IP Enforcement Czar Wants To Hear From You About Government's IP Enforcement Plan

from the speak-up dept

It's that time again. The White House's IP Enforcement Coordinator (IPEC) -- often called the IP Czar -- is asking for public input on the upcoming "Joint Strategic Plan on Intellectual Property Enforcement" that it will be releasing next year. The Joint Strategic Plan comes out every three years and is supposed to guide the federal government in how it handles priorities around intellectual property enforcement. Now, I recognize that the cynical among you will already be insisting that there is no value in responding to this, because the government is going to simply repeat the arguments of the legacy industries and its copyright extremists. However, in the past, these open comment periods have actually helped, and the two previous Joint Strategic Plans have not been as bad as expected. In 2010, we sent in our feedback and was pleasantly surprised that at least some of it was reflected in the plan. It recognized the importance of fair use and encouraging innovation. It also admitted that most studies on the impact of intellectual property on the economy were bogus.

Then, the second report, issued in 2013, was even better and presented a much more balanced understanding of intellectual property law, and how over-enforcement and over-expansion could create real harms as well. It also points out that truly the best way to deal with problems around "piracy" is through greater innovation, rather than relying on enforcement. It doubled down on supporting fair use, and noted that it was working with the Copyright Office to release an "index of major fair use decisions" -- something that finally came out just a few months ago and is actually pretty damn good.

In other words, this report need not just be a playground for Hollywood types looking to ratchet things up.

Still: there are concerns. The first two reports were done by the original IPEC, Victoria Espinel, who left the office a few years ago. This latest report will be overseen by the new IPEC, Danny Marti, who has only been in the job a few months. And, unfortunately, in one of his first speeches, he trotted out pretty much all of the ridiculous and debunked copyright extremist tropes about the need for greater protection, exaggerating the economic impact of intellectual property and demanding more "respect" for intellectual property (rather than earning more respect for it).

It's also somewhat concerning that in his blog post asking for public comments, he cites one of the most debunked statistics around, from the US Chamber of Commerce, concerning the "worldwide market for counterfeit and pirated products," which he argues is $1.8 trillion. Having spent years debunking earlier claims of $200 billion, the idea that it's magically shot up to $1.8 trillion is insane. What's incredible is that the "methodology" for the $1.8 trillion is laughable, and it's a shame that Marti would cite it. The Chamber of Commerce just took the already debunked numbers from 2008 (which, in case you are wondering were actually based on a number someone just made up in the 1980s and which has never been checked) and then "projected" out to 2015. Really. And Marti quotes it as if it has some validity.

And he does this despite the fact that actual credible sources like the Government Accountability Office and the OECD have both insisted that there is no evidence that the issue of counterfeiting is anywhere near as big as the earlier problems stated. Furthermore, multiple studies have further shown that counterfeiting is very rarely a true "economic loss" as it's almost never a substitution good, but rather an aspirational purchase. That is, the person buying the fake Rolex isn't taking any money away from Rolex, because they can't afford to buy a real one. In fact, multiple studies have found that those who buy counterfeit products regularly go on to buy the real product later, when they can afford to. In fact, it appears the purchase of a counterfeit often gives them a closer bond with the brand itself. And, in the end, estimates have suggested that actual counterfeiting is probably somewhere around 2 to 3% of the big numbers thrown around by the Chamber of Commerce.

So, you have to wonder, if Marti is tossing around numbers from one of the world's largest lobbying organizations, the US Chamber of Commerce, rather than from well respected and credible sources like the Government Accountability Office and the OECD, just where he's coming from as he puts together this report.

Hopefully, people can submit thoughtful and well-argued comments based on the details set forth in the Federal Register and help point Marti and the IPEC office in the right direction. Such comments are due by October 16th.

Filed Under: copyright, counterfeiting, danny marti, enforcement, ipec, joint strategic plan, losses, patents, piracy, public comment, trademark

Latest White House Intellectual Property Strategic Plan Much More Balanced & Reasonable

from the a-step-in-the-right-direction dept

The White House's "IP Enforcement Coordinator" (IPEC), often referred to as the IP Czar, Victoria Espinel, has released the administration's 2013 Joint Strategic Plan for Intellectual Property Enforcement, which she's required to put out under the law that created her position, the ProIP Act. When the last report came out, in 2010, we noted that it wasn't as bad as we'd expected, though it still had some serious problems. The latest report is actually a decent improvement on that one, going much further in recognizing some of the problems many of us have with how these issues are handled. Even the announcement about the report is better. In 2010, even though the report is officially named above, the announcement about it called it the Joint Strategic Plan to Combat Intellectual Property Theft. This year, that inflammatory and misleading language is definitely toned down.

More importantly, there are a lot of good (and somewhat unexpected) things in the report, which shows that Espinel and her office have been paying attention to the concerns many of us have raised over the years, about how the one-sided focus on "piracy" was misleading and not actually helpful. The full report is worth a read, but let's highlight a few points. The report highlights a key point that we've made over and over again, that the best way to actually deal with "piracy" is through innovation, because when innovation is allow to flourish, solutions present themselves:

With respect to the online environment, the Administration believes that when Americans and people around the world are given real choices between legal and illegal options, the vast majority will want to choose the legal option. Accordingly, we encourage the further development and use of legitimate online services as an important part of an effective approach to reducing infringing activity. Today there are a myriad of legitimate ways to obtain music, video, books, games, software, and other entertainment and educational materials through a wide variety of business models. These include paying per use, paying per copy, and paying a fee for access to a collection of works; allowing customers to pay what they wish; and legitimate content that is available for free, including entertainment industry portals and artists and authors using systems to permit free distribution of their works under conditions that they choose.

