Tim Lee, over at the Washington Post's The Switch, has an excellent, detailed look at why the USTR seems to think that patent and copyright maximalism is in the best interests of America
. There are two key reasons, which I'll paraphrase as (1) the employees at USTR have strong connections to copyright and patent maximalists, and there's a constant revolving door between USTR and IP maximalists, and (2) they're basically ignorant of how the digital world works today.
The ignorance issue is disturbing, but somewhat understandable. As we pointed out just recently
, the USTR relies heavily on Industry Trade Advisory Committees (ITACs), which are deeply involved in these things. Members get access to the documents -- much more access than even Congress, and certainly a lot more access than the public which gets none at all. The IP ITAC is almost entirely made up of legacy industry players who come from a different era, and who know little about today's innovation. In fact, they tend to fight against innovation. As Lee notes, the USTR used to work mostly with exporters
-- companies who ship stuff
to foreign countries, and their general outlook on everything is from that perspective. But that makes no sense when you're talking about information
. Rather than crafting export policies, they're creating information infrastructure policy
, when the very flow of information is critical to innovation. And they simply don't get that. At all.
Lee also reports (for the first time publicly) how the USTR flat out rejected a recent attempt to put copyright law expert Andrew Bridges on the IP ITAC. Bridges is the person you should thank for having music in your pocket, because he defended the legality of the first MP3 player when the RIAA tried to sue it out of existence. He's also worked closely with a ton of internet companies and knows better than just about anyone I know how innovation works these days. You may also recognize him for fighting the US government's bogus attempt to seize a hip hop blog
. Even though his expertise is copyright law, the USTR said he could only join the "Information and Communications Technologies" ITAC, which is not his specialty, so he refused the pointless appointment.
But the really concerning part is the insane revolving door between IP maximalist industry players and the USTR. Lee details a very long list of folks who have gone in both directions, between the USTR and the pharmaceutical industry, as well as between the USTR and various copyright maximalist organizations. Here's just a snippet.
The lead American negotiator was Ralph Ives, who was promoted to Assistant USTR for Pharmaceutical Policy soon after the negotiations concluded. He was aided by Claude Burcky, Deputy Assistant USTR for Intellectual Property. Less than three months after the Australia agreement was signed, the Sydney Morning Herald reported that both men would take jobs at pharmaceutical or medical device companies. Their new employers stood to benefit from some of the pro-patent-holder provisions of the treaty. Ives took a job at AdvaMed, a trade group representing medical device manufacturers. Burcky moved to the pharmaceutical and medical device company Abbott Labs.
Since then, Abbott has hired two other USTR veterans, Andrea Durkin and Karen Hauda, according to the women's LinkedIn pages. Another USTR official, Kira Alvarez, has gone through the revolving door twice over the last 15 years. Her LinkedIn profile indicates that she served at USTR from 2000 to 2003, spent four years at the pharmaceutical giant Eli Lilly, and then returned to USTR in 2008 as Deputy Assistant USTR for Intellectual Property Enforcement. She was there for five years before she took a job at AbbVie, a pharmaceutical firm that spun off from Abbott earlier this year.
According to his official biography at the site of the Biotechnology Industry Associaiton, Joseph Damond "was chief negotiator of the historic U.S.-Vietnam Bilateral Trade agreement" during his 12 years at USTR. He then spent five years at the Pharmaceutical Research and Manufacturers of America before moving to BIO. Justin McCarthy went through the revolving door in the other direction. According to a USTR press release, McCarthy was responsible for intellectual property issues at the pharmaceutical company Pfizer from 2003 to 2005 before he was hired at USTR. He now works at a lobbying firm.
And that's just the basics. Of course, this is the very nature of the USTR. After all, their boss, Michael Froman, was once described by Reuters
as "one of the most egregious examples... of the way the revolving door works between business and government generally." So that's the guy who sets the tone there, though Froman's only been at the USTR for a brief time. This culture is pervasive.
And it's a real problem. The USTR doesn't seem to recognize that what's best for a few large industry players who might give the USTR employees jobs a few months down the road, can be disastrous for both the American public and the American economy. I've had USTR people try to defend what they do to me by claiming that "it's our job to support US trade interests." But that's taking an excessively dangerous view of what their role really is. It's a myopically narrow view of what the US's trade interests are, based on a laughably narrowminded group of individuals whose interests may be quite harmful to the wider US public and economy.
The USTR may claim it's trying to help promote American jobs, but it really looks like it's their own jobs that are most important to them.
Either way, this is even more evidence that the USTR simply has no credibility on issues like copyright and patents. There's no reason why this "free trade" agreement should include intellectual property in the first place, since it's the very antithesis of free trade
. But now that it's quite clear that the USTR is impossibly biased on this issue, it's even more reason to simply strip out the IP chapter entirely.