from the regulatory-capture dept
With the latest version of the totally unnecessary and ridiculously dangerous fashion copyright bill likely to become law, despite a near total lack of justification for it, combined with significant evidence of the harm it will do, it might make you ask how the hell does a law like this get passed, and why does someone like Senator Chuck Schumer come up with something quite this badly thought out? Thankfully, law professors Kal Raustiala and Chris Sprigman — who have been pointing out the problems with Schumer’s weird infatuation over fashion copyright for years — have a basic explanation for how such bad laws get passed. Basically, it’s a form of regulatory capture. A very small group of players are likely to benefit at the expense of the overall market and consumers — but that small group are a lot more focused on the issue than everyone hurt by it:
When a large group favors a policy change, it is expensive to organize that group to seek it. And often each member of a very large group will experience only small individual benefits from the policy — so no member has the incentive to invest in change. Apathy reigns. Conversely, a small group can usually organize cheaply. And because the group is small, each individual member is likely to realize a much larger benefit from the sought-after change. As a result, the small group is properly motivated. In short, the committed minority can often beat the disorganized majority.
They then note that this is quite common in copyright law:
That scenario explains how a lot of law is made, and intellectual property law is no exception. The problem is most acute with copyright. Producers of copyrighted works — film studios, record labels, commercial publishing companies — are few in number and stand to gain significantly from more powerful protections (and therefore have ample incentive to spend money seeking policy change). The result is that Congress hears, loudly and often, from those who favor stronger protection. Congress does not hear nearly as often from those who take the opposite view. Who is that? Well, just about every consumer who has to pay more for a book or a song because stronger property rights prevent competition from low-cost copyists that would otherwise exist. We all pay a little hidden tax every time copyright law expands.
It’s even worse than that, actually. In many cases, there are plenty of us willing to speak up about the harm caused by greater protectionism, and the vast amounts of actual evidence and research showing how these policies are inherently going to do more harm than good — but very few people in Congress listen. Why? Because the industry has done a rather impressive targeted PR job of branding anyone who actually presents evidence and facts about the harm done by copyright law as simply supporting “piracy,” which then gets lumped in with all sorts of other awful things. It’s really a shame.
Raustiala and Sprigman also point out that this is actually a repeat action. A small group of fashion designers colluded to stop competition during the 1930s, and that only ended when the Supreme Court broke it up for antitrust reasons — leading those involved to insist that the industry would surely fail without the ability to collude against competition. Of course, the opposite happened. But the new bill effectively brings back the antitrust activity of a few fashion designers — but this time with Congressional approval. What a sad state of affairs.