Rep. Jerry Nadler’s Shocking Misrepresentation Of Copyright Law

It’s a running joke here at Techdirt that many elected officials in charge of copyright policy seem wholly ignorant of the subject. But sometimes, it’s still shocking when people who should definitely know better brazenly parade their cluelessness.

Enter Jerry Nadler, the highest-ranking Democrat on the House Judiciary Committee, and a man who has been knee-deep in copyright policy for many years. His recent comments on intellectual property weren’t just ignorant, they were downright pathetic.

This one is from a month ago, but it’s been gnawing away at me for a few weeks. I figured it was still worth calling out. Last month, the House Judiciary Committee held a hearing on “Intellectual Property,” and ranking member (i.e., top Democrat) Jerry Nadler’s opening remarks were so far off-base and factually lacking that it deserves to be discussed.

Nadler has long been a reliable voice for copyright maximalism, and Hollywood has rewarded him accordingly. But, really, some of these comments were just beyond the pale:

“Mr. Chairman, intellectual property in the United States, at its core, is the right to own an idea. 

I mean, it’s literally not. And you’d think the top ranking Democrat on the Judiciary Committee would know that. In the US, we literally have what’s known as the “idea expression dichotomy” which says you can’t own an idea. So, no, that’s not only not “at the core” of the IP system in the U.S., it’s literally and explicitly cut out of the IP system. For good reasons.

I mean, the very law that Nadler is supposed to be the expert in literally says: “In no case does copyright protection for an original work of authorship extend to any idea.”

And Nadler kicks off his statement by claiming that the “core” of copyright is protecting ideas?

That’s horrifying.

And, on top of that, the setup, intent, and purpose of the copyright system has never been about “ownership,” anyway. It has always been about creating a limited time monopoly right on particular expression with the point being to make it more widely available to everyone, not to lock it up as “property” of one entity.

So it’s not about ownership, and it’s not about ownership of ideas.

And yet, Nadler opens his remarks by claiming that this is the “core” of the IP system in the US?

Not a good look. Not a good look at all.

The power of IP is not in the individual movie, the chemical compound, or the store sign—though they certainly have value—but in the exclusive authority to reproduce that protected content.  Because it is difficult to put most creations in the stream of commerce while also keeping them under lock and key, the enforcement of IP protections is key to the success of our system. 

I mean… come on? This is the kind of nonsense argument that was debunked decades ago. The enforcement has never been the “key” to the system. The entire world of IP was built on the idea of “toleration,” in which there is actually a ton of regular and incidental infringement which everyone should rightly ignore. The only real issues tend to come in with large scale, industrial infringement, which is what the system was actually built to protect against.

Indeed, so many of the problems (and lack of respect) for modern copyright law come from nonsense spewing from industry (and industry-backed politicians) that we need to increase enforcement because every unauthorized copy is a crime against humanity.

If the ideas we protect are easily stolen, then they hold no value.  And if copyrights, trademarks, and patents have no value, then the American system cannot encourage innovation, protect consumers, help drive economic growth, and keep our country safe.

Again, we’re right back to ideas that were debunked decades ago: the idea that if something can be copied freely it has no value. That’s just fundamentally wrong. As we’ve shown for years, there are plenty of wonderful business models built on top of freely copyable works (including much of the internet). Anyone who claims that if something is “easily stolen, it has no value” doesn’t understand copyright, patents, or basic, fundamental economics.

Techdirt is freely copyable. We release everything we publish into the public domain because that increases the value. It has helped me build an entire business around what I write because it can spread more widely. My ideas have value, and spreading them more widely allows me many more opportunities to capture some of that value, while simultaneously expanding the overall pie of knowledge.

Also, if something is easily stolen, then it must fundamentally have value. Why would anyone “steal” it otherwise? People don’t “steal” things that have no value (and we’re leaving aside that we’re not even talking about “stealing” but copying, but that’s a different issue).

What Nadler is really saying is that if something is easily copied, then one particular favored business model is slightly trickier to use to achieve monopoly rents. But that… is not even remotely the same thing as saying that it “has no value.”

His remarks contain a lot more that is similar, all setting up more counterfactual maximalist garbage in order to justify some more draconian laws and crackdowns on totally understandable and innocent behavior.

But, in no world should such a high-ranking US official, who has spent years overseeing copyright policy, spread so much fundamental disinformation on the very basics of that policy.

It’s embarrassing. And it will lead to dangerous policies that are literally designed to stop the flow of “ideas” and knowledge at a time when we need such things to be more widely available.

Nadler is smart enough and has worked in copyright long enough to know that these remarks were not just wrong, but 100% the opposite of what copyright is for. We deserve better.