Internet Freedom: Republicans in Congress Are Secret Copyright Reform Heroes

This may come as a shock to absolutely no one, but Congress usually doesn't know what it's doing. Or if it does, it generally does the wrong thing about it. Intellectual property is one of those areas: Politicians usually support the RIAA and the MPAA, along with their multi-trillion dollar lawsuits, but for some reason, the Republican Study Committee, a 165-member Republican policy review panel, released (and then rescinded) a startling new view on intellectual property rights and U.S. copyright law.

A laissez-faire or hands-off economic approach to intellectual property purports that thoughts aren't property. Specifically, homesteading theory suggests that unclaimed resources can be claimed as property by the first individual to make use of it and to develop it. Intellectual property, though, is in a completely different category, as thoughts and ideas are not tangible assets, and thus cannot be treated as real estate or a personal possession.

It may seem strange that the foremost proponents of private property rights generally oppose copyrights, but the congressional report helps explain why.

According to Engadget, P2P (peer-to-peer, filesharing; see LimeWire and BitTorrent) advocates apparently have more friends in Congress than previously thought. The Republican Study Committee released a scathing and startlingly progressive view of copyright laws in the United States, approaching the issue both from a practical and Constitutional point of view.

Engadget outlines the paper's main points as such:

1) 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 terms have blurred the sweet spot between incentive and welfare entitlement for creators, the report argues, distorting the historical role of copy protection.

2) 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.

3) 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.

By indicting Congress as pandering to corporate special interests, this group has taken a revolutionary step in government views on intellectual property rights. It's telling, though, that the report was pulled within 24 hours; Hollywood's lobbyists obviously weren't happy with the findings of the group, and ordered it taken down (that shows how much pull they have in government).

TechDirt condenses the paper's main policy change imperatives thusly:

1) Statutory Damages Reform: Copyright infringement has statutory damages, which most copyright holders can and do use in litigation (rather than having to prove actual damages). The government sets a range – which is $750 to $30,000 per infringement – but that goes up to $150,000 if the infringement is "willful." Evidence suggests that the content holder almost always claims that it is willful. This fine is per infringement. Those rates might have made sense in commercial settings (though even then they arguably seemed high), but 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.

2) Expand Fair Use: Right now, it's somewhat arbitrary as to what is legally fair use based upon judicially created categories. One example: parodies are considered protected by fair use but satire is not. There's an excellent book (and a shorter paper) called Infringement Nation that details how things you do every single day are infringements which leave every single person liable for billions in damages each year.

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. 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. The court has said that their needs to be “subjective bad faith” in order to be sanctioned for false takedown requests. This often leads to de facto censorship.

4) Heavily limit the terms for copyright, and create disincentives for renewal: Current public policy should create a disincentive for companies to continue their copyright indefinitely because of the negative externalities explained in this paper. Unlike many forms of government revenue, generating revenue by disincentivizing activities with negative externalities is one way for the government to pay for its operations. This is a far superior way for the government to generate revenue rather than having a tax system that disincetivizes work.

Certainly these changes would revolutionize the recording and movie industries. However, as Apple has shown with its progressive method of media distribution through iTunes (all iTunes music purchases lack DRM, or digital rights management, copy protection software), but instead of encouraging illegal distribution of music through sharing the unprotected MP3 files, iTunes has pioneered a multi-billion dollar digital music industry.

One can only hope that this change is just a reveal of long-held opinions that were silenced by lobbying and congressional maneuvering, and not a policy change in order to gain votes from millennials, but regardless, if this affects policy in Washington, it could lead to more internet freedom and, as Engadget mentioned, increased commerce by legitimizing current black-market activities.

This article originally appeared at JamesLStreet.com