Must Read: CCIA Sets US IP Czar Straight On Intellectual Property

from the wow dept

A few days ago, I posted the letter I submitted to the White House IP Czar, Victoria Espinel, concerning her request for comments on the strategic plan for IP enforcement. It was a bit troubling that the questions asked in the RFC focused solely on increased enforcement and the amount of harm done by infringement — as if it never even occurred to folks that increased enforcement might not be best for culture or the economy, and that there may also be mitigating benefits to infringement. I tried to make that clear in my filing, and it was great to see folks like Public Knowledge and the EFF submit comments as well — but the really wonderful filing came from the NetCoalition and CCIA, which we discuss below. First, though, it’s worth noting that the entertainment industry also made its demands…

The RIAA, MPAA and the Screen Actors Guild teamed up to submit their own filing, and as the LA Times noted “it’s a doozy.” Consider it a wishlist of protectionist, anti-consumer, anti-innovation policies, basically demanding that the White House prop up their own businesses, because of their unwillingness to adapt:

Among other things, the “creative community organizations” urged that:

  • The federal government encourage ISPs to use, and companies to develop, monitoring, filtering, blocking, scanning and throttling technologies to combat the flow of unauthorized material online;
  • Copyright holders be able to combat infringement by making a database of their works available to service providers, rather than submitting individual takedown notices. And once a work is taken down, service providers should be expected to employ “reasonable efforts” to prohibit users from uploading or even linking to them again;
  • Copyright owners be able to block unauthorized streams of live broadcasts without going through the formal notice-and-takedown process;
  • The federal government press search engines, social networks, hosting companies, domain name registrars and online advertising and payment networks to cooperate with copyright holders on efforts to combat piracy (“Encouraging these intermediaries to work with content owners on a voluntary basis to reduce infringements, and assuring these intermediaries that such cooperation will not be second-guessed, should be top priories that call for the personal intervention of senior government officials if necessary.”);
  • A federal interagency task force work with industry to interdict prerelease bootlegs of Hollywood blockbusters and crack down on U.S. services that assist foreign piracy hotbeds;
  • States adopt “labeling laws” that “defined unauthorized online file sharing and streaming as a felony,” giving state and local law enforcement jurisdiction to go after unauthorized copying online;
  • States use consumer protection laws to go after file-sharing sites that “expose consumers to intrusion, viruses and revelation of personal data.”

You can read the entire entertainment industry filing below, but be ready to laugh at the highly questionable claims:

However, if you want read something enjoyable you should check out the incredibly long, but ridiculously thorough and brilliant filing from the NetCoalition and CCIA. It’s over 100 pages long, but every last page is worth reading. It says everything I wish I could have said in my letter, but does so in excruciating detail, with tremendous sources to back up each point. It kicks off by going through a detailed list of “fallacies” found in the request for comment itself, as well as in the typical complaints from the entertainment industry, including:

  • The objectivity fallacy: highlighting how the studies from the entertainment industry that pretend to be objective are anything but — and tend to greatly, if not ridiculously exaggerate the problem.
  • The lost sale fallacy: of course, demolishing the industry’s desire to pretend that each act of infringement represents a “lost” sale.
  • The causation fallacy: showing how the entertainment industry always places the blame for its problems on infringement, even if there’s little evidence to support that any troubles in the industry were due to infringement. Instead, the filing points out that there are many, many reasons why some companies in the industry have run into trouble that have nothing to do with infringement.
  • The innovation fallacy: dismantling the industry’s claim that infringement destroys jobs and discourages innovation, noting that it is historically evident that competition breeds greater innovation than gov’t-backed monopolies, which can be shown to create economic rents and dead-weight loss.
  • The industry size fallacy: a favorite of the entertainment industry, which bundles in all sorts of unrelated industries that just sorta barely are touched by intellectual property (furniture!) to make the industry seem huge, in an effort to imply the importance of extra protectionism. But the filing points out how flawed the methodology is, pointing to the CCIA’s own (awesome) use of the same methodology to show that exceptions to copyright contribute more to the economy than the “copyright industries.” This part also points out that if the industry really is so big, then it should be well positioned to withstand any challenges…
  • The equivalence fallacy: picking apart how the entertainment industry likes to lump all forms of infringement into one “evil” bucket, without ever acknowledging that there are very, very different types of infringement, and understanding the differences is key in determining actual harm and any “enforcement” strategies.
  • The theft fallacy: once again reinforcing that infringement is a different beast than theft, and even the Supreme Court recognizes this… though the entertainment industry seems unwilling to admit it.
  • The silo fallacy: elegantly highlighting how the industry loves to talk up losses in CD sales, while totally ignoring how other parts of the business, such as live performances, continue to grow. It also highlights how, despite CD and DVD sales dropping, the number of albums and movies being made has vastly increased.
  • The relevance fallacy: laying out the argument that, even if you accept the industry’s claims of losses, they’re often submitting aggregate data that includes a variety of different factors and information that may be distorting the direct impact on specific areas, and setting policy based on such aggregate data could be quite damaging.

