Publishing Lobbyists Suck Up To Trump With Lies About Copyright, Ask Him To Kill DMCA Safe Harbors

from the because-of-course dept

With the Donald Trump administration fully taking shape, lobbyists for basically every industry (yes, including tech and internet companies) are groveling before the President with whatever their pet projects are. The latest to put together a letter is the Association of American Publishers, via its top lobbyist Allan Adler. You may recall Adler from a few years ago, in which he explained why his organization opposed a copyright treaty for the blind, noting that his members were upset about the idea of ever including user rights in international treaties, and only wanted to see international agreements that focused on stronger copyright protections. So, you get a sense of where he's coming from.

The letter to Trump is pretty much what you'd expect from a lobbyist for a bunch of legacy publishers wedded to an outdated business model, but there were a few things I wanted to call out. First, Adler and the AAP blatantly misrepresent the Constitutional copyright clause to pretend it says something quite different than it really says or mean.

In the U.S., publishers continue investing in innovative technologies and business models to support the creation and dissemination of works of original expression, by novice as well as celebrated authors. Their ability to get those works into the marketplace, without interference from government and with the key assets of their exclusive rights in such works acknowledged as legally-safeguarded intellectual property, is protected by the First Amendment’s guarantee of freedom of speech and the Constitution’s clear recognition that “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” will “Promote the Progress of Science and useful Arts.” (Article 1, Section 8, Clause 8)

First of all, it's a neat trick to claim that copyright is "without interference from government." The entire setup of a copyright system is a government interference with the free market. Now, you can argue that that interference is necessary to prevent free-riding, but to state that copyright is somehow a free market concept is just wrong.

But, more importantly, notice the Constitutional explanation, which blatantly misrepresents the actual Constitution. The trick is played by the insertion of the single word "will" between "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" and "Promote the Progress of Science and useful Arts." Nowhere in the Constitution does it say that such protections will promote the progress. Instead, it gives the power to Congress (not the President, I should note), to set up such monopolies if it is determined by Congress to promote the progress. To flip that is dishonest. It falsely suggests that any exclusive rights to authors and inventors automatically promotes the progress of science and the useful arts. And yet, we have 200+ years of examples of how that's not true -- including more than a few cases in which Mr. Adler's members have proactively blocked and harmed the progress of science through abuse of monopoly powers.

To pretend that the Constitutional clause on copyrights and patents means that any and all monopolies are good is ridiculous and misleading.

Next up, Adler falsely compares copyright to trademark... and (of course) tries to flatter Trump in the process:

Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand.

Whether operating on a commercial or non-profit basis, publishers’ reliance on their ability to secure adequate copyright protection and effective copyright enforcement, under both federal law and a variety of international agreements, is as critical to their success as the maintenance of trademark protection has been for your business endeavors. It is essential to their ability to publish in the U.S., where readers of all ages, origins and interests can relish discovering and digesting works that entertain or inform them while enriching the cultural, historical, political, and scientific record of American society.

Except, of course, that trademark and copyright are two totally different legal doctrines, and have only been merged into the mythical "intellectual property" bucket by lawyers trying to increase their billing rates. Copyright, as noted above, comes from a specific clause in the Constitution and is about promoting progress. Trademark comes from commercial codes and was, initially, a form of consumer protection against allowing one company to appropriate the brand of another for the purpose of confusing consumers. That's a very different ancestry and purpose of the law, and lumping them together is silly. The way both work is different. The way they're enforced is different. And their purpose is different.

Finally, Adler and the publishers join with the RIAA and others in asking Trump to dismantle key protections built into copyright law that have enabled the internet to grow and to thrive. Because the publishers don't seem to like competition very much.

Provisions of the Digital Millennium Copyright Act (“DMCA”), which Congress enacted in 1998 to encourage online availability of popular copyrighted works while promoting a balance of interests and cooperation between copyright owners and Internet service providers in dealing with online infringement of such works, wildly succeeded in encouraging such availability. However, the relevant DMCA provisions do not achieve that intended balance and cooperation due to numerous instances of judicial misapplication and the unanticipated appearance of service provider business models that foster, exploit and profit from online infringement by their users while offering only token compliance with the law.

The current epidemic of online infringement harms public as well as private interests in the availability of such works, and the legal flaws that hamper the DMCA in its intended operation need to be fixed by our nation’s elected representatives.

Citation needed. The "epidemic" of online infringement is not as big as they're making it out to be, and this is from an industry that has regularly charged insane monopoly rents on things like textbooks and scientific journals. In fact, for them to be complaining about "judicial misapplication" when their industry has massively benefited from a ridiculous ruling that claimed that copy shops were violating copyright law -- which allowed course packs at universities to jump in price from around $30 to around $200 -- is simply crazy.

Yes, every industry is going to advocate for their own interests, but this constant lying and misrepresentation about copyright law to the incoming administration is getting pretty ridiculous. We truly have reached a post-fact society, and the lobbyists are going to exploit that as much as possible. It's only that much more ridiculous that it's coming from a representative of an industry that claims to be promoting knowledge and learning.

Filed Under: allan adler, constitution, copyright, dmca safe harbors, donald trump, publishers
Companies: association of american publishers