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Posted on Techdirt - 11 November 2021 @ 04:08pm

Drug Price Negotiation Is A Second-Best Fix. Here's What Will Really Work

As Democrats struggle to bring together 50 votes to pass the Build Back Better Act, a major sticking point with the legislation has emerged. That is, whether it should include provisions changing the law to allow Medicare to negotiate drug prices, with caps on payments set based on prices paid by other wealthy nations.

Concerns about such an extensive, centralized program are not unreasonable. On the other hand, patent reform is a market-friendly approach that embraces the benefits of competition and free entry to cut costs and better align the incentives for new drug development.

Negotiation would indeed take a bite out of drug prices. Analyses of proposed drug price negotiation plans find savings around half a trillion dollars over ten years. That’s serious money needed for the bill to pass reconciliation. But there’s more than one way to achieve this and bring down drug costs. To that end, patent reform would be a much more worthwhile endeavor.

The savings needed don’t have to come from drug price negotiation. For that matter, the popularity of such a provision doesn’t come from the specific policy. Rather, it’s popular because it means lower drug prices. Drug price negotiation is a policy with potential (though melodramatically overstated) harms. Well-designed patent reform, on the other hand, can trim prices while better orienting drug development.

Drug price negotiation isn’t a riskless proposition. The Congressional Budget Office estimated that a significant reduction in revenue would reduce new drug discovery by 3-5 percent (8 to 15 fewer drugs out of an estimated 300 approved). Market size and the potential return inform the decision to invest (or not) in R&D. As the largest prescription drug market in the world, the U.S. isn’t just the arsenal of democracy; it’s also the medicine cabinet. Negotiation will bring down prices and the return on investment for new drug discovery without the benefits of a competitive market created by patent reform.

If savings is the goal, going after drug patents is the best way to achieve that. Dean Baker found that patent protections added over $300 billion per year to the price of pharmaceuticals in 2018. According to the FDA, the entry of one generic competitor reduces drug prices by 40 percent, increasing to a whopping 95 percent of the original price when there are six or more generic competitors.

But aren’t patents necessary to ensure a return on the enormous investments needed to develop a new drug? Generally yes, even if the costs of such investments are overstated. But it’s possible to have too much of a good thing and, unfortunately, that’s where we are today. Analysis by the Initiative for Medicines, Access, and Knowledge (I-MAK) reveals that the effective patent terms for the top-selling drugs in the U.S. are nearly twice as long as the 20 years patents are supposed to last. Drugmakers pull this off by loading up dozens of patents per drug, including ones for therapeutically trivial changes (like going from two pills to one pill a day). As a result, they can continue to charge sky-high prices long past the point when they should be facing real competition. Reforms are needed to change the incentive structure that makes extending monopolies more profitable than developing new treatments.

Raising the bar for patent eligibility is a structural reform to ensure quality. But what if the holders of good patents still abuse their exclusivity? In these cases, there are tools available to the federal government to license the patents needed to legally manufacture drugs (that is, allow competitors into the market).

The first is march-in rights under the 1980 Bayh-Dole Act, which helps “subject inventions”–those made under a government contract–to be licensed. Since this power has never been utilized, its usefulness in fighting high prices is technically an open legal question. Still, there’s no time like the present to find out. Even without march-in rights, the government can use other compulsory licensing powers to pay a reasonable royalty while reaping the benefits of low costs under free-market competition.

There are two ways to fight monopoly power: with the bargaining power of a large, centralized buyer like the federal government or with increased market competition. Drug price negotiation takes the former approach, and there’s a place for it. But whenever an opportunity to pursue the latter is possible, we should take it. Making sure the incentives created by the patent system don’t turn into excesses will cut costs and ensure the rewards of a patent go to innovative activity.

Daniel Takash is the Niskanen Center’s regulatory policy fellow.

Posted on Techdirt - 18 November 2020 @ 12:10pm

Why Don't Conservatives Care About Copyright?

I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.

