The Impossible Job Of Being The Copyright Czar

from the balancing-the-unbalanceable dept

The administration's "IP czar" (more technically, the "Intellectual Property Enforcement Coordinator"), Victoria Espinel, recently gave a talk at the Future of Music Coalition event in Washington DC, and while I had seen various reports about her speech, and had a few submissions asking me to comment, I wasn't quite sure what to say. Espinel basically said the same things she's been saying all along. Her job is to "protect the creativity of US citizens." And, to her credit, she doesn't just define that as big companies. While reports of her pressuring ISPs, payment processors and registrars to voluntarily block or disable accounts of infringers is... troubling, she is always careful to try to "balance" things. This was evident in the IP Strategic Plan she released a few months back. While it makes some suggestions that clearly makes industry interests happy, at the same time, it tosses some breadcrumbs to those concerned about how over-aggressive IP laws can actually hinder quite a lot of creativity.

It wasn't until I read music critic Greg Kot's report on Espinel's speech, that I finally realized what the real problem is here: Espinel's job is impossible. Now I'll admit that I never thought the job made sense. The IPEC role was created by the Pro-IP law, that never made much sense in the first place. But, Espinel has been given a job that makes no sense.

Creativity is not something you protect, it's something you enable.

What you can protect are business models or specific businesses. But, Espinel seems to recognize that actually protecting certain businesses actually could harm certain forms of creativity. And, so she appears to be trying to walk a fine balancing line, of "protecting" certain industries (who, it must be admitted, are heavy political donors), while not stifling actual creativity. But, that's impossible. It rests on the idea that there is such a fine line and that there needs to be a "balance" here. But that's not how creativity or business models really work. Enabling creativity means avoiding protectionism, and avoiding restrictions. The business models shake themselves out. And while it may make life tough on businesses that don't adapt, it's silly to think that there should be a government job whose sole purpose is to keep a few companies alive.

So, if we must have an IP Czar, at some point, the internal conflicts of the job need to be sorted out. Is the job to enable and encourage creativity? Or is to protect a few companies? It can't be both. But, in trying to thread that impossible needle, the logical contradictions come through. As Kot notes in his writeup, Espinel decried the (industry-sourced) claim that 95% of downloads are infringing, but when he asked her a question about "this fundamental disconnect between the government's agenda and the way many citizens interact with their computers and cellphones in their daily lives," Espinel responded by saying "I don't see an inherent conflict. The majority of consumers don't want to engage in illegal content." But, Kot noted (not aloud, unfortunately), "didn't you just say that 95 percent of downloaders are doing exactly that?"

Such is the nature of the impossibility of the job that Espinel is in. She needs to convince the world (and, perhaps, herself) that enabling creativity and protecting a few industry interests are the same thing, when they're clearly opposed. It's the same thing as saying that 95% of downloads are illegal while still believing that people don't want to download unauthorized material. Something doesn't fit, and in the end, people are going to need to realize that enabling creativity is a lot more important than protecting the interests of a few companies who, all too often, get in the way of creativity.

Filed Under: balance, copyright, copyright czar, victoria espinel

Administration Asks For Public Input On Intellectual Property Enforcement

from the hopefully-they'll-listen dept

As part of the mis-named ProIP act, the newly created IP Enforcement Coordinator (generally called the IP Czar) is supposed to help figure out what an effective "intellectual property enforcement strategy" would be. While we have questions about why this position or this plan is really needed in the first place, here's a bit of good news: rather than just doing the typical consult with industry lobbyists, the administration is, again, asking for public comment (pdf):

This request for comments and for recommendations for an improved enforcement strategy is divided into two parts. In the first, the IPEC seeks written submissions from the public regarding the costs to the U.S. economy resulting from intellectual property violations, and the threats to public health and safety created by infringement. In the second part, the IPEC requests detailed recommendations from the public regarding the objectives and content of the Joint Strategic Plan and other specific recommendations for improving the Government's intellectual property enforcement efforts. Responses to this request for comments may be directed to either of these two parts, or both, and may include a response to one or more requests for information found in either part.

The link above has more details, and the comments are due by Wednesday, March 24, 2010.

Now, I know when I posted my comments submitted to the USTR about the Special 301 process, a number of commenters wondered if the USTR would care, or even bother to look at, let alone consider, comments from the public beyond industry lobbyists. It is a valid concern. And while I do still wonder how much public comments will play a role in the actual strategy (compared to industry responses), in this case, the IPEC specifically reached out to Techdirt to let us know about this request for comment, to see if we would be interested in alerting our readers of their opportunity to take part. Now, the cynical response is that this is just window dressing -- and it's a lot easier to ask for comments from the public than to listen to them, but the fact that they are specifically reaching out to this community (among others) at least suggests an interest in what folks here might have to say. With that in mind, I'm hopeful that some of you will take the time to submit thoughtful comments on the subject.

Filed Under: copyright, copyright czar, enforcement, intellectual property, victoria espinel

IP Czar Focused On Protecting Jobs, Not Promoting Progress?

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

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?

