[The article first appeared in the American Thinker.]
In the midst of everything else that is going on in Washington, the House Judiciary Committee has begun its overhaul of the nation's copyright laws.
If Congress can undo the damage done in 1998 with the Copyright Term Extension Act, it will synch up our copyright regime with its constitutional intent and set up our economy for a next stage booster.
The opening move towards reform on Capitol Hill came in November when a young staffer for the Republican Study Committee, the 170-member conservative caucus that forms the majority of the majority in the House, circulated a policy memo calling for a return to more limited copyrights.
The aide, Derek Khanna, was not fired as is still reported, but the memo was withdrawn and he was not asked to stay on for the current congressional session. This does not mean he was deterred -- after the memo was withdrawn, he led the fight to decriminalize unlocking your cellphone
Khanna, now a Yale Law School fellow, said he is encouraged by both the House Judiciary Committee opening the door for reform and statements by the Registrar of Copyrights Marybeth Peters supporting reform.
The key concern for Khanna is that copyrights return to what the Framers intended.
In Article 1, Section 8, subsection 8 of the Constitution, the Framers empowered Congress: "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The idea is simple. Exclusivity creates incentive for artist to innovate, and move society forward, but in America there would not be feudal rights held in perpetuum as there still exists today in Europe.
Intellectual property is why America's economy survives and thrives after the steel mills left Pittsburgh and the sweatshops left Manhattan. The money is in the design, not the fabrication.
We do not have a service economy. We have an IP economy.
Two books side-by-side cost relatively the same to produce in ink, paper, and labor. But if one book is Gone with the Wind and the other is A New Look at Nova Scotia Chalkboards and Chalk. You can see that how an author configured all that ink into words and narrative makes all the difference.
Now forget the cost of paper and ink and consider what happens to prices and profits when the book, or movie or magazine or song, goes digital and the electrons are virtually free.
Now consider how easy it is to pirate creative works.
The day before I left Kuwait for duty in Iraq, I came very close to buying the complete set of "The Sopranos" for $350 at the Army store. I am glad I waited. Two days later at Camp Liberty, I bought the same set for $7 from a local merchant. Not bad. In addition to shows and music, the merchant was selling Adobe Creative Suite 4 for $3.
My generous take on my own crime is that if the set cost $100, I would have bought on the spot -- even if I knew a $7 version was waiting for me on a shelf. I want to be a legal consumer. But I will not get rooked.
Eventually all works pass into the public domain, where like Shakespeare, Mozart, and Walt Whitman, they belong to the collective. As works approach the public domain, copyright holders have the incentive to charge a fair price while they can.
Another quirk of our copyright laws is how royalties for recorded performances are paid and not paid on the radio. Platforms providing the exact same service pay exponentially different rates.
This disparity is the work of the Copyright Royalty Board, the three-man panel appointed by the Librarian of Congress (apparently for life) James H. Billington.
The most glaring example of our broken copyright regime is the CRB's ruling that Internet radio stations, or what it calls non-interactive transmitters, such as Slacker Radio and Pandora, pay 50 percent of their sales in performance royalties.
Khanna asserts that the process is a form of state-directed industrial policy. "The process for defining rates for Pandora is arbitrary and seems to deliberately subsidize older technology versus new competitors," he said. "It makes little sense for satellite radio to pay one rate while new, and likely more efficient, market participants have to pay significantly more money in royalties... It's a farce to claim that this disparity in rates represents a free market; rather, this system is government picking winners and losers."
In 1790, Congress set the term of a copyright at 14 years, and if the author was still alive, he could apply for a 14-year renewal. In the next 200 years, the terms were expanded to 28 years with a 28-year renewal.
The 1998 Copyright Term Extension Act took the 28-year term and the intent of the Framers and tossed them out the window. Now a copyright for a work created after 1978 has a copyright term of the life of the author plus 70 years -- effectively keeping a creative work out of the public domain for at least three generations.
Works created after 1923 and still under copyright were automatically extended until a 2019 sunset, which no doubt pleased lobbyists for the George Gershwin estate. Its biggest cash cow, "Rhapsody in Blue" was written in 1924.
