The recent Republican gaffe on “copyright-reform” demonstrates the conflict between ideology and politics. Ideologically, Republicans should oppose the current copyright regime as anti-capitalistic rent-seeking behavior. Politically, though, rent-seekers donate money, and 99% of voters don’t care or understand.
Savvy politicians saw an opportunity to exploit the anti-SOPA blackout protest. By delaying and modifying SOPA, politicians could both appease protesters while also maintaining donations from copyright holders.
An example of this is Republican Congressman Darrell Issa’s “Digital Citizen Bill of Rights”. It appears to give the protesters everything they ask for. But it doesn’t. It is an Orwellian list, similar to the one described in Animal Farm (“everyone is created equal, but some are more equal than others”).
Item #1 on the Issa list is that we have a right to an uncensored Internet, the top concern of protesters. But, like existing rights, that only stops laws whose primary purpose is censorship. The problem with SOPA is that censorship is a secondary side effect, an unintended consequence. The Supreme Court has ruled that such secondary effects can be permissible, which is why First Amendment protections don’t already stop bad faith DMCA takedowns. Thus, Issa appeases protesters with something that is toothless to prevent censorship.
Item #10 on the Issa list says that we have a right to profit from our creations and to have our intellectual property protection. But of course, some (like Disney) are more equal in this regard than others. The purpose of this “right” is to justify future SOPA-like anti-piracy legislation. Issa put this at the end, as if it were the least important item, hoping that protesters wouldn’t notice and agree to it. This strategy worked: these “rights” received widespread support by protesters.
But Issa’s item #10 is unconstitutional. That was the purpose of this withdrawn position-paper, to make clear that we don’t have a right to profit from our creations, or have our intellectual property protected. Specifically, the “Copyright Clause” grants authors protection for a “limited time” only so far as it “promotes the progress of science and useful arts”.
What’s ironic about this is that Darrell Issa has been one of the Republicans grandstanding claiming to adhere strictly to the Constitution. The Republicans first order of business after retaking control of the House of Representatives in January of 2011 was to read the Constitution in its entirety. The implication was that Democrats had been passing unconstitutional laws, namely Obamacare that abused the “Commerce Clause” for the “individual mandate”. Yet, Issa is willing to abuse the “Copyright Clause” to justify improper anti-piracy legislation. (I’ve attached a photo of Issa – he keeps referring to the constitution, but I don’t think it says what he thinks it says).The withdrawn position paper used the DJ/mix scene to support its point. Many commentators on Twitter were amused by this, assuming it was some sort of political ploy to attract the youth vote. The opposite is true. It was pure ideology. The paper had to show evidence that the current copyright regime is hindering the progress of the arts, and hence, in violation of the Copyright Clause. Since cultural progress comes from the youth, any example they’d cite would be some new things kids were in to.
This position-paper has created a dilemma for the Republicans. It’s written so clearly, in their own language, that Republicans cannot deny the truth of it. Ideologically, it’s clear that Republicans should support copyright reform and oppose SOPA-like anti-piracy laws. Yet politically, it puts them in a bad position, because on the whole, voters neither understand this nor really care about this. Taking this political stance will only lose them the financial support of copyright holders.
What we (the anti-SOPA crowd) need to do is hold the Republicans feet to the fire. Force them to confront this position paper at every turn. We need to keep asking them the difficult questions, such as “the paper made it clear that today’s copyright harms the progress of the arts, so why don’t you support copyright reform?”. Every time a Republican waves a Constitution over abuse of the Commerce Clause, we need to point out the Copyright Clause. When Republicans criticize labor unions for rent-seeking behavior, we need to point out rent-seeking copyright holders like Disney.
Lastly, as a Republican, I’d like to point out that this is why we lost the last election. Romney was the crassest candidate in recent memory saying anything to get elected. Yes, he did a great job speaking to my ideological concerns, describing the evils of regulation. But then he’d turn around and do just as great a job speaking to Democrats how regulation was a good thing. We need to stop this crassness and actually stand up for what we believe in. We believe in copyright reform. Let’s actually do it.
This is why Microsoft is panicing with the iPad-focused Windows 8 and it's Surface pad. While these moves seem radical, they are in fact not radical enough. Microsoft's monopolistic control over the pixels in front of your eyes is at an end. It's now Apple and Android who are in control of the future. Microsoft has no hope of dominating the future of mobile devices like they did with the desktop. Their best hope is to be among the top three, and there is a good chance they won't even reach that.
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