Filed Under: copyright czar, ip czar, victoria espinel

Obama Finally Appoints IP Czar... Puts It In The Wrong Department

from the of-course dept

In a move that surprises no one, the Obama administration finally got around to officially nominating Victoria Espinel to be the IP Czar, a position that was created out of thin air a year ago in the ProIP Act, though the position went entirely unfilled until now. Hollywood lobbyists have been pushing the administration to appoint someone ever since the spring, and VP Joe Biden had to come out and calm Hollywood execs and lawyers by promising them the "right person" would be appointed (meaning: not someone who is interested in copyright reform).

And yet... there was no appointment for so long. Why? Well, a few weeks ago, it was explained that there was a fight over where to put the position and under what group Espinel's office would exist. The most obvious group was the Office of Science and Technology Policy. The problem? Most of the folks in OSTP actually seem to understand the problems of copyright law. They're fans of openness and understand things like Creative Commons. Entertainment industry lobbyists started to freak out again, that even if they got someone on "their side," that placing them in OSTP would stifle them, as the rest of the group might (gasp!) actually push back on attempts to stretch copyright enforcement towards the maximalist position. Instead, they wanted the position to be either its own office (entirely unlikely) or, in the Office of Management & Budget. Why OMB? No good reason. The position doesn't fit there at all... but putting it there keeps it away from those darn "copyleftists" in OSTP.

So where did the position end up? Yup... it's a part of OMB, just like Hollywood wanted. Lobbyists on all sides of the equation -- including consumer advocacy group Public Knowledge, though, are saying that Espinel is a good appointee. I certainly hope so, though I disagree that the position should exist at all. Also, Espinel was formerly the IP boss for the US Trade Representative -- a group that has been known to push for more draconian IP laws, and to do so cloaked in secrecy. So... I'm hoping to be surprised, but putting the office in OMB and having someone from USTR isn't encouraging.

Filed Under: copyright czar, ip czar, ostp, ustr, victoria espinel

IP Czar Won't Be In The Most Sensible Place Because Industry Doesn't Like It?

from the since-when-does-industry-dictate-stuff? dept

As you may remember, last year, thanks to lots of lobbying from the entertainment industry, Congress passed the totally unnecessary "ProIP" act, which made copyright even more draconian. Luckily, the most ridiculous parts of the bill -- like getting the Justice Department involved in civil litigation over copyright -- was dropped. But there was still plenty of bad stuff in there -- including the establishment of an "IP Czar" or "Copyright Czar" who would basically be the entertainment industry's personal representative in the White House, in charge of "coordinating" (i.e., "driving") strategy on making sure that the entertainment industry's obsolete business model is always protected directly from the White House.

Earlier this year, the Senators who pushed this through got antsy and pleaded with the White House to hurry up and appoint someone to the post. In response, the White House sent Joe Biden to an industry gathering, where he promised that the White House would pick "the right person" to represent the industry's interests. And yet... since then, there's been nothing.

It's been a poorly kept secret that Victoria Espinel is likely to be the IP Czar -- and, as former IP person at the USTR (who has always been strongly in support of stronger IP), it definitely seems like the industry will be happy with her. But why has it taken so long? Michael Scott points us to a report from last month that the "problem" is that the White House can't figure out where to place this role:

• A stand-alone office. While this is probably the most desirable in terms of making the position as prominent within the Administration as IP owners would like, it remains [an] uphill battle.
• Office of Science and Technology Policy (OSTP). OSTP is known for espousing views that are less then favorable to the IP community. Placing the IP Czar within OSTP would make no more sense than coupling Oscar and Felix (or for a more modern reference, coupling Harry Potter with Voldemort).
• Office of Management and Budget (OMB). If a stand-alone office is not in the cards than this may be the best alternative. While OMB does not usually establish policy, it does coordinate with numerous agencies on various projects, which is certainly within the purview of the IP czar.

Of course, OSTP is the department that makes the most sense -- but as the writeup notes, the folks in OSTP are actually more technologically focused, and are believers in openness and collaboration -- and are the sorts of folks who are skeptical of the need for greater IP protection (and, yes, some of them read Techdirt). But... given the role, it does seem like the most reasonable spot. In fact, it seems rather problematic that the White House would agree not to put it there, just because the entertainment industry is afraid that OSTP isn't going to just bend over for the copyright industry's interests. If Hollywood is basically getting their own representative in the White House, at the very least it seems fair to temper that position by putting it in a department that will at least debate how strong copyright protection needs to be.

The fact that the White House hasn't simply placed the role in OSTP certainly feels like it agreeing not to do that because the industry lobbyists who pushed for the role in the first place won't like it. That doesn't seem like the way government should be run.

Filed Under: copyright czar, ip czar, ostp, ustr, victoria espinel

President Signs ProIP Bill Into Law; White House Gets Copyright Czar

from the don't-you-feel-safer? dept

Apparently, having our elected politicians completely lie to the President, combined with various business groups using totally made up numbers about the so-called "costs" of piracy was enough to convince President Bush to sign the ProIP bill into law, and accept the addition of a "Copyright Czar" position to the White House. It also strengthened copyright laws, yet again, despite little evidence they needed any strengthening. This law is nothing more than a weak attempt to prop up some struggling businesses who made the mistake of clinging to an obsolete business model far too long. All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.