Disney's lobbyists were surely whistling while they worked, because the CETA kept Mickey Mouse, first drawn in 1928, in its licensing cage for another 20 years, too.
When President William J. Clinton signed the bill, it was named for its chief sponsor, singer-songwriter Salvatore "Sonny" Bono, who until his skiing death in January 1998 was a California congressman.
Bono's widow Mary succeeded him in Congress and fought for the bill as a memorial to her popular husband -- although she did make the point that Sonny always really wanted to make copyrights forever. Well, of course he did.
There is a libertarian argument to be made for no copyright protection whatsoever. In that scheme, ideas would flow, like capital, to their highest best use, without a copyright's statutory drag on commerce. But, it could also keep our best minds from getting out of bed in the morning, too.
The realistic path is for Congress to dial back the excesses of the Gershwin-Disney-Bono great leap towards feudalism.
The current copyright regime is a mishmash that provides extraordinary copyrights that would have kept Mozart's compositions out of the public domain until 1881 and treats a booming industry like Internet radio with a royalty schedule that makes the business unsustainable.
The first step Congress takes should be to abolish the Copyright Royalty Board that functions as a star chamber in the back offices of the Library of Congress, picking winners and losers and pushing and pulling billions of dollars around the economy based on whims. The second step is to dial back copyright terms to promote the confluence of the arts.
Reasonable copyrights for creators and innovators will foster creativity and innovations, but also produce an environment where the unpredictable and unexpected explode out of the clash of concepts and ideas that turn the orderly marketplace into an intellectual bazaar.Read more: http://www.americanthinker.com/2013/06/fixing_our_mickey_mouse_copyright_laws.html#ixzz2VV8dOvbg
Americans are spun up on scary stories about the National Rifle Association.
But, there is another NRA to worry about if you appreciate lower prices for gasoline or popcorn at the movies: the National Restaurant Association.
The other NRA represents large and small restaurants, but by hijacking the Food and Drug Administration’s regulation writing process for implementing President Barack Obama’s Patient Protection and Affordable Care Act.
The Food Marketing Institute, a supermarket trade groups, estimates that cost of the new rules as more than $1 billion in new menu reporting and labeling burdens.
The restaurant industry had two problems it wanted to solve at the federal level. First, the restaurants wanted to use federal preemption to create national menu-labeling standards, which would free them from the hassle and expense of satisfying the horse blanket of state and local rules for an industry that thrives on uniformity. Already New York City and the state of California had created irksome menu and labeling ordinances.
In its Sept. 7, 2010 letter to the Food and Drug Administration (FDA), the NRA specifically called for the agency to pressure the states into “national uniformity.” Armed with its national standards codified in PPACA, the restaurants did not want any delays.
Second, the NRA wanted to beat back encroachment from the gas stations, convenience stores and supermarkets, which were selling compelling alternates to their fare.
Under the proposed FDA rules, grocery stores and supermarkets, never mentioned in the PPACA, would have to provide precise nutritional information for sheet cakes, by the slice and by the sheet.
This second step would force non-restaurant competitors to compete on a field the NRA designed with more home court advantages than the old Boston Garden’s warped parquet floor.
Consider a supermarket’s soup kettle next to the salad bar. Every day the soup changes depending on what vegetables and meats are going to expire. Even the “same” chicken noodle soup is different every time it’s made because of the same factors.
Yet, the FDA wants the same level of detail as one would get from a Big Mac that has been sold trillions of times, but figured out once and just posted.
The gas stations were a particular target because a business with more than 50 percent of its revenues from motor fuels, the tax definition of a gas station, could deduct capital investments, such as pumps and fuel tanks, over 15 years. But, the doughnut shop across the street was stuck with a 32-year schedule.
An advocate working for the supermarkets and convenience stores told me that early in the development of the PPACA, he met with restaurant industry lobbyists and at the time there was no hint that the stores were going to be part of the law.
One of the ways the NRA pulled it off was to submit comments to the FDA – the entity charged with implementing the law – recommending that the regulations include gas stations and stores, as if they belonged under the new regime, he said.
