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Rep. Jerry Nadler’s Shocking Misrepresentation Of Copyright Law
from the the-law-literally-says-the-opposite dept
It’s a running joke here at Techdirt that many elected officials in charge of copyright policy seem wholly ignorant of the subject. But sometimes, it’s still shocking when people who should definitely know better brazenly parade their cluelessness.
Enter Jerry Nadler, the highest-ranking Democrat on the House Judiciary Committee, and a man who has been knee-deep in copyright policy for many years. His recent comments on intellectual property weren’t just ignorant, they were downright pathetic.
This one is from a month ago, but it’s been gnawing away at me for a few weeks. I figured it was still worth calling out. Last month, the House Judiciary Committee held a hearing on “Intellectual Property,” and ranking member (i.e., top Democrat) Jerry Nadler’s opening remarks were so far off-base and factually lacking that it deserves to be discussed.
Nadler has long been a reliable voice for copyright maximalism, and Hollywood has rewarded him accordingly. But, really, some of these comments were just beyond the pale:
“Mr. Chairman, intellectual property in the United States, at its core, is the right to own an idea.
I mean, it’s literally not. And you’d think the top ranking Democrat on the Judiciary Committee would know that. In the US, we literally have what’s known as the “idea expression dichotomy” which says you can’t own an idea. So, no, that’s not only not “at the core” of the IP system in the U.S., it’s literally and explicitly cut out of the IP system. For good reasons.
I mean, the very law that Nadler is supposed to be the expert in literally says: “In no case does copyright protection for an original work of authorship extend to any idea.”
And Nadler kicks off his statement by claiming that the “core” of copyright is protecting ideas?
That’s horrifying.
And, on top of that, the setup, intent, and purpose of the copyright system has never been about “ownership,” anyway. It has always been about creating a limited time monopoly right on particular expression with the point being to make it more widely available to everyone, not to lock it up as “property” of one entity.
So it’s not about ownership, and it’s not about ownership of ideas.
And yet, Nadler opens his remarks by claiming that this is the “core” of the IP system in the US?
Not a good look. Not a good look at all.
The power of IP is not in the individual movie, the chemical compound, or the store sign—though they certainly have value—but in the exclusive authority to reproduce that protected content. Because it is difficult to put most creations in the stream of commerce while also keeping them under lock and key, the enforcement of IP protections is key to the success of our system.
I mean… come on? This is the kind of nonsense argument that was debunked decades ago. The enforcement has never been the “key” to the system. The entire world of IP was built on the idea of “toleration,” in which there is actually a ton of regular and incidental infringement which everyone should rightly ignore. The only real issues tend to come in with large scale, industrial infringement, which is what the system was actually built to protect against.
Indeed, so many of the problems (and lack of respect) for modern copyright law come from nonsense spewing from industry (and industry-backed politicians) that we need to increase enforcement because every unauthorized copy is a crime against humanity.
If the ideas we protect are easily stolen, then they hold no value. And if copyrights, trademarks, and patents have no value, then the American system cannot encourage innovation, protect consumers, help drive economic growth, and keep our country safe.
Again, we’re right back to ideas that were debunked decades ago: the idea that if something can be copied freely it has no value. That’s just fundamentally wrong. As we’ve shown for years, there are plenty of wonderful business models built on top of freely copyable works (including much of the internet). Anyone who claims that if something is “easily stolen, it has no value” doesn’t understand copyright, patents, or basic, fundamental economics.
Techdirt is freely copyable. We release everything we publish into the public domain because that increases the value. It has helped me build an entire business around what I write because it can spread more widely. My ideas have value, and spreading them more widely allows me many more opportunities to capture some of that value, while simultaneously expanding the overall pie of knowledge.
Also, if something is easily stolen, then it must fundamentally have value. Why would anyone “steal” it otherwise? People don’t “steal” things that have no value (and we’re leaving aside that we’re not even talking about “stealing” but copying, but that’s a different issue).
What Nadler is really saying is that if something is easily copied, then one particular favored business model is slightly trickier to use to achieve monopoly rents. But that… is not even remotely the same thing as saying that it “has no value.”
His remarks contain a lot more that is similar, all setting up more counterfactual maximalist garbage in order to justify some more draconian laws and crackdowns on totally understandable and innocent behavior.
But, in no world should such a high-ranking US official, who has spent years overseeing copyright policy, spread so much fundamental disinformation on the very basics of that policy.
It’s embarrassing. And it will lead to dangerous policies that are literally designed to stop the flow of “ideas” and knowledge at a time when we need such things to be more widely available.