The New York Post debacle and gating President Trump’s post-election tweets are the most recent arrows in the quiver for anti-tech conservatives. It doesn’t have anything to do with copyright (though Hunter Biden’s emails, if they’re real, are eligible for copyright protection). But whenever Section 230 is used as a synecdoche for the more general laws that govern what private tech companies can and can’t do on their sites, I cannot help but ask myself, “why aren’t conservatives up in arms about copyright law?”

I haven’t done a full accounting of all conservative run-ins with online content moderation policies. Still, at least for the President, the only instances something he has posted was taken down–not had a warning label attached, but properly removed–were for copyright infringement. In one case, Trump erroneously blamed Twitter and Section 230 for the removal of a video on copyright grounds.

Trump’s campaign has also gotten into legal trouble by playing music to which he doesn’t have the rights at rallies, and conservative figures have been on the receiving end of clearly bogus claims of copyright infringement. Of course, this isn’t to dismiss other cases where content has been removed, whatever you may think of them. My point is this: Put yourself in the shoes of a right-winger online, and you’d think copyright would get at least as much airtime as Section 230, or any airtime at all. Yet such criticisms are nowhere to be found.

Why is this the case? I have a few theories, though none are particularly satisfying:

One: Copyright is Private Property

I am emphatically against this position, but many conservatives subscribe to the belief that copyright is property and deserves the same moral treatment as tilled land or gathered acorns appropriated by mixing one’s labor with it. My disagreements with this position aside, it’s an idea that must be taken seriously on the merits and, more relevant to this discussion, because it’s a sincerely held belief.

From this vantage point, it’s easy to see why the right isn’t up in arms about DMCA takedown notices, automated copyright systems, or artists not allowing their songs to be used at political rallies. If someone owns their property, they have a claim against the world to exclude others from its use. You’re under no obligation to host a political rally (especially one supporting positions with which you disagree) on your front yard. You can own content in the same way you own your land. Thus you can restrict the use of your work.

This is a straightforward position, but one which contradicts claims of unlawful or unjustified censorship by tech platforms. Twitter and Facebook own their websites in the same way I own my work or someone else owns their lawn. If preventing someone from speaking by using one of these is censorship, they must all be considered censorship.

Though the treatment of works protected by copyright as property seems like an easy way to separate copyright enforcement from content moderation, Twitter has just as strong a claim to ownership of its website as a photographer does to a photo or an artist to a song. Whether or not enforcing one’s copyright constitutes censorship, both these views run into an all-or-nothing wall.

Two: China

The terms “thief” and “infringer” are often used interchangeably. Still, if if you’re criticizing the unauthorized user of a copy who you don’t like for other reasons, you’re more likely to call them a thief due to the negative connotation associated with the word. A thief deprives someone of the fruits of their labor, while an infringer sounds like someone who forgot to check the right box on form E-7A.

And that’s what the U.S. has done in the case of intellectual property violations by Chinese actors. Allegations of theft cover more than just copyright, extending to a wide range of behaviors ranging from outright espionage to strong-arming business partners into transferring technology. And, while there’s no shortage of bootleggers operating out in the open in China, those complaining about Chinese IP theft are more concerned about patents and trade secrets than works protected by copyright.

All that being said, when grievances are aired about the Chinese government, complaints of intellectual property theft inevitably come up alongside far more serious charges against the regime. This tweet from Senator Pat Toomey (R-PA) best illustrates this dynamic:

Whatever you think about the extent of and damage done by these technology transfers, putting that next to two egregious human rights abuses, one of which meets the UN’s definition of genocide, is in extremely poor taste and demonstrates a complete lack of perspective. Still, it shows just how closely we associated IP theft with the other crimes of the CCP.

Were conservatives to confront the serious drawbacks associated with aggressive enforcement of copyright, they would admit that infringement (“theft”) is something we should be less concerned with.Perhaps we should even change the scope of what is covered by copyright, i.e., say what was once “stealing” shouldn’t be.

Decrying Chinese IP theft is most certainly bipartisan, and the beating of this drum helps cement the association of IP theft with “the baddies.” But a subconscious association still doesn’t explain the indifference to the issue. Most of the conservatives’ copyright-related censorship doesn’t deal with the wholesale piracy associated with China, and the PRC is a lucrative export market for works protected by copyright. And all that aside, this train of logic is probably too clever by half.

