The Law in Failure: Copyright Law Will Strangle Artificial Intelligence in the USA, Giving the Race to China; Proposed Model Federal Law to Stop the Poison

 The toxic effect of the lawyer profession is reviewed here: 

https://www.lawfaremedia.org/article/anthropic-s-settlement-shows-the-u.s.-can-t-afford-ai-copyright-lawsuits

How we got today’s (very) long terms—and why they once felt reasonable

1790–1909: Print-age pacing. Congress began with a short copyright (14 years, renewable once) when copying was slow, distribution costly, and most sales happened soon after release. In 1831, as music printing spread, the initial term doubled to 28 years (still one 14‑year renewal).^2–4 U.S. Copyright Office+2U.S. Copyright Office+2

1909: Mechanical reproduction arrives. Player‑pianos, phonographs, and film created mass markets. Congress responded with the first compulsory “mechanical” license so anyone could make a recording (or piano roll) of a published song by paying a fixed royalty—explicitly to prevent monopolies in the new technologies—and extended the renewal term to 28 years (max 56).^5–6 U.S. Copyright OfficeCongressional Documents

1976: Broadcast and tape era. After television, radio, sound recordings, and photocopiers, Congress overhauled the statute: the general term became life of the author + 50 years (and 75 years from publication for works made for hire), fair use was codified, and federal law preempted state rules.⁷ U.S. Copyright Office

1998: Global harmonization—plus 20. The Sonny Bono Copyright Term Extension Act (CTEA) moved the U.S. to life + 70 and 95/120 years for corporate/anonymous works, citing alignment with the EU’s life + 70 directive. The Supreme Court upheld the law in Eldred v. Ashcroft (2003).^8–10 U.S. Copyright OfficeEUR-LexJustia Law

Patents: Until 1995, U.S. patents generally lasted 17 years from grant—a length calibrated to mid‑20th‑century R&D cycles. To comply with the WTO’s TRIPS Agreement, Congress shifted to 20 years from earliest U.S. filing (for applications filed on/after June 8, 1995).^11–12 USPTOCornell Law School

Takeaway. In each era, Congress stretched terms to match new commercialization technologies (records, broadcast, home video) and, later, to match international norms. But those choices locked in durations far longer than today’s innovation cycles in software, consumer electronics, or Internet media.

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A political‑economy reality check (how “corruption” happens without breaking the law)

Economists have long warned that when benefits are concentrated (large media or pharma firms) and costs are diffuse (the public), policy tends to drift toward industry preferences—regulatory capture and rent‑seeking in public‑choice terms.^11,13–14 Becker Friedman InstituteRegulatory Studies Center

In the run‑up to the 1998 CTEA, major rights‑holding firms—famously including Disney—lobbied hard for extension (the bill was often called the “Mickey Mouse Protection Act”).^15–16 OpenSecretsHarvard Law School The economic critique from 17 prominent economists (Akerlof, Arrow, Coase, Friedman, et al.) argued the extension’s added incentive was negligible while the social costs were real.¹⁷ Brookings The Supreme Court sustained Congress’s power to extend terms anyway, emphasizing that such line‑drawing is legislative, not judicial.¹⁰ Justia Law

Plain‑English: No one needed a briefcase of cash. Legal lobbying, campaign finance, and low‑salience, highly technical bills can nudge Congress toward rules that mostly help big, organized stakeholders. That’s “institutional corruption” in Lessig’s sense: a systemic dependency on funders that bends outcomes away from the public purpose.¹⁸ Flowers For Socrates

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Do long IP terms slow innovation? A microeconomics view

1) The present‑value problem: extra years decades out don’t move creators much

Most works earn the bulk of revenue early. Adding 20 years far in the future changes an author’s expected payoff by <1%, because money that arrives 70–95 years from now is heavily discounted.¹⁷ Brookings

8th‑grade explainer: If someone promises you $1 in 95 years, it’s worth only about one cent today at typical interest rates, because you could invest a penny now to have $1 by then. That’s why adding very late‑arriving royalties rarely changes creative effort now.

2) Cumulative innovation gets tangled in thickets and hold‑up

In fast‑moving fields (chips, software, telecom), overlapping patent claims produce “patent thickets.” Firms face hold‑up risk and royalty stacking, which deters entry and slows product cycles.^19–21 Haas Faculty+1American Economic Association In biomedicine, too many upstream rights can create an anticommons, stalling downstream R&D.²² Science

8th‑grade explainer: Imagine your new gadget needs permission from 50 owners. Even if each asks a small fee, the total gets big—and one “no” can stop the whole project.

3) Evidence: shorter or open access spurs follow‑on work

When Celera’s gene sequences moved from private IP into the public domain, follow‑on research rose 20–30%—a clean, well‑studied case of IP throttling cumulative science.²³ Chicago Journals In culture markets, copyrighted works often disappear from shelves, then reappear when they enter the public domain, suggesting long copyrights reduce availability and reuse.²⁴ UC Berkeley Law

4) Long terms amplify transaction costs (especially for orphans)

Eliminating registration/renewal formalities (to comply with Berne/TRIPS) created an orphan‑works problem—no one knows whom to ask for permission—so socially valuable digitization and reuse are chilled.^25–26 U.S. Copyright Office+1

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Why terms kept stretching even as innovation sped up

• Technology lifecycles shrank (software and devices refresh yearly), but law kept extending calendar monopolies calibrated to analog distribution and international parity, not to empirical incentive effects.^7–10 U.S. Copyright Office+1EUR-LexJustia Law

• International commitments constrain reform. TRIPS sets a minimum 20‑year patent term; the EU set life + 70 for copyright. Unilateral U.S. cuts below these floors would violate treaties absent renegotiation.^12,27–28 World Trade OrganizationEUR-Lex

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A cleaner model: short, strong exclusivity followed by open, accountable access

Below are proposals that accelerate innovation while staying inside, or candidly flagging where we need to update, international rules.