Nadler is smart enough and has worked in copyright long enough to know that these remarks were not just wrong, but 100% the opposite of what copyright is for. We deserve better.
Filed Under: copyright, copyright maximialism, idea expression dichotomy, jerry nadler
Comments on “Rep. Jerry Nadler’s Shocking Misrepresentation Of Copyright Law”
And if he weren’t in the pockets of the copyright maximalists who probably wrote his statement, he’d probably care about that egregious oversight.
Just makes you wonder what company flak wrote that for him…
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What makes you think they had to? He’s part of the fucking club.
That was an amazing amount of wrong compressed in so few words by Jerry Nadler. I’ve seen compression algorithms less effective than that.
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Who would have thought that the density of bullshit in Congress would lead to the first quantum compression algorithm, not technology.
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Extreme side-eye at anyone who frames “the right to own an idea” as a good thing, anyway. Just another way of saying “idea landlordism.”
Centrist/establishment Democrats have been the biggest water-carriers for the RIAA/MPAA/MAFIAA. As VP, Biden supervised — from Disney HQ! — an FBI operation to shut down “infringing websites” through civil forfeiture, with no due process of law.
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are you trolls ever not gonna blame democrats nearly everytime?
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“Everything I don’t like is trolling.”
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Your strawman is bad and you should feel bad.
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Troll.
What else is new?
In other news, the sky is blue, the grass is green and water makes you wet
Jokes aside, this doesn’t surprise me that an old out of touch man wouldn’t understand how Copyright actually works despite the years of experience
” the right to own an idea. ”
Not sure how that is supposed to work.
How is an idea protected? I guess we will all need brain implants that detect intellectual property ideas and consequently administer shock punishments .. probably to the genital area if I know these cretins. This obviously will also be used to ensure “Right Think” patent pending.
copyright is about the particular expression of an idea or a work of art, eg music ,video, poem, story,novel ,comicbook, film,etc
sci fi is constantly using the same idea,s over and over ,eg cloning, cyberspace, vr, time travel ,robot,s ,androids, aliens,space travel, superpowers
hacking ,
If one writer or company owned basic ideas the genre of sci fi would collapse or it would be very boring
you can write a story using those concepts and you wont get sued because no one owns a basic idea.
the whole current windows and ios operating system
is based on the concepts invented in xerox,
eg windows, mouse control keyboard shortcuts,moving and overlapping windows .
no company sues any other for the basic concept or idea of mouse control ,windows overlapping ,moving windows ,.
the basic ideas or concepts of gui windows and using a mouse for control and input are in the public domain in terms of an os used for computers or tablets or general computing devices
the statement that copyright equals total control of ideas is 100 per cent wrong
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but it is consistent with the history of copyright.
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While it’s true that modern GUI systems stem from the work at Xerox PARC, that’s missing some of the story. Windows was originally a frontend for DOS, which was originally licenced by MS when their first choice CP/M fell through. The classic MacOS was developed differently, but OSX was based on BSD, as was iOS. BSD is based on UNIX, which originally came from Bell Labs. UNIX also inspired Linux, which if you move away from the desktop has been even more influential.
Absolutely. There are entire subgenres that couldn’t exist if simple ideas were owned. Just the ideas of alien invasion, time travel, vivisection, giant monsters, invisible men and moon explorers could be verboten if HG Wells had the right to refuse the idea for other authors. Although Jules Verne might have dibs on a few of those ideas, and who knows how many ideas just go back to the earliest works of history. Even Shakespeare couldn’t have operated.
That’s why to most sensible people, it’s the expression and not the idea that’s protected.
Stop thinking!
“How is an idea protected? I guess we will all need brain implants that detect intellectual property ideas and consequently administer shock punishments .. probably to the genital area if I know these cretins. This obviously will also be used to ensure “Right Think” patent pending.”
Ahh.. Now that you have had that idea, they can’t use it, because that would be stealing.
Fortunately, its not stealing if the idea remains in your head. Except I can’t find that part in the law, so I may be wrong about that.
Here's an idea.
You know, the only people that think copyright protects ideas are probably those individual that hardly ever, if ever, have an original idea. They think having an original idea is somehow a sign of genius, and needs to be protected.
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The problem is – define “original idea”. There’s plenty of examples of independent inventions, where someone came up with the same idea as someone else. Many people in the same cultural climate come up with similar ideas.