Three: Stronger Copyright Enforcement Hurts Big Tech

Notice-and-stay-down requirements, expanded reach of ContentID and similar systems, link taxes, or any other measures that (implicitly or explicitly) shift the costs of enforcement from the latter to the former most certainly harm the bottom line of tech companies.

I should point out, of course, that while Google or Facebook can afford to sink tens of millions into copyright filters, this requirement would be crippling to smaller websites and a serious barrier to entry for would-be rivals to these larger platforms. These things matter for competition.

Whether or not these rules make it easier or harder for an upstart to dethrone current dominant platforms, these added costs–either through compliance costs or costs associated with litigation–will most certainly harm big tech’s bottom line. Throw Google v. Oracle into the mix, and it’s easy to see how stronger copyright enforcement is viewed as a way to go after big tech.

A better explanation, then, centers on the political dynamics of techlash. Big tech companies are in everyone’s crosshairs, set up a clear “corporate Goliath interfering with democracy” narrative, and are easier to stay focused on than whichever rights holder objects to their content being used online. Anyone can lay out a laundry list of offenses against big tech companies (some more justified than others), but this or that rights holder (or person claiming to be a rights holder) taking down an infringing image doesn’t lend itself to a clean narrative.

Four: Copyright Isn’t Cool

Whenever someone tells me copyright isn’t sexy, my immediate response is “if that’s true, then why does porn come up so much?” But my personal feelings aside, there comes a time when every copyright nerd must accept one hard truth: copyright law isn’t cool.

For any question of the form “why doesn’t [politician or political body] talk about [issue]” the easy answer is “they don’t care.” Saliency and elite opinion matter. If headlines about an issue won’t draw views or elites can’t be bothered to care, it won’t see the light of day.

But here’s the problem with this narrative: when you get down to it, Section 230 also isn’t particularly cool. Laws that determine who is liable for what online aren’t particularly interesting. Of course, Section 230 is in the news, but I think that’s because it’s been erroneously coupled to the cooler issue of free speech (or at least coupled in a way which misstates the dynamic), about which everyone has an opinion.

Section 230 probably became a buzzword due to the debate surrounding sex trafficking and SESTA/FOSTA, and the momentum has carried over into other issues while sucking the oxygen necessary for a productive debate around copyright. Let’s return to the tweet flagged for copyright infringement, the removal of which Trump blamed on Section 230. Nobody has ever accused the President of being detail-oriented. Still, his being exactly wrong on this issue is the product of the fact that everyone is talking about Section 230 but (virtually) nobody was talking about copyright.

From this angle, the answer for why copyright doesn’t get the attention that Section 230 does is as simple as it is unsatisfying: because Section 230 got more attention.

All of the above explanations have their shortcomings. This is just an exploratory look at why conservatives have ignored the role copyright plays in current debates surrounding online censorship, which is a fancy way of saying I don’t have an actual conclusion. Even so, there’s some value to be found in examining why certain policies aren’t scrutinized, even if that value is only therapeutic.

Posted on Techdirt - 5 November 2020 @ 12:07pm

People With Silly Patents Would Really Like It If It Was Harder To Cancel Them

A large group of patent holders sent a letter to Congress expressing concern that, since the US Patent and Trademark Office (USPTO) Director Iancu might soon be leaving, recent policies making it harder to challenge bad patents might be reversed. The letter concerns a process created somewhat recently, called inter partes review (IPR), that allows the USPTO to take a second look at the patents they issue based on a public request.

This is important because 43% of all issued patents challenged in court are ultimately found to be invalid, albeit at great expense due to the high costs of patent litigation. An IPR, by contrast, offers a far faster and less expensive way to challenge patents than using the courts, with the average IPR costing around $350,000 compared to litigation costs just shy of $1 million when defending against infringement claims brought by an NPE. It is no surprise that many who profit off patents do not like a process that makes it easier to find out if those patents are valid.

