Will Republicans Use Copyright Reform to Score Revenge Against Hollywood? (Analysis)

Republican Elephant Logo - P 2012

Republican Elephant Logo - P 2012

Not too long ago, intellectual property was one of those esoteric policy issues that evaded strong partisan divide. But with Hollywood money being widely seen as helping to propel Barack Obama to re-election, and with Republicans still examining how to win back voters, might that change?

Here's some evidence.

Late Friday, the Republican Study Committee put out a report about potential copyright reform that caught many people by surprise. Alongside recommendations to reform statutory damages for copyright infringement, expand fair use and punish false copyright claims, the report stated, "Current copyright law does not merely distort some markets -- rather it destroys entire markets"

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Within 24 hours, the report was pulled. On some blogs, fingers were pointed at the entertainment industry lobby as pressuring a retraction. The RIAA has denied it. The MPAA has remained quiet, referring The Hollywood Reporter to the RSC. A communications director at the RSC took the blame, saying the report didn't reflect the viewpoint of all its members. "We screwed up," he said.

Nevertheless, even after the retraction, the copyright reform proposals have attracted fans in Republican ranks.

Rep. Darrell Issa of California, who sits on the House Judiciary Committee, tweeted Monday that the report was a "very interesting copyright reform proposal" and added, "It's time to start this copyright reform conversation."

The RSC's retracted report starts with the widely accepted notion that U.S. copyright law derives its authority from the "progress clause" of the Constitution. The thesis of the report then addresses the alleged inadequacy of contemporary copyright debate -- that "most legislative discussions on the topic ... 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."

The report goes into some of the ways enhanced copyright protection might be stifling progress.

Here, there's some peculiarity. For example, the RSC is jealous that Turkey's DJ culture is thriving. The report states, "Many other countries have a robust culture of DJs and remixing, but the United States -- quite perplexingly as the creator of a large portion of the world's content -- is far behind."

After discussing other ways the current copyright regime purportedly interferes with the constitutional mandate -- including the inability to access old scientific papers still under copyright, the limiting of material into the Project Gutenberg library and the use of copyright to shield sensitive information from journalism and oversight -- the RSC's report proposes some policy solutions.

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Some of the prescriptions are vague and lack clarity about how changes will improve the system.

For instance, the report recommends expanding "fair use," saying, "Right now, it's somewhat arbitrary as to what is legally fair use based upon judicially created categories."

Codifying fair use seems noble enough, except that many advocates of expansive fair use including the Stanford University's Copyright & Fair Use Center have argued that hard-and-fast rules never were adopted expressly because judges and lawmakers didn't want to "limit its definition" and "wanted it to have an expansive meaning that could be open to interpretation."

Other policy recommendations actually might benefit Hollywood. For instance, there's the proposal to increase penalties for "bad faith" copyright claims. Not a week goes by where some writer isn't suing a studio for stealing an idea. Surely, Hollywood would love to get rid of this nuisance.

The one proposal that is likely to scare the daylights out of the movie studios is the one to disincentivize lengthy copyright terms. Under the plan that was momentarily released by the RSC, copyright registrants would get a free 12-year term, then have to pay 1 percent of revenue for another 12 years of keeping a work under copyright, then 3 percent of revenue for another six years, then 5 percent for an additional six years, then 10 percent of revenue for 10-year terms thereafter. That's unlikely to go down well at the Walt Disney Co., whose efforts to protect Mickey Mouse have been widely credited with the current regime of a copyright term equal to an author's life plus 70 years. It's doubtful Disney wants to be taxed 10 percent of the $1.5 billion grossed worldwide by The Avengers to keep the copyright on Iron Man, Thor, Hulk and Captain America.

The proposals didn't last long before there was a retraction. But that's not really important. The perception out there is not only that the RSC's report sent the entertainment lobby scrambling to kill it but also that copyright reformers might have some friendly ears on the right wing.

"Even though the report was pulled, it gives valuable insight into what Republicans are thinking about copyright," says Bartees Cox at Public Knowledge, an organization committed to preserving the openness of the Internet and public access to information. "Big Hollywood is notorious for buying legislation into existence, and Republicans are notorious for working with Big Hollywood to provide sometimes anti-competitive legislation. However, what we have seen over the weekend is a huge break in that cycle."

The idea that Republicans might be breaking away from Hollywood and getting behind a populist copyright-reform platform could have some underlying political logic. To date, Democratic politicians such as Rep. Zoe Lofgren of California and Sen. Ron Wyden of Oregon were seen as leading the charge toward more Silicon Valley-friendly policies. But during the debate over the Stop Online Piracy Act earlier this year, it was Republicans who cried loudest about the controversial legislation, including at the GOP presidential debates.

And now, if the Republicans are looking to identify a new wedge issue that will curry favor among the types of young people who went on Reddit to protest against SOPA as well as divide Democrats from their financial backers in Hollywood, copyright reform could represent a convenient political path.

Email: eriq.gardner@thr.com; Twitter: @eriqgardner