Tuesday, March 3, 2015

Invoking IP: A Copyright Call to Arms

Gaymers, let's talk international trade negotiations.  How many of you talk about that on a regular basis?  Maybe a good number of you--international trade is kind of awesome!  But, you know what isn't awesome?  Using international trade agreements to distort competition.  Companies love to talk about how they want to advocate for "level playing fields" so that they can "compete honestly" in the marketplace.  And they do!  But, you know what they love even more?  Uneven playing fields that are tilted towards their own benefit.

The United States has one of the longest copyright periods in the world.  We allow copyrights for the lifetime of an author PLUS 70 YEARS!  (17 U.S.C. § 302)  That was long enough that Justice Stevens tried to strike down a copyright law once because the US Constitution only allows Congress to "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  He believed that made for an unlimited copyright, which violates the terms of Congress' authority to give copyrights for a "limited time."  (Eldred v. Ashcroft, 537 US 186, 222 (2003)).  Justice Stevens said that, "the requirement that those exclusive grants be for "limited Times" serves the ultimate purpose of promoting the "Progress of Science and useful Arts" by guaranteeing that those innovations will enter the public domain as soon as the period of exclusivity expires."  (Id. at 223)  J.P.S. (Ruth Ginsburg can't be the only one with a short name) couldn't get 4 other Justices to go along with him, so we are stuck with the system we have today.

But there are groups out there that are trying to make our copyright laws ever more consumer and innovator unfriendly than they already are!

These groups aren't trying to change US law.  That would be too obvious.  Rather, they are trying to insert these copyright provisions into talks related to the Trans-Pacific Partnership.  It is, unfortunately, not an international cabal of drag queens from the Ring of Fire.  The TPP is a proposed trade pact between countries that border the Pacific Ocean (note to East coasters like myself: we do, in fact, have Pacific borders in the US).

A big part of trade law are provisions that state that countries can't treat their own internal markets more favorably than the markets allowed for international goods.  "So what?" you ask.  "The US Constitution is the Supreme law of the land and it mandates that we don't give greater consideration to any other laws than our federal laws.  What gives?"  Well, what gives is that these trade agreements would export the current US copyright term (life of the author PLUS SEVENTY YEARS) to all other countries.  Worse, it would also impose the most stringent possible interpretation on those terms.  The letter of US law wouldn't change, but the jurisprudence would...and to your detriment.

Our friends over that the Electronic Frontier Foundation have more and helpful links that you can use to tweet out to Members of Congress to stop this.  Avoid the ones in the US House--they're powerless in the minority.  But, Sen. Wyden (D-OR) is a good target.  To quote Jon Oliver about net neutrality, "Fly monkeys!  Fly!"