The letter states that “Director Iancu has clearly changed the dialogue surrounding patents, defined the patent system by the brilliance of inventors, the excitement of invention, and the incredible benefits they bring to our economy and society as a whole.” While a lot of this is true, celebrating the brilliance of inventors and the benefits of patents ignores the very real direct and indirect costs of the current patent system. Patents can issue for inventions that don’t actually work or exist. This was true of Theranos, a company built around patents with technology that didn’t work or exist. Patents can also be used to try to win big paydays on seemingly unrelated products. This happened again with Theranos, whose patents were bought and used against a company making covid-19 tests.

Then there are also many, many, silly patents that get issued that usually don’t matter because very few people want the thing the patent describes. It would be weird if these inventors got to dictate patent policy. But here we are, as a large number of the inventors signed to this letter have very silly patents (feel free to find your own favorites):

  • US 7,814,680 – Overshoe Unit For Indoor Use (it’s a shoe that you put on your shoe)

  • US 5,178,576 – Apparatus And Method For Manipulating A Spring Toy (expired due to non-payment of maintenance fee)

  • US 9,009,870 – Garment Pocket For Rapid Extraction And Deployment Of A Concealed Weapon (does what it says it does)

  • APP 16/199,080 – Peeball (“a potty-training slide apparatus for boys that temporarily clips onto the toilet seat and provides an ornamental target (target has a hole through it) that boys aim and pee through and on the back side of the target is a permanently affixed ornamental slide that the urine travels down and into the toilet water.”)

  • US 9,278,737 – Remote Control Fishing Robot (when you just don’t feel like fishing yourself)

  • US 6,923,299 – Wallet For Retaining a Plurality of Credit Cards (for holding all the credit cards you used to pay for the other weird stuff on this list)

To quote Thomas Jefferson, “these monopolies produce more embarrasment than advantage to society.”

While those with silly patents have a low chance doing any harm, even if their patent were invalid, the changes the inventors advocate for can be life or death for others. These patent policies would make it harder to challenge weak drug patents that could be holding up generic competition. Cancelling drug patents and enabling competition can save patients 79%, on average, for small molecule drugs. While biosimilar competition is nascent it is projected to save patients 15%-45% or more over the next five years, possibly more. For some, this is the difference between being able to afford a treatment and not being able to afford a treatment.

It would be a travesty if those that filed these silly patents swayed policymakers to make it harder to cancel all bad patents. Many of the inventors on this letter haven’t even had their listed patents challenged in an IPR–of the 240 listed, only 18 have had any IPRs instituted–making their perspective even less relevant. This makes sense, as many of these patents describe products that are probably not economically viable due to low demand. Indeed, our casual search found several that were allowed to lapse without paying maintenance fees, a sure sign that the inventions did not produce value.

The policies being championed by the letter are already having a large effect. Procedural denials, meaning denials based on something other than the actual merits of the petition, are spiraling upward. The inventor letter makes it seem that these denials are good because they happen when a court challenge of a patent is moving faster than the IPR challenge. The letter claims that since IPR was intended to be an alternative, not an addition, it makes sense to do away with these cases. But in practice these procedural denials are being applied nonsensically and for many other reasons.

For example, sometimes drug patent challenges are so complicated that petitioners have to file multiple petitions at the same time just to get around word counts. The USPTO’s Trial Practice Guide Update says this can be fine “when the patent owner has asserted a large number of claims in litigation.” However, the USPTO is using the “in litigation” language as an excuse to deny all but one of the petitions when there isn’t parallel litigation. So much for IPR being an alternative! These denials happened to challenges to patents on the important diabetes medication Lantus, which costs $357, and a Narcan injector that can save the lives of those overdosing on opioids, costing $126 for two doses. Narcan is only expensive because of the injector patent, the active ingredient – Naloxone – is available as a low cost generic.

The USPTO has also gotten rid of a petition because of the trial date of a completely different company. This concerned a drug used to treat schizophrenia , Invega Sustenna, that costs patients $1,853.

Another denial, concerning vaccine patents, was because the USPTO refused to allow a petitioner to step into the shoes of another company that settled. This was even though the petitioner could have not known that the other company would settle and withdraw their challenge.

