When I was working in the Open Book Alliance to defeat the Google Book Search proposals, one of the first things that I learned as a neophyte working the Hill was that one’s allies and foes on legislative action swirled in fluid kaleidoscopes. Coalitions formed and then re-formed depending on what was at issue, and who had a stake. Public positions could change suddenly and inexplicably, until one figured out whom had spoken to who.
So it was this weekend before Thanksgiving. On Friday, 16 November, the conservative Republican Study Committee (RSC) released an amazingly liberal document proposing deep and substantive reforms in U.S. copyright law. Within 24 hours, on Saturday, 17 November, the report had been pulled from the House website and an email apology for its “inadequate” vetting had been flung out on the net. Hollywood had hit their phones, and the political volte-face was as dramatic as something out of Hitchcock’s The Man Who Knew Too Much.
The RSC channels much of the House of Representatives Republican Conference, orienting the Party leadership towards conservative proposals. The copyright report, “Three Myths about Copyright Law and Where to Start to Fix it,” was initially posted at the web site of the current RSC chairman, Jim Jordan. It highlighted fundamental copyright flaws and suggested reforms which, save for a few infeasible proposals, could have come out of liberal west coast centers of copyright scholarship. It was authored by a young staffer, Derek Khanna, and the study paper demonstrates the growing generational rift in the understanding of business reliance on networked technologies.
The report notes the original intent of the Copyright Act to promote the progress of science and the useful arts, and then observes that “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,” and goes on to suggest that “because of the constitutional basis of copyright and patent, legislative discussions on copyright/patent reform should be based upon what promotes the maximum “progress of sciences and useful arts” instead of “deserving” financial compensation” [emphasis in the original].
The RSC report’s presumption is that government has overreached by legislating copyright too aggressively, overtly interfering with the free market and hindering innovation. “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.” The report notes the deleterious impact on remix culture, on the sharing of scientific inquiry and knowledge, and the inability to establish a comprehensive digital library of 20th Century materials. Its authors protest that “still today an enormous amount of intellectual knowledge in locked behind physical books, rather than accessible on the general internet. … Imagine the potential for greater learning as a result of obtaining books from the 1920-1980 periods.”
The report details four areas of potential reform: 1). Statutory Damages. “Copyright awards were meant to make the copyright holder whole – they were not supposed to be punitive. Reforming this process is an important element of federal tort reform, which unlike other forms of tort reform is clearly within the federal prerogative.” 2). Expansion of Fair Use. “Right now, it’s somewhat arbitrary as to what is legally fair use based upon judicially created categories.” 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.” And, 4). Limit copyright terms and create disincentives for renewal. The report elucidates one possible path, with an initial 12 year copyright award period and renewable elective terms that are fee-based, with a maximum cliff of 46 years protection. This last proposal is actually currently infeasible in an international context, which is based on life of the author plus 50 years (life+50) for most non-corporate works.
It is a stunning document, and it wasn’t destined to last. Reporter Mike Masnick at TechDirt intimates that RIAA and MPAA hit the phones, but whoever did, they were loud and persuasive. By Saturday evening, the report was gone from the House web, and Paul Teller, the current executive director, sent out a startling note of retraction:
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
U.S. House Republican Study Committee
The RSC report on copyright reform was a clear-headed and hard look at the dysfunctions in the copyright system, and equally clearly some very powerful people didn’t like it. The American people deserve better than this: if the Republican Study Committee is smart enough to recognize that legislative action is necessary to spur progress of sciences and the useful arts, then we deserve a public hearing on how to adapt that goal to a digital age without excessive interference from Hollywood lobbyists. Real leadership – whether from the Republican or the Democratic parties – requires facing down influence to drive a hard discussion of the truth. We’re still waiting, but this weekend, we got a glimpse of what honesty looks like.