Blog on the Run: Reloaded

Wednesday, November 21, 2012 6:42 pm

American IP law: Where ingenuity goes to die, RSC edition


A sensible solution to a vexing and expensive intellectual-property problem? By God, we can’t have that!

For a brief moment last week, a House Republican group that serves as an idea shop for the party was on record proposing a remarkably far-reaching reform of American copyright law. The memo (PDF), written by a young staffer named Derek Khanna, was released Friday afternoon by the Republican Study Committee and noticed by The American Conservative’s Jordan Bloom.

Khanna’s memo begins by laying out the original constitutional purpose of copyright protection and how the current legal landscape has strayed from it. It then proceeds to challenge several widely-held beliefs about copyright law, including the claims that it promotes the greatest possible levels of productivity and innovation and that it represents free market ideals at work:

[A]ccording to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is a major distinction, because 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. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights. […]

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. 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.

But by Saturday afternoon the RSC had pulled the memo, citing an inadequate review process and apologizing for the “oversight.” …

The memo lists several specific examples of the damage done by copyright law: Stifling the DJ and remix markets in the United States, making the creation of public libraries — and in particular Project Gutenberg — more difficult, and penalizing legitimate investigative journalism. It concludes with suggestions for reform such as significantly shortening the length of copyright claims, expanding “fair use” doctrine, and reforming statutory damages. (Those damages can currently rise as high $150,000 per infringement.)

The email announcing the removal came from RSC executive director Paul Teller, who said the memo “was published without adequate review within the RSC.” …

However, a source “with knowledge of the RSC’s operations” told Tim Lee at Ars Technia that content industry lobbyists had brought pressure to bear on the RSC’s leadership to disavow the memo.

Among the many manifestations of genius in the United States Constitution is its provision for ““promot[ing] the progress of science and useful arts” by giving an innovator a fair early share of the benefits of his creation, but then later allowing others to build on that innovation without prohibitive legal or financial obstacles. It’s that second part that has come under attack, primarily via industry lobbying (so much so that not that long ago Greensboro’s Rep. Howard Coble’s political affiliation was being mocked in some quarters as “R-Disney,” after one of the primary offenders).

This is both bad public policy and, if you’re a Republican, bad politics. Coble sits on the Judiciary subcommittee that oversees intellectual-property law and chairs the subcommittee that oversees commercial and administrative law (as well as the courts).  Peeps in the 6th District might want to drop him a line on this subject.

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1 Comment »

  1. [...] around Thanksgiving, I wrote about Derek Khanna, a 24-year-old staffer for the House Republican Study Committee who had the [...]

    Pingback by Ahh. Order is restored in the intellectual-property court. Plus, we got to fire a bright 24-year-old and keep your drugs expensive. Cool! « Blog on the Run: Reloaded — Thursday, December 13, 2012 7:15 pm @ 7:15 pm | Reply


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