Congresswoman Claims 'Fair Use' And 'Transparency' Are Just 'Buzz Terms'

from the oh-really-now? dept

We’ve mentioned Rep. Marsha Blackburn a few times on this site. She’s one of the RIAA’s favorite elected officials, who apparently hates government interference in markets… except if it’s intellectual property laws. She seems unable to recognize the irony of attacking attempts to regulate the internet via telecom policy (net neutrality is picking winners and losers), while strongly supporting attempts to regulate the internet and technology via intellectual property law. Of course, that’s the government picking winners and losers too, but the winners just happen to be some of her biggest campaign contributors: pharma and the entertainment industries.

She’s now written an incredible, ridiculous, and almost entirely fact-free article, insisting that the way to drive innovation in this country forward is to increase intellectual property enforcement. The article is so incredibly misleading that it’s laugh-out-loud funny at times — though, I give kudos to whatever poor staffer penned it for her, for including the line “Let’s begin an honest discussion” after paragraph after paragraph of incredibly dishonest discussion. Let’s dig in.

Last year the U.S. Chamber of Commerce released a report highlighting how U.S. industries reliant on intellectual property supported more than 55 million jobs, contributed to $5.8 trillion in economic output and accounted for nearly 74 percent of total exports.

Okay, we’ve discussed and debunked this one before. It’s a silly report that doesn’t actually come anywhere close to saying what Blackburn claims it says. First off, it’s not “industries reliant on intellectual property.” It’s industries that are defined by the study’s authors as being “intellectual property intensive.” The language choices here are subtle, but there’s an incredibly important distinction. Nothing in the study suggests that IP laws or enforcement are necessary or responsible for the economic output in question. They just lump every industry that has some connection to intellectual property into a giant stew, and then pretend it’s all because of IP. That’s why grocery stores are the biggest industry in terms of “jobs.” Because the report is ridiculous. Stronger IP enforcement doesn’t help grocery jobs, but Marsha Blackburn is about to pretend the report she misread says it will.

Oh, and I should note that the Chamber of Commerce (and the firm they hire to write these reports, NPD) seem to have wildly fluctuating numbers. Last year’s report said these IP intensive industries contributed $7.7 trillion. Just one year later and it’s down to $5.8 trillion? And, at a time when both the movie and music industries claimed to be growing? Maybe, just maybe, the numbers in the report are completely bogus.

These figures prove what should be obvious: Strong intellectual property (IP) rights are essential to expanding economic growth and fostering innovation. Without strong IP protections, innovation will diminish and so will America’s economic greatness.

Except, as noted, the figures don’t actually say what Blackburn is claiming. They make no statement on whether or not stronger laws and enforcement foster innovation. In fact, studies that actually look at that question appear to show that stronger IP and enforcement often hold back innovation and can be incredibly costly to the US economy. The mistake that Blackburn is making — either out of ignorance or to be intentionally misleading, is to assume that stronger laws and enforcement are the cause of the economic output, when that’s not what the report she’s quoting says.

America has always been a society that rewards good ideas and protects property rights in a free-market capitalist system…

This actually isn’t true, first of all, and as we were just discussing, intellectual property — a system by which a central government authority hands out massive monopoly rights — is the exact opposite of a free-market capitalist system. It’s quite incredible to argue that the government should give out more centralized monopolies, and then pretend that’s free-market capitalism.

… not one premised on permission-less innovation…

It would appear that Blackburn is almost entirely unfamiliar with the history and nature of American innovation. If she’d like, however, I’m sure that Alexis Ohanian would be happy to send Blackburn a copy of his upcoming book on the subject, but innovation in general, and American innovation in particular has a very long and detailed history of exactly that: permission-less innovation.

In fact, permission-less innovation actually is a key hallmark of a free-market capitalist system. If you need to get permission to innovate, often via a government authority, which is what she is advocating for, it’s the exact opposite of what she claims she supports. Either way, early American industry thrived on copying technology and content from Europe — and then often improving on it (without permission). And that’s always been the nature of innovation. It’s an ongoing process of improvements, and if you add in a requirement to get permission — which often isn’t granted — you slow down innovation drastically.

It’s wrong to deny creators and innovators the fruits of their labor or to deprive them of their individual right to profit for the work they legitimately create.

