IP Czar Focused On Protecting Jobs, Not Promoting Progress?

from the that's-the-wrong-thing dept

Fri, Nov 6th 2009 4:31pm — Mike Masnick

We were already somewhat concerned about the nomination of Victoria Espinel for the IP Czar job in the administration (forced on the administration by the silly and pointless "ProIP" Act from last year). On Thursday, she had her confirmation hearings where she said pretty much what we expected about how important intellectual property is, and how she viewed her job as coordinating different government agencies to crack down on infringers. Much of her (brief) testimony (pdf) talked up the usual industry claims about the importance of intellectual property on the economy, not recognizing how misleading they are. These are stats that simply credit anything covered by intellectual property laws, as if the only reason those industries exist is because of those laws. That's a mistake.

But more troubling? Espinel made it clear that her job is not to do as the Constitution requires, and make sure that intellectual property laws are properly "promoting the progress of arts and the useful sciences" (she never mentions this part), but, instead she claims her focus is cracking down on infringement to protect jobs:

If I am confirmed as the United States Intellectual Property Enforcement Coordinator, I will work side by side with agencies, Congress, stakeholders and the public to ensure that jobs that depend on intellectual property are not compromised by others' unwillingness to respect and enforce the rule of law....

But intellectual property law is not about "protecting jobs" it's about encouraging innovation. Innovation can be disruptive. Jobs can get shifted around. Protecting jobs is not encouraging innovation. It's the opposite.

Better and smarter protection and enforcement of intellectual property rights will create more jobs...

There's simply no evidence to support that. Shouldn't our IP Czar rely on actual evidence rather than broad industry claims that are unproven?

Then, on being questioned she appeared to support Hollywood's position that any net neutrality laws won't apply to mandating content filters on ISPs. It's looking like -- just as was initially feared -- this position is really to get Hollywood's own representative in the White House. What a shame. If you must have an "IP Czar" shouldn't it be someone who's actually focused on making sure progress is being promoted, rather than someone who wants to blindly crack down on infringement with no thought towards whether or not it makes sense?

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Filed Under: copyright czar, ip czar, victoria espinel

24 Comments

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Dementia (profile), 6 Nov 2009 @ 4:40pm

Come on Mike, do you really expect any government appointee to make sense?
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Thomas, 6 Nov 2009 @ 4:55pm

Doubting
I doubt she is concerned about people losing their jobs.
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Anonymous Coward, 6 Nov 2009 @ 4:59pm

People who infringe copyright should be thrown in jail. Along with the jaywalkers and those that litter.

Artists finally have a champion to fight back against the scourge of copyright infringers. Her name is Victoria Espinel and she will end the War on Copyright Infringement.

And art will be free. If you have the proper license.
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Anonymous Coward, 6 Nov 2009 @ 5:38pm

"Progress", as used in the Constitution, is within the province of Congress to determine what promotes it and what does not.

If you disagree with Congress' interpretation why not run for a congressional seat?
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Mike Masnick (profile), 6 Nov 2009 @ 5:45pm

Re:
If you disagree with Congress' interpretation why not run for a congressional seat?

Heh. My favorite response: "Do not speak and try to convince people. Instead you must run for office to effect change."

Sorry. I have no interest in running for Congress, and I believe it's a lot more effective to work on getting these ideas out (for free!) so that more people understand them and can effect change as a group, rather than just one individual in Congress.
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Anonymous Coward, 6 Nov 2009 @ 5:46pm

Re:
Or burn it to the ground.
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Anonymous Coward, 6 Nov 2009 @ 5:46pm

Re:
Funny, I thought it was up to, you know...facts.
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Brooks (profile), 6 Nov 2009 @ 5:48pm

Re:
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.

Now, can you really, with a straight face, say there's a legitimate interpretation there that says that "progress" means protection jobs from disruption? Not that it's progress of *science* and *arts*, not *industry*.
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Anonymous Coward, 6 Nov 2009 @ 6:21pm

Re: Re:
To be blunt, one of the objectives of our first copyright law, The Copyright Act of 1790, was to preserve publishing jobs in the US at the expense of foreign authors.