“NRA absolutely submitted photographs of convenience stores and supermarkets in their packets with rationale for why they should be included in these regulations,” said Lyle Beckwith, a senior vice-president for government relations with the National Association of Convenience Stores. . In fact, in one of its comments to the FDA, the NRA included photos of Sheetz, a gas and convenience chain, just to bring the point home.
A fair metric of whether a business is a restaurant would be similar to the one used to decide the definition of a gas station, the insider said. If an establishment, like a Wawa or a Sheetz, generates more than 50 percent of its sales from the sale of ready-to-eat food, then they will comply as a restaurant.
“They know that if you walk like a restaurant and quack like a restaurant, you will be treated like a restaurant,” Beckwith said. “But, the rest of the industry doesn’t.”
Not good enough for the NRA.
In its July 5, 2011 letter to the FDA, the NRA made the case for its preferred standard: 50 percent of the gross floor sales, a ridiculous standard. Then, in the next section of the letter, the NRA complained that the FDA unjustifiably excluded movie theaters.
Next time you drop $15 on popcorn and two sodas, ask your date how they enjoyed the fine dining of a true NRA-approved restaurant experience.
Section 4205 of the PPACA indicates that the menu-labeling rules will apply to restaurants and “similar retail food establishments” with 20 or more locations. To make sure none of the restaurant competitors could escape the reach of the new NRA-inspired rules, the NRA argued in its July 5, 2011 letter that the phrase should include gas stations, convenience stores and food courts or other food service inside an ordinary retail store. FDA accepted and adopted this suggestion.
Piling on, in the letter the NRA cautioned the FDA that any attempt to narrowly define what businesses were actually restaurants or not would “run afoul of the plain language” in the healthcare law.
The chain requirement seems sensible enough on its face, until you consider that the FDA has ruled that all of the nearly 5,000 supermarket members of the Independent Grocer Alliance are members of a chain because they share a logo. Many of the IGA supermarkets are really one-unit operators.
The same rule pulls in thousands of independent gas stations and convenience store franchises, which in every way are separate and distinct businesses, not set up to take on new Obamacare burdens with the ease of a real 20-unit chain.
This rule alone will hurt thousands of the mom-and-pop businesses politicians always promise to protect.
NACS’ Beckwith said the reality of the rule is that gas stations and convenience stores will have to bring in real chain restaurants, such as NRA members: Subways or Dunkin Donuts, to mitigate the burden of the new FDA regulations.
Not only will the FDA rules punish NRA competitors, but they will force gas stations and stores to bring NRA members inside to take over the ready-to-eat business for themselves, he said.
One of the difficulties facing the stores and stations is that the FDA withdrew its “Draft Guidance for Industry: Questions and Answers Regarding Implementation of the Menu Labeling Provisions of Section 4205 of the Patient Protection and Affordable Care Act of 2010,” in January 2011 after the consistent uproar that resulted when it was released in August 2010.
The non-restarants are forced to wait for the FDA to publish its next attempt, but the months drag on and there is no sign that the agency is close.
In the House, there is a bill sponsored by Rep. Cathy McMorris-Rodgers (R.-Wash.), the fourth-ranking leader in the GOP conference, which will straighten out how the FDA implements the PPACA. The bill, H.R. 1249, would clarify that, among other things, restaurants are restaurants and sandwiches packed in a gas station refrigerator are not.
Whether McMorris-Rodgers’ bill becomes law or not may hinge on whether it is viewed as relief for businesses caught flat-footed as the NRA hooked them up or if it looks like a healthcare reform cutout.
There is still a split on Capitol Hill among opponents of PPACA. While some look for every chance to pick away at the president’s landmark law, others are afraid to fix the most hated parts of the law, lest these fixes release so much of the built-up pressure for complete repeal that the bulk of the legislation remains—forever.
Supporters of the bill would be better off framing this as a case of the government picking winners and losers, which should be the magic words.
How Pope Francis handles the issues raised in two events, one internal and one external, reveal how comfortable he will sit in the Chair of St. Peter.
As the first pope from the Society of Jesus, his elevation should be a step towards reconciliation between the Roman Catholic Church and the Jesuits, who are now the dissenters inside the Church they were founded to defend.