Of course, as the US Supreme Court has made clear (does Blackburn not know this?), US intellectual property laws are not based on a “fruits of their labor” concept, but rather act solely for the benefit of the public, as a supposed incentive for innovation. If it was merely a “fruits of their labor” concept, we wouldn’t even have a public domain, and yet that was a key part of how the Founders designed copyright and patent law. More importantly, patent law, in particular, clearly deprives many innovators of the “fruits of their labor” by not recognizing an independent invention defense — meaning that if someone else gets a patent first, every other innovator who came up with the same thing (or better!) separately, is now unable to continue to innovate in that arena, without paying up. That’s completely antithetical to the idea of supporting someone getting the fruits of their labor. And that’s really the main issue with patent law today: it allows others — often patent lawyers who buy up crappy patents — to hold “the fruits” of others’ labor hostage.

That’s why the U.S. Constitution under Article I, Section 8 recognized these natural rights and empowered Congress to secure them in a way that advances honest and legitimate activity.

This is simply not true. The Constitutional clause on IP did not “recognize natural rights.” In fact, it’s quite clear that the framers did not believe that IP was a “natural right” and the Supreme Court has repeatedly reinforced this point. Instead, it granted Congress the power — if it so chose — to provide these limited monopolies solely for the purpose of benefiting the progress of science and the useful arts.

That’s what John Locke advocated in his Second Treatise of Civil Government in the 17th century. The origins of this constitutional clause are found in English copyright law, and 12 of the 13 colonies provided these rights after the Continental Congress.

Ah, the RIAA’s new favorite bogus talking point. A few months ago, they tried to rewrite history by selectively quoting John Locke. When you put Locke’s comments back into context, you realize that he actually spoke out against early versions of copyright, and a detailed analysis of how the US framers drafted that part of the Constitution, showed that they explicitly rejected Locke’s commentary as the basis for the constitutional clause.

Blackburn is pushing out bogus RIAA talking points that have been debunked, repeatedly, by actual scholars on the subject. But, just the fact that she’s spewing RIAA talking points should make it rather obvious where this writeup came from.

Who is going to take the U.S. seriously if we continue to deny a performance right for sound recordings as the rest of the developed world already does?

The US has rejected performance rights for decades, as Congress recognized the promotional impact of music playing on radio. Does Blackburn really think that no one has taken the US seriously for all of that time?

Will other countries take advantage of U.S.-based innovation if we aren’t willing to take reasonable actions against foreign-based rogue websites that threaten U.S. health and safety?

This is another bogus talking point from the SOPA talking points. What “rogue websites” threaten US health and safety? The US Chamber of Commerce and other SOPA supporters loved to pull the big switcheroo on this one. They would talk about fake drugs and military parts — which are a tiny and almost non-existent issue, but which represent actual safety threats, and then lump them in with sites that some users access for the purpose of copyright infringement… and then claim they’re all “rogue sites threatening health and safety.” It’s a cheap, hacky debater’s trick that should have no place in any “honest” discussion.

We continue to allow 25 percent of all Internet traffic to go to illegal rogue websites.

If they’re illegal, take them to court. But, the problem is they’re not actually illegal. Blackburn is making that up.

It helps criminal enterprises thrive but it kills American business and hurts consumers.

How? Where? Where’s the evidence of this?

Creators benefit from the certainty of consistent and strong enforcement.

Actually, strong enforcement only seems to lead to more splintering and driving infringement underground, but has done nothing to help creators. At all. Instead, what has helped creators is innovation — the same innovation that folks like the RIAA have been trying to stifle with strong IP laws, advanced by the likes of Blackburn.

America must do more than just offer reports that include the typical feel-good language: “transparency,” “fair use,” “coordination,” and “voluntary initiatives.” Instead of rehashing buzz terms and talking points, we need to institute a national strategy that puts Americans’ private property rights and the rule of law at the forefront.

Wait. Fair use is a “buzz term”? I thought it was a clear part of the law. Hmm. Why, yes, it is. Oh, and remember that study that Blackburn quoted at the beginning, and which she insists shows the need for stronger enforcement and less fair use. Well, as we’ve noted, another study, which used the identical methodology found that fair use contributes even more to economic output. So, if we are to take Blackburn’s initial comment seriously, shouldn’t she actually support stronger fair use and greater public rights, rather than locking them down with stronger IP laws?

If we don’t, countries like China and India will have no problem taking advantage our failures to fight for what is rightfully ours.

US IP laws do not apply to China and India as they are, last I checked, separate countries, which have their own laws. Of course, the US’s idiotic push for getting those countries to more strongly enforce patents and copyrights has resulted in China, for example, using IP laws to block American companies from the Chinese market. Blackburn should be careful what she wishes for, because the Chinese, unlike Blackburn, recognize that copyright and patent laws are protectionist laws, which they can use to harm foreign companies.

