Saturday, October 24, 2009

Grassroots + Power II: Copyright and Enforcement

I'll give one example about "government involvement" that is not "government power relationship." The other day, I filed copyright on a play that I am in the process of publishing. I joked online that this was "SOCIALISM IN ACTION".

The history of copyright is somewhat illustrative of the difference between involvement and power relationship. Originally, copyright was granted by the crown, and it was a way of creating a monopoly. Specifically, one particular company run by the Corporation of London (which is what they call their city council, illuminatingly) was given monopoly over the entire publishing industry.

This was a gross abuse of government power, that basically allowed the goverment to profit by all publishing.

Compare that to the scope of Copyright within the Constiution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The way in which it was originally implemented in the United States--a notification of copyright to the US Copyright office giving you the right to protect your own work for a period of 7 years--gave benefit to people without giving the US Government rights over the work. It still required government enforcement, but the enforcement was a positive one--it came from the will of the people.

There isn't a "copyright division" of law enforcement that runs around enforcing the law, the law is invoked in civil suits, meaning that the government doesn't control how copyright suits are structured. The Bush Administration couldn't sue Shepard Fairey to block the Obama poster in an effort to hurt Obama's election chances. In fact, the US Government isn't allowed to have copyright, so that it can't manipulate the ways in which information is distributed.

If you want an example of how a law might be abused if it's enforced by government rather than civilly, look at this election news from NYC:

The City of New York has fined mayoral candidate Bill Thompson nearly $126,000 for putting up campaign posters on city property. City rules bar candidates from hanging posters and fliers on public property and the Sanitation Department says its workers regularly rip down unauthorized material.

So far, the Thompson campaign has been ticketed 1,677 times over such postings.


Bloomberg's campaign has been fined too, but just 70 times this year. That's a big drop from four years ago, when Bloomberg was fined nearly $308,000 for poster violations.

Now, I don't know for a fact whether or not Bloomberg was involved in this, or how that drop came to pass. It's very possible that there's another set circumstances. But even the appearance of corruption is a problem (that's something I learned from Lawrence Lessig). But the potential for abuse exists.

So if we're going to take a look at a government involvement in a sector, the question is, what enforcement methods do they have? Suppose you decide to strike out on your own. What tools for enforcement can the US Government bring to bear?

Healthcare: there are some provisions for enforcement in the healthcare bill. Ironically, these are the very bipartisan measures that seem to be commonly agreed upon by both parties. It regulates the insurance industry. It doesn't add much more regulation to the doctor-patient end of things (those are already well-covered by the FDA, in terms of their ability to jail doctors who perform unapproved treatments).

The FDA's power is a big, dangerous power, actually. Imagine if a really Fundamentalist Christian FDA chief decided that the current methods of abortion are "too risky." He could, by fiat, ban abortions. Would the Supreme Court intervene on that issue, saying it contravenes Casey v. Planned Parenthood? I'm not sure how that vote would go down.

On the other hand, what's the worst thing the US Government could do to an insurer? The regulations are defined, they're not so open-ended. They could force insurance companies to pay for lots of unnecessary procedures, and support lots of people who are very expensive. That might hurt their bottom line. Even that worst-case scenario doesn't sound terrible. Or they could levy millions of dollars of fines on the insurance companies. That's onerous, but not any more massive of an intervention than the FDA.

However, I'd probably want to read the provisions of the bill before I decide whether we've given reasonable regulation of insurance companies. There are some power issues there that need to be resolved.

As for the Public Option, it doesn't give the US Government new power, except over the people that choose to enroll in it. Now, some might find that a government mandate for healthcare and a lack of viable alternatives may force them into the Public Option. But even there, the power that the US Government will have over them will be no more than Blue Cross has over me today.

What it might give the US Government is leverage, in the way that Medicare does currently. It gets them lower rates, for instance, which makes doctors complain that they are underpaid by the US Government.

It is not, however, a Government-Run healthcare, for the simple reason that it doesn't give the US Government a direct control point.

Now the other example, the National Day of Service, is even clearer on that subject. Suppose I'm an arts charity, and I sign up for the National Day of Service. If I do something that the US Government doesn't like, the worst thing that can happen to me is that they won't list me on their site.

That's the worst that can happen. I might not get the boost of some free advertising by the government.

Considering all of the pressures on non-profit arts organizations, that seems like a fairly laughable threat. "I'm not gonna list you!" That doesn't even get to "The New York Times won't review your show" levels of terror. Not getting an NEA Grant is worse than that, and God only knows how few organizations actually rely on the NEA's grants. There's no real financial loss, no threat of punishment, or anything. You just might not get as much help. You'll live.

To compare that to Animal Farm is just laughable. After all, Napoleon isn't a dictator in Animal Farm until the dogs appear. Napoleon had direct articulation of policy backed up by enforcement. That's what made it power.

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