That spirit of reconciliation was not yet strong enough to prevent the Jesuit’s Boston College from presenting the Irish Prime Minister Enda Kenny an honorary law degree at its May 20 commencement. Kenny, a professed Catholic, leads the effort in Ireland to legalize abortion.
In 2013, Catholic schools do not accidently invite pro-abortion politicians to campus.
Boston’s archbishop Cardinal Sean O’Malley, a fixture at the Catholic university’s graduations in his full scarlet regalia, announced that he would not witness the school celebrating Kenny.
“I am sure that the invitation was made in good faith, long before it came to the attention of the leadership of Boston College that Mr. Kenny is aggressively promoting abortion legislation,” the cardinal said.
“It is my ardent hope that Boston College will work to redress the confusion, disappointment and harm caused by not adhering to the Bishops’ directives,” said the Capuchin, whose phrasing is itself homage to the Jesuits, who once taught William J. Clinton the meaning of “is.”
Francis did not weigh in on the conflict involving Ireland and Boston, both long passed their days as bastions of orthodoxy and loyalty to the Vatican. But, he cannot avoid them indefinitely.
The second event speaks to the uneasiness between the Holy See and the Muslim world.
Tensions between the Catholic Church and Islam have been worse, say during the crusades; but as Pope Francis begins his own papacy without the missteps that ruined his predecessor’s attempt to improve the Holy See’s relations with the Muslim world.
Less than three months into his reign, it is too early to judge the damage if any done when Francis canonized 813 Italians, who were beheaded by Muslim raiders because they refused to convert to Islam.
The canonizing of these martyrs to the faith recalls the misstep that hurt Benedict XVI’s relationship with the Muslim world. The occasion was the pope’s Sept. 12, 2006 return to University of Regensberg, the Bavarian college, where he was once a professor.
In a lecture setting, Benedict quoted one the last of the Byzantines, Emperor Manuel II Palaiologos: Show me just what Muhammad brought that was new and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached."
The Vatican apologized and explained, but the damage was done. With the war in Iraq raging towards chaos and Ground Zero still an open pit, it was easy for Muslims to read Benedict’s choice of that quote as a knock.
If Francis honoring Italians martyrs, who kept the faith when threatened with the sword of Muhammad, seemed to echo Benedict at Regensberg, there is a good reason. All the paperwork for these martyrs, as well as the other saints canonized that day, was processed and signed off by Benedict.
The teaching authority of the Church is called its magisterium, and each pope develops his own personal magesterium that characterizes his own reign and administration.
The heavy lift for Francis is he is burdened, rightly or wrongly, with developing his magesterium and the one Benedict left undone.
Benedict ascended to the throne of St. Peter with anticipation that he was ready to reform and restrain Vatican bureaucracy. He did not.
As Cardinal Josef Ratzinger, he forged the peace treaty between Rome and the Lutherans, but he stumbled badly trying to reconcile the Holy See with the Society of Pope Pius X, the post-Vatican II splinter church. More tragically, his attempt to resolve the situation with the Underground Church in China and the Communist-sponsored church left things worse than when he started.
As the Western world struggles to reach accommodation with Islam and its extreme and violent elements, Catholics and non-Catholics will look to the Roman pontiff, who leads the institution that created the Western world.
More pressing for Catholics concerned for their Church will be how these Jesuit pope reins in his brother Jesuits and other dissenters, who really threaten the unity of his reign.
Had we continued the AAM, our relationship with Iraq would have continued to migrate into the regular dealings between two allies.
Certainly, Iran would not be resupplying the Syria regime by the skybridge over Iraqi airspace.
Read below the message President Barack Obama sent to Congress this week continuing the May 22, 2003 finding that the situation in Iraq is troubling and that trouble means trouble for the Unitied States.
Message -- Continuation of the National Emergency with Respect to the Stabilization of Iraq
TO THE CONGRESS OF THE UNITED STATES:
Section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)) provides for the automatic termination of a national emergency unless, within 90 days prior to the anniversary date of its declaration, the President publishes in the Federal Register and transmits to the Congress a notice stating that the emergency is to continue in effect beyond the anniversary date. In accordance with this provision, I have sent to the Federal Register for publication the enclosed notice stating that the national emergency with respect to the stabilization of Iraq that was declared in Executive Order 13303 of May 22, 2003, is to continue in effect beyond May 22, 2013.
