Last week, the Internet Policy Task Force of the U.S. Department of Commerce released its Green Paper, entitled Copyright Policy, Creativity, and Innovation in the Digital Economy. The Green Paper identifies what the Task Force considers to be the most pressing copyright problems confronting us and makes recommendations regarding solutions to and the further study of those problems. “The Task Force believes that the core principles of U.S. copyright law remain fundamentally sound.” (pdf page 18). Seriously? That statement mimics a statement made by a presidential candidate heading into the general election in 2008, when we all knew that the fundamentals of the economy were far from sound. It seems unlikely that copyright laws that work well for the masses will be adopted unless some of the basic fundamentals underlying U.S. copyright law are re-examined. Those fundamentals are the ones that keep copyright law skewed in favor of major content-owning corporations, such as the notion that copyright laws increase creativity.
Below is a summary of the Task Force’s Green Paper. Although the Task Force attempts to address the major copyright issues created by the digital age, philosophically, the Task Force plants itself firmly in the era of the creation of the U.S. Constitution and refuses to budge. With this attitude, the Task Force aligns itself with the members of the U.S. Supreme Court espousing the original meaning of the Constitution. The members of society who benefit most from the original meaning of the Constitution are white, property-owning males, soon to be a minority. To benefit the rest of us, the Constitution should be construed as a living, breathing document. In copyright theory, we should be willing to move beyond the theories that existed at the time the Constitution was created, just as we have, for example, with First Amendment theory. The Task Force fails to truly examine what’s wrong with copyright by refusing to examine the validity of the underlying theories. Until the Task Force and, more broadly, stakeholders and decision-makers, are willing to do that, we will achieve nothing but cosmetic improvements to copyright law.