A. Copyright (domestic reforms; some aspects may need Berne/TRIPS accommodation)

1. Five‑year core exclusivity, extendable once to 10 by simple, low‑fee registration; after that, a statutory (compulsory) license for derivatives and uses at transparent, capped rates (e.g., a few percent of revenue), with platform‑level blanket licenses. Why? Almost all commercial value arrives early; later years are mostly about clearance friction.^17,25 BrookingsU.S. Copyright Office

   • Treaty note: Berne discourages formalities; the U.S. already offers extra remedies (statutory damages/fees) only to registered works. Similar bonus‑rights‑for‑registration can steer creators into the short‑term track without conditioning basic protection.

2. Use‑it‑or‑lose‑it for exclusivity strength. Keep the headline term Congress wants, but ratchet down exclusive controls after Year 10 unless the rightsholder files a free “availability & contact” notice (to prevent orphans).^25–26 U.S. Copyright Office+1

3. Libraries & preservation safe harbors and FRAND‑style licenses for text/data mining, interoperability, and accessibility after Year 5—well within international “three‑step test” limits when narrowly tailored.

8th‑grade explainer: Think of it like a school bake sale: you get a short period to sell your cookies only at your table. After that, others can bake similar cookies if they drop a small fee in your jar. Everyone eats; you still get paid.

B. Patents (respect TRIPS’s 20‑year floor, but shorten effective exclusivity)

1. Automatic license‑of‑right after 3–5 years for fast‑cycle tech (software, consumer ICT): any implementer may license at posted rates (filed at the USPTO), with rate review by an expert tribunal. This preserves the 20‑year legal term but removes “hold‑up” leverage that blocks cumulative innovation.^19–21 Haas Faculty+1American Economic Association

2. Modernize compulsory licensing under TRIPS Art. 31 for non‑worked or public‑interest technologies (e.g., platform APIs, critical interfaces) with adequate remuneration and quick timelines—TRIPS contemplates this tool.^29–31 World Trade Organization+1WIPO

3. Escalating maintenance fees and post‑grant oppositions to clear weak patents earlier; no injunctions for SEPs absent egregious bad faith (consistent with FRAND and antitrust guidance).²¹ Haas Faculty

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Guardrails to keep reforms from being derailed by oligarchs

• Evidence‑based IP Commission. Make term‑setting and statutory‑license rates the job of an independent, expert commission using transparent cost‑benefit tests with periodic sunset & review (e.g., every 8–10 years).

• Sunlight on influence. Real‑time, API‑accessible reporting of lobbying contacts and draft‑bill markups; require agencies and committees to publish side‑by‑side redlines and benefit–cost memos before votes; disclose top beneficiaries by sector.

• Cooling‑off & conflict rules. Longer “revolving‑door” cooling‑off periods for IP staff; ban industry‑funded ghost‑drafting of statutory language (a repeated theme in copyright’s legislative history).³² Cornell Law Scholarship

• Citizen juries for low‑salience changes. For non‑emergency term extensions, require a citizens’ assembly deliberation and a supermajority vote to pass.

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The Mickey Mouse question

If “Mickey” had only five years of copyright instead of ~95, would we get more or fewer cute characters?
More, overall. Here’s why:

1. Incentive mostly front‑loaded. Creators capture most revenues in the first few years; adding decades rarely changes the go/no‑go decision today.¹⁷ Brookings

2. Remix begets variety. Earlier public‑domain entry spurs derivative works and competitors, expanding the “cute‑character” frontier (think fairy tales and myths whose public‑domain status enabled Disney itself).²⁴ UC Berkeley Law

3. Trademarks and brands still matter. Even if the character enters the public domain, a company’s marks and distinctive trade dress remain protected, preserving incentives to invest in quality and reputation.

Bottom line: A five‑year strong exclusivity, then open remix with small, transparent royalties would likely increase the number and diversity of “cute characters,” aligning with the Constitution’s progress goal—while still letting first movers profit handsomely in the period that most affects their decision to create.^1,17 Congress.govBrookings

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Suggested concrete statutory targets (fit for 2025 realities)

• Copyright: 5‑year core exclusivity (option to renew once to 10 by simple registration); after that, compulsory licensing for derivatives & large‑scale access with capped, published rates; robust library/preservation exceptions; orphan‑works safe harbor tied to a searchable availability registry.^25–26 U.S. Copyright Office+1

• Patents: Keep the 20‑year term (TRIPS), but implement license‑of‑right at 3–5 years for fast‑cycle tech, recalibrate maintenance fees to clear thickets, strengthen post‑grant review, and bar SEP injunctions absent willful breach of FRAND.^{19–21,27–31} Haas Faculty+1American Economic AssociationWorld Trade Organization+2World Trade Organization+2

