copyright question Dear Doc:

I heard that some insanity has recently infected the Republican Study Committee, when it published a memo with the exciting title of “Three Myths About Copyright Law and Where To Start To Fix It”. What gives?

M. Mouse

Dear M:

A young staffer at the RSC, Derek Khanna, wrote about our broken copyright law, and on a Friday a couple of weeks ago, the memo was published on an official website of the Republican leadership in the House of Representatives. His memo addressed three issues that the leadership felt needed to be “fixed”: that copyright law is no longer promoting the creation of new works, but has become only about entitlement to payment; that copyright law promotes a free market for works, when, in fact, it is a government-sanctioned monopoly, enforced by fines that are larger than any value created; and that our copyright laws lead to the greatest productivity.

As quickly as you can say, “the Emperor is naked” the large content lobby, principally the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) called their Congressmen and demanded that Mr. Khanna’s memo be removed. By the very next day, it was gone from the website.  But, as we all tell our kids, the Internet is forever. The memo had been downloaded and preserved for all to read.

The questions asked by Mr. Khanna are really important ones.  After all, the Constitution says that copyright is to last for “limited times” (US Const. Art I, Sec. 8, Cl. 8), and in the early days of the nation, that meant fourteen years, plus another fourteen if the author was still alive and filed for the renewal. In recent years, Congress has responded to the requests (often in the same envelope as campaign contributions) from the content industry by extending the “limited times” to the life of the author plus 70 years, or 95 years if the author is a corporation! The “Mickey Mouse Copyright Term Extension Act” added 20 years to all copyrights, retroactively, and some asked how this extension served the original purpose of copyright, but the Supreme Court decided that “limited times” means anything that Congress says that it means. Period.

As you can see, there may be many things in our copyright law that should be fixed. Certainly Mr. Khanna thought so, but in our system, we often end up with the best Congress that money can buy. Sorry to be so cynical, M., but I am sure that our friends at the MPAA and RIAA would rather we continue to hunt down every single person who illegally downloads music and movies (not that the Doc condones such behavior) but that we never, ever, discuss why the penalty for doing so should be thousands of times the “damage” that such downloading causes.  Mr. Khanna’s conclusion, “Current copyright law does not merely distort some markets – rather it destroys entire markets” deserves careful debate. It’s just unlikely that such debate will ever take place in Congress or the Courts.

— Lawrence Husick, Esq.