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?

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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.

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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.

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