"To promote the Progress of Science and useful Arts." That is the purpose of Article 1, Section 8, Clause 8 of the Constitution, which is sometimes referred to as the "copyright clause" (or "the patent clause"), which enables both areas of law to be created via Congress. It's also the part that is most often ignored. As we've discussed, the whole purpose of this clause is to make it clear that the public
are the sole stakeholders when it comes to proper policy making decisions regarding these laws. However, with this new push for comprehensive copyright reform
, it appears that the copyright lobby is already working on ways to make sure that the public is marginalized in the discussion.
We've got two recent examples from the "Copyright Alliance," a DC-based lobbying shop put together by copyright maximalists (with the help of super right wing interests who normally don't link up with Hollywood on much), who are seeking to spin the debate in their favor with a lot of bluster and propaganda, often trying to demonize and/or marginalize the public's role in this debate. First up is an op-ed piece, in which the Copyright Alliance argues first that any new copyright reform must focus on maximalist principles
, whether or not they make any sense. And then it digs in against the public, arguing that their voice shouldn't count for much because, apparently, they're so easily manipulated.
Those skeptical of copyright protection have expended a lot of energy to redefine its language and revise its history. Calls for lessening copyright protections are far too often accompanied by heated rhetoric. Appealing to emotions may be a great way to drum up signatures for online petitions, but has no place in policy discussions. Finally, it is not hard to find examples of those who propose dramatic changes without understanding the business realities of how creative individuals and industries operate.
Let's unpack that a bit. Each sentence is ridiculous in its own special way. If we are to look at the history of the copyright debate, one side and one side alone, has focused on "redefining its language and revising its history" and that would be the maximalists. In fact, there's an entire book
that details exactly how the copyright maximalists have continually changed the language of copyright and revised its history. Copyright turned from a very narrowly focused concept, which was designed to encourage the spread of learning and knowledge, to something entirely different. A "limited monopoly" (as the framers called it) was turned into boundlessly vague "intellectual property." The act of "infringement" was turned into "theft and stealing." People who incidentally infringed on copyrights were describes as "pirates." The law was expanded and expanded because of moral panic after moral panic.
As for "heated rhetoric," we've been told over and over again that if we don't expand protections and kill of technologies, "the creative industries will die," despite no evidence to support that. Technologies which have helped to expand the industry, to create new ways to create, to promote, to distribute and to monetize were seen as the enemy because the powers-that-be did not control them. This is why the VCR was called "the Boston strangler of the movie industry" by the MPAA's Jack Valenti. I'm sorry, but the idea that those of us skeptical of today's copyright laws are the ones redefining the language or history is simply a laughably false claim.
But the really disturbing part is the next line. The claim that the public speaking out
, such as via petitions or through various actions in which they contact politicians, should be ignored because it has "no place in policy discussions" is really just downright insulting. We know that, in the wake of SOPA, the copyright lobby has spent plenty of effort pretending that the public really didn't speak out, or that, if they did, it was only because they were stupid and deluded. But that should be seen for what it rightfully is: an insulting way of dismissing the public's interest in a law that is for the public's benefit
The copyright lobby is scared to death that the public might actually speak up on its own behalf, because that would ruin the scam it's been running for quite some time.
In another piece by the same Copyright Alliance group, in response to the good ruling
in the Kirtsaeng case, the alliance lashes out at public interest groups Public Knowledge
and others for supposedly deluding the public:
Supporters of Kirtsaeng, including companies like eBay and groups such as Public Knowledge, have played an aggressive role in warping the public's understanding of the anti-arbitrage provisions of the Copyright Act and the benefits of market differentiation. Behind the veil of the Owners Rights Initiative, they perpetuated a series of falsehoods; these sweeping generalizations mischaracterize the impact of Kirtsaeng, generally attempting to recast a case limited in scope as an issue that will concern all individual resellers of goods.
The entire article is full of "redefinition" and "revising of history" -- to the ridiculous point of suggesting that the US hasn't recognized first sale rights on foreign goods for decades (a laughably false claim). But in the paragraph quoted here, you see its true contempt
for the public. Apparently the public is simply too stupid to understand copyright law and is easily led astray by groups like Public Knowledge.
Taken together, you see both the fear and outright contempt that the copyright lobby has for the public. To them, the public are interfering with "the industry's rights" and are apparently stupid, gross and easily led astray and into mob behavior. I'm guessing that some of this is just PTSD following the lobbyists getting their clocks cleaned in the SOPA fight -- through cognitive dissonance, they've determined the only plausible explanation is that the public was duped.
But some of us believe that copyright law is supposed to be used in the public interest, and if that's the case, we should recognize that the public is the
stakeholder who matters. To claim they should "have no place in policy discussions" isn't just wrong, but it's insulting. We should be welcoming the public into these discussions as much as possible -- not just because they are the key stakeholders here, but (more importantly) because if the Copyright Alliance actually wants a law the public respects
, it might want to try including them in the process this time around. That its kneejerk reaction is to insult, demean and exclude the public gives a pretty clear indication where they would like this debate to go.