In India’s case, they’ve adopted an industrial policy that exploits our intellectual property on a whole new level. India has found itself on the United States Trade Representative’s Special 301 “Priority Watch List” precisely because of the country’s lack of respect for U.S.-based innovation. Nearly every major U.S. industry — technology, bio, pharmaceutical, chemical, agriculture, communications, medical, and manufacturing — has strongly criticized India’s policies for clashing with internationally accepted IP standards.

And yet all of those industries seem to hire a ton of folks in India. If this was really such a big problem, why would they be doing that?

Let’s begin an honest discussion that acknowledges that intellectual property is a catalyst for American innovation

An honest discussion doesn’t start with something where the evidence says the exact opposite.

The genius of the American people and the promise of the free market will outlast and outperform all alternatives so long as property rights and the rule of law are respected in our new virtual economy.

Again, how can she claim that a system of government-granted monopolies has anything to do with a free market?

Blackburn is spewing US Chamber of Commerce and RIAA talking points — the same talking points that were used to push SOPA. It’s almost certain that this means they’re gearing up to try again with something SOPA-like. It’s not surprising that they’re still using the same bogus talking points, but it seems that Blackburn and the US CoC/RIAA don’t seem to have learned that spewing pure bullshit about this stuff doesn’t work any more.

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Companies: riaa, us chamber of commerce

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Comments on “Congresswoman Claims 'Fair Use' And 'Transparency' Are Just 'Buzz Terms'”

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Ninja (profile) says:

You know my friend had the opportunity to attend a course with people from around the world including Americans. She said the Americans were a bunch of arrogant arseholes that treated everybody else as retards even though most of the rest were clearly better than them.

If we don?t, countries like China and India will have no problem taking advantage our failures to fight for what is rightfully ours.

Please stop using Calculus then. Stop using Geometry. Stop using what is not yours. Because you know, you don’t need to build upon something existent anyway because you are so almighty.

Morons I tell you.

Disclaimer: I do know some good Americans, this is not just random hatred 😉

Ninja (profile) says:

Re: Re: Re:

The arsehole bit was my poetic leave, she used a more polite word 😉

As a matter of fact I heard from another person that works in the same company I do and attended the course and that person said the same about the Americans. I work with highly talented people that excel at what they do.

The stupid part was your own invention. She also was not comparing them to herself but rather to the group in general.

Anonymous Coward says:

I’m still waiting for all the mass protesting demanding the existence and expansion of IP laws. Where was all the mass protesting supporting government established broadcasting and cableco monopolies when enacted?

Surely if these laws exist for the people and if the people want them I should see protesting favoring them.

Government established broadcasting monopolies (for commercial or private use) and cableco monopolies is a way the government helps choose winners and losers. These monopolies are not a result of free market capitalism but a result of campaign contributions and revolving doors and should be abolished.

Anonymous Coward says:

Re: Re:

The protests are going, alright! Behind closed doors there is a revolutionary and never before in history seen alliance of publishers and older artists. They all demand the same thing and that is death to piracy! On the other hand, it is not their battle, so it is a curious legal capture where people with insight on what is getting regulated are being called names and pushed away.

jameshogg says:

I am not going to cease to repeat that deviantArt is the key question in all of this.

If you cannot follow through on your philosophy of copyright by demanding this website be shut down for monetising on copyright infringement, you have to face up to your contradictions or stop participating in the discussion.

And if you can follow through… do not be surprised when you end up facing a furious wave of angry artists demanding you be chucked out of office for being a threat to their fruits of labour.

out_of_the_blue says:

An incredible, ridiculous, and almost entirely fact-free article.

Yeah, backatcha there, Mike. You’re just gainsaying, “insisting that the way to drive innovation in this country forward is to” DEcrease “intellectual property enforcement.” — Actually the system works pretty well, needs only greedy actors of lawyers and Kim Dotcom types limited and removed, plus the ever-growing numbers of little pirates stymied from “sharing” what’s not theirs, since they won’t respect the property rights of others.

Those I specify there create the problems that drive gov’t intervention. In particular I’m pretty certain that if you pirates would pay for content consumed, “Hollywood” would go back to the golf courses and leave everyone alone.

So, anyhoo, your typical gainsaying and boilerplate: tagline time!

Take a loopy tour of! You always end up same place!
What are you stoopid pirates doing here? Mike supports copyright!

Anonymous Coward says:

Re: Re: Re:4 Keep repeating the lie Goebbels.

Oh come on, even the former MPAA boss agrees that unlimited copyright is unconstitutional and you can’t show me anywhere in the constitution that forbids abolishing copyright.

