Wednesday, December 19, 2012

Republican Study Committee (RSC) Policy Brief On Three Myths About Copyright Law Abruptly Pulled Just Two Days After Release

Censorship is at work again. On November 16th, 2012, the U.S. House of Representatives' Republican Study Committee, a caucus consisting of more than 160 conservative Republicans, published a policy brief entitled "Three Myths about Copyright Law and Where to Start to Fix it". It was an analysis of current US Copyright Law which identified three myths on copyright law, and suggested possible reforms which would lead to more economic development for the private sector and to a copyright law grounded more firmly upon constitutional principles. Most of the 807 comments posted on Reddit are supportive of the proposed reforms.

In brief summary, it was the most direct assault on the relentlessly pro-copyright worldview dominating Washington for decades, promoting what content creators deserve or are entitled to by virtue of their creation even at the expense of the public good or what will promote the most productivity and innovation. It also claimed current copyright law violates the tenets of free-market capitalism, granting content producers a guaranteed content monopoly that's both government instituted and subsidized. And finally, it set forth a number of policy recommendations, to include reducing statutory damages from its present maximum of $150,000 per infringement, expanding the definition of fair use, and setting penalties for false copyright claims. It also proposes a complex new scheme for copyright renewals that would reduce the maximum term of copyright to 46 years; under current law, copyright protection for individual authors lasts for the life of the author plus another 70 years.

Surprise, surprise! On November 18th, the group's executive director, Paul Teller, issued a statement saying he was recalling the memo because it had been "published without adequate review". Immediately, critics charged that the copyright industry and its lobbyists had exerted pressure on the RSC to quash the report. An unidentified spokseman for the RSC subsequently clarified the issue, explaining that "due to an oversight in our review process, it did not account for the full range of perspectives among our members. It was removed from the website to address that concern".

However, copies of the policy brief were saved and are currently available from the following sources:

-- At this link, you can select how you would like to display the brief:

-- Or a direct link to the PDF report:

-- Or a PDF copy from another source:

For those who are interested, a contrasting point of view is published by Copyhype. A more detailed summary of the RSC brief follows after the jump:

First, the three myths about copyright law:

(1). The primary purpose of copyright is to compensate the creator of the content. False -- according to Article I, Section 8, Clause 8 of the U.S. Constitution, the purposes of copyright law are “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”. This means the progress of science and arts comes first; compensation for creators second.

(2). Copyright is free market capitalism at work. False -- Present copyright law violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly

(3). The current copyright legal regime leads to the greatest innovation and productivity. False -- excessively lengthy copyright protection stifles innovation. Excessive copyright protection leads to what economists call “rent-seeking”, which is effectively non-productive behavior that sucks economic productivity and potential from the overall economy. Today’s legal regime of copyright law is 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. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.

Next, four prospective policy solutions:

(1). Statutory Damages Reform. Reduce or eliminate statutory damages altogether; actual damages only. If it is too difficult for a plaintiff to determine actual damages, then at least reduce the current maximum figure below $150,000. 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. In fact, this analogy could be applied to the entire tort system. The criminal justice system is meant to punish; the civil justice system is merely intended to "make one whole".

(2). Expand Fair Use. No specific are offered except a recommendation to read a 15-page paper entitled "Infringement Nation: Copyright Reform and the Law/Norm Gap", which suggests that "the average American violates copyright law with spectacular gusto on a daily basis without batting an eyelid." Obviously, most such violations are unwitting, and expansion of fair use would resolve much of the ambiguity.

(3). Punish false copyright claims. Because there is minimal or nearly non-existent punishment for bogus copyright claims today, spurious takedown requests are common and have a chilling effect upon legitimate speech. While those filing a takedown request have to swear on the threat of perjury, that swearing is only in regard to whether the work is theirs, but not whether the work is actually infringing. Some IPs will even ask a webmaster to move a website because they don't want to deal with DMCA complaints. This promotes de facto censorship.

(4). Heavily limit the terms for copyright, and create disincentives for renewal. The current 70-year period is ridiculous. The RSC suggests an initial 12-year copyright, and a choice of renewals ranging from 6-12 years. Under no circumstances would copyright protection exceed 46 years.

Another needed reform would be to ban copyright brokers like Righthaven from receiving copyright protection. Copyright brokers buy up the rights to content from original producers, then troll for copyright violations, sending notices threatening to sue unless the "violator" sends them a sum of money as a "settlement", usually $3,000 or so for small fry. There's even a website called Copyright Settlements designed to facilitate this type of extortion.

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