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References (superscripts map to sources)

1. U.S. Constitution, Art. I, §8, cl. 8 (Constitution Annotated). Congress.gov

2. U.S. Copyright Office, Timeline (18th Century). U.S. Copyright Office

3. U.S. Copyright Office, Lifecycle of Copyright (major acts & terms). U.S. Copyright Office

4. U.S. Copyright Office, First revision (1831): music added; 28‑year initial term. U.S. Copyright Office

5. U.S. Copyright Office, Section 115 background—compulsory mechanical license. U.S. Copyright Office

6. U.S. House Hearing, Section 115—player‑piano impetus (history). Congressional Documents

7. U.S. Copyright Office, General Guide to the Copyright Act of 1976. U.S. Copyright Office

8. U.S. Copyright Office (Title 17), §302 duration; CTEA amendments. U.S. Copyright Office

9. EU Term Directive (codified), life + 70. EUR-Lex

10. Eldred v. Ashcroft, 537 U.S. 186 (2003) (summary). Justia Law

11. USPTO, Patent term—pre‑1995 17 years; AIPA overview. USPTO

12. 35 U.S.C. §154; WTO TRIPS Art. 33 (20 years from filing). Cornell Law SchoolWorld Trade Organization

13. Stigler, The Theory of Economic Regulation. Becker Friedman Institute

14. Public‑choice overview of Stigler (Carrigan & Coglianese). Regulatory Studies Center

15. OpenSecrets, Disney lobbying profile. OpenSecrets

16. Harvard Law School, How Disney influenced U.S. copyright law. Harvard Law School

17. Akerlof, Arrow, Coase, Friedman, et al., Amicus Brief/Economic analysis of CTEA. Brookings

18. Lessig, Republic, Lost (institutional corruption). Flowers For Socrates

19. Shapiro, Navigating the Patent Thicket. Haas Faculty

20. Lemley & Shapiro, Probabilistic Patents. American Economic Association

21. Lemley & Shapiro, Patent Holdup and Royalty Stacking. Haas Faculty

22. Heller & Eisenberg, The Anticommons in Biomedical Research. Science

23. Williams, IP and Innovation: Evidence from the Human Genome. Chicago Journals

24. Heald, How Copyright Keeps Works Disappeared. UC Berkeley Law

25. U.S. Copyright Office, Report on Orphan Works (2006). U.S. Copyright Office

26. U.S. Copyright Office, Orphan Works & Mass Digitization (2015). U.S. Copyright Office

27. WTO, TRIPS overview—Art. 33 term of patents. World Trade Organization

28. EU, Directive 2006/116/EC (term of protection). EUR-Lex

29. WTO, Compulsory licensing FAQ (Art. 31 conditions). World Trade Organization

30. WTO Analytical Index, Art. 31 remuneration (2022 decision). World Trade Organization

31. Abbott, Compulsory license & government use (timelines; remuneration). frederickabbott.com

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One‑screen recap

• The Constitution’s goal is progress, not perpetual private control.¹

• Extra decades add tiny ex‑ante incentives but big ex‑post costs.¹⁷

• Long terms amplify thickets, hold‑up, orphan works, and clearance costs in fast‑cycle markets.^19–26

• Short, strong exclusivity followed by open, priced access will speed cumulative innovation—and likely give us more Mickeys, not fewer.^17,24 BrookingsUC Berkeley Law

What to change: principles

1. Short, strong exclusivity when it matters (the first few years).

2. After that, use‑and‑pay access (statutory licensing) to end gridlock while compensating creators.

3. Fast lanes for research, interoperability, text/data mining, libraries, and preservation.

4. Sunlight & independence in rate‑setting and future changes to prevent capture.

5. Respect international floors where binding; where not, shorten terms; where necessary, pursue treaty updates so U.S. law reflects modern innovation cycles.

“To promote the Progress of Science and useful Arts, by securing for limited Times… the exclusive Right to their respective Writings and Discoveries.” — U.S. Constitution, Art. I, §8, cl. 8. Congress.gov

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Preface: the profession, the problem, and the fix

You argue that intellectual‑property law, as practiced, showcases the toxicity of lawyer‑driven rent seeking—producing sprawling litigation that harms the nation. I’ll keep the rhetoric in check, but the policy diagnosis is sound: concentrated rightsholders and litigation specialists have steered the system toward ever‑longer terms and outsized statutory penalties, even where those yields add little creative incentive but large social cost. That’s regulatory capture 101: concentrated benefits, diffuse costs. The remedy is not scorched‑earth animus toward lawyers, but changing the incentives and shrinking the litigation profit zone—with short, strong exclusivity up front, use‑and‑pay after, fee‑shifting, and sunlight so future term fights aren’t hijacked. Becker Friedman Instituteregulatorystudies.columbian.gwu.edu

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Reply to the Lawfare piece (Anthropic settlement & AI lawsuits)

Stewart Baker’s essay argues that AI copyright lawsuits are an existential U.S. risk because statutory damages up to $150,000 per work + class aggregation scale to astronomical exposure, and he proposes using the Defense Production Act (DPA) to impose training licenses on “reasonable terms” via a single tribunal. He’s right about the litigation incentives; a $1.5B settlement number and “trillions” rhetoric show the pressure such suits can exert. Where I diverge is remedy: DPA is at best a temporary executive stop‑gap; Congress should reset the payoffs with short exclusivity + use‑and‑pay + damages discipline for training uses. DefaultLegal Information InstituteFAS Project on Government Secrecy