We believe that legitimate goods, including digital goods, offer clear advantages over infringing ones regardless of price. Use of legitimate goods compensates artists, creators, and those who invest in bringing their works to the public, and provide incentives for future creation and distribution. In addition, legitimate goods are often of higher quality, come with express or implied warranties or guarantees of quality, offer customer services, and do not pose the same risk of viruses or malware. They may also include extra features not available with infringing content. And, increasingly, they may be more convenient and easier to find.

We support and will look for additional ways to encourage and facilitate efforts that will help expand the reach of legitimate alternatives to infringement, including through the development of copyright registries and online databases, micro-licensing arrangements, and other market-driven mechanisms to facilitate smooth and efficient access to content. We also encourage the work of the U.S. Copyright Office to update and improve the copyright registration and recordation system in ways that will facilitate licensing and encourage public-private partnerships.

To some extent, this may be overstating the playing field today with regards to where it should be, and fails to recognize the hurdles that are sometimes put up to prevent legal services from becoming truly convenient and powerful. But we have been moving in the right direction, and it's great to see the acknowledgement that innovation is the way forward, and holding back innovation with crazy licensing demands does more harm than good.

The paper also focuses heavily on increasing transparency and public outreach, which is important, since this topic has long been dominated by certain special interests:

The Administration strongly supports improved transparency in intellectual property enforcement policy-making and international negotiations.

That's good, but until the USTR actually gets on board with this (and recognizes that transparency is about sharing information to the public, not just listening to stakeholders) we still have a long way to go. The fact that the TPP (and likely TAFTA to follow it) is going to have large intellectual property sections negotiated in complete secrecy is a huge problem. If the IPEC wants to commit to true transparency, it needs to get the USTR on board. The fact that the report, elsewhere, celebrates the signing of ACTA (which was similarly negotiated with almost no transparency) as well as some very poorly designed trade agreements with Panama, Colombia and South Korea suggests that this is still a real problem, where the administration has, unfortunately, not yet changed its strategy, despite its claimed interest in transparency.

There's also a whole section on getting content creators much more familiar with fair use. Considering that fair use is often something that these kinds of documents ignore, this is really impressive.

Effective enforcement is critical to providing meaningful protection of intellectual property rights, but enforcement approaches should not discourage authors from building appropriately upon the works of others. We recognize the work that agencies across the U.S. Government are doing in the area of intellectual property education, and their efforts to increase and improve this work in the digital environment. This work includes efforts at the USPTO and the U.S. Copyright Office to help the general public better understand the Constitutional purpose and value of intellectual property laws, and the scope of both protections and exceptions in such laws.

The Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists, songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine. Fair use is a core principle of American copyright law. The Supreme Court has repeatedly underscored fair use provisions in the Copyright Act as a key means of protecting free speech, and many courts across the land have upheld the application of fair use as an affirmative defense to infringement, in a wide variety of circumstances.

In order to make fair use more accessible to the authors of the 21st century, ease confusion about permissible uses, and thereby encourage the production of a greater variety of creative works, the U.S. Copyright Office, working in consultation with the Administration, will publish and maintain an index of major fair use decisions, including a summary of the holdings and some general questions and observations that may in turn guide those seeking to apply the decisions to their own situations.

The specifics here will matter, but the fact that they'll be pushing fair use, and not ignoring it or hiding it away, is definitely a step forward.

It's also worth noting a very different tone and choice of words in the paper than the usual biased choices. It repeatedly, correctly, refers to "infringement" rather than loaded terms like "piracy" and "theft." For most of the paper (there are a few exceptions) it focuses on the areas where real threats may exist: with counterfeit drugs (though, too often, we see that conflated with reimported legitimate drugs) and military parts. The paper really doesn't go into the usual hysterics you see from government documents about online copyright infringement, which is a welcome change.

As mentioned, there are still some issues with the plan. We already mentioned the support for ACTA, TPP and other USTR agreements that are questionable at best. It also talks up the DOJ's increasing efforts around enforcement, some of which have been quite concerning (Megaupload, anyone?) and increasing efforts for IP enforcement around the globe, which too often has meant having diplomats act as Hollywood's enforcers in other countries. The report spends a lot of time on "trade secret" enforcement, which is a big buzzword, especially with bigger companies. This is a dangerous red herring, where big companies are seeking laws and enforcement that often will be used to block disruptive innovators, but it's still better to focus on that rather than some other overhyped claims of copyright infringement.

It also highlights the Department of Commerce's absolutely awful report that counted all grocery store employees as having jobs because of "intellectual property." That report has been widely abused by maximalists to argue that we need stronger IP laws, when that's not what the report shows at all. This latest plan announces that this report will now be updated annually, and that it will "will calculate the number of jobs and the contribution to the GDP on an annual basis." I hope that they seriously improve their methodology in time for the next release.

On the whole, this report is a big step forward in both substance and tone. There are many points in there that I might quibble with, but given the kinds of documents that we're used to seeing come out of various governments when it comes to intellectual property issues, this one is quite well done. Combined with today's news about the FTC going after patent trolls, it actually seems like the administration may realize that "more, stronger intellectual property" and "greater enforcement at all costs" is not the same as effective strategies for promoting the progress of science and the useful arts.

Filed Under: administration, copyright, fair use, ip czar, ip enforcement, ipec, joint strategic plan, trade secrets, victoria espinel, white house