For a brief moment last week, a House Republican group that serves as an idea shop for the party was on record proposing a remarkably far-reaching reform of American copyright law. The memo (PDF), written by a young staffer named Derek Khanna, was released Friday afternoon by the Republican Study Committee and noticed by The American Conservative’s Jordan Bloom.
Khanna’s memo begins by laying out the original constitutional purpose of copyright protection and how the current legal landscape has strayed from it. It then proceeds to challenge several widely-held beliefs about copyright law, including the claims that it promotes the greatest possible levels of productivity and innovation and that it represents free market ideals at work:
[A]ccording to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.
This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights. […]
Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.
But by Saturday afternoon the RSC had pulled the memo, citing an inadequate review process and apologizing for the “oversight.” By then the memo had been saved by other sites and widely praised by the tech and libertarian-leaning quadrants of the blogosphere, many of whom saw the proposal as an opportunity for the GOP to energize young and internet-savvy voters while going after one of the Democrats’ biggest allies and fundraisers. Republicans, for example, were much quicker to abandon SOPA last year when protests against the law kicked into full gear.
The memo lists several specific examples of the damage done by copyright law: Stifling the DJ and remix markets in the United States, making the creation of public libraries — and in particular Project Gutenberg — more difficult, and penalizing legitimate investigative journalism. It concludes with suggestions for reform such as significantly shortening the length of copyright claims, expanding “fair use” doctrine, and reforming statutory damages. (Those damages can currently rise as high $150,000 per infringement.)
The email announcing the removal came from RSC executive director Paul Teller, who said the memo “was published without adequate review within the RSC.” Another spokesman for the RSC, Brian Straessle, echoed that explanation.
“I wrote this memo intending to start a much broader conversation, so I am the first to admit that it is a work in progress,” Khanna himself told a Reddit thread. “No one requested it. I just thought it was a good idea.”
However, a source “with knowledge of the RSC’s operations” told Tim Lee at Ars Technia that content industry lobbyists had brought pressure to bear on the RSC’s leadership to disavow the memo. The source also suggested the memo had gone through an internal review process:
“The RSC issues a lot of memos,” a source with knowledge of the RSC’s operations told Ars. “They’re a small shop” with a lot of issues on their plate. Our source didn’t think the memo reflected a sea change in the views of Republican members of Congress. But he said the fact Khanna was able to get his memo through the RSC’s vetting process suggested there was sympathy for his views at least within the RSC staff.
A lobbyist for the Recording Industry Association of America denied, in standard diplomatic fashion, that anyone in the industry had leaned on the RSC over the matter.