Obstacles to the continued reconstruction of Iraq, the restoration and maintenance of peace and security in the country, and the development of political, administrative, and economic institutions in Iraq continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. Accordingly, I have determined that it is necessary to continue the national emergency with respect to the stabilization of Iraq.
1. He has, acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.
Ten California teachers are suing to break one of the strongest iron triangles in American politics, where the taxpayers pay the teachers; the teachers’ union supports candidates and referenda, and that leads eventually to the teachers getting better pay, benefits and working conditions.
A civil rights law firm filed a federal law suit April 30 on behalf of 10 California teachers and the Christian Educators Association International challenging the state’s closed shop law that has them contributing to support political activity they opposed.
"Individual teachers have a constitutional right to decide for themselves whether to join a union and financially support its efforts," said Terry Pell, president of the Center for Individual Rights, the Washington-based non-profit law firm taking on the case.
"The government may not compel teachers to provide financial support to policies with which they fundamentally disagree,” he said.
Rebecca Friedrichs, one of the teacher plaintiffs, said, “The union spends millions of teachers' hard earned monies supporting causes and candidates that many of us oppose.”
Friedrichs said she does not want to control or stop the union from its activities. “The union is free to press its agenda, but individual teachers should not be forced to pay for it.”
It comes down to fairness, she said. “It is shocking to me and many other teachers that union officials have the power by law to spend our wages to press for causes that many of us oppose on moral, fiscal, or philosophical grounds."
By going after the California Teachers Association, these teachers are going after the biggest fish in the 50-state pond. In the Golden State, the CTA donated more than $150 million in political donations between 2003 and 2012, according to the website followthemoney.org. The other defendants are the National Education Association as well as 10 affiliated local teachers’ unions and local school officials.
In the last decade, the CTA gave 89 percent of its contributions to ballot initiatives, 10 percent to Democrats and less than 1 percent to Republicans, according to the site. The union backed 299 winners, 77 losers and a total of 625 incumbents.
California is a state with a huge political tradition of getting things done by ballot referendum, and the union was deeply involved in left-wing causes. In 2003, the union gave $250,000 to a fund called: Californians Against the Costly Recall of the Governor, during the recall election of Democrat J. Graham “Gray” Davis Jr., and 2008 the union donated $1.3 million to defeat Proposition 8, a referendum that amended the state constitution to outlaw same-sex marriage.
In 2012, the CTA spent $21 million to successfully defeat Proposition 32, which would have prohibited paycheck-deductions to unions to support political causes. If that seems like a lot of money, consider the teachers union was only in for a third of the $65 million raised from dozens of other unions in the state.
With the defeat at the polls, California opponents to compulsory support of union political activities are turning to the courts.
“Forcing educators to financially support causes that run contrary to their political and policy beliefs violates their First Amendment rights to free expression and association and cannot withstand First Amendment scrutiny,” said Michael A. Carvin, partner with Jones Day and lead counsel for the plaintiffs.
“The Supreme Court questioned the continued constitutionality of ‘agency shop’ laws last year in the Knox decision,” he said.
The Supreme Court ruled in the 2012 Knox v. Employees Intl. Union that the Service Employees International Union in California violated the First Amendment rights of its non-union members by forcing them to pay a 25 percent increase in union dues without their consent to help fight ballot initiatives in the state, he said.
In his majority opinion, Justice Samuel A. Alito Jr., wrote: “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.”
Dues and agency fees yield the CTA 2011 revenue of more than $191 million. The revenues came not only from member dues. The “agency shop” law means to compensate unions for their work “collective bargaining” on behalf of all workers, members and non-members, so non-union teachers are obligated to pay dues to a union they do not belong.
Depending on the local union, non-union member teachers in California can pay more than $1,000 a year to cover their share of collective bargaining expenses. These expenses include the CTA magazine “The California Educator,” despite the publication’s intense political tone and messages.