Patents are legal instruments with real consequences. When patents represent true innovation, those consequences are usually positive. Patents often incentivize innovation, especially when inventions are difficult to discover but easy to copy. When patents do not represent true innovation, when they should never have been granted, they can be a drag. They can be used to hold up competition or harass other innovators. Common sense dictates there should be a quick and inexpensive system for sorting out bad patents from those that are good. However, any such system is a threat to those that make money off patents that could be cancelled. These voices should be taken with the huge grain of salt they deserve.

Posted on Techdirt - 25 June 2020 @ 11:58am

John Bolton Doesn't Need Copyright Protection

Leaving aside the many legal and ethical questions associated with the publication of John Bolton’s The Room Where it Happened, there’s one question nobody (to my knowledge) has asked: Why should John Bolton get copyright protection?

As a matter of law, this is what lawyers call a “stupid question.” Under virtually every copyright regime in human history, Bolton’s book would be eligible for copyright. But when asked concerning the economics of the publishing industry and the public’s right to know what happened in the room where it happened, the question becomes far more interesting.

The Room Where it Happened will be a financial success. The book is number one on Amazon Kindle–with 200,000 copies already shipped to booksellers–and Bolton has secured a slew of top-dollar speaking engagements.

The army of eager readers pre-ordering the book and all those who will buy it as soon as it is released are evidence of a lead-time advantage that exists independent of exclusivity and isn’t unique to this situation.

A few weeks in theaters is enough to make back the production cost (and then some) of a blockbuster movie. In the complete absence of copyright, some people would probably wait to grab a free copy online; there are already pirated copies of The Room Where it Happened floating around the internet. But every pre-order of a book or game, and every packed theater at a midnight premier, is an opportunity to charge a premium that doesn’t rely on copyright.

An obvious response to this is that, while there will always be a population willing to pay to receive content as soon as possible, among those first in line are those willing to wait a little while for it to appear online for free–especially if there were no legal risks for copying. This is probably true on the margins. Still, it doesn’t imply that nobody (or next to nobody) would purchase this book, and we have a few natural experiments to prove it.

Thanks to the government edicts doctrine, all works created by government officials in the course of their official duties are in the public domain. Court decisions, legislation, and reports of all kinds are all posted online for free. If we apply the logic that in the absence of copyright (almost) nobody would purchase what they can get online for free, then the sales of high-profile government reports would be negligible.

This couldn’t be further from the truth. The Starr Report, the first “blockbuster” government publication after the dawn of the internet, sold millions of paperback copies shortly after its release. This is back in the days of laserjet and low-resolution computer monitors, so it’s certainly not a one-to-one comparison. However, we still see sales of these reports even as reading on a computer became more tolerable. Released in July 2004, the 9/11 Commission Report sold over a million copies by November of that year. It vastly outperformed The Financial Crisis Inquiry Report, which still sold all 25,000 copies from its initial printing in a month. The Mueller Report was also a minor bestseller.

For all intents and purposes, copyright law does’t exist for these works. I can’t say whether or not the government made its money back from these sales (the answer is likely no due to the intensive fact-finding involved and sales by third parties), and these examples are far from sufficient to refute the case for copyright as a whole. Even so, these natural experiments thoroughly disprove the notion that free access necessarily makes for a commercial flop.

As a memoir of sorts, The Room Where It Happened doesn’t have the overhead of a government inquiry. Time and effort surely went into the writing and editing of the book, but the source material is Bolton’s time in the White House. This leads to the second reason The Room Where it Happened should be in the public domain: the contents should have been public record.

Ten thousand years ago, in January 2020, there was the possibility that John Bolton would testify during the impeachment trial of Donald Trump. This didn’t happen. Had it happened, it is highly likely that a significant amount of the information in The Room Where it Happened would have been made available to the public.

Would this have changed the outcome of the impeachment trial? Probably not. Had he testified, would everything in The Room Where it Happened come out in Bolton’s testimony? Again, probably not. But John Bolton’s words would have been on the record and not behind a paywall.