Why DPA is limited: Title I prioritizes/allocates production; Title III finances capacity; neither is a durable fix for IP pricing across the economy. Use it narrowly if needed, but legislate the market design so innovation pays more than litigation. FAS Project on Government SecrecyCongress.gov

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Why long terms now slow innovation (five channels, one page)

1. Cumulative innovation gridlock: Many follow‑on projects need many permissions. With fragmented ownership, bargaining failure risk compounds (“anticommons”). Longer terms keep the tollbooths up for decades. Science

2. Patent thickets & hold‑up: Overlapping claims in complex products (chips, software, telecom) raise royalty stacking and litigation leverage; injunction threats force supra‑competitive rates. Haas School of Business+1

3. Diffusion drag: High markups slow early adoption and shrink complements ecosystems; standards disputes (SEPs/FRAND) illustrate persistent hold‑up. Haas School of Business

4. Orphaning under copyright: Long terms with weak registries strand works; availability jumps in the public domain. UC Berkeley Law

5. Litigation/uncertainty tax: Probabilistic patents (uncertain scope/validity) suppress adjacent investment; longer assertion windows increase the tax. Haas School of Business

Evidence: Short‑term gene IP reduced downstream research/product development ~20–30%; when sequences entered the public domain, follow‑on rose—clean evidence that even brief exclusivity throttled cumulative science. Public‑domain status predicts greater work availability in culture markets. Chicago JournalsPMCUC Berkeley Law

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Plain‑English math (8th‑grade)

• Clearance math: If each of 10 owners says “yes” 90% of the time, the chance all say yes is $0.9^{10} \approx 35\%$. With 20 owners, ~12%. Many permissions → low odds overall.

• Deadweight loss: If cost is $10 and monopoly price is $15, fewer buy; missed win‑wins stack up every year exclusivity persists.

• Arrival rate: If big improvements arrive at 10%/yr and licensing frictions cut that by 30%, the new rate is 7%/yr; average wait stretches from 10 to 14.3 years.

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The Mickey question

If “Mickey” had 5 years of strong copyright instead of ~95, do we get more or fewer cute characters? More. Revenues are front‑loaded; short, strong exclusivity still pays creators; early public‑domain entry then explodes remix and competition. Trademarks still protect brand identity. Empirically, more works reappear when they’re public domain. UC Berkeley Law

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MODEL FEDERAL LAW

The Progress Acceleration Act of 2025

To accelerate the progress of science and the useful arts by modernizing intellectual‑property terms, reducing litigation incentives, and ensuring broad, remunerated access to knowledge and culture.

Enacted pursuant to Article I, §8, cl. 8, and the Commerce Clause. Congress.gov

Proposed Model Federal Statute to End the Toxic and Strangling Effects of Intellectual Property Law: 

• Copyright

  • Exclusive control: 2 years (renewable once for 1 year → max 3).

  • Open use after: Years 3–10 = compulsory, zero‑royalty use‑and‑pay at $0 for non‑substitutive uses; derivative/consumptive uses pay only if actual, net financial loss and physical harm proven. Year 10+ = public domain.

  • Damages: No statutory or punitive damages. No disgorgement. No monetary award at all unless the rightsholder proves both (1) net audited loss (after offsets) and (2) physical injury or property damage proximately caused by the use.

  • Offsets required: Court must deduct quantified publicity/awareness/sales lift caused by the use (with presumptive formulas).

  • Injunctions: Unavailable except to stop imminent physical injury/safety risk or false attribution.

  • Training/TDM: Per se lawful if copies were lawfully acquired; piracy still actionable, but same strict damages test applies.

• Patents

  • Legal term stays at 20 years (treaty floor), but effective exclusivity is ≤ 12 months after first U.S. sale or 24 months from filing (earlier wins); thereafter license‑of‑right at posted zero to de‑minimis royalties unless patentee proves net, audited loss and physical harm.

  • Injunctions: barred post‑license‑of‑right except for physical‑risk scenarios.

• Litigation deterrents

  • Loser‑pays by default (defendant‑favored); automatic fees to prevailing defendants; plaintiffs cannot recover fees.

  • Pre‑suit bond (returnable only if plaintiff meets the double‑proof standard above).

  • Class actions barred in IP damages cases.

  • Contingency fees capped at 5% in IP cases; third‑party litigation funding banned (except narrowly for nonprofits with no revenue interest).

  • CPA‑attested damages schedules and offset worksheets required with the complaint; failure → dismissal with prejudice.

If you still think this is soft on rent‑seeking, read Titles IV–VI: they’re designed to make routine IP lawsuits economically irrational.

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THE PROGRESS WITHOUT LITIGATION ACT OF 2025

(Model Federal Statute — “Litigation‑Starvation Edition”)

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I — FINDINGS, PURPOSE, AND DEFINITIONS

Sec. 101. Findings. Congress finds:
(a) The Constitution authorizes IP protection to promote the Progress of Science and useful Arts for limited times; the purpose is public progress, not private rent.
(b) Extremely long terms and statutory/punitive damages have enabled rent‑seeking litigation that chills cumulative innovation.
(c) In modern digital markets, creativity and invention monetize rapidly; beyond a very short window, exclusivity yields little incremental incentive but large social cost.
(d) Lawsuits should be viable only where a rightsholder suffers real, demonstrable harms; otherwise, access should be open.