The CTA similarly charges programs advocating the gay rights agenda and union conferences and activities as collective bargaining.
Annually, non-union member teachers can opt-out of the mandatory dues, but the law suit contends that the process is complicated and exposes teachers opting out to harassment.
The suit argues there is no compelling reason to continue that agency shop process.
‘Wilkow!’ Thursday featured two segments involving the Lone Star State; one about its junior senator and the other its most famous current visitor.
“Guns & Patriots” Editor Neil McCabe first joined the show to discuss President Barack Obama’s trip to Texas to promote manufacturing jobs — and the irony that comes with that as gun makers are already planning to move to Texas after their home states passed strict gun laws. In the clip below, McCabe and Wilkow discuss the vanishing pro-gun Democrats and the left’s strategy from Capitol Hill for national gun control laws:
Couple of youngsters May 5 at the NRA Annual Meeting and Convention held in Houston. This year's attendance broke all previous records with more than 80,000 attendees. (Photo by Neil W. McCabe)
By most any measure, the 142nd annual meeting of the National Rifle Association in Houston was a success, but the victory lap mood in the room could set up gun owners for a huge disappointment.
Coming five months after the Dec. 17, 2012, Sandy Hook School Massacre in Newtown, Conn., there was no sense that President Obama, the Democratic Party and the billionaire mayor of America's largest city do not yet realize they have been defeated.
David A. Keene, the outgoing NRA president and the former head of the American Conservative Union, said before the gathering last weekend that "the attendance will be somewhere between 80 and 100,000," he said. "If it's 80, it'll be the largest convention we have ever held."
Keene has a right to be proud because attendance set a record. He was also central to the NRA's strategy of resistance -- a break from past practices, where the association sought to craft a third way compromise, or agree to a truce in exchange for a carve-out for its members. It was a page from Keene's days at ACU.
"Our position was that we were not giving up on anything," he said. "We were going to fight this to the end -- as more people mobilized from February on, look what happened: People began to realize that the whole anti-gun narrative was wrong -- you remember -- the NRA was dead, it just didn't matter, the members were leaving, they all agreed with President Obama and his 'quote' common-sense solutions."
The victory lap mood at the NRA convention contrasted with how things were when Obama announced his Jan. 16 executive actions against gun rights in the middle of the weeklong Shooting, Hunting and Outdoor Trade Show.
It was surreal as NSSF staffers watched the president from Las Vegas as he insisted to the American people that had they been to Newtown, Conn., they would support him.
The critical difference between the NRA annual meeting and SHOT Show is that SHOT Show is for dealers and retailers and not for consumers. At the NRA conventions, members are justly concerned about their gun rights, but at SHOT Show they were concerned with their businesses.
"Folks at SHOT Show thought with Obama winning and gun owners and the Second Amendment were on the ropes, and that we would have to save anything that we could," Keene said.
"I watched PBS the night Obama gave his initial diatribe against the Second Amendment and I was watching Mark Shields afterwards saying: It's over for the NRA, everyone agrees with the president, members are leaving in droves -- that happened to be, unknown to Mark, the biggest membership day in the history of the National Rifle Association -- 58,000 people called and joined that day."
When that narrative collapsed, so did the Obama intuitive, according to Keene.
But chances are, there will be another spree shooting for the White House and the media to spin America into another gun-panic.
When that happens, there is nothing to stop Obama from signing the United Nations Small Arms Treaty and to begin incorporating its purposes into "executive actions" and regulatory bloodstream. Then, look for ratification in the lame duck congressional session after the 2014 midterm elections.
Even more pressing, because Senate Majority Leader Harry Reid, D-Nev., conflated the regular two-step voting process into one step with a 60-vote threshold for the failed April 17 gun control amendments, his "motion to reconsider" will be a privileged motion immune to filibuster or amendment and requiring only a simple majority for passage. Remember, the Manchin-Toomey background check amendment that failed in April was on a 54-46.
For all of the congratulations and sharing of credit at the NRA convention, there was precious little discussion of the real fights ahead -- and that the very fight they think they won, they may now be closer to losing.