Protecting the Copyright Monopoly: Content Industry Associations Successfully Issued a Political Takedown Notice

Last month, the House Republican Study Committee issued a policy brief which concluded that the current US copyright regime inhibits productivity and innovation.

What! In a nutshell, that was the conclusion of the RSC's policy brief titled “Three Myths About Copyright Law and Where to Start to Fix It" (dated Nov. 16, 2012). The RSC's conclusion was based on an examination of "three myths on copyright law and possible reforms to copyright law that will lead to more economic development for the private sector and to a copyright law that is more firmly based upon constitutional principles." The three myths are:

1. The purpose of copyright is to compensate the creator of the content
2. Copyright is free market capitalism at work
3. The current copyright legal regime leads to the greatest innovation and productivity

Each myth was debunked. Quoting from David Post's Republicans Going Copyleft?! on The Volokh Conspiracy:

The Report is well worth reading.  Current copyright law is “hampering scientific inquiry,” “stifiling the creation of a public library,”discouraging added-value industries,” “penalizing legitimate journalism and oversight,” and “retarding the creation of a robust DJ/Remix industry.”  The Report proposes a series of rather radical — in the Jeffersonian sense — reforms, from dramatically shortening the copyright term (a no-brainer, actually) to expanding fair use and limiting the damages from infringement claims.

Oops! However the policy brief was retracted 24 hours after being released because it had been "published without adequate review" according to RSC Executive Director Paul Teller. "Without adequate review" is code for failing to protect the copyright monopoly for the content industry. In The Case of the Vanishing Policy Memo, Slate's Matthew Yglesias writes:

Common sense suggests there were other reasons for the retraction. Derek Khanna, a tech-savvy young Republican staffer who came to Washington with Sen. Scott Brown before shifting to the RSC to work primarily on cybersecurity and government oversight issues, is clearly well-versed on the subject. He simply lacked the authority to enact a change in position on a topic dominated by powerful interest groups with a ton of money. Khanna’s supervisors seem to have paid too much attention to the merits of the memo and not enough to the larger politics when vetting it. According to Mike Masnick at TechDirt, when news of the memo filtered out to the Motion Picture Association of America and Recording Industry Association of America, those organizations "went ballistic and hit the phones hard, demanding that the RSC take down the report."

"Ballistic" as in both content industry associations assumed that the RSC knew how to lap dance for their campaign contributions.

Why? While not addressing the RSC's policy brief, Kevin Smith hits the nail on its head.

What has developed in the content industries is a sense that copyright exists to support their businesses, so any new way they find to extract a little extra money from the rights they hold should be endorsed and protected by the courts.

Quoting from Kevin Smith's Oct. 18, 2012 LJ article Why Are Some Publishers So Wrong About Fair Use?

You're Fired! In a Dec. 6, 2012 Slate post, Matthew Yglesias reported that the RSC fired the policy brief's author, Derek Khanna. Perhaps he will find a gig with Public Knowledge. At least that think tank group is more open-minded than the RSC. From the Mission Statement:

Public Knowledge preserves the openness of the Internet and the public’s access to knowledge; promotes creativity through balanced copyright; and upholds and protects the rights of consumers to use innovative technology lawfully.

Read More About It. It might have been retracted but Public Knowledge archived a copy of Three Myths About Copyright Law and Where to Start to Fix It. See also Gigi Sohn's Public Knowledge blog post, The Debate over Copyright Reform Cannot Be Censored. [JH]