Patry, Lessig & The Legislative Process

CommuniK Commentary by K. Matthew Dames

“Concern for those who elected you is representative democracy, not corruption; moreover, as noted above, in the case of copyright, until just this year, the copyright committees have been chaired by individuals who had no constituent interests and therefore tried to make policy as they saw fit. That we disagree with their view of policy doesn’t make their view corrupt. The Copyright Office, for example, has testified in favor of term extension and the other bills people find objectionable, and it is immune from the sort of “corruption” at issue. Tarring those who don’t see things the way we do as ‘corrupt’ is incorrect and a poor way to convince them to see things the way we would like.

“At the same time, campaign finance reform has long been a pressing need, and if Professor Lessig can provide constructive assistance in that effort, we will all be grateful.”

The Patry Copyright Blog. Copyright, Corruption and “Corruption.” June 21, 2007.

Of all the people out there that call themselves copyright experts, there are several reasons why we think Bill Patry is one of the few that deserves that title and stands at the top of the heap. One of the most important reasons, in our view, is his ability to see and explain copyright clearly through several different perspectives.

Despite its beginning, Patry’s post is not about Lawrence Lessig’s decision to “retire” from copyright advocacy. It is about the legislative process, specifically as that process applies (or is applied) to copyright laws and regulations. Patry challenges Lessig’s suggestion that “corruption” was at the root of Congress’ decision to pass the Copyright Term Extension Act (.pdf) in 1998, and in doing so summarizes four decades of Congressional committee history to support his ultimate contention: elected officials serve the interests of their constituents, and except in rare instances, corruption (or “corruption”) has nothing to do with their political positions.

We have seen parts of the copyright legislative process as it applies to libraries and often have lamented how often libraries and library patrons get shortchanged. We’ve often thought (and have written in this space) that “corruption,” as defined by Lessig, may have been part of the reason library representative organizations (LROs) have not received all they have wanted.

But we also have thought (and have written in this space) that LROs have not been as effective in playing the political game as they could be. Returning to the term extension issue, we opined in our Lessig piece last week that the term extension issue lacked a clear focus on ultimate harm to a wide range of people. LROs spent much time and money doing all the official things that needed to be done: including lobbying Congressmen, writing amici briefs, and distributing alerts to their membership.

Still, LROs — as did Lessig — failed to engage the regular Joe and Jane Doe on the term extension issue in a way that would have fueled the public outrage necessary for elected officials and federal judges to look beyond the law and consider public policy. That has nothing to do with corruption (or “corruption”), but is simply a decision to execute a strategy that ultimately did not bring the desired result.

And who’s to say that what LROs want is good for libraries or is good public policy? Further, many could reasonably argue that Section 108 is proof positive that libraries have not gotten shortchanged in the legislative process.

This leads us to a conclusion that Patry’s post suggests: instead of complaining about being the victims of “corruption,” maybe parties involved in lobbying for a balanced copyright law would be more effective in their legislative and judicial interventions if they become more effective advocates for the public at large, instead of for the institutions they represent. In particular, LROs have been staunch advocates for open access to information. Restrictive copyright inhibits open access to information, which affects the public in a variety of ways. But are libraries and librarians making this clear to the public in a way people can understand?

For example, how could have LROs better engaged the public to demonstrate that term extension is not some issue reserved for nine judges and two advocates who choose to argue legal and constitutional abstractions on October 9, 2002, but instead an issue that may keep a 10-year-old girl in Iowa from creating the next great animated character because a large corporation wants to shackle culture to stuff its wallets?

In other words, how can LROs and others concerned with balanced copyright make it plain? As much as we rant in this space about the “piracy” frame, we concede it is brilliant and effective because it is plain. Those concerned with balanced copyright must find a way to make their issues as plain to the public and Congress as copyright holders have made “piracy” plain to the public and Congress.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Written by sesomedia

06/25/2007 at 09:00

Posted in Uncategorized

%d bloggers like this: