During a lovely, delicious, and relaxing Thanksgiving weekend, I’ve been fortunate to spend a good chunk of my time doing my favorite kind of recreational reading. In the last two days, I’ve spent probably 8 hours just reading blogs, and I couldn’t be happier.
The Case of the Vanishing Policy Memo was an unexpectedly thrilling read.
The topic, a policy memo on copyright law, hardly screams scandal or glamour, but Slate’s Matthew Yglesias expertly weaves the politics of the story in with the legalese of the memo itself. He tells the story of Republicans who almost made the mistake of standing with capitalistic principles over competition-crushing special interests, but then quickly righted their course, completely unaware they’d embarrassed themselves.
In a nutshell, a young staffer in the Republican Study Committee, Derek Khanna, released a policy memo detailing the modern state of copyright law, identifying major flaws and the myths that sustain them, and calling for reform.
Khanna’s three myths are, in order, that “the purpose of copyright is to compensate the creator of content,” that “copyright is free market capitalism at work,” and that “the current copyright legal regime leads to the greatest innovation and productivity.”
The first two myths are handily debunked by the text of American copyright law (which focuses on fostering innovation and says nothing about compensation) and actual free-market capitalism (which is at odds with the idea of government-sponsored monopolies) respectively. For more on the second myth, check out Stephan Kinsella’s “Against Intellectual Property,” the full text of which is appropriately available for free online.
Yglesias does a terrific job of fleshing out Khanna’s debunking of the final myth, pointing out the great obstacle posed to commercialized creativity by copyright law, which flies right in the face of its textual justification.
So we’ve got this good-looking staffer, this good-looking memo, and the RSC looks at it and says “Looks good!” and releases it on fancy letterhead with the names of Rep. Jim Jordan and RSC Executive Director, Paul Teller.
Proponents of liberalizing copyright reform read it and say, “Looks great! I can’t believe Republicans wrote it!” Apparently, neither could some Republicans. The memo was withdrawn in 48 hours, citing the need for further review.
Yglesias provides a diplomatic description of the political gamesmanship likely at work:
“Khanna’s supervisors seem to have paid too much attention to the merits of the memo and not enough to the larger politics when vetting it.”
The way I see it, a Republican didn’t write this memo, a capitalist did. And as much as Republicans like the idea of being capitalists, they actually have some very divergent views when it comes to competition in, among other things, the creative market. Capitalists, i.e. the principled guys, believe there should be competition, and Republicans, i.e. the political guys, believe that their wealthy, generous, buddies should be able to make markets as anti-competitive as they’d like.
Apparently, enough Republicans forgot which principles they sold that this memo made it through, despite the threat it posed to their financially significant friends at the Motion Picture Association of America and the Recording Industry Association of America.
In the digital age, financial giants like the MPAA and RIAA sustain themselves by expanding copyright law and branding technological developments as new and creative forms of theft. Essentially, they have resorted to fortifying a house of cards by lobbying to make wind illegal. When they saw the memo that called the foundation of their home into question, they were furious. It took some angry phone calls from these guys funding the show to remind Republicans what kind of ‘free-market capitalism’ they had agreed to.
Rep. Jordan and Teller released this memo advocating for competition, not realizing it actually threatened big business, demonstrating they either don’t understand their principles, or don’t have them at all. If they understood either free-market competition or the anti-competitive legal structure that was already in place, they would have understood they couldn’t support competition and preserve strategic alliances. If they aren’t embarrassed, they should be.
My only hope is that the major players in this situation realize not only the political but also the philosophical blunder this represents. Strategists of all stripes are talking about the need for Republicans to do some serious soul searching, but mostly in reference to social issues and the need to re-build declining support in key populations of the former Republican coalition (e.g. Hispanic-Americans, college-educated women, married women).
Republicans could re-recruit these individuals as consumers and entrepreneurs committed to competition and prosperity, particularly online. This simply requires Republicans to stand with the capitalistic principles they’ve always claimed. This allows them to avoid polarizing wedge issues while making the case for markets that serve both businesses and consumers. The trick? They’ll have to accept the wrong-headed logic of past legislation adopted with special interests and not free markets in mind, and this applies in all economic sectors, not just to copyright law. That means un-stacking the corporate decks, removing the loopholes we watched them put up their sleeves, and leveling the playing field.
The Republican Party’s friends in the corporate world might not like seeing their unfair advantage disappear, but capitalists have an obligation to their markets, and Republicans have an obligation to their constituents to champion these reforms aggressively, not retract them meekly.