Seriously, the entire document is wonderful. It feels like it should be published as a book, and should become required reading for anyone ever writing about, litigating or setting intellectual property policy. You can read the whole thing below:

IPEC Comments: CCIA & NetCoalition
Of course, after going through the fallacies, the filing gets to specific policy recommendations, wisely going back to the ProIP bill’s language, highlighting how the purpose of the IP Czar is really supposed to be about true criminal infringement and counterfeiting, and arguing that any enforcement should be focused on those issues, rather than stepping in on civil disputes in what is, effectively, a business model problem. The filing also points out that diplomats enforcing US IP policy around the world are often uneducated in the balance of interests that IP law is supposed to hold, and frequently just push for greater laws and restrictions, without understanding the harm it causes. Along those lines, the CCIA takes the time to express its grave concerns over ACTA — noting its broad scope and potential harm both in the US and abroad.

The conclusion of the document sums up everything nicely:

The spread of the global Internet has facilitated the unauthorized and at times infringing distribution of certain forms of intellectual property, especially copyright-protected content. The ease and minimal cost of copying makes meaningful enforcement costly and difficult. This widely recognized problem has stirred passionate debate about how the problem should be handled by copyright owners, the government, and third parties. This problem is amplified and complicated by the importance of both the content and Internet industries in the U.S. export market, as well as and demands for the U.S. to assert leadership at the international level. This creates a danger of rigid, oversimplified policies toward infringement that (a) make little sense in other intellectual property domains, and (b) undermine the perceived legitimacy of the global intellectual property system.

The solutions to the real and perceived problems the disruptive technology of the Internet has caused for certain entertainment and luxury goods companies cannot be solved by greater government intervention or by shifting more costs to Internet companies. Rather, the solution lies in the evolution of business models to adapt to the new realities of the marketplace.

Seriously. This is an absolute must read, start to finish.

Filed Under: , , ,
Companies: ccia, mpaa, netchoice, riaa, sag

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Comments on “Must Read: CCIA Sets US IP Czar Straight On Intellectual Property”

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Trevor says:

the RIAA, MPAA and the Screen Actors Guild filing

The RIAA, MPAA and the Screen Actors Guild made me, literally, sick. I never even dreamed of really feeling like I was going to hurl while reading anything.

It’s way past incredible and into surreal. Don’t these people have any idea what it would take to accomplish what they’re asking for? All the wars on …(drugs, terror etc.) and the 20’s prohibition would seem like a piece of cake compared to this… and that is just on the enforcement side. Adding the technical infrastructure for it would require vast investments. Would they fund all of that or do they want the taxpayers and the ISPs to sponsor their little endeavor? One has to admit that the taxpayers are already currently bankrolling the biggest series of bailouts ever AND are going to bankroll the new healthcare bill (or, should we call it the health insurance industry wellbeing bill?), so they might gloss over this one… but what happens if this is the straw that snaps the camel’s back? No one there seems to be thinking about these little factoids.

Anonymous Coward says:

Ah…the “Techdirt Fallacy”:

Copyright law is irrelevant in the 21st century and is being used, perhaps even peverted, by content creators who seek to prop up old business models.

Copyright law should be eliminated in its entirety since it does no more than stifle innovation and intrude on human, civil and privacy rights without justification.

Anonymous Coward says:

Re: Re: Re:

The purpose of copyright law, as exemplified in the title of the Copyright Act of 1790 (the identical title used in the Statute of Anne in the England), was the encouragement of learning. “Chinese copies” of an author’s original work without the slightest attempt to add original expression is hardly what the Founders had in mind.

Trevor says:

Re: Re: Re: Re:

If you would admit to the fact that there is a difference between private copyright infringement and commercial copyright infringement and go after the commercial infringers while letting the private infringers be, then you wouldn’t have this conundrum.

But, then again, the content cartel’s line “All pirates are thieves, period.” doesn’t leave much room to maneuver, does it?

Anonymous Coward says:

Re: Re: Re:2 Re:

Rhetoric aside, private, limited copying has never been the driving force behind most of the amendments to copyright law in the US. No media company, to my knowledge, ever brought a suit against an individual who made a copy for his/her own use, or who may have “shared” that copy within a close and limited circle of friends.

It is the expansion of the circle of friends to the entirety of the world at large that is the driving force.

Trevor says:

Re: Re: Re:3 Re:

Theft implies depriving the original owner of the item that has been stolen. Copyright infringement doesn’t meet this criteria in order to be qