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Summary:

Cries for copyright reform have typically come from Silicon Valley liberals. But in recent months, conservatives are adding arguments of their own. This presents the chance to reach a grand bargain on fixing copyright.

Chess, stalemate
photo: Viorel Sima

Copyright law is supposed to encourage creativity and reward artists but right now the system is a mess. Worse, the debate over how to change the law is dominated by bitter partisanship that makes real copyright reform impossible.

That’s why it’s a relief to see a new group enter the debate. In the last six months, a growing number of figures on the political right have been taking aim at our broken copyright system and offering some very sensible solutions.

The arrival of these conservative reformers, who join longtime liberal copyright critics, means the U.S. may at last get to have an honest debate over the best way to compensate content creators.

The current mess

It’s worth recalling just why the copyright system is so troubled in the first place and and who is responsible. For starters, note that U.S. copyright has ballooned from its original term of 28 years to the life of the author plus 70 years — meaning a young novelist or songwriter’s work is now likely to stay locked up until the year 2143 or beyond.

There is no justification for these absurd copyright terms other than as a form of corporate welfare to the entertainment industry. The Constitution’s rationale for copyright in the first place is to “promote .. useful Arts.”  It’s inconceivable that an artist will not pick up her pen unless she is promised 100+ years of copyright protection.

While the terms are a problem, copyright enforcement is a mess too. This is partly because Congress gave copyright owners a very big stick that lets them seek $150,000 every time someone takes their content without permission — even if the infringement led to zero economic loss. The chance to impose such big penalties for a trifling offense has led to a spate of abusive lawsuits by copyright trolls who target bloggers or file mass “John Doe” complaints intended to embarrass gay porn viewers.

Despite all this, copyright infringement still remains widespread. Call it “sharing” or call it “theft” — however you describe it, people keep helping themselves to content without offering a dime to the writers, musicians or film makers who made it.

To justify this behavior, pirates point to the mendacity of the entertainment industry to say, in effect, that content owners have it coming to them.  There is some validity to this (especially as the industry often shortchanges the artists it purports to stand for) but it doesn’t address the underlying issue: how should we pay content creators? If we agree on having a copyright system in the first place, it needs to work in a way that allows writers, musicians and photographers to make a living.

Right now, what we have instead is a copyright system that is unfriendly not only to consumers but often to individual creators as well. While big companies can flex legal muscles to chase copyright violators, the law doesn’t offer authors a simply way to seek payment when someone blatantly rips them off.

Unfortunately, for now, the debate over how to fix copyright remains dominated by industry lobbyists on one side and piracy apologists on the other. The result is an unhealthy stalemate in which those who propose a middle ground risk being labeled as a thief by the industry or as a stooge by its critics.

The conservative case for copyright

The copyright debate is not entirely controlled by the ideologues, of course. In the last decade, scholars and journalists (Lawrence Lessig, Bill Patry, Cory Doctorow and Mike Masnick to name a few) have made eloquent arguments about reforming the law.

The problem is that these copyright critics come from the same world; they’re all liberals with ties to Silicon Valley. This has made it easy for the entertainment industry to caricature them and for Washington to ignore them.

Now, though, the case for copyright reform is being made by figures on the right as well. Last fall, the famous judge and law-and-economics scholar Richard Posner declared copyright terms to be too long and warned that poorly defined fair-use rules can have “very damaging effects on creativity.”

This conservative critique heated up significantly in January when a Republican memo in the House attacked over-reaching copyright laws as an assault on laissez-faire capitalism. The entertainment industry soon stepped in to smother the memo and get its author fired but the memo’s contents are still resonating.

In late January, the American Conservative published a lengthy feature on “crony copyright” that repeated the memo’s economic arguments and also reported that the Tea Party and the Heritage Foundation are taking a growing interest in IP reform. Since then, the right-wing Washington Times printed an op-ed criticizing the White House for trying to use copyright to control public domain photographs.

So what does all this mean? The significance is that copyright reformers have powerful new allies and fresh intellectual ammunition. While the left has relied on cultural arguments to attack the copyright system, the right makes a compelling case based on economics.

Chance for a grand bargain

This conservative conversion to copyright reform comes at a crucial time. The rise of sites like Twitter and Tumblr mean it’s easier than ever to share images, music and movies. In this context, copyright that lasts more than a hundred years makes even less sense and the opportunity for abusive lawsuits is even greater.

The emergence of a combined liberal and conservative case against the current copyright system offers the chance to reach a grand bargain. Specifically, there is now an opportunity to create shorter copyright terms and to fix the enforcement regime so that it doesn’t permit content owners to wield a $150,000 hammer over every infraction. In return, a more balanced copyright law would help to undercut many of the moral justifications that lead people to turn to piracy in the first place.

