The American Interest
Analysis by Walter Russell Mead & Staff
Republicans Retreat On Copyright Reform?

A brief wave of enthusiasm was felt around the web yesterday at the news that House Republicans were considering a push for a thoroughgoing reform of copyright law, with everyone from Glenn Reynolds to Cory Doctorow to Stewart Baker heralding this as both smart politics and the right thing to do. Some snippets from the published policy paper, titled “Three Myths About Copyright Law, and Where To Start To Fix It”, should give you a sense of how they were approaching the issue:

[Myth] 1. The purpose of copyright is to compensate the creator of the content:

It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not. The Constitution’s clause on Copyright and patents states:

“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;” (Article I, Section 8, Clause8)

Thus, according 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.

[...]

[Myth] 2. Copyright is free market capitalism at work:

Copyright 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.

But the paper was not long for this world. Stewart Baker was quickly notified by the study committee’s executive director that the paper was being withdrawn. “Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand.” Clearly Republicans aren’t quite ready to have this fight with the content lobbies quite yet.

But the fact that the paper got published at all in the first place is notable, as was the rapturous way it was received across the web. There’s a real constituency for this kind of reform. And it’s part and parcel of VM‘s own reform hobbyhorse: promoting smarter, leaner, and more efficient government. Copyright law has been bloated beyond its initial, limited and useful purpose into something way beyond what the Founding Fathers intended.

We encourage VM readers to take a look at the entire policy paper, hosted here by the Maryland Pirate Party. This is certainly not the last we’ll hear of these kinds of initiatives. GOPers shocked by the last election are worrying that the Party of Lincoln is becoming the Party of Out of Touch Middle Aged Men; copyright reform is an issue where the GOP potentially could be siding with the young and the hip against the Hollywood power elite.

If the GOP can’t break with the corporate money machines and the Status Quo Lobby on an issue like this one, you have to wonder what the party’s capacity to lead and to innovate really is.

Published on November 18, 2012 3:00 pm