 1998: “As you know, there is also Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.” This is the mindset that the paper is challenging, and it’s right to do so.

I can understand that the paper shocked people. The Republican establishment has traditionally gone along with whatever big business asked for on copyright. But I think we’ve begun to remember that what’s good for big business, isn’t necessarily what’s good for America as a whole. So I regret that the RSC has backed down from sound policy, and started to shift from conservative trailblazer, to mild establishment printing press.

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