(Image by Viorel Sima of Shutterstock)

  1. Depends how balanced because a mild reform has minimal benefits.Patents are a similar problem and then you got 3D printing arriving so someone that wants to look forward might want to go beyond balanced.
    A balanced solution could be good , just because it could make things worse and force a more radical change.The industry would get more desperate and the consumer less scared so the hostilities could escalate.
    The debate having 2 sides (not just the MAFIAA) would be great but political donations are still making the rules and quite a few big names started selling media lately so i wouldn’t be too optimistic.

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  2. Great article. It is quite obvious that current law was written to protect corporations and not individuals. Oh sure, they will trot out the token heirs to the estate of one great content creator or another, and commence the hand wringing, but in this age of corporate controlled distribution, the vast majority of authors, musicians and artists do not retain copyright to the works, so there is no legacy to pass down to their heirs.

    However, with self-publishing on the rise, this could become more of a concern, but even then, copyrights should be more aligned to patents in terms of a reasonable time. But as long as Big Content controls the dialog, I have very little hope for real change.

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  3. I guess I don’t really understand why it seems so obvious to the author here that the 28 + 70 year term is absurd…? Most people that earn any money in any profession try to provide for their children or grandchildren.
    I guess it’s true that the greatest percentage of people in the world barely earn enough money to scrape by during their own life anyway, so screw the heirs.

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    1. >>I guess I don’t really understand why it seems so obvious to the author here that the 28 + 70 year term is absurd…? Most people that earn any money in any profession try to provide for their children or grandchildren.<<

      Let me help understand.

      Plumbers, carpenters, etc. also want to provide for their children and grandchildren. They do so by saving their earnings and building a trust fund. They do NOT collect royalties — for 70 years after they're dead — every time you flush one of their pipes, or sit in one of their chairs.

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  4. Sigh. Another article that defines “balance” as consideration of the needs of Google *and* the Pirate Bay. The author’s list of ideologues (described by him as non-ideologues, strangely) is the definitive rogue’s gallery of anti-content extremists, plus a bought-off Google employee who represents their own corporate interests.

    This post is not an analysis of anything, and it certainly doesn’t offer any new ideas or solutions. It is simply red-meat clickbait for the pro-piracy crowd. Paid Content has abandoned balanced coverage of paid content.

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    1. Have to agree with Hudson. Both the author and the sources he refers to are highly suspect. I also find it interesting to see that Paid Content seems to be running more stories on copyright “reform” of late. hmmm.

      While the author focuses on the term of copyright, the real intent is to go after licensing fees and compensation. The conservatives are showing interest for copyright because there is an incredible amount of money at stake here and technologists view copyright as a barrier to wealth.

      Who gets left out is the artist and what technologists fail to recognize is that great content drives the internet. Currently, they’re feasting on fifty years worth of content produced when artists could make a living. No I’m not talking GaGa, Swift, Jay Z, I’m talking about the great middle class artists who contribute so much.

      If creative content continues to be digital road kill, be prepared for lots of crappy content in your future.

      It is however encouraging to see so many responses from creators/artists as it should be.

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  5. As an independent artist myself, I’d have to say I’m wholly for copyright reform. It’s annoyingly restricting, and every time I have to rely on fair use, my heart skips a beat because I know it opens me up to a lawsuit I couldn’t pay for if I wanted to. Of course the works I’m quoting are over 50 years old… (rolls eyes)

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  6. I have an idea: Let’s all just agree to go back to the definitions of copyright and patents per the constitution and as originally enacted:

    1. No copyright unless you file
    2. 7 year term
    3. One 7 year extension on copyright allowed.

    Patents:
    1. Must have a working product that you are selling.
    2. 7 years max (I’d lower this to 3)
    3. No extensions
    4. Must be a physical process that is unique and not simply an extension of an already existing patent. (and no variation patents)

    This and only this will result in real reform. Anything else will simply be like the food guide, and nothing more than partisan politics competing to see who can give a leg up to the most vocal crony lobbyists.

    But of course it will never happen, and what results will be worse, not better, just like every other time they’ve tried.

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  7. I need more details to fully appreciate this argument: the linked memo was a bit too vague for me to agree or disagree with. Personally, I do not believe copyright reform will reduce all piracy. It will help somewhat. People who want to steal will come up with any justification for it and make it sound noble.

