The Politics of Copyright

I’ve been wanting to write this all week.  Last Friday, the Republican Study Committee released a phenomenal white paper pushing for some pretty broad reforms in the copyright law. While I myself am not a terribly conservative person, this paper blew me away.  It’s amazing how progressive a statement you can make within the framework of conservative principles, and that’s exactly what they did.  While the RSC rescinded that report within about 24 hours due to “proper review” concerns,* the Electronic Frontier Foundation has the document in full preserved on their website. And you should definitely read it.

I don’t normally write about politics here, but I want to bullet point some of the necessary methods just to illustrate how this document worked.

Strict Constructionism: The first point that they address has to do with the myth of compensating the creator.  Instead the author turns to the language directly in the constitution that copyright is to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  They use that exact language to highlight the fact that the purpose of copyright not solely to compensate the author, but to provide the author a limited time to profit from his creation, so that we, as a nation could promote progress in Science and useful Arts.  Further in the document they talk about how the perpetual extension of copyright hinders innovation.

Laissez Faire Capitalism: The second point has to do with the breadth of the market.  Because copyright is for all intents and purposes indefinite, this creates state sanctioned monopolies on content.  What we see when works go into the public domain is a vast proliferation on that content.  We don’t have to look very far to see that in action.  From The Wizard of Oz we get Gregory Maguire’s “Wicked” (and the subsequent musical) the Sci-Fi Channel’s “Tin Man” and innumerable costumes and toys.  From Alice in Wonderland we have dozens of movies, cartoons, miniseries, songs, toys, and reprint after reprint with critical editions and leather bindings and all sorts of things.  If you need a visual then you should look at this chart of new books in the Amazon warehouse by decade from the Laissez Faire Blog.  That 1920 line is where Copyright reforms swept in due to Disney trying to protect Steamboat Willey, and it never came back.

Number of new books in the Amazon warehouse by decade

From the Laissez Faire blog. We have a huge blindspot, and it’s copyright’s fault.

 

Tort Reform: On Page 7 when the author starts into the potential policy solutions one of the first things that he looked at was statutory damages reform.  Right now damage for copyright violations and infringement are orders of magnitude beyond the value of the original work.  This disconnect between penalty and reality is what gives us the ludicrous world of the 8 Billion Dollar iPod.  From the paper:

Further, this system creates a serious clogging of the ourts, because copyright holders now recognize that they can accuse anyone of infringemen, and include the threat of $150,000 awards per violation. But in reality, most people then settle for less than that sum, say $3,000.  Scaring a large number of potentially innocent people into settling should not be an effect of copyright law.

Limited Government: As stated above,the perpetual extension of copyright secures the rights of one individual or one company to be the sole entity to profit from a work.  This means that the government is determining who is allowed to profit, and who not, and the resources of government (i.e. the court system) can be used to enforce this regime.  By limiting copyright we limit the government’s role in enforcing copyright.

While the arguments that lead to these conclusions and proposals are definitely conservative base targets, the conclusions and solutions were really the best part.  And Libraries were not left out. Though they reference Project Gutenberg as a digital library initiative, and it is, with the expansion of the public domain there are entire universes of activities that could spring up among public libraries both on their own, through vendors like Overdrive, or coordinated efforts like the Hathi Trust or the Digital Public Library of America.  Expanding the potential for eBook development on a grand coordinated scale can lead the entire world into a new era of research, development, and entertainment.

As we start to look at the future, we’re going to see more disruption in content, and how people engage with it.  It started with music, moved to video, and surprisingly text has been slow to crack.  But with the growing ubiquity of eReading devices, and some fairly well settled ePub standards based on HTML5 this is going to be blowing up, and fast.  And copyright law will either adapt, or be thrown to the wolves on the internet.  Adaptation, and innovation in the sources of funding for limited times will do everyone a service.  The music industry is finally starting to find out how to make this work and it’s taken some pretty bold experimentation among established musicians to do this.  But today the Future of Music group released a pretty amazing checklist of 42 ways you can gain revenue from your work.  This is the kind of exploratory thinking that needs to be happening in the Big Content world, because maintaining perpetual copyright is only going to last so long as you can’t rip the content from a book the way you can rip a CD.  Oh wait, you can now.

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*Secretly in my heart of hearts I’m kind of hoping that Derek Khanna, the RSC Staff Contact and Paul Teller posted the document for just long enough, and rescinded it fast enough for the Streisand Effect to take hold and drive the conversation forward. A little too Machiavellian?  Maybe.  But it has certainly been the topic of conversation across the entirety of the tech sector.

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