Filed Under: congress, copyright, copyright czar, pro ip, white house

Congressional Hyperbole Used To Urge Bush To Accept A Copyright Czar

from the and-so-it-goes dept

We've already seen that the Bush administration has said that it really doesn't want the "Copyright Czar" that Congress has been trying to give the White House. However, as the bill sits on his desk to sign, it appears that plenty of folks are trying to pressure Bush into signing it (he has until Tuesday to veto or it automatically becomes law). We already noted that the US Chamber of Commerce was using totally ridiculous and made up numbers about job and dollar losses to get Bush to sign, and now it appears that various politicians are sending ridiculously hyperbolic letters to the White House to push for signing the bill as well (thanks to Jim Harper for alerting me to this).

Let's start with Senator George Voinovich, who actually claimed that signing this bill "would be a fitting achievement and legacy." Now, I don't care what you think of the present administration, but you'd have to be pretty disconnected from world events to think that adding a copyright czar will ever be considered a part of Bush's "legacy." Somehow, I would imagine that there is a long list of other things that will most likely be on his legacy list before anyone gets around to a totally unnecessary copyright czar.

Then there's Rep. Lamar Smith, who ran the intellectual property subcommittee in Congress before the Democrats and Howard Berman took over. However, Smith and Berman -- despite being on different sides of the aisle, have pretty much identical views on intellectual property, so it's no surprise that he would tell the President that signing this bill is "not merely desirable, but necessary." Necessary, huh? For what? That seems like a pretty strong claim without an iota of proof. That's because it's not "necessary" at all. In fact, about the only thing it's likely to do is to hold back the more innovative business models the economy needs by propping up one industry's obsolete business model.

Then we've got Senator Arlen Specter, who complains that vetoing this bill could lead to "fallout" with trading partners, concerning the equally awful ACTA treaty. That makes very little sense. Both this bill and ACTA were basically written by the same lobbyists, and both serve to do the same thing: prop up a broken and obsolete business model of the American entertainment industry. Vetoing the bill is unlikely to have any serious international ramifications, other than from countries tha might stand up for themselves and push back every time the US demands they strengthen IP laws just to protect a few American businesses who refuse to innovate.

Filed Under: arlen specter, copyright czar, george voinovich, intellectual property, lamarr smith, white house

Commerce Dept Cites Bogus Stats, Chamber Of Commerce Uses Them To Ask Bush To Accept Copyright Czar

from the bogus-stats-are-fun dept

We've seen it time and time again, where totally bogus stats about the "costs" of "piracy" are floated (usually by lobbyists) and then suddenly accepted as fact. It's even worse when it's government officials citing the stats as fact. Yet, we've got that happening again. In urging President Bush to sign into law the ProIP bill, which would give him a copyright czar (something the Justice Department had said it it doesn't want), the US Chamber of Commerce is claiming that 750,000 American jobs have been lost to piracy. Yet, it doesn't cite where that number comes from.

Wired's David Kravets tries to track down the source but finds no one can quite figure it out. Instead, they each point to different gov't organizations which have all quoted the number -- often citing each other, but no one pointing out where it actually came from. Chances are, of course, that the stat comes from a variety of reports, like the easily debunked piracy impact report from the BSA, put together by IDG. That lists out a number for job losses in the software industry that's simply untrue, and is based on only the negative impact of "piracy" impacting jobs, leaving out any positive impact (i.e., if a company used only pirated software, it could hire more people). That's not to defend piracy, but to note that the job loss claim is completely made up -- and now repeated by a variety of different government officials based on... nothing.

Filed Under: bogus stats, commerce department, copyright czar, stats

House Follows Senate In Giving The President A Copyright Czar

from the priorities,-people dept

While failing to do much of anything (other than fingerpointing) to deal with the economic crisis we're facing, the folks in the House did spend some time easily passing the ProIP bill that the Senate passed last week. So, now we just have to wait for the President to sign it, and the entertainment industry gets their own person in the White House whose job it is to prop up their business model. Hell, if Wall St. gets one of those, why not the entertainment industry?

Filed Under: copyright czar, intellectual property, white house

Senate Gives The White House A Copyright Czar

from the have-fun-with-it dept

The Senate has now unanimously passed the new entertainment industry-approved copyright legislation that was proposed by Senator Leahy earlier this year. After the Justice Department complained about the provision that would grant it the ability to take on civil cases, that provision was removed, but there's still plenty to be worried about by the bill -- such as the creation of a "copyright czar" position in the White House. While some of the worst provisions were removed, this still remains a bill that has one purpose: to protect an obsolete business model, rather than letting more innovative models proliferate. The House still needs to vote on its version of the bill, but it's quite likely to pass quickly.

Filed Under: business models, copyright czar, patrick leahy, pro ip, senate