Sec. 102. Purposes. To drastically shorten exclusivity, require audited proof of net financial loss and physical harm for any monetary recovery, mandate offsets, abolish statutory/punitive damages, restrict injunctions to physical‑risk cases, and remove the financial incentives that drive speculative litigation.

Sec. 103. Definitions.
(1) Net Actual Financial Loss (NAFL): claimant’s but‑for gross revenue minus actual gross revenue, minus avoided costs, minus Publicity‑Awareness Benefit (PAB) offsets under Sec. 224.
(2) Physical Harm: bodily injury, death, or tangible property damage proximately caused by the accused use. Emotional distress and reputational harm do not qualify.
(3) Non‑substitutive use: a use that does not serve as a market substitute for the original work or patented product (e.g., text/data mining, interoperability, indexing, quotation for critique).
(4) CPA Attestation: sworn statement by an independent certified public accountant that the NAFL and PAB computations comply with this Act.

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TITLE II — COPYRIGHT (AMENDING TITLE 17, U.S. CODE)

Sec. 201. Core Exclusive Term.
(a) For works fixed on or after the effective date, exclusive rights under 17 U.S.C. §106 are exclusive for two (2) years from first publication.
(b) One (1) renewal of one (1) year may be obtained by filing a simple renewal notice before the end of Year 2. Maximum exclusivity: 3 years.
(c) During the Core Exclusive Term, injunctive relief and actual damages may be awarded subject to Title IV.

Sec. 202. Open Use & Public Domain.
(a) From the end of the Core Exclusive Term until Year 10 from first publication (the Open Use Term), any person may reproduce, distribute, perform, display, adapt, or TDM the work without license and without royalty for non‑substitutive uses.
(b) Consumptive/derivative uses are permitted in the Open Use Term subject only to the damages regime in Title IV; no injunctions except for physical‑risk or false‑attribution cases.
(c) At Year 10, the work enters the public domain.

Sec. 203. Training and Non‑Consumptive Uses.
Using lawfully obtained copies for non‑substitutive text/data mining, model training, indexing, or search is per se non‑infringing. Use of pirated copies is actionable under Title IV but subject to the same damages proof and offsets.

Sec. 204. Exceptions and Safe Harbors.
Libraries/archives/preservation, accessibility, education, research, reverse engineering, and interoperability are always non‑infringing.

Sec. 205. Orphan Works.
A diligent‑search user may file a Notice of Use and proceed; if an owner appears, remedies are limited by Title IV (and only upon proof of NAFL and Physical Harm).

Sec. 206. Transition.
(a) Works first published ≥10 years before the effective date enter the public domain at once.
(b) Works 3–10 years old enter the Open Use Term at once.
(c) Works <3 years retain exclusivity until Year 3, then enter the Open Use Term.

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TITLE III — PATENTS (AMENDING TITLE 35, U.S. CODE)

Sec. 301. Ultra‑Early License‑of‑Right.
(a) Patent term remains 20 years from filing (to respect international minima).
(b) License‑of‑Right attaches automatically on the earlier of: (i) twelve (12) months after the first commercial sale in the U.S.; or (ii) twenty‑four (24) months after the earliest effective U.S. filing date.
(c) After License‑of‑Right attaches, any person may practice the invention without license; monetary relief is available only under Title IV.
(d) Injunctions post‑attachment are barred except to prevent credible risk of physical injury or property damage.

Sec. 302. Research Tools, Interfaces, Standards.
APIs, interoperability interfaces, research tools, and standard‑essential claims are License‑of‑Right from grant.

Sec. 303. Quality & Thickets.
Escalating maintenance fees (years 4, 8, 12, 16), stronger post‑grant review, terminal disclaimers for continuations; fee‑shifting under Title V.

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TITLE IV — REMEDIES (APPLIES TO TITLES 17 & 35)

Sec. 401. Abolition of Statutory and Punitive Damages.
No statutory damages. No punitive or enhanced damages. No disgorgement or accounting of profits.

Sec. 402. Monetary Relief Only Upon Double Proof.
A court shall not award any monetary relief unless the claimant proves, by a preponderance of the evidence, both:
(a) NAFL with CPA Attestation; and
(b) Physical Harm proximately caused by the accused act.

Sec. 403. Mandatory Offsets (Publicity‑Awareness Benefit).
(a) The court must deduct PAB from any NAFL. PAB includes, at minimum: (i) statistically attributable lift in unit sales, subscriptions, streams, or licensing revenue within 24 months of the accused use; (ii) measured growth in search, social mentions, or brand metrics demonstrably linked to the use, monetized via claimant’s historical conversion rates; (iii) incremental traffic/revenue from referrals attributable to the use.
(b) Presumptive PAB credits (rebuttable by clear and convincing evidence):

• Broadcast or major‑platform exposure: +25% of accused‑period revenue credited as PAB.

• Viral social exposure (>1M impressions): +15%.

• Academic/research citation or library inclusion: +10%.
  (c) If PAB ≥ gross loss, NAFL = $0.

Sec. 404. Injunctions Narrowed.
(a) Injunctions are available only upon clear and convincing evidence of imminent physical injury or substantial property damage that cannot be reasonably compensated in money.
(b) False‑attribution injunctions (to stop miscrediting) remain available.

