Business Matters: SOPA Delayed, Not Dead, After House Judiciary Committee Session Ends
Business Matters: SOPA Delayed, Not Dead, After House Judiciary Committee Session Ends

On Friday, the Republican Study Committee, a caucus of conservative Republicans, posted a brief that suggests a radical reset on copyright law -- one that appears to embrace the concepts of income redistribution and a progressive tax rate on all creators who seek to extend their copyrights. Moreover, it makes the argument by concluding that the changes suggested by the brief would "restore a constitutional copyright system" -- with the implication being that current copyright law is unconstitutional.

However, the brief was withdrawn the following day, with RSC executive director Paul S. Teller saying in an email obtained by that it had been "published without adequate review within the RSC and failed to meet that standard." The news was first reported in Techdirt.

The quick removal of the brief -- which proposes to truncate term of copyright from its current life of author plus 70 years to 46 in total, and also builds in economic penalties to discourage copyright renewal for the complete 46 years -- has led some to speculate that the real reason for its withdrawal was pressure from film and music-industry lobbyists. A Washington source told that the brief had in fact been officially approved before it was posted.

RSC Communications director Brian Straessle said, "On issues where there are several different perspectives among our members, our Policy Briefs should reflect that. This Policy Brief presented one view among conservatives on U.S. copyright law. Due to an oversight in our review process, it did not account for the full range of perspectives among our members. It was removed from the website to address that concern."

He added, "I know some want to point fingers elsewhere, but the simple fact is that we screwed up, we admitted it, and we hope people will now use this opportunity to engage in polite and serious discussion of copyright law."

A representative for the RIAA told that the organization hadn't asked for the brief to be removed from the RSC website, but it appreciates that the RSC clarified that the policy brief did not meet the organization's own review standards.

"Appropriately, it appears the author is now distributing the work personally so that those who are interested may still have access to it, and that it is no longer erroneously being represented as an RSC view," RIAA senior VP Mitch Glazier said in a statement. "Debate is important. So is appropriate attribution of views. We appreciate that there are many thoughtful perspectives on ensuring that the copyright laws adequately protect creativity and culture while fostering innovation, and we look forward to an ongoing dynamic dialogue about these vital issue…we urge all those with views to similarly join in a healthy discussion that will benefit industry and the public."

The brief, which was written by RSC Congressional staffer Derek S. Khanna, argues that the Constitution did not create copyright law to benefit creators but rather "to promote the progress of science and useful arts." In Khanna's interpretation, the constitution meant to say that copyright law's "purpose is to lead to maximum productivity and innovation."

According to the brief, this is a major distinction because most legislative discussions on copyright law are premised upon what the content creators deserve or are entitled by the virtue of their creation, but Khanna argues that is an "inappropriate" interpretation.

Consequently, the brief proposes limiting copyright from its current term of the life of the creator plus 70 years, to 46 years, broken up into five terms with a progressive disincentive tax to discourage the renewal of copyright.

After the first 12 years of copyright for a work, the creator or their estate representative could renew for another 12-year term but would have to give up 1% of revenue collected within the first term. When that second 12-year term expires, it would cost 3% of revenue collected during the second period to get a further six-year renewal and at the expiration of that time period, another six-year renewal would cost 5% of the previous six years. At the end of 36 years, the copyright would be eligible for one last 10 year-term, but it would cost 10% of all overall revenue during the 36 year-period -- or 10% of all the tax renewal fees paid during the 36 year period. (The paper is unclear on the final fee.)

It appears that by creating a disincentive penalty for copyright renewal, the author has created a mechanism to discourage owners from re-filing for copyright renewal extensions by hitting them with a progressively higher tax for each period: The more lucrative a copyright is, the larger the refiling disincentive penalty.

In addition to questioning whether current copyright law is constitutional, the brief also argues that copyright law creates a government subsidized content-monopoly with unjustly enforced massive damages up to $150,00 for each "willful" copyright violations. The author further argues that content creators enjoy excessive copyright protection that stifles innovation and hurts the consumer.

For example, the brief argues that because current U.S. copyright is so strong it is retarding the robust culture of DJs and remixing.

The brief concludes by claiming that the current copyright system picks winners and losers -- and the losers are new industries that could generate new wealth and added value. In other words, if copyright terms are cut in half, once the content creators can no longer generate income from their creation, it will lead to the creation of new industries that will be able to generate new wealth from those copyrights and add value.