Kerry and the Pirates: Part 2


Last week I was wondering what President Kerry's positions on intellectual property would be. This week, Bryan Alexander offers some tentative answers.


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  1. It would appear that Kerry recognizes a property right to “intellectual property,” and actually wants the government to enforce that right when that property is being used by others to make a profit without the owner’s permission.

    So if you don’t believe in the concept of intellectual property, I guess you’re against Kerry. I guess you’re also against the copyright language in the Constitution.

  2. Joe: As it happens, I don’t believe that intellectual “property” is analogous to physical property, but that’s beside the point. There’s a tremendous difference between the copyright and patent systems in place now and the ones in place immediately after the ratification of the Constitution. As anyone who actually follows this issue would know, there’s a ton of people who both like the Constitution’s IP language and hate the system that’s emerged in the last few decades. No one expects a major presidential candidate to be opposed to intellectual property in general, but it would be interesting to know how he feels about copyright term extensions, software patents, the INDUCE Act, etc.

  3. There’s also a tremendous difference between the traditional copyright law that prevailed until twenty or so years ago, and the legislation that’s been passed since. The latter includes much longer terms, and protection of trade secrets against industrial espionage–a matter that before was the responsibility of private business firms to protect.

    BTW, the list of legislation should include the IP provisions of the GATT Uruguay Round. It’s interesting that Paul Bremer once described his purpose in Iraq as introducing democracy and free markets with strong IP protections.

    I’m “against” Kerry, but I’ll probably wind up voting for him anyway if it looks too close in Arkansas.

    And I have no great reverence for the copyright language in the Constitution. After all, it was a Federalist document designed to create a strong national government in the interests of the plutocracy.

  4. Can I copyright my landscaping? I think I should be compensated when my neighbor uses my design elements, the curb appeal of my home’s uniqueness is compromised and the value of my home is therefore lowered.

  5. Jesse, I completely agree that copyright laws are out of control. Stupid Sony Bono Mickey Mouse Racket Act!

    But nothing in the article you linked to touches on those issues at all. Kerry is reported to have come out in support of taking action against Chinese gangs who are making money selling other people’s movies and music. That position is absolutely consistent with the language in the Constitution.

    I, too, am curious about Kerry’s position on the host of issues that have arisen over the past decade, such as how the fair use doctrine applies to uploading music you bought for others to copy, or the extension of copyrights to ridiculous lengths. But this post provides absolutely no insight into those issues – it just tells us that Kerry thinks the government should stop people from making copies of other people’s work and selling them without permission. I don’t think this is the question most people interested in IP issues are asking, and I don’t think any conclusions about Kerry’s views on, say, Napster can be gleaned from his opposition to old-fashioned copyright infringement.

  6. Joe: Did you read the part about the CBDTPA?

  7. Yes, but I many have missed its significance. Since that section was lumped in with Kerry’s support for efforts against the Chinese distributors of copyrighted material, I assumed that the bill endorsed similar actions in regard to digital content. I’m not familiar with the bill; did I assume wrongly?

  8. Thanks for the link.

  9. Practically, all of the most corrupt MPAA/RIAA senators and representatives come from states where there is no real challenge from the opposing party.

    The time and place to settle the hash of Orrin Hatch, Patrick Leahy, et. al. is in the primary elections of their respective parties. There used to be man by the name of Lucien Blackwell in the House of Representatives, from Philadelphia. His wife, Jannie Blackwell, was on the Philadelphia city council. She had her own “torpedo,” and a lot of folks thought that kind of thing was bit much. So they got behind a young certified public accountant named Chakka Fatah in 1994. He won the Democratic primary election against Blackwell, on the grounds of the Blackwells’ general creepiness, and then turned around and demolished the token Republican candidate in the general election, who had never had a chance in the first place.

    So, as applied to Orrin Hatch, you are looking for someone who’s a Mormon, a Republican, etc., and who is willing to go to town on Orrin Hatch’s son, Brent Hatch, for being a “bagman,” and for his connections with SCO and Darl McBride. Novell is a Utah company, and it would be an obvious corporate sponsor for the challenger.

  10. During my OMB fellowship (under the Clinton administration), I was involved with the drafting of the White Paper on Intellectual Property, which focused on IP and the Internet. My impression then was that there was an extreme bias towards strong copyright protections within the Administration, probably a direct result of the strong influence the Hollywood lobby had in those years. Whether that influence is one unique to the Democrats is doubtful (and there are other copyright interests–ask Sen. Hatch about that), but I was quite amazed at how quickly fair use and other important doctrines were brushed aside by then-PTO Commissioner Lehman and others (I breach no confidentiality by saying that–it was pretty well known before I showed up).

    All of that said, this is one issue I think depends more on who is supporting whom than on any platform favoring or disfavoring strong copyright. There’s no doubt that the U.S. has benefited tremendously from having strong copyright protections both domestically and abroad, but I think there’s plenty of reason to believe things have gone too far, particularly in regards to pretty much all of the legislation enacted since Disney got its copyright duration extension (nominally passed to get us to conform with Bern).

    So, to get back to the topic at hand, I imagine that Kerry’s position on copyright will depend almost exclusively on how much help he gets from the copyright interests (assuming he wins, of course). However, it’s safe to say that he won’t be picking up the flag and rushing the hill to roll back copyright protections. After all, what constituency–that he or any other politician cares about, that is–is asking for that? Maybe some librarians, but I don’t see them as a power block. It’s too bad things are this way, but IP is hardly the only example.

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