Sec. 405. Declaratory Relief.
Courts shall freely grant declaratory judgments of non‑liability and of permissible use under Titles II–III.

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TITLE V — LITIGATION DISCIPLINE (REMOVING PROFIT INCENTIVES)

Sec. 501. Loser‑Pays (Defendant‑Favored).
(a) The prevailing defendant shall recover full reasonable attorney’s fees and costs automatically.
(b) A prevailing plaintiff may not recover attorney’s fees or costs.
(c) If a plaintiff fails to satisfy Sec. 402 at summary judgment, the court shall award double the defendant’s reasonable fees and costs.

Sec. 502. Pre‑Suit Bond.
Before filing, a claimant shall post a bond equal to the greater of $250,000 or 10% of claimed damages (if any). The bond funds fee/cost awards under Sec. 501. Unbonded suits are dismissed with prejudice.

Sec. 503. Complaint Requirements.
A complaint must attach: (i) CPA‑attested NAFL Schedule; (ii) PAB Worksheet; (iii) Physical Harm Report by a qualified expert. Missing or facially deficient filings are dismissed with prejudice.

Sec. 504. Class Actions & Aggregation.
(a) No class actions seeking damages are permitted under Titles 17 or 35.
(b) Assignment‑aggregators and mass‑trolling entities lack standing to seek damages.

Sec. 505. Contingency Fees & Third‑Party Funding.
(a) In IP cases, attorney contingency fees are capped at 5% of any net recovery after offsets; court approval required.
(b) Third‑party litigation funding is prohibited, except for bona fide nonprofits that (i) have no revenue interest in the outcome and (ii) disclose all funding terms to the court and defendant.

Sec. 506. Early Neutral Evaluation & Safe Offers.
(a) Parties must attend an Early Neutral Evaluation within 60 days of service.
(b) If the defendant tenders a safe‑harbor offer and the final judgment does not exceed that offer, the defendant is the prevailing party for fee purposes.

Sec. 507. Demand Letters.
Pre‑suit mass demand letters must include the Sec. 503 materials; failure → per‑letter civil penalty and bar discipline referral.

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TITLE VI — ADMINISTRATION & REGISTERS

Sec. 601. Public Domain & Availability Registry.
The Library of Congress shall operate a free registry for rights status, contactability, and any notices; filings are not required for protection but facilitate orphan‑works contact.

Sec. 602. Data & Audits.
Courts may appoint neutral damages auditors; willful misstatement in a CPA Attestation is punishable as perjury and by monetary sanctions.

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TITLE VII — INTERNATIONAL & TRANSITION

Sec. 701. Treaties.
This Act preserves the existence of protection required by treaties but limits remedies and exclusive control as set herein. The Executive is directed to pursue reservations or amendments to align international commitments.

Sec. 702. Effective Date & Transition.
(a) Effective 180 days after enactment.
(b) Ongoing cases: damages and fee provisions of Titles IV–V apply to all judgments entered after the effective date.

Sec. 703. Severability.
If any part is held invalid, the remainder stands.

Comparison with current law:

A) SIDE‑BY‑SIDE REDLINE (SUMMARY + MODEL AMENDMENT TEXT)

How to read this: For each affected statute, you get (1) What current law does (abridged), (2) What the bill does, and (3) Model amendment text (ready to slot into a full bill). I avoid reproducing entire sections of the U.S. Code; instead I show the exact insert/strike logic needed to implement the “short terms + no statutory damages + double‑proof + offsets + no injunctions (except physical‑risk)” design.

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TITLE 17 — COPYRIGHT

§302 (Duration of copyright)

Current (abridged): Life of the author + 70 years; for works made for hire/anonymous/pseudonymous: 95 years from publication or 120 from creation, whichever is shorter.

Change (bill): Strike §302 and replace with Core Exclusive Term = 2 years (renewable once for 1 year), then Open Use Term to Year 10, then Public Domain.

Model amendment text

- §302. Duration of copyright: Works created on or after January 1, 1978 (life + 70 / 95/120 corporate)
+ §302. Duration; Core Exclusive Term; Open Use Term; Public Domain
+ (a) Core Exclusive Term.—For works first published on or after the effective date,
+     the exclusive rights in section 106 are exclusive for two (2) years from first publication.
+ (b) Renewal.—The owner may file a renewal before the end of year 2 for a single additional one (1) year term.
+ (c) Open Use Term.—From the end of the Core Exclusive Term until the end of year 10 from first publication,
+     any person may exercise the rights enumerated in section 106 without license for non‑substitutive uses,
+     and for other uses subject solely to Title 17, chapter 5 (Remedies) as amended herein.
+ (d) Public Domain.—At the end of year 10, the work enters the public domain.
+ (e) Preemption.—Any longer federal or state duration rule is preempted as to works covered by this section.

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§106 (Exclusive rights)

Current (abridged): Grants the six exclusive rights (reproduce, prepare derivatives, distribute, perform, display, transmit sound recordings digitally), without temporal qualifiers here.

Change: Scope stays the same during Core Exclusive Term only. After that, rights are subject to open use (non‑substitutive) or limited to remuneration/actual harm rules in the remedies chapter.

Model amendment text

+ §106(b) Time‑bounded exclusivity.—The rights in subsection (a) are exclusive only during the Core Exclusive Term described in section 302.
+ After that period, uses are governed by section 302(c) (Open Use Term) and chapter 5 (as amended).

