[The original memo has been taken down. But many folks downloaded copies
of this public domain document and have re-posted it. You can read the 9
page memo in its entirety here:
http://keionline.org/sites/default/files/rsc_policy_brief_--_three_myths_about_copyright_law_and_where_to_start_to_fix_it_--_november_16_2012.pdf
]
11/24/2012 7:13 AM
Copyright memo vanished, but is worth exploring
By Matthew Yglesias
Slate.com
http://www.dailyherald.com/article/20121124/business/711249938/
WASHINGTON --- A Friday afternoon policy memo is not normally the sort
of thing that gets one's heart racing, but "Three Myths About Copyright
Law and Where To Start To Fix It" was an exception.
It offered a bracing attack on the conventional wisdom about
intellectual property that's dominated Congress for decades, mounted a
vibrant defense of competition and advocated regulation aimed at
consumers rather than incumbent copyright owners.
Even more amazing was the source. The memo went out on the letterhead of
the Republican Study Committee --- an organization of House Republicans
who think the House Republican caucus isn't insanely conservative enough
--- under the names of Rep. Jim Jordan and executive director Paul Teller.
It was an exciting moment for copyright reformers, who were surprised
and delighted to find these new conservative allies. But a moment was
all it was.
By Saturday, Teller had already retracted the memo, claiming it "was
published without adequate review" and needed to be "approached with all
facts and viewpoints in hand."
Common sense suggests there were other reasons for the retraction. Derek
Khanna, a tech-savvy young Republican staffer who came to Washington
with Sen. Scott Brown before shifting to the RSC to work primarily on
cybersecurity and government oversight issues, is clearly well-versed on
the subject. He simply lacked the authority to enact a change in
position on a topic dominated by powerful interest groups with a ton of
money. Khanna's supervisors seem to have paid too much attention to the
merits of the memo and not enough to the larger politics when vetting
it. According to Mike Masnick at TechDirt, when news of the memo
filtered out to the Motion Picture Association of America and Recording
Industry Association of America, those organizations "went ballistic and
hit the phones hard, demanding that the RSC take down the report." They won.
And of course they did. Big shifts in policy simply don't happen by
trying to sneak memos past lobbyists. But Khanna's gambit did succeed in
making news on a subject where the gap between Capitol Hill and
knowledgeable people in the tech and economics worlds is enormous.
Khanna's three myths are, in order, that "the purpose of copyright is to
compensate the creator of content," that "copyright is free market
capitalism at work," and that "the current copyright legal regime leads
to the greatest innovation and productivity."
The first myth is the most easily devastated. Congress' power to enact
intellectual property laws is spelled out in the U.S. Constitution,
which empowers it "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." As Khanna writes,
this constitutional rationale has practically nothing to do with the
actual modern congressional discussion of the purpose of copyright.
Today's debate tends to focus not on promoting the progress of science
and art but rather on "what the content creators 'deserve' or are
'entitled to' by virtue of their creation."
Khanna's third myth --- that our copyright system promotes the most
innovation and productivity --- is the most important one. I've made the
case previously that fully preventing online intellectual property
piracy would be a social and economic disaster. A certain amount of
unauthorized copying is actually a good way to minimize dead weight loss
and increase welfare.
Khanna focuses on the length of copyrights. Longer-duration copyrights
theoretically create larger financial incentives for creators to
innovate and develop great characters and great stories. On the other
hand, shorter-duration copyrights reduce the cost of artistic production
and innovation. Because the basic stories of Hamlet, Snow White and
Robin Rood are in the public domain, they can be easily and cheaply
treated and retreated by artists in a variety of media. Spider-Man, by
contrast, is enmeshed in a web of legal obligations that stifle
creativity. Sony Pictures and Sony Pictures alone may make Spider-Man
films and unless they release them very frequently, they'll lose this
lucrative monopoly and the rights will revert to Marvel. Decisions about
which stories get told are driven by intellectual property
considerations rather than dramatic ones. Peter Parker can't appear in
an Avengers film and Iron Man can't appear in a Spider-Man movie because
the rights belong to different studios.
America's original copyright statute provided 14 years worth of
protection, renewable for 14 more years if the author was still alive.
Current law gives individuals monopoly rights for the lifetime of the
author plus 70 years. Corporate authors' rights extend to 95 years after
publication. But even that's an undercount. Congress has retroactively
extended copyright terms to prevent Mickey Mouse from losing copyright
protection --- preventing hundreds of other works from entering the
public domain.
Khanna also makes an intriguing case that we shouldn't consider strong
intellectual property rights as a form of free-market capitalism but
rather as a form of big government monopoly creation. Khanna,
essentially, is proposing conservatives make a bold political gambit.
Rather than moving "to the center" on issues that are in the public eye,
Republicans could perhaps garner support from younger voters and the
tech community by repositioning on a subject that's currently the
subject of bipartisan consensus. The memo doesn't delve into this kind
of cynical gamesmanship, but it's hard not to notice that right now the
Democratic Party raises a lot of money from both Hollywood and Silicon
Valley, even though those two industries tend to line up on opposite
sides of the copyright issue. Elevating the salience of copyright reform
would be an excellent way for the GOP to wreak a little havoc with the
Democrats' financial model.
The pushes both for and against last fall's thankfully doomed Stop
Online Piracy Act were basically bipartisan, but bipartisanship rarely
lasts forever. If major reform occurs, one party or the other will
likely take the lead and earn the gratitude of a rising geek lobby.
Khanna's suggestion that Republicans should view copyright less as a
kind of "property" and more as a kind of regulation is a fascinating
move on the coalitional chessboard. For now it seems too hot for the
Republican Party. But if they're smart, they'll think twice.
---------------------------------
Matthew Yglesias is Slate's business and economics correspondent.
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