Wednesday, November 28, 2012


This article originally appeared in the 11.29.12 issue of Metroland.


            Well, it happened again.  Facebook blew up on Monday with a cut-and-paste declaration of “rights” that went seriously viral.  It was very similar to something that flew around earlier this year; it boldly proclaimed something about privacy and copyrights, cited the “Bernsey” treaty, and the U.C.C. (Uniform Commercial Code) and the fact that Facebook was now a publically traded company.  These things supposedly combined to empower the poster to tell the world (and Facebook in particular) that the poster’s personal information was not to be ever, ever used for anything ever by anybody ever.  Or something.

            It amazed me how many people of intellect and sophistication fell for this and reposted it.  Because it was all gibberish.  Mumbo-jumbo. Claptrap.  Balderdash.  Hokum!  When you sign up for Facebook, you agree to be bound by its terms of service (which neither you nor I have never read and probably never will). It’s what we lawyers like to call a contract.  Maybe you’ve heard of them.  Between you, party of the first part, and Facebook, party of the second part.  Period!  There is no “Bernsey” treaty.  There is something called the Berne Convention, which is an international copyright treaty that has absolutely nothing to do with your relationship with Facebook.  And neither does the U.C.C. or the fact that Facebook is a publically traded company.  Corporations are people, my friend.

            Moving on.  Lately, I’ve been doing a lot of public speaking on copyright issues, and have been putting more and more emphasis on how ill-suited the copyright laws are to how people actually live today.  File trading, mash-ups, Pinterest, social media, etc. have turned every one of us into criminals, and a bunch of massive corporations have locked up most of our culture more or less perpetually.  I’ve been pondering how this is going to play out.  Is this legal war that’s been raging for the last ten years ever going to end?  Is anyone gonna actually benefit from the copyright laws other than the shareholders of Viacom, Disney, etc. and the lawyers who work for and against them?

            The key, of course, would be to overhaul the law.  But the Obama administration, sadly, toes the line for Big Media, as do most of the Democrats in Congress.  And the Republicans, well, has there ever been a more clueless and despicable bunch of morons gathered in one place in all of human history?

            Then, a week or so ago, a bomb dropped. On33 Friday, November 16, the Republican Study Committee (RSC), the policy arm of the House Republicans, posted a policy brief entitled Three Myths about Copyright Law and Where to Start to Fix it.  In 8 crisp pages, the paper made the following points:
1) The purpose of copyright is not to reward creators and protect certain industries, but to benefit society;
2) Copyright law creates government enforced monopolies and is therefore the antithesis of free-market capitalism; and
3) Copyright law as currently enforced is a form of corporate welfare that stifles competition and innovation.

            Whoa is right. The paper then brilliantly describes how copyright law stands in the way of a robust DJ / Remix industry (!!!) and other business that would provide “added value” to creative works, how copyright hampers scientific inquiry, inhibits the growth of public libraries, and penalizes legitimate journalism and public inquiry.  The proposed solutions?  Bring statutory damages (which can be as high as $150,000 per infringement) back down to earth, expand fair use, punish bogus infringement claims, and drastically restrict what copyright covers by limiting protection only to works that are formally registered with the Copyright Office and by shrinking the term of copyright to 12 years, with renewals pegged to paying a percentage of the revenue generated by the copyrighted work (presently, copyright arises automatically upon a work’s creation, and lasts for 70 years after the creator’s death).

            I think every copyright lawyer in the country fell out of his or her chair en masse.  Those of us who are so-called “copyleftists” were happily shocked and more than a little confused.  This came from the House Republicans?  Those anti-women, anti-science, anti-minority douchebags?  Here all along we thought we were indeed copyleftists and now we learn that we’re tea partiers?  OMFG!

            Then, on Saturday, the policy brief vanished from the RSC’s webpage, and a few hours later a note appeared that the brief had been withdrawn because it had not been “properly vetted.”   Yeah right.  It was posted by mistake.  Oopsie!

            We all know what happened.  Big Media landed on the RSC like a ton of bricks.  Groups like the RIAA and MPAA, which contribute huge sums of money to House members of both parties, went batshit crazy and got the most incisive and sane IP government policy statement of our lifetime yanked.

            That’s OK.  Because the conversation none of us thought would ever occur has begun.

Paul Rapp is a local IP attorney who’s posted the phantom RSC policy brief on his blog



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