Generally speaking, it was not until enactment of The Berne Convention Implementation Act of 1989 that foreign authors were placed on an equal footing with US authors under our copyright law.
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Anonymous Coward, 6 Nov 2009 @ 6:56pm

Re: Re: Re:
To be blunt, one of the objectives of our first copyright law, The Copyright Act of 1790, was to preserve publishing jobs in the US at the expense of foreign authors.

So, you're saying that even our first copyright law was unconstitutional? It sounds to me then like we need to to do a complete rollback.
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Doctor Strange, 6 Nov 2009 @ 7:24pm

But more troubling? Espinel made it clear that her job is not to do as the Constitution requires, and make sure that intellectual property laws are properly "promoting the progress of arts and the useful sciences" (she never mentions this part), but, instead she claims her focus is cracking down on infringement

The Constitution says:

"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."

There is one and only one mechanism prescribed for "[promoting] the Progress..." and it is "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In this statement, the assumption is that this singular mechanism is useful for "[promoting] the Progress."
Congress, and the courts (in Eldred and others) have clearly sided with the framers on this issue. I understand you disagree with the framers, Congress, and the courts, but if so, then your disagreement is with them, not specifically with Espinel.

Espinel, if you read the part of her testimony that you didn't quote, seems to agree with the framers' assumption:

"Intellectual property rights will foster and protect the ingenuity of our artistic and creative communities."

Second, I don't understand why you believe the Constitution "requires" her, as IP Czar, to "make sure that intellectual property laws are properly "promoting the progress of arts and the useful sciences." That is Congress' job. The IP Czar, as you've lamented, is employed in the Office of Management and Budget (OMB), which is part of the Executive branch. Broadly, the Executive branch's job is to enforce existing law, not to make it (that's the legislative branch's job) or interpret it (that's the judicial branch's job). Thus, her focus should be primarily on enforcement (i.e., "cracking down on infringement"), not policymaking (Congress' job) or interpreting the Constitution (the courts' job).
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Anonymous Coward, 6 Nov 2009 @ 7:42pm

Re:
Who cracks down on jaywalking, that's what I want to know? Is there a Street Czar? To clean up our communities, to clean the streets from these law-breaking scum.

Jaywalkers. They have no decency. None! They think the law doesn't apply to them, well, with a Street Czar running them off the road we'll see who ultimately prevails.

Jaywalkers are worse than pirates. They actually put themselves and others in harm's way. They must be stopped. At all cost.
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Anonymous Coward, 6 Nov 2009 @ 8:05pm

Re: Re: Re: Re:
At one point in human history it took centuries for people to change their behaviour.

In the 20th century, it was decades.

Now it's years. But sure, why don't we pretend that laws crafted decades ago have any sort of relevency in the 21st century. Well, so what if you can't really enforce them, the laws are on the books so we have to do it.

We have to do it. We must never ignore the law, why, we'd be no better than savages! Savages with supercomputers in our pockets.
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Anonymous Coward, 6 Nov 2009 @ 11:53pm

Re: Re: Re: Re: Re:
But sure, why don't we pretend that laws crafted decades ago have any sort of relevency in the 21st century.

Murder, illegal? Why, that's so last decade!
[/sarcasm]

When laws change with the wind people come to view them as arbitrary and lose respect for them.
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Anonymous Coward, 7 Nov 2009 @ 12:44am

The law loses respect
"When laws change with the wind people come to view them as arbitrary and lose respect for them."

Uh... yes. And when laws stay on the books when a great swath of the population thinks they don't make a lot of sense, but exist only because of special interest campaign bribes, oops, I mean "contributions", then people come to view the law as corrupt and lose respect for it.
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Headbhang, 7 Nov 2009 @ 5:01am

Re: Doubting
Sure she does. The media fat cats', at least.
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MOTD, 7 Nov 2009 @ 7:17am

The rights and interests of the laboring man will be protected and cared for not by our labor agitators, but by the Christian men to whom God in his infinite wisdom has given control of property interests of the country, and upon the successful management of which so much remains.
-- George F. Baer, railroad industrialist
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Anonymous Coward, 7 Nov 2009 @ 9:48am

Re: The law loses respect
...when a great swath of the population thinks they don't make a lot of sense, but exist only because of special interest campaign bribes, oops, I mean "contributions", then people come to view the law as corrupt and lose respect for it.