And I can show court case after court case that reaffirms that copyright is not based in a natural rights stance but is a monopoly granted in ther public intrest

Pretending facts aren’t facts don’t make them any less true

Anonymous Coward says:

Re: Re: Re: An incredible, ridiculous, and almost entirely fact-free article.

If we were in a sitcom this would be the scene where the two people you thought were the same show up in the same room at the same time but unfortunately this is the internet and you’re just delusional enough to think that this is all being orchestrated by one person. Maybe if you wish really really hard it Mike will be the cause of all your problems though. Keep on wishing eh?

jameshogg says:

Re: An incredible, ridiculous, and almost entirely fact-free article.

“The system works well.”

Unfalsifiable claims are usually the weakest. The only way you can say the system works well as opposed to any other system is to compare experimental data between copyrighted and non-copyrighted societies in this modern age. You have to face up to the possibility that something such as crowdfunding could be the better model since it protects the fruits of labour as a service and not a product, bearing in mind that copyright must be removed from the equation in order to not contaminate the results.

“You always end up same place!”

Do you even grammar, bro? That’s like the 1000th time you’ve not noticed.

Anonymous Coward says:

Re: An incredible, ridiculous, and almost entirely fact-free article.

It’s amazing how IP extremists are a testimony of their own failed position. Not just blue but all IP extremists, including the ones on Techdirt, make absolutely no sense and are absolutely unable to substantiate their position only driving people to oppose these laws.

Baldaur Regis (profile) says:

Who is going to take the U.S. seriously if we continue to deny a performance right for sound recordings as the rest of the developed world already does?

Somewhere in a sweaty third world dictatorship:

“Wait, you are telling me U.S. continues to deny performance rights for sound recordings? How can we take them seriously? For the sake of sound recordings everywhere we must be contemptuous of the U.S. I tell you!”

Anonymous Coward says:

so when the time comes, kick her out! give someone else a chance. see if someone new can actually achieve something for the community, state, country that really means something, rather than just dribbling on about the same meaningless tripe! she’s in this position, not because of the lobbying but because of the votes she got. put them in another direction. i bet you’ll see a quick change on all sorts of topics and there will be an awful lot of condemning on certain, probably very familiar topics

jupiterkansas (profile) says:

Re: Re: Re:

The largest employer in Nashville is Vanderbilt University and Hospital. The second largest employer in Nashville is the Hospital Corporation of America, and many of its wealthiest employees live in Blackburn’s district in Brentwood, TN. You have to look at where they live, not where they work, because voting’s based on where you live. So that takes care of her top two donation sources, also 5 and 6.

What else is in Brentwood? The Tennessee Oil and Gas Association, her third biggest source, and the Tennessee Gas Pipeline Company is in her district (which stretches all the way to Memphis and is an area of natural gas mining).

That leaves the RIAA as her fourth biggest donor. They are well represented in Nashville.

Democrat Jim Cooper’s district includes downtown Nashville. His donors are mostly insurance and investments, and he get about half of what Blackburn gets.

Anonymous Coward says:

Re: Re:

Not always but there’s a handy test to see if it’s being used disengenuously as a stupid buzz term:

Ask if the speaker is in favor of drastic cuts to foreign aid, intelligence services, entitlements, and the department of defense.

If the answer is anything other than a hearty chuckle followed by ‘of course’ then it’s the latter.

Anonymous Coward says:

Re: I thought The Hill allowed comments

way too embarrassing for her potentially to allow comments. Assuming she is not really that stupid she must know she just upchucked a bunch of factually incorrect information. I can practically see the entertainment industries money dripping off of that thing.

Disgusted (profile) says:

Yoo Hoo! Is Anybody There?

Even though I agree with you totally, and even though she SHOULD be listening to you, Marsha Blackburn AIN’T LISTENING. If she had even a small amount of intellectual honesty, none of her spewing and regurgitation of the MAFIAA’s applied B.S. would have seen the light of day. No, this is all about grabbing as much money as possible, for as long as possible while applying as much FUD as possible to make that effort easier, hopefully with a fair amount of it ending up in her pockets. This is just more greed and avarice talking.

Anonymous Coward says:

the 'national' in international

Population count
China: 1.344 billion
India: 1.241 billion
World: 6.974 billion
China and India: 2.585 billion (37.07%)

So basically, open shops there. Take advantage of cheaper cost of living and lower average wages. And than kick dirt in their faces by saying that ‘internationally accepted’ standards clash with these countries (did I mention they are 37% of the ‘national’ in international?)

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