I have been told to blog about Senator Josh Hawley’s new copyright bill, and I do this with nothing but the greatest reluctance. Normally, I love talking about copyright! I’ll talk about copyright all day long! [Ed note: And she does.] But writing this post is agony, because the thought of giving this absolutely asinine piece of legislation any attention is killing me on the inside.
This is a deeply unserious bill. There is not a line in it that is meant to pass muster. It is knowingly in violation of the Constitution, and an insult to the democratic process.
In brief, the bill is targeted at the Walt Disney Company, also known as,
a person that (i) has a market capitalization of more than $150,000,000,000; and (ii)(I) is classified under North American Industry Classification System code 5121 or 71; or (II) engages in substantial activities for which a code described in subclause (I) could be assigned.
The bill would set copyright terms to 28 years (plus a potential renewal of another 28 years) for all works going forward. Except, that is, for the copyrights owned by the Walt Disney Company (aka the person in the room with a market capitalization of more than $150 billion). The 28-year term would apply retroactively to Disney, stripping it of intellectual property assets going back to Steamboat Willie.
The 28-year copyright term is a throwback to the Copyright Act of 1909. The requirement for an application for an extension is, similarly, an outdated legal formality that was abandoned by the Copyright Act of 1976, barred from future law when the United States signed onto the international copyright treaty known as the Berne Convention in 1988, and further precluded by a succession of trade agreements (for example, NAFTA in 1994, KORUS in 2007). A reduction of copyright terms to 28 years is also barred by international law.
Hawley is cribbing his copyright policy from 1909
In other words, Hawley’s bill is a joke. I say this as someone who thinks copyright law is too restrictive, that copyright terms are too long, that the last extension of copyright terms should have never been allowed in 1998, and that Disney’s activism toward that end is reprehensible. But nothing about this bill is intended to provoke thoughtful discussion, let alone pass Congress.
Would I like to see copyright terms reduced? Absolutely! Would I like to see our representatives challenge mega-corporations? Of course! Would I appreciate legislators taking big swings to push the Overton window on tech policy? Hell yes!
But Hawley is cribbing his copyright policy from 1909. What, does he want us to go back to shitting in buckets, too?
This is not a radical rethinking of copyright. It is regression as a meme, a fart in the wind, an empty and cynical gesture meant for a future fundraising email. All because Disney is the latest punching bag for a Republican party whose rabid homophobia would not look out of place in 1909.
Legislators have long pushed bills that they knew weren’t going to go anywhere, but the level of effort involved has plummeted. Hawley isn’t even trying, because he simply does not care. And that’s all you need to know about his copyright bill.