That sounds more like a lot of the newer laws.
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Anonymous Coward, 7 Nov 2009 @ 9:52am

Re: Re: Re: Re: Re: Re:
One must have respect for the law in question to ever lose said respect.
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Rekrul, 7 Nov 2009 @ 3:37pm

It's looking like -- just as was initially feared -- this position is really to get Hollywood's own representative in the White House.

Was there ever any doubt? Do you really think the media corporations would have been in favor of creating this position if there was even a snowball's chance in hell that Washington would appoint someone who would have a balanced view of copyright?

Right from the start, this was purely about getting someone in the white house to push the MPAA/RIAA's agenda. Anyone who ever thought otherwise is living in a fantasy world.
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Anonymous Coward, 7 Nov 2009 @ 7:13pm

Re:
Funny, last time I checked, nothing there says "securing for limited times that must be made less and less limited over time."
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Hephaestus (profile), 9 Nov 2009 @ 7:44am

Mike I have an idea for you ....
Mike you should set up sister blog for the future when people can be arrested, jailed, and fined for file sharing. We all know that criminalization is where this rush to protect the media distribution industries is going to end up.

On the blog tell the horror stories of ...

How 14 year old Bobbie was arrested, tried as an adult, raped in jail, now has AIDS, Is going to die, because the Intelectual Property Police got the IP address wrong.

How because of graduated response, poor little Jills VOIP didnt work and she was raped and murdered because she couldnt call for help.

How a poor 90 year old lady named Beatrice lost her house because of she was accused of file sharing and didnt even have and internet connection.

Its already to late for the media industry middle men, they just dont see it yet. Passing draconian laws, with jail time, fines, graduated response isn't going to change anything. We can see by how successful the criminalization of alcohol, marijuana, etc have been, that people will do what they want to do.

Please repost this in 4-5 years when the laws change ... Big Ole GRIN
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Anonymous Coward, 10 Nov 2009 @ 11:20pm

How 14 year old Bobbie was arrested, tried as an adult, raped in jail, now has AIDS, Is going to die, because the Intelectual Property Police got the IP address wrong.

How because of graduated response, poor little Jills VOIP didnt work and she was raped and murdered because she couldnt call for help.

How a poor 90 year old lady named Beatrice lost her house because of she was accused of file sharing and didnt even have and internet connection.

holy hyperbole!
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David Gessel, 15 Dec 2009 @ 2:31pm

Re:
The gist of the post and the plain English interpretation is that Congress may grant a temporary monopoly to an inventor for the purpose of promoting the progress of science and the useful arts. While you are correct that no other mechanism is enumerated, neither is any other purpose enumerated.

Neither the constitution nor the framers conflated "property" with ideas (quite the contrary, viz Jefferson's letter to Issac McPherson), this conflation is an industry canard intended to steal from the public domain by pretending the privilege is a right.

As the post correct alludes, there is no proof that the current copyright regime serves the constitutional mandate of promoting the progress of science and the useful arts. Indeed, there are some studies that suggest that restrictive copyright regimes retard progress by limiting innovation and hobbling market forces.

Looking at patent law is illustrative. Patent law derives from the same constitutional mandate and serves the same purpose but a patent provides a much briefer monopoly on an invention than the effectively permanent monopoly of copyright and I have never seen a justification for the difference based on the constitutional mandate.

Further if a patent application fails to teach a practical method of achieving the protected innovation, even if it fails to teach the best known method, it is invalid; there is no such test nor redress for copyright. Patent law has on occasion been refined to better meet the goal of promoting the progress of science and the useful arts, copyright has only been extended and expanded to protect profits and since the Sonny Bono Copyright Extension, not even lip service has been paid in congressional debates to the value of the public domain taken by eminent domain and gifted to the copyright industry.

Further, there is no question that the executive branch initiates and promotes policies and drives the legislative branch in directions deemed appropriate by the administration. It is entirely appropriate that the representative of the legislative branch take the lead on encouraging a fact-based analysis of the actual value of IP laws in fulfilling the constitutional mandate of promoting the progress of science and the useful arts first and foremost and thereby guiding the legislative to formulate laws consistent with an enlightened and constitutionally compliant view of copyright.
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