In the context of John Bolton, this may not seem like a serious issue. Aside from the pirated copies, reviews of the book have already revealed some truly outlandish conduct by the Trump Administration–and the President in particular. But it is worth knowing what happened in his words specifically for the same reason direct testimony is more valuable than an accurate second-hand account.

Direct quotations, even lengthy ones, would qualify as fair use depending on the context, and I don’t think there’s a serious risk of this book falling down the same copyright memory hole that books from the 20th century have. Still, unrestricted access for the American public can only be guaranteed by the public domain.

There is obviously a middle ground between the public domain and our current copyright laws. It is also safe to say that, whatever his motives, John Bolton has done some kind of service by writing The Room Where it Happened. Regardless, it’s cases like these that create the opportunity to critically examine both the economic logic of copyright law and how to balance it with access to information in a democracy.

Posted on Techdirt - 23 March 2020 @ 12:15pm

Do Your Part, Rights Holders: Open The Vaults!

For those who can stay at home, please do. We’ve all been advised to socially distance — the safest thing anyone can do in their individual capacity.

Of course, stir craziness can set in quite easily. (I’m stuck in my apartment with my dog, and while he’s good company he’s not much for conversation.) This is a great time to catch up on all of the books, shows, movies, and video games you’ve been meaning to read, watch, play, etc.

While each of us is doing our part to stay indoors, rights holders can do their part to make these trying times a little less tedious for the home-bound. How? By making their content freely available for streamers and downloaders.

So we’re clear, I’m not talking about independent artists or those who rely on touring income. These folks are most certainly going to take a hit, and would hopefully be covered by any kind of broad-based stimulus that comes from Congress. (This would also be an excellent time to consider Dean Baker’s proposal to give every American a creative works tax credit to donate to an artist of their choosing. To qualify, the artist would have to make their works public domain).

No, I’m talking about the collectors of passive income, those who actually hold the rights to the content: Disney, Netflix, CBS, NBC, Amazon, etc. Rights holders for video games, like Bethesda Studios, Paradox, EA, and Activision could also help. Even if they don’t want to release relatively new titles, this would be a great time to make older games free for all to stream, download, and play. Audible should also give everyone a few free downloads, and a few free months of Kindle Unlimited would go a long way.

Now would also be a great time to release the directors’ cuts or other deleted scenes that never made it to the theater or online. I personally would love to see the older versions of Rogue One or the rumored J.J. Abrams’s cut of The Rise of Skywalker, and I’m sure there are lots of other clips left on the cutting room floor that fans would love to hear.

More controversially, I implore all major rights holders to forgo prosecutions for torrenting, streaming, and other forms of infringement during these times. If illegally streaming keeps someone indoors, then let them stream.

The penalties for copyright infringement are astronomical and disproportionate, and simple peer-to-peer file sharing should be decriminalized in the first place (large torrenting sites and streamers are a separate case). But now is not the time for that — a lot of people need just a little bit of joy, and the owners of infringed copyrights must appreciate this.

This is especially true when it comes to going after YouTubers and other online commentators who must make use of others’ content when producing their own. A great deal of their use is fair to begin with, but dealing with a 512 notice or copystrike is the last thing they need on their minds.

This is a time where everyone must sacrifice both for their own personal safety and the safety of others. Rights holders should pitch in and forgo the benefits of the subsidy that has been given to them to make everyone else’s sacrifice a little more bearable.

Posted on Techdirt - 2 March 2020 @ 01:36pm

I Wish More Countries 'Stole' Our Movies

A significant part of the appeal for copyright maximalism is respect for the artist as a singular, uncompromising force for expressing their values in an otherwise crass, materialistic world. This view is traditionally identified with the artists’ rights attitude featured in the continental tradition, but has gained prominence in the Anglosphere.

It’s grimly ironic, then, when copyright incentivizes artists to subvert their values for those very same crass, materialistic concerns. Recall the case of Charles Dickens, an abolitionist who came to support the Confederacy in the Civil War because of his distaste for copyright-disrespecting Northern publishers.