History is full of people who came up with an “original” idea but found out that someone else had it before them. But, it’s the expression that usually matters, not the idea. Which is why, say, The Hunger Games wasn’t sued out of existence by the creators of Battle Royale. Or that Rowling wasn’t blocked from publishing by the Tolkien estate among others.
In a sense he’s not wrong, because whenever intellectual property gets brought up, the biggest value gain has never been in actual creation. Creators are only a tool, content is only a component to set up a premise for making money. The artist’s only role is to yell at people for “stealing” their money, but strangely enough they don’t see the lion’s share of the money taken from copyright lawsuits. Because artists were never the intended beneficiary of copyright enforcement.
For folks like Nadler, the real money is in using the content and the creator as a hammer to beat others into compliance. To treat easy targets like children and grandparents as if they’re pinatas, who will give up the goods if you smash them hard enough.
If you have witnessed any copyrighted materials recently, then please submit your illegal recording device located within your cranial cavity for immediate disposal.
Perpetual junkies of the drug that is 'copyright'
Copyright really is like a particularly dangerous drug…
It causes symptoms very similar to brain damage in it’s users and those exposed to it, increasing in severity the longer the exposure is.
It’s highly addictive, causing it’s users to always want a bigger hit.
When faced with the idea of it being taken away or limited in any way users get highly defensive and lash out.
When it comes to it’s use and redeeming qualities users have a tendency to describe it as the most valuable thing in their life and the lives of everyone around them, frequently making facts-optional or even directly-contradicted-by-reality claims in order to defend it and it’s use and/or downplaying the costs associated with it.
The perpetual ebb and flow on what is allowed to be copyrighted
I find it interesting that within the art community, the community will quickly push back against such a thing as “copying an idea” or “copying a style” (where would art be if we were not allowed to copy ideas?) while obviously also enforcing copyright on tracing (to note, if you copy a work by eye, that’s called forgery and it’s still infringement).
Modern copyright is the compromise. It is, I should say rightfully, based on work put in. Anyone who has picked up a pencil understands that tracing is much easier than drawing, even from photographs; the moral problem of tracing is not in “cheating” but in depriving the photographer of their rightful revenues in putting in their work; if you trace from your own reference photos that you put the work in gathering, or if you pay the right licenses, nobody is harmed (and anybody claiming otherwise is just being a gatekeeping elitist).
I think we lose a lot when we frame copyright in terms of property and “morality”; we should abhor “orphan works” and squatting on ideas; if you don’t license an idea, you should lose it, like a trademark. Copyright must be recognized as the limited state-backed monopoly that it is, instead of trying to shoehorn it into the idea of property rights.
not just copyright?
Wasn’t he speaking about IP generally and not just copyright? Patents are generally thought to have more scope and extend into the idea range, ie beyond that which you actually made as an embodiment of the invention. Agree that for copyright, that is a big nope.
Misrepresentation? or a valid interpretation in layman’s terms? Isn’t it just a matter of semantics if we are talking in layman’s terms? There’s legal meaning of idea and there the mainstream meaning.
Just what is “idea” in layman’s terms? why can’t expressions be considered as “ideas” if ideas are defined as pattern or form of thoughts.
Certainly there’s ideas involved in expressing something. And there are elements in an expression that are ideas so there’s ideas of ideas and ideas in an idea and some of that you “own” according to the copyright cult.
Certainly people are acting like you can own ideas nowadays because it’s in the mainstream language now. When someone says you are “stealing” their ideas they are like they are “owning” the ideas. If you take credit for an idea you didn’t think first of, you are “stealing” from someone who thought of that before you. “Borrowing” an idea is now an expression, implying that idea belongs to someone else and you don’t “own “ that so you got to “borrow “ to use it.
That language we see too in discourse about copyright law. So how can you say it’s a “misrepresentation”? We have “intellectual property “, “piracy”, “pirates”, and copying as “stealing”, “protecting”, and all that in relations to copyright law. If that is not “misrepresenting” then this case is not either. How can one not think about “owning” when one hears those terms because all that imply “ownership” of something otherwise the terms would not make much sense. “Pirates” can’t rob or steal stuff if they are not owned in the first place for example. And what is being” owned “ that the terms imply? “Expressions” are certainly not what I would think people meant when they think “pirates” are “stealing”.
You don’t say someone is stealing your expressions, you say someone is stealing your ideas. So people would think “ideas” or something else instead or “expressions” when it comes to “ownership”.
It’s the fault of copyright law. If copyright law didn’t mean for people to think that way then the copyright law should not be using those misleading terms like “ intellectual property“. If the law didn’t mean “ownership” of ideas then it should not be implying it in the language.