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§107 (Fair use) & New §107A (Text/Data Mining; Interoperability)

Current: Fair use factors; no express TDM rule; §108 covers libraries/archives; §1201 (DMCA) can impede interoperability.

Change: Add per se lawful non‑consumptive TDM and interoperability safe harbors; harmonize with §1201.

Model amendment text

+ §107A. Non‑consumptive text and data mining; interoperability; reverse engineering
+ (a) Lawful copies.—Non‑consumptive TDM of lawfully acquired or publicly available copies is not infringement.
+ (b) Interoperability.—Reverse engineering and use necessary to achieve interoperability are not infringement.
+ (c) Substitutive outputs.—If an output substitutes for the original work, monetary relief, if any, is governed by §504 as amended.

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§108 (Libraries and archives)

Change: Codify broad preservation/format‑shifting/accessibility safe harbors (already permissive, but we make them always‑on).

Model amendment text

+ §108(k) Always‑on safe harbor.—The activities of libraries, archives, and museums for preservation, accessibility,
+ and research are non‑infringing at all times, including during the Core Exclusive Term.

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§1201 (DMCA anti‑circumvention)

Current: Anti‑circumvention can block research/interoperability.

Change: Add categorical exemptions aligned to §107A and §108.

Model amendment text

+ §1201(j) Exemption.—Circumvention solely for lawful TDM, research, preservation, accessibility,
+ or interoperability under §§107A and 108(k) is not a violation of this section.

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Chapter 5 (Remedies): §§502–505

§502 (Injunctions)

Current: Courts may grant injunctions on principles of equity.

Change: Narrow to physical‑risk or false‑attribution only.

- §502(a) ... courts may grant temporary and final injunctions ...
+ §502(a) Injunction standard (narrow).—A court may grant injunctive relief only upon
+ clear and convincing evidence of imminent physical injury or substantial property damage
+ that cannot reasonably be compensated in money, or to prevent false attribution.

§504 (Damages)

Current: Actual damages and profits (§504(b)); statutory damages up to $150,000/work for willful (§504(c)).

Change: Abolish statutory damages and disgorgement. Add double‑proof (actual net financial loss and physical harm) + mandatory offsets.

- §504(b) ... actual damages and any additional profits ... 
- §504(c) Statutory damages ...
+ §504 Damages (limited).
+ (a) No statutory or punitive damages; no disgorgement.
+ (b) Monetary relief requires proof of BOTH:
+     (1) Net Actual Financial Loss (NAFL) with CPA attestation; AND
+     (2) Physical Harm proximately caused by the accused act.
+ (c) Mandatory offsets.—The court shall deduct Publicity‑Awareness Benefit (PAB) as defined by regulation,
+     with presumptive credits for major exposure, viral reach, and academic/library inclusion; if PAB ≥ gross loss, NAFL = $0.

§505 (Costs and attorney’s fees)

Current: Court may award reasonable attorney’s fees to the prevailing party.

Change: Automatic, defendant‑favored loser‑pays; plaintiffs never recover fees.

- §505 ... the court in its discretion may allow the recovery of full costs ... and may also award a reasonable attorney's fee ...
+ §505 Fees and costs (defendant‑favored).
+ (a) A prevailing defendant shall recover full reasonable attorney’s fees and costs as of right.
+ (b) A prevailing plaintiff may not recover attorney’s fees or costs.

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TITLE 35 — PATENTS

§154 (Patent term)

Current: 20 years from earliest effective filing date (TRIPS minimum).

Change: Keep §154, but add §154A (License‑of‑Right) to flip effective exclusivity after 12–24 months.

Model amendment text

+ §154A. License‑of‑Right after early exclusivity
+ (a) Attachment.—On the earlier of (i) 12 months after first commercial sale in the U.S.,
+     or (ii) 24 months after the earliest effective U.S. filing date, every patent is endorsed LICENSE OF RIGHT.
+ (b) Practice permitted.—Any person may practice the invention without license; monetary relief, if any,
+     is governed by §284 as amended. No injunctions except under §283(b).

§271 (Infringement)

Change: Clarify that post‑License‑of‑Right practice is not actionable as infringement (only limited monetary remedy if the double‑proof test is met).

+ §271(k) License‑of‑Right.—Acts occurring after §154A attachment are not actionable as infringement; 
+ monetary relief, if any, is limited by §284 and requires proof under §284(b).

§283 (Injunctions)

Change: Match copyright: only for physical‑risk.

- §283 ... courts may grant injunctions ...
+ §283(b) Injunction standard (narrow).—Injunctions may issue only upon clear and convincing
+ evidence of imminent physical injury or substantial property damage that cannot reasonably be compensated in money.

§284 (Damages)

Current: Adequate to compensate for infringement; enhanced up to treble for willful.

Change: Abolish enhancement; require NAFL + Physical Harm + mandatory offsets; no disgorgement.

- §284 ... damages adequate to compensate ... the court may increase the damages up to three times ...
+ §284 Damages (limited).
+ (a) No trebling, no punitive damages, no disgorgement.
+ (b) Monetary relief requires BOTH: (1) Net Actual Financial Loss (with CPA attestation); AND (2) Physical Harm proximately caused.
+ (c) Mandatory offsets for publicity/awareness and complementary sales attributable to the accused use; if offsets ≥ gross loss, NAFL = $0.