    As an artist, my biggest problem is the number of people advocating copyright reform who have a lot more money and options in the workforce than I do. Of course it seems benign to them. Have they made their living solely by selling their creative work or has it been a way to open other doors, such as speaking engagements? They may not value copyright because they’ve never had to survive on its benefits. Have they spent years working on their craft to make it worthy enough to offer to an audience? It does not happen overnight.

    And why shouldn’t copyright extend after my death so I can benefit my heirs or a charitable foundation? Degrading copyright too much is not an incentive to work harder. It’s an incentive to give up. I am not sure if I have 100 best selling novels in my head; I highly doubt it. I may have one good book that will stand the test of time. That’s not because I am lazy. It’s because creative work is a weird, complex, and often subconscious process that takes much longer than I’d like it to.

    If you are going to tackle this issue, please go deeper. Mixing artists up with huge media companies is disingenuous. The people this reform is going to hurt the most, in all likelihood, are the creative producers, not the distributors.

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    1. >> And why shouldn’t copyright extend after my death so I can benefit my heirs or a charitable foundation? <> Degrading copyright too much is not an incentive to work harder. It’s an incentive to give up. <<

      Please. When you consider all the time it takes to write, re-write, and edit a novel, most novelists earn less than burger flippers. Yet it doesn't stop them from writing novel after novel, decade after decade. If you want to give up, do so. Most won't.

      novel, decaded one ne

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    2. >> And why shouldn’t copyright extend after my death so I can benefit my heirs or a charitable foundation? <<

      Because you (and your heirs) richly benefit from the works of Dickens, Shakespeare, Aristotle, Doyle, and so many others whose works have entered the public domain. Time to "give back."

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    3. “And why shouldn’t copyright extend after my death so I can benefit my heirs or a charitable foundation?”

      I don’t get payed for the work my parents did.

      “Have they spent years working on their craft to make it worthy enough to offer to an audience?”

      In a lot of ways, yes. I have spent years studying and stacking up student loans to get the job I have.

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  8. Mickey Mouse should already be in the public domain, word!

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  9. I hope this new interest in copyright law will spark some meaningful reform in this area. But I do think that one of the most important stakeholders are misrepresented in this article. Roberts points it out in the first sentence, copyright law was first created to protect the rights of the artists who produce the material we all enjoy. The ridiculous claim that artists won’t create meaningful works unless they’re guaranteed 100 plus years of protection distracts from the whole point of copyright protection. Royalties benefit hard working artists who want their creative works to benefit their families even after their death. Any future reform should be made with them and the original intent of a copyright in mind.

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    1. AlexB, thanks for your thoughtful comment. I agree that artists have a legitimate expectation that royalties can benefit their heirs. But for how long? Look at the copyright cases involving Superman or Martin Luther King. They aren’t about an artist providing for their families — instead, they stand for greedy lawyers as well as lazy heirs who should find their own way in the world.

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      1. You may agree that artists have that “legitimate expectation,” but as you point out in the opening sentence, that is NOT the original basis for copyright protection. Article 1, Section 8, Clause 8 is very clear on this: “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.”

        Copyrights and patents exist to benefit the consumer, not the creator. They benefit the consumer by incentivizing creation, which does benefit the creator but that is not the reason our Constitution sanctioned this “exclusive Right”.

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    2. >> Royalties benefit hard working artists who want their creative works to benefit their families even after their death. <<

      By that logic, hard-working plumbers, carpenters, auto manufacturers, dress-makers, etc. should collect royalties every time you use or wear their products, even decades after they've died.

      Why would a plumber fix your toilet unless he can be assured of his heirs collecting royalties every time your heirs flush in the year 2100?

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  10. I’m heartened as well by the growing sense of… well, sense… that seems to be coming to this debate.

    My only slight quibble is this. You write: “but it doesn’t address the underlying issue: how should we pay content creators?”

    I think there’s an even more fundamental issue. “How do we encourage creativity and the useful arts?” Creating a system in which artists get paid and can make a living is *one* way tot do that, no disagreement there. But if we reform copyright with the aim of creating a revenue system, I think it will be flawed.

    We have to answer the question of what harm copyright law protects against and legislate only to remedy that harm. We severely underestimate the creative impulse right now and aiming for what to pay content creators risks creating another system similar to what we have.

    Aiming to encourage creative arts to be produced will likely solve for the ability to make a living without creating another subsidy.

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    1. Well put, Tom. The underlying issue is encouraging the arts. That said, I don’t think regulatory schemes (like copyright) to pay artists are incongruous with that goal. While a degree of abuse is inherent to any such scheme, that doesn’t mean they’re a bad idea in the first place.

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