Patrick Ross apparently has no shame. For years, at the Progress and Freedom Foundation, he presented ridiculous statement after ridiculous statement about intellectual property. There was the one about how fair use harmed innovation
. Then there's my personal favorite, where he argued that the DMCA shouldn't be changed because markets shouldn't be regulated -- ignoring
the key point that the DMCA, itself, was a regulation that was tremendously distorting the market. After attacking
me for suggesting that his viewpoints were influenced by the fact that he was paid to promote the positions of the entertainment industry (when I hadn't even suggested that), Ross went on to make it official that he was shilling
for the entertainment industry, by creating a super-lobbying group that represented all the different big copyright groups under one umbrella: The Copyright Alliance, made up of the MPAA, the RIAA, the BSA, the ESA and others.
Ross' latest stunt is to demand that all presidential candidates answer his survey of stunningly loaded questions
about copyright. The questions are all of the "and have you stopped beating your wife?"
variety -- even causing the reporters attending Ross's press conference to make fun of the questions as being ridiculously leading. Of course, the questions are publically available
(pdf) for anyone to view. Let's go through them one by one in order to help the presidential candidates step around the incredibly loaded nature of the questions to do a better job with them. Hopefully, Ross won't accuse us of a copyright violation in reposting the questions.
- How would you promote the progress of science
and creativity, as enumerated in the U.S. Constitution, by upholding and
strengthening copyright law and preventing its diminishment?
Well, first, it might help to point out that the U.S. publishing industry was initially built on extremely loose copyrights, so the very idea that strengthening copyright law is necessary to promote progress of science and creativity is provably false. Even the biggest defender of copyrights these days (and a backer of Ross' organization), Disney, owes much of its early success to being able to use the characters others created. That, alone, should be argument enough for a stronger public domain, rather than stronger copyright. On top of that, plenty of research has shown that by strengthening copyright, you will often diminish how much content is created. More to the point, with the rise of modern communications tools, and a world where content is made by everyone, rather than just a small group of professionals, the entire concept of copyright needs to be revisited from scratch to figure out what really is necessary.
- How do you feel the rights that have served our economy and spurred creativity in
the physical world should apply in the digital world?
The rights that have served our economy and spurred creativity are quite important. The First Amendment, for example, is a key right, preventing the government from passing laws that take away freedom of speech. It's that freedom that is important and clearly should be (and is) extended into the digital world. In fact, we should reinforce that by removing dangerous and creativity harming restrictions on speech, found in laws like the DMCA that hold back perfectly legitimate and reasonable uses of content, often hindering creativity.
- How would you protect the incentive to create by committing sufficient resources to
support effective civil and criminal enforcement of copyright laws domestically and
There's a false assumption there, that the incentive to create is copyright laws. If you look at the incentives to create historically, you'll see that copyright has rarely had much to do with it at all. Instead, plenty of other factors, often coming from the marketplace had much stronger incentives. In fact, copyright has all too often held back incentives to create. As you well know, plenty of people created plenty of content prior to copyright existing. And, famously, once copyright was put in place, it often gave those who had created content earlier less incentive to create, as they could just sit back and rely on royalties from earlier content. More importantly, modern communications systems have shown that the incentive to create often has little to do with monetary rewards. Much of the internet is filled with user-generated content that was created not because of copyright, but for many other reasons. In fact, we're seeing a tremendous explosion in content creation these days -- often in spite of copyright rather than because of it. So, the best way to protect the incentive to create is to continue to get restrictions on creation out of the way, remove barriers to creation, expand the public domain, broaden the definition of fair use and get rid of pointless restriction such as those found in the DMCA.
- How would you ensure inclusion of copyright protections in bilateral, regional and
multilateral trade agreements to protect creators and foster global development?
Aha! A trick question! Why would we want to include monopoly protections in a free trade agreement? Monopoly rights deserve no place in any free trade agreement -- and, in fact, are against the very idea of free trade.
- How would you protect the rights of creators to express themselves freely under
the principles established in the First Amendment?
An excellent and important question. I would do so by getting rid of much of the DMCA, which unfairly puts excessive restrictions on the rights of creators to express themselves freely. I'd also look towards lowering the copyright burden on creators, expanding the public domain, rolling back unlimited copyright extensions and increasing the power of fair use -- all with an eye towards protecting the rights of the majority of content creators today not to be bullied by a bunch of companies with huge lobbying budgets and increasingly obsolete business models.
Thanks, Patrick, for giving us the chance to address these important questions.