19 November 2012

The Takedown

At Publishers Weekly’s PWxyz blog, Peter Brantley highlighted some new Republican thinking about copyright law that was quickly squelched by old Republican thinking:

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. . . .

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.
I suspect the report was more “libertarian” than “liberal,” though there’s significant overlap between those terms. It proposed to dial back government-backed legal advantages for copyright owners. (For some radical libertarians, governments shouldn’t be granting patents and copyrights at all.)

The American right is energized by four strains of conservatism: libertarian, social/theocratic, pro-business, and general pro-establishment crankiness. (To put faces on those impulses, consider Ron Paul, Rick Santorum, Mitt Romney, and Newt Gingrich, respectively, at the end of the 2012 Republican primaries.) Sometimes those strains are at odds with each other. This report reflected libertarian thinking. After business lobbies contacted party leaders, the stronger pro-business wing pulled it back.

As for the proposals, I think we’d all benefit from clearer definitions of fair use. I’m not sure point 1 is valid—sometimes damages are supposed to be punitive—but agree with point 3 that false claims should also produce punishments. Point 4 would reduce copyright terms to below what American creators have enjoyed for a century and, as Brantley points out, would go against international agreements. Copyright terms have become irrationally long, but the US can’t decide that point alone.


Anonymous said...

I wouldn't call this a liberal vs. conservative or Democratic vs. Republican issue. Look at the 1998 vote on the Sonnuy Bono law -- alomost overwhelming bipartisan support.

J. L. Bell said...

It's true that the Sonny Bono Copyright Extension Act was large and bipartisan (and, on the final vote, uncounted). The law's main sponsors were, however, all Republican: Bono, Sensenbrenner, Coble, and Hatch. Not surprising given how that law benefited large corporations and established copyright holders at the expense of consumers and new creators.

This report, however, goes the other direction. While borrowing the cape of "tort reform," it would limit suits by copyright holders in three different ways. And it would drastically lower copyright terms for the future (a proposal that seems dead before arrival).

All in all, as I wrote, this program strikes me as more libertarian than anything else. There are libertarian strains in both American liberalism and conservatism, both Republican and Democratic Parties. It all depends on whose liberties a measure is broadening.