Something startling happened over the weekend. It came and went in a flash, but the repercussions could, and should, be lasting. An unexpected and most unusual policy brief from the Republican Study Committee was released. (The RSC is a 165-member congressional policy review group.) Entitled Three Myths About Copyright Law and Where to Start to Fix It, the eight-page document is an astonishing declaration of revisionism, bristling with policy arguments that align with the most excitable rants of P2P advocates over the last 10 years. It is a devastating indictment of American copyright law.
Then, in less than 24 hours, the paper was rescinded. The committee's Executive Director, Paul S. Teller, offered an obscure apology with no explanation. Of course the thing is easily available, and its message remains a permanent part of the conversational record, deletion be damned.
By arguing that the current iteration of American copyright law is broken in several respects, and by proposing extreme solutions, the rogue document debilitates the talking points of institutional copyright holders and their agencies such as the RIAA. Anyone who has been following the hardened rhetoric over what copyright should be in a copy-share digital world will be startled by the accusatory language and sharply reformist intent of this document.
Part history lesson, the review emphasizes the original purpose of American copyright law as protective of society, not of creators and businesses. On that basis the committee skewers three "myths" of current law:
- The historical myth: that copyright was created to compensate creators of intellectual property. Quoting the Constitution, the role of copyright is to "promote the Progress of Science and useful Arts." The copyright term, originally set at 14 years, was contrived to incentivize creators by establishing a short monopoly window for monetizing an original creation, after which works of art and literature would enter the public commons and enrich society. Serial extensions of copyright term have blurred the sweet spot between incentive and welfare entitlement for creators, the report argues, distorting the historical role of copy protection.
- The marketplace myth: that present-day copyright represents free-market capitalism. Current term lengths are partly the result of corporate lobbying, most famously in the case of the 1998 Copyright Term Extension Act, colloquially known as the Mickey Mouse Protection Act. It forestalled Mickey's drift into the public domain. The congressional paper asserts that such a degree of government subsidization acts as an artificial container within which a regulated market operates unfairly for some participants. The report brings forth surprising business cases.
- The incentive myth: that current copyright leads to innovation and productivity. In league with the first point, this contention criticizes modern law for failing to effectively induce creative productivity by disproportionately protecting creators. That argument might seem circular or contradictory. The committee seems concerned with creators resting on their laurels instead of getting back to their desks -- the peril of extended government protection.
Creators and consumers have been at loggerheads over copyright. Recent frays in the file-sharing era have centered around consumer ignorance in both senses of the word: lack of awareness on one hand, and ignoring copyright on the other hand. Blindness and scorn are the two banes of rights-holders in the age of copying. Any message board on the topic of buying and stealing music, no matter how erudite some of the voices, also spotlights a breathtaking ignorance of how copyright applies to unauthorized sharing. Alongside the lack of education is often a blow-it-all-up disdain for legal structure around creative work as property.
The philosophy of copyright protection certainly reduces the stature of creative property compared to material property. If you acquire a leafy suburban estate, the government will not take it from you and turn it into public housing after an ownership term. That property can be passed down through generations forever. Arguably, intellectual property is rarer than material property, therefore more inherently valuable. For that very reason, it is deemed to essentially belong to society. You might say creators are allowed to rent exclusive ownership of their own work for a term, long enough to cash in before creating something new for society's benefit.
For all these reasons, historical and current, creators feel embattled about the term and enforcement of copyright. On the other side, society has reason to feel shafted by the evolution of lightweight regulation into bloated law. Individual creators are granted copyright monopoly for 70 years after their death, a term that inarguably benefits descendants more than it induces further creative output. Corporate copyright lasts for 120 years. The congressional committee frames these exaggerated protection windows as a corruption of America's historic agreement with society.
To ground its conceptual arguments, the report suggests five industry cases in which existing copyright harms society and secondary creators. The lead argument is a startling advocacy of the DJ / Remix industry, spinning a hard-luck business case in support of DJs who are inhibited from freely sampling music and creating mix tapes for sale. Reminder: we are talking about a congressional white paper in the hizzle. It explicitly calls for the deregulation of mashups and remixes, recognizing and sanctioning an existing subterranean market. ("While there is an underground remix black market, this market is nothing like it would be if this were legalized.")
The committee hurls a spear into the heart of book publishers in a starry-eyed "imagine this" passage which recommends liberating to the public domain all books published before 1980. A dagger stabs directly at textbook publishers: "Assigned books in high school classes could be all downloaded to a student's Kindle, rather than bought in a book store."
After six pages of uncommonly progressive and sometimes harrowing impeachments of how the law operates today, the point is clear: copyright is messed up. On to the solutions.
Radically, this congressional document prescribes shortening the copyright term to 12 years, a briefer exclusivity period than in the original Constitution. Creators could re-up for an extension, but would be charged a sort of opt-in fee based on a percentage of revenues earned during the first term. This frictional disincentive would induce creators to release their artistic works into the claws of society and secondary creators.
Importantly, the review insists on statutory damages reform, aimed squarely at outrageous claims of business injury from record labels. The document frankly ridicules the 2011 action of the record labels vs. LimeWire for $75 trillion in damages resulting from shared music files. The risk of laws which allow damage valuation up to a regulated (statutory) ceiling is that damage can become theoretical instead of actual. The congressional committee further undermines basic record-label assumptions by arguing for the potential innocence of lawsuit targets: "...in a world where everyone copies stuff at home all the time, the idea that your iPod could make you liable for a billion dollars in damages is excessive ... Scaring a large number of potentially innocent people into settling should not be an effect of copyright law ... Copyright awards were meant to make the copyright holder whole -- they were not supposed to be punitive."
Quasi-hacker rhetoric like this understandably infuses joy into the hearts of P2P champions, while tempting the wrath of entertainment powerhouses by savaging the RIAA's litigation tactics. It is easy to imagine that the report's quick retraction was a response to horrified institutional rights-holders and lobbyists. As of this writing, nobody knows what exactly happened.
What is the upshot? Retraction notwithstanding, the world now knows that some congressional minds are not buying into business-serving manipulation of original copyright principles, and that reform is needed. In my view, the proposed 12-year term is an aggressive stake in the ground that probably cannot, and should not, stay in place. Book authors, movie producers and music owners would potentially lose important income opportunities that take longer than 12 years to develop. A book that is optioned for a movie 15 years after publication. A film franchise stretching over seven movies, each of which takes years to produce. A successful band that loses control of its portfolio before it can release a Greatest Hits collection. But the incentivizing balance has clearly been lost, and that is the main point of the report.
If today's lawmakers agree with the constitutional philosophy of copyright as a protector of society's common ownership of human creativity, the call to rebalance the law should be heard, and acted upon.
Brad Hill is a former Vice President at AOL, and the former Director and General Manager of Weblogs, Inc.