This pattern repeats itself in contemporary Hollywood, in the form of creative choices influenced by the increasingly Chinese-moviegoer-driven bottom line. “Will it play in Beijing?” is the new “will it play in Peoria?”

Casting a Chinese actor or changing some elements to appeal to the new audience is one thing, and far from unheard of. Changes to cater to the demands of an authoritarian regime are another thing entirely—a form of self-censorship that I believe is unconscionable and fundamentally immoral.

The 2012 Red Dawn remake, where the conquering army was changed to North Korea from China, was an obvious move to not alienate Chinese moviegoers. Trailers for the new Top Gun film sparked controversy when Maverick’s signature jacket dropped the Taiwanese and Japanese flags. The Departed was pulled due to a scene where the Chinese government illicitly purchased military technology from Jack Nicholson’s criminal enterprise. The list goes on.

I wish this weren’t the case. Indeed, I wish that major movie studios and production companies would forgo astronomical returns on their movies, settling for simply sky-high ones, by allowing blatant copying, piracy, and (already extensive) bootlegging in film markets hosted by oppressive regimes.

I want to make something perfectly clear: I am not, repeat not, making an argument for any specific policy change. Rather, I want to make an appeal for rights holders to do their part by not making creative choices with an authoritarian audience in mind.

As much as Hollywood likes to pretend it’s on the right side of history, it has repeatedly demonstrated a willingness to kowtow to the censorial demands of the PRC.  

This dynamic was brilliantly displayed in an episode from South Park’s most recent season:

The episode, called “Band in China,” led the show to be, predictably, banned in China. Parker and Stone released the following statement shortly after the episode aired:

For those of you keeping score, the creators of an animated movie with the most swear words in history, who received an Oscar nomination for best original song in that movie, and showed up to receive their award on LSD wearing dresses, have demonstrated more courage in standing up to an authoritarian regime despite the financial consequences than any other media company in the U.S., if not the world. Let that sink in.

Have I mentioned that I’m not making any policy proposals here? Aside from making copyright law stop at the border, I’m not even sure how one could craft policy to address my specific concerns. Rather, my argument is for corporate social responsibility. It is incumbent on studios making a point with their content to forgo making a buck in order to spread their message.

In cases where production companies have to choose between changing their movies to satisfy the demands of an authoritarian regime and allowing anti-authoritarian ideals to be spread, it is clear that they should choose the latter.

Though showing the American flag on the Moon or the Taiwanese flag on Tom Cruise’s jacket probably won’t be enough to end communist dictatorship, liberal western culture can expose some of the cracks in authoritarian regimes. Smuggled copies of Dallas showed Romanians living under Ceausescu a life without breadlines. Activists risk their lives to smuggle flash drives full of American and South Korean shows and movies into North Korea to undermine the Kim regime. Though (not unfairly) criticized as “propaganda,” some of the most popular early broadcasts into the Soviet Union were of jazz music.

If my advocacy for spreading a message of liberalism and anti-authoritarianism is too bold for you, what about taking a stand for LGBT rights? Call Me By Your Name and Brokeback Mountain are banned in China due to a prohibition on pro-LGBT content.

To use a different example, Disney deliberately removed the lesbian kiss at the end of Star Wars: The Rise of Skywalker in its release in Singapore to avoid a more restrictive rating, as required by Singaporean censorship guidelines. If Disney wanted to take a stand for gay rights and thumb their nose at homophobia, they could have made the uncut version of the movie free for all to see in Singapore.

I’d like to close by referencing the Amazon adaptation of The Man in the High Castle. One of the major premises of the show is (spoiler alert) the ability of characters to travel to other universes and retrieve film reels from them. The most important of these MacGuffins is the film reel that kicks off the series, named “The Grasshopper Lies Heavy”:

The film reel is “real” in that it comes from another universe where the Allies won the war. Other than setting up the sci-fi elements of the show, the relevance to the plot is to show occupied Americans that the Nazis and the Japanese can be beaten.

It turns out that films from faraway places can inspire hope — even when they don’t add to the bottom line back in the home market. That’s a valuable lesson for Hollywood to keep in mind.

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