{"id":3017,"date":"2012-11-20T17:30:17","date_gmt":"2012-11-20T21:30:17","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/sj\/?page_id=3017"},"modified":"2012-11-20T17:38:16","modified_gmt":"2012-11-20T21:38:16","slug":"three-copyright-myths-and-where-to-start-to-fix-it","status":"publish","type":"page","link":"https:\/\/archive.blogs.harvard.edu\/sj\/three-copyright-myths-and-where-to-start-to-fix-it\/","title":{"rendered":"Three Copyright Myths and Where to Start to Fix it"},"content":{"rendered":"

On November 16, Derek Khanna<\/a> published the following thoughtful and incisive Policy Brief for the House Republican Study Committee. \u00a0It was removed a day later, apparently thanks to pressure from the content industry, catapulting him to minor folk-hero status on the Internet. \u00a0Since it is being taken down elsewhere, I am reposting it here for posterity.<\/p>\n

Three Myths about Copyright Law and Where to Start to Fix it<\/strong><\/span><\/p>\n

This paper will analyze current US Copyright Law by examining three myths on\u00a0copyright law and possible reforms to copyright law that will lead to more economic\u00a0development for the private sector and to a copyright law that is more firmly based upon\u00a0constitutional principles.
\n<\/em><\/p>\n

1. The purpose of copyright is to compensate the creator of the content<\/strong>:<\/p>\n

It\u2019s a common misperception that the Constitution enables our current legal regime of\u00a0copyright protection \u2013 in fact, it does not. The Constitution\u2019s clause on Copyright and\u00a0patents states:<\/p>\n

\u201cTo promote the Progress of Science and useful Arts, by securing for limited Times to\u00a0Authors and Inventors the exclusive Right to their respective Writings and Discoveries;<\/em>\u201d\u00a0(Article I, Section 8, Clause 8)<\/p><\/blockquote>\n

Thus, according to the Constitution, the overriding purpose of the copyright system is to\u00a0\u201cpromote the progress of science and useful arts.<\/em>\u201d In today\u2019s terminology we may say\u00a0that the purpose is to lead to maximum productivity and innovation.<\/p>\n

This is a major distinction, because most legislative discussions on this topic, particularly\u00a0during the extension of the copyright term, are not premised upon what is in the public\u00a0good or what will promote the most productivity and innovation, but rather what the\u00a0content creators \u201cdeserve\u201d or are \u201centitled to\u201d by virtue of their creation. This lexicon is\u00a0appropriate in the realm of taxation and sometimes in the realm of trade protection, but it\u00a0is inappropriate in the realm of patents and copyrights.<\/p>\n

Strictly speaking, because of the constitutional basis of copyright and patent, legislative\u00a0discussions on copyright\/patent reform should be based upon what promotes the maximum \u201cprogress of sciences and useful arts\u201d instead of \u201cdeserving\u201d financial\u00a0compensation.<\/p>\n

2. Copyright is free market capitalism at work<\/strong>:<\/p>\n

Copyright violates nearly every tenet of laissez faire capitalism. Under the current\u00a0system of copyright, producers of content are entitled to a guaranteed, government\u00a0instituted, government subsidized content-monopoly.<\/p>\n

It is guaranteed because it is automatic upon publishing.
\nIt is a system implemented and regulated by the government, and backed up by laws that\u00a0allow for massive damages for violations. These massive damages are not conventional\u00a0tort law damages, but damages that are vastly disproportionate from the actual damage to\u00a0the copyright producer. For example, Limewire was sued for $75 trillion, based upon\u00a0Section 504(c)(1) of the Copyright Action enabling such large fines per violation. This\u00a0potential award is more money than the entire music recording industry has made since\u00a0Edison\u2019s invention of the phonograph in 1877, and thus in no way corresponds to the\u00a0actual demonstrated \u201cdamages,\u201d to the record industry. By Congress creating an arbitrary\u00a0statutory fine for damages the government has implemented its own system for\u00a0dissuading copyright violation, above and beyond conventional tort law for a perceived\u00a0\u201cproperty\u201d like right.<\/p>\n

In addition, it is a government-subsidized monopoly in another sense. Copyright\u00a0violators can face jail time, and government agencies are tasked with investigating\u00a0copyright violations and stopping these activities. This may be a good decision or a bad\u00a0decision, but, it is a form of the government subsidizing the costs of recovering assets\u00a0that may or may not be considered to have been \u201cstolen.\u201d There are other industries\u00a0where the government has also chosen to subsidize in a similar manner, but the point here\u00a0is that this is not a strictly laissez faire capitalistic institution.<\/p>\n

3. The current copyright legal regime leads to the greatest innovation and\u00a0productivity<\/strong>:<\/p>\n

There is surely an argument in favor of copyright, and it is the argument that our\u00a0Founding Fathers were familiar with. While the size and scope of current copyright\u00a0violations are vastly disproportionate to anything in previous history, in the 18th\u00a0century\u00a0our Founding Fathers were familiar with copyright violation. In fact Great Britain was\u00a0quite angry at what was perceived to be rampant theft in the colonies of their intellectual\u00a0property in the form of literature.<\/p>\n

With this in mind, our Founding Fathers wrote the clause in the Constitution on\u00a0protecting content. But they knew that there was a very serious cost for this government instituted monopoly. It is a balancing test to ensure that we have the maximum amount of\u00a0productivity overall.<\/p>\n

With no copyright protection, it was perceived that there would be insufficient incentive\u00a0for content producers to create new content \u2013 without the ability to compensate them for\u00a0their work. And with too much copyright protection, as in copyright protection that\u00a0carried on longer than necessary for the incentive, it will greatly stifle innovation. In\u00a0addition, excessive copyright protection leads to what economists call \u201crent-seeking\u201d\u00a0which is effectively non-productive behavior that sucks economic productivity and\u00a0potential from the overall economy.<\/p>\n

This Goldilocks-like predicament \u2013 not too little and not too much \u2013 was what our\u00a0Founding Fathers had in mind with the phrase \u201csecuring for limited Times.\u201d<\/p>\n

 <\/p>\n

Current status of Copyright Law<\/strong><\/span><\/p>\n

Under the Copyright Act of 1790, the first federal copyright act, it stated that the purpose\u00a0of the act was the \u201cencouragement of learning\u201d and that it achieved this by securing\u00a0authors the \u201csole right and liberty of printing, reprinting, publishing and vending\u201d their\u00a0works for a term of 14 years, with the right to renew for one additional 14 year term\u00a0should the copyright holder still be alive. This is likely what our Founding Fathers meant\u00a0when they wrote in the Constitution for a \u201climited time.\u201d Gradually this period began to\u00a0expand, but today\u2019s copyright law bears almost no resemblance to the constitutional\u00a0provision that enabled it and the conception of this right by our Founding Fathers.<\/p>\n

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