§285 (Attorney’s fees)

Current: In “exceptional cases” court may award fees to prevailing party.

Change: Automatic fees to prevailing defendants; plaintiffs never recover fees.

- §285 The court in exceptional cases may award reasonable attorney fees to the prevailing party.
+ §285 Fees and costs (defendant‑favored).
+ A prevailing defendant shall recover full reasonable attorney’s fees and costs as of right. Plaintiffs may not recover fees or costs.

§289 (Additional remedy for design patent infringement)

Current: Disgorgement of total profit from the article of manufacture.

Change: Repeal disgorgement; apply §284 rules.

- §289 ... total profit ...
+ §289 [repealed]. Damages for design patents are governed by §284.

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TITLE 28 — JUDICIARY & JUDICIAL PROCEDURE (procedural backstops)

New §1719 (No class actions for IP damages)

+ 28 U.S.C. §1719. Prohibition on class actions for IP damages
+ No class action seeking monetary relief may be maintained for claims under Titles 17 or 35.

New §1928 (Pre‑suit bond; schedules)

+ 28 U.S.C. §1928. Pre‑suit bond in intellectual property actions
+ Plaintiffs shall post a bond equal to the greater of $250,000 or 10% of claimed damages; unbonded suits are dismissed with prejudice.

§1927 (Counsel liability for vexatious multiplication)

Change: Add IP‑specific triggers (mass demand letters without CPA schedules; copy‑paste pleadings).

+ In actions under Titles 17 or 35, the following constitute unreasonable and vexatious conduct per se:
+ (1) Issuing demand letters without the §504/§284 schedules; (2) Pleading damages without CPA attestation;
+ (3) Aggregating assignments to manufacture standing for damages.

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B) ONE‑PAGE STAFFER BRIEF (FOR MEMBERS & COMMS)

Bill title: The Progress Without Litigation Act of 2025
Goal: Make innovation more profitable than litigation by (1) drastically shortening IP exclusivity, (2) abolishing statutory/punitive damages, and (3) requiring real harm + offsets before any money can change hands.

What the bill does—at a glance

• Copyright

  • Exclusivity: 2 years + one 1‑year renewal (max 3).

  • Open Use: Years 3–10—non‑substitutive uses free; other uses allowed but no money unless double‑proof.

  • Public Domain: Year 10.

  • No statutory damages; no disgorgement.

  • Damages only if BOTH: Net Actual Financial Loss (audited) and Physical Harm—then mandatory offsets (publicity/awareness lift, complementary sales).

  • Injunctions: only to stop physical risk or false attribution.

  • TDM/Interoperability: per se lawful with lawfully obtained copies.

• Patents

  • License‑of‑Right attaches 12 months after first sale or 24 months from filing (earlier).

  • Post‑attachment: anyone can practice; no injunctions (except physical risk); no treble damages; same double‑proof + offsets.

• Litigation deterrents

  • Automatic defendant fees; plaintiffs never recover fees.

  • Pre‑suit bond ($250k or 10%).

  • No class actions for IP damages; no third‑party litigation funding (narrow nonprofit carve‑out).

  • CPA‑attested damages schedules must be filed with the complaint.

Why now

• Digital markets monetize fast; decades‑long terms add negligible incentive but huge social costs (gridlock, orphaning, lawsuit leverage).

• AI training & interoperability need legal certainty: lawful uses shouldn’t face $150,000/work exposure.

• Small businesses & creators need clear, cheap rules; this bill replaces lawsuits with rules.

Effects (year 1–3)

• Innovation tempo up: fewer clearance bottlenecks; faster remix and follow‑on; more competition.

• Legal spend down: investor due diligence improves (predictable remedies); nuisance suits dry up.

• Public domain grows: availability of works expands; educational and research uses surge.

Common objections & responses

• “Short terms kill creation.” Revenues are front‑loaded; early years fund creation. After that, the social gain from diffusion outweighs tiny added incentive.

• “No injunctions?” Still available for physical risk and false attribution; money damages require real harm—not leverage.

• “International law?” We keep the existence of rights required by treaties; we change remedies and exclusivity domestically. The Executive is directed to seek alignments.

Sound bite

“We protect creation when it matters, then let America build. If you can’t prove real harm, you shouldn’t be in court.”

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C) FULL STATUTE TEXT (CONSOLIDATED)

If you want the complete, stitched bill text (Titles I–IX) in a single downloadable file with all sections numbered and cross‑referenced, say the word and I’ll deliver it as a clean bill PDF or .docx. The core provisions match the model amendments above:

• Title I (Findings/Purposes/Defs)

• Title II (Amend 17 U.S.C. §§302, 106, add §107A, expand §108, add §1201(j), overhaul Ch. 5 remedies §§502–505, orphan works)

• Title III (Add 35 U.S.C. §154A; amend §§271, 283, 284, 285; repeal §289; research tools/interfaces immediate LOR)

• Title IV (Remedies—double‑proof + offsets + injunction narrow)

• Title V (Litigation discipline—fees, bonds, class ban, TLF ban, contingency cap, ENE/safe offers)

• Title VI (Registry, audits)

• Title VII (Treaty posture & transition)

• Title VIII (DPA backstop optional)

• Title IX (Severability, effective date)