Congress Shouldn't Debate Copyright in a Reality-Free Zone

Parker Higgins
EFF

Just a few days ago, an unusual thing happened in the halls of Congress: somebody made a case for a copyright policy grounded in reality. The Republican Study Committee (RSC) — an organization that represents more than two-thirds of all GOP Congressmembers — issued a report challenging longstanding copyright myths and offering ideas for potential reforms.

Copyright reform advocates were quick to proclaim that the document, authored by RSC policy staffer Derek Khanna, marked a “watershed moment” that suggested rational copyright policy might be possible post-SOPA.

But if the document signaled a moment of clarity, it was a short-lived. Within 24 hours, the RSC had retracted the report, stating that it had been “published without adequate review.” It’s hard to imagine that the RSC hadn’t also been subject to pressure from the legacy content lobby. After all, those same lobbyists seem to have an allergic reaction to evidence-based discussions of what is fundamentally an economic policy.

So what were the controversial opinions that had to be silenced before legislators might seriously debate them?

Turns out they weren’t all that controversial. The report simply debunks some of the central tenets of Hollywood’s copyright philosophy. For example, the report challenges the suggestion that copyright is intended primarily to compensate the rightsholder and not to benefit the public by pointing to that radical document, the U.S. Constitution (you know, the part that grants Congress the power to “promote the progress of science and the useful arts.”)

The report moves on to make a series of policy proposals targeting flaws in our copyright system that have long since been identified by a wide variety of folks. For example, the report suggests statutory damages are in need of reform, echoing similar calls from many others, including Chief Judge Michael Davis of Minnesota, who implored Congress more than five years ago to amend the Copyright Act to make damage awards less oppressive for noncommercial users.

The brief also refers to the expansive view of copyright’s negative effects on archiving and access to knowledge. These problems have been documented extensively by academics, who have noted the reduced number of books available from the 20th century, and how that can deprive us of our cultural history. The reports suggests that copyright laws can discourage innovation and business in value-added industries, which has been well-documented in the music space and which we can see in practice in cases over companies like Aereo or Kaleidescape.

The report’s economic criticism of unreasonably long copyright terms echo a brief filed in the Supreme Court [pdf] a decade ago by over a dozen prominent economists. It doesn’t require an economics Ph.D to understand the problem, though: given the facts, common sense would be enough.

But common sense has been sadly lacking in DC debates about copyright law, and so has real data and thoughtful analysis. Instead, we see continuing reliance on content industry-funded reports using dubious methods to show hundreds of thousands of jobs and billions of dollars purportedly lost to piracy. Even though the Government Accountability Office has rejected those studies, they are still cited by industry representatives when pushing for new laws.

The effort to shut out reality and careful analysis extends outside of the U.S. as well. Last year, for example, the Swiss government released a report weighing economic and statistical arguments regarding the impact of file-sharing and determined that, despite Hollywood fear-mongering, it was not worth ratcheting up its copyright law to address that impact. For that, Switzerland was summarily added to this year’s Congressional International Anti-Piracy Caucus’ “watch-list.” In explaining the addition, the Caucus described changes it wanted to see in Swiss law — no matter that these Switzerland had already examined these very proposals and rejected them based on real evidence.

The copyright lobby seeks to maintain the distortion zone around copyright policy in any number of ways. Sometimes it’s by excluding many stakeholders from the policymaking process, as we saw with ACTA, the Trans-Pacific Partnership (TPP ), or even the “six strikes” graduated response agreement. Sometimes it’s by discrediting unprecedented grassroots actions like January’s SOPA protests as “dangerous” and “gimmicks.” But it always has the effect of making a real discussion seem impossible.

As RIAA chief Cary Sherman pointed out in a New York Times op-ed earlier this year, “Misinformation may be a dirty trick, but it works.” As long as the content lobby keeps the facts out of the discussion, it can frame the debate and continue to push its agenda through the halls of the legislature.

It’s time to end the misinformation. EFF welcomes an informed discussion about copyright policy in the United States and around the world. There are issues on which reasonable people can disagree, and in those cases we need to find a consensus. But we won’t get far with that discussion until all concerned — and especially members of Congress — insist on leaving the Hollywood-sponsored distortion zone.

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