President Obama Finally Gets Around To Nominating A New IP Czar

from the not-a-copyright-guy dept

While we're still waiting for the White House to actually nominate a new head of the US Patent and Trademark Office, the other big administration "intellectual property" job has also been vacant for over a year: the "Intellectual Property Enforcement Coordinator" (IPEC) job, frequently referred to as the "IP Czar." That job was previously held by Victoria Espinel, who left a year ago and immediately jumped to a lobbying job with the BSA, the copyright maximalist trade group run by Microsoft.

While I was disappointed to see Espinel jump to such a group, and disagreed with some of things she did as IPEC, on the whole she did a good job while in that role. The job itself is very strange in that it's written into the law (PRO-IP Act of 2008) to be a role that basically pushes for IP maximalism, rather than any sort of balance (or anything involving actually promoting the progress of science and the useful arts). It would be like having a role in the Treasury Department specifically devoted to "how do we protect outdated bank business models." But, on the whole, Espinel actually worked really hard to take opposing viewpoints into account, to bring a variety of people into the discussion (including voices that had previously been ignored by DC). Her more nuanced and inclusive take on things was evident from the big 2013 Joint Strategic Plan that she released right before leaving office. It recognized that the best way to deal with infringement wasn't necessarily by ramping up enforcement (despite her title), but in encouraging greater innovation. And unlike many other similar efforts, it actually recognized the value and importance of fair use.

Given all that, many people had been wondering who would be appointed to take over the job. It's now been announced that Obama is nominating Danny Marti, a long-time DC trademark lawyer. While he's been involved in other types of cases, including CFAA, cybersquatting and copyright cases, it appears that his focus has been on trademark. That's an interesting choice, since trademark issues tend to be less controversial than copyright ones. He also doesn't appear to have much of a policy background at all, which makes it an interesting choice.

While the RIAA and MPAA, along with NBC Universal and the US Chamber of Commerce, all cheered on the nomination, they're kind of expected to do so. And, as the Washington Post notes, they appear to be cheering on the position more than the guy filling the role. The Washington Post also quotes Mitch Stoltz from EFF noting that he hopes Marti's experience in these cases means that he "understands that careless over-enforcement of trademark, copyright, and patent laws can harm our economic progress and our freedom of speech." He still needs to be approved by the Senate, but we're hopeful that if he is, Marti continues to follow in Espinel's footsteps in actually listening to a variety of opinions outside of just those emanating from Hollywood.

Filed Under: copyright, danny marti, ip czar, ip enforcement coordinator, ipec, patents, proip act, trademark, victoria espinel

IP Czar Report Hits On All The Lobbyist Talking Points; Warns Of More Draconian Copyright Laws To Come

from the oh-great dept

We had serious questions from the beginning about Senator Patrick Leahy's "ProIP" bill, which was pushed very strongly by the lobbying group, the US Chamber of Commerce, using widely debunked stats to claim that there needed to be an "IP Enforcement Coordinator" in the White House. Yet, as we explained, such a position makes absolutely no sense. Even "pro intellectual property" folks noted that the law was anything but "pro intellectual property." Instead it was pro-legacy business structure. So giving a role in the White House to someone whose sole job is to protect legacy business models is the very definition of regulatory capture. And while the IP Enforcement Coordinator, Victoria Espinel, has been kind enough to personally reach out to us multiple times since taking on the job, in the end she still sees her role to be protecting legacy industry jobs, rather than (as the Constitution requires) making sure that intellectual property promotes the progress.

Given the level of regulatory capture, it's no surprise that Espinel's first report on the "progress" of her strategy reads like a checklist of what the big IP lobbyists wanted. Not surprisingly, the US Chamber of Commerce, who misled Congress to create this role in the first place not only cheered on this new report, but also urged Espinel and the White House to go even further in passing even more draconian, legacy industry-protecting legislation.

And that appears to be coming. Within the report, there's a note that new copyright laws are on their way "in the near future."

The U.S. Government must ensure that intellectual property laws keep pace with changes in technology and the practices of infringers. As part of a process initiated by the IPEC, Federal agencies reviewed existing laws to determine if changes were needed to make intellectual property enforcement more effective. The initial review began shortly after the release of the Joint Strategic Plan and was completed within 120 days. The IPEC will include legislative proposals identified in that review in a White Paper on legislative recommendations that the IPEC expects to submit to Congress in the near future.

It's not difficult to read between the lines. Considering that it was US Chamber of Commerce lobbying that created this role in the first place, and now she's discussing new laws, to then see the Chamber of Commerce immediately announce it was "ready to work with Congress and the administration" on increasing IP laws, you can bet that the laws in question have already been written mostly by such lobbyists, and we should see them soon. Protectionism, protectionism all around.

That's not how to create innovation. It's how you prop up obsolete businesses at the expense of innovation.

The rest of the report, which is embedded below, just shows the sad state of affairs of industries who won't adapt and can't compete, abusing the legal process to put up barriers to new technologies, abuse the free speech and due process rights of those who actually innovate, and celebrate stagnation as a strategy for innovation. It's a depressing document all around. It celebrates the international joke that is the Special 301 report from the USTR. It mockingly celebrates "increased transparency" from an administration that supported the massively secretive process behind ACTA (which the document also cheers on), which only now we've confirmed was always about holding back developing nations rather than increasing innovation. Not surprisingly, the report cheers on the illegal seizures of domain names, despite the likely prior restraint and due process violations those seizures entailed. It ignores the international incidents created by seizing domains of sites declared legal in their home countries. And, of course, nothing in the report discusses new business models or how decreased IP enforcement has resulted in greater creative output, more opportunities for content creators, and new innovation throughout the world.

In other words, the report is a complete joke. Reports like this are incredibly frustrating, because they simply highlight how our government has been taken over by special interests who have no desire to actually improve the country, but merely to protect a few powerful lobbyists and the corporations that support them.

What bothers me the most, frankly, is that nowhere does the report make even the slightest attempt to support any of its assertions that greater IP enforcement is actually good for the economy. There are tons of evidence that this is not true, and yet Espinel repeats the claim as if it's proven fact. This is unfortunate because she does know better, but I guess appeasing special interests is more important than actually working to promote progress and improve the economy.

Filed Under: copyright, enforcement, ip czar, ip enforcement coordinator, protectionism, regulatory capture, victoria espinel