Does the entertainment industry have too much power?

In America a congressional staffer gets fired, and in Britain an indie music website gets blocked, all in the name of rent-seeking.

Vested interests have too much say in most areas of public policy, but only in some do they actually have direct control. Two stories today highlight the ridiculous amount of authority which governments all over the world have ceded to entertainment industries when it comes to creating and enforcing intellectual property law.

In the USA, a Republican congressional staffer called Derek Khanna wrote a memo titled "Three Myths About Copyright Law and Where To Start To Fix It" (mirrored here). It was a strong piece, arguing that it was untrue to claim that:

  1. The purpose of copyright is to compensate the creator of content;
  2. Copyright is free market capitalism at work; or
  3. The current copyright legal regime leads to the greatest innovation and productivity.

(The first is certainly mythical, at least in the US context, where the explicit reason for copyright is "to promote the progress of science and useful arts"; arguing against the second, he attempts to appeal to his fellow Republicans by repositioning copyright protection as a big-government-bestowed monopoly; and against the third – really, where the meat lies – he points out that current US copyright law is far more concerned with rent-seeking than encouraging creation of new works.)

Khanna's paper, while no more anti-copyright than a thousand silicon valley opinion columns, was retracted less than a day later, with the executive director of the Republican Study Committee – the organisation which published it – claiming it was:

Was published without adequate review [and failed to approach the topic] with all facts and viewpoints in hand.

That's not what the insider story is, though. Techdirt's Mike Masnick wrote:

The report had been fully vetted and reviewed by the RSC before it was released. However, as soon as it was published, the MPAA and RIAA apparently went ballistic and hit the phones hard, demanding that the RSC take down the report. They succeeded.

Yesterday, Khanna was fired. The Washington Examiner's Timothy P. Carney [explains]:

The reason, according to two Republicans within the RSC: angry objections from Rep. Marsha Blackburn, whose district abuts Nashville, Tenn. In winning a fifth term earlier in the month, Blackburn received more money from the music industry than any other Republican congressional candidate, according to the Center for Responsive Politics. Blackburn's office did not return calls seeking comment.

Again, it's worth pointing out that nothing Khanna said was new, or outrageous, and his paper was picked up approvingly by other liberatarian-minded conservatives like Virginia Postrel and Alex Tabarrok. His only mistake was writing it while working in a position where the complaints of the entertainment industry could get him fired.

Meanwhile, in the UK, our music industry has been taking an even more active role in the law, hand-picking which websites are allowed to publish. Music website the Promo Bay is a side project of file-sharing website the Pirate Bay which allows independent artists to upload their own songs to be shared freely. Not only is there no copyright infringement going on, there is actually a queue to be featured.

Nonetheless, the BPI – industry body of the British record industry – obtained a court order to block the Promo Bay, listing it as a domain:

Whose sole or predominant purpose is to enable or facilitate access to The Pirate Bay website.

That block which was only rescinded after a petition and complaint from the Open Rights Group.

It is clear that the Promo Bay was wrongly blocked – possibly by accident, possibly due to an overzealous claim by the BPI. What's less clear is why we should accept a situation where a single mistaken claim by an industry group can censor, without warning or appeal, a popular, useful, and legal site. After all, the New Statesman has linked to file-sharing sites – in an effort to get round the "Great Firewall of China". Should we be fearing a court order?

The Promo Bay logo.

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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Leader: Theresa May and the resurgence of the state

More than any of her recent predecessors, the Prime Minister seems willing to challenge the economic and political orthodoxies of the past 35 years.

Theresa May entered office in more tumultuous circumstances than any other prime minister since 1945. The UK’s vote to leave the European Union was a remarkable rebuke to the political and business establishment and an outcome for which few had prepared. Mrs May recognised that the result was more than a revolt against Brussels. It reflected a deeper alienation and discontent. Britain’s inequalities of wealth and opportunity, its regional imbalances and its distrusted political class all contributed to the Remain campaign’s ­defeat. As she said in her speech in Birmingham on 11 July: “Make no mistake, the referendum was a vote to leave the European Union, but it was also a vote for serious change.”

When the financial crisis struck in 2007-2008, David Cameron, then leader of the opposition, was caught out. His optimistic, liberal Conservative vision, predicated on permanent economic growth, was ill-suited to recession and his embrace of austerity tainted his “modernising” project. From that moment, the purpose of his premiership was never clear. At times, austerity was presented as an act of pragmatic bookkeeping; at others, as a quest to shrink the state permanently.

By contrast, although Mrs May cautiously supported Remain, the Leave vote reinforced, rather than contradicted, her world-view. As long ago as March 2013, in the speech that signalled her leadership ambitions, she spoke of the need to confront “vested interests in the private sector” and embrace “a more strategic role” for the state. Mrs May has long insisted on the need to limit free movement of people within the ­European Union, and anticipated the causes of the Leave vote. The referendum result made the national reckoning that she had desired inevitable.

More than any of her recent predecessors, the Prime Minister seems willing to challenge the economic and political orthodoxies of the past 35 years. She has promised worker representation on company boards, binding shareholder votes on executive pay, improved corporate governance and stricter controls on foreign takeovers.

The shadow chancellor, John McDonnell, has set the ­Labour Party on a similar course, stating in his conference speech that the “winds of globalisation” are “blowing against the belief in the free market and in favour of intervention”. He pointedly criticised governments which did not try to save their domestic steel industries as China dumped cheap steel on to global markets.

We welcome this new mood in politics. As John Gray wrote in our “New Times” special issue last week, by reasserting the role of the state as the final guarantor of social ­cohesion, Mrs May “has broken with the neoliberal model that has ruled British politics since the 1980s”.

The Prime Minister has avoided the hyperactive style of many new leaders, but she has deviated from David Cameron’s agenda in several crucial respects. The target of a national Budget surplus by 2020 was rightly jettisoned (although Mrs May has emphasised her commitment to “living within our means”). Chancellor Philip Hammond’s Autumn Statement on 23 November will be the first test of the government’s ­fiscal boldness. Historically low borrowing costs have strengthened the pre-existing case for infrastructure investment to support growth and spread prosperity.

The greatest political ­challenge facing Mrs May is to manage the divisions within her party. She and her government must maintain adequate access to the European single market, while also gaining meaningful control of immigration. Her statist economic leanings are already being resisted by the free-market fundamentalists on her benches. Like all prime ministers, Mrs May must balance the desire for clarity with the need for unity.

“Brexit means Brexit,” she has repeatedly stated, underlining her commitment to end the UK’s 43-year European
affair. If Mrs May is to be a successful and even transformative prime minister, she must also prove that “serious change” means serious change and a determination to create a society that does not only benefit the fortunate few. 

This article first appeared in the 29 September 2016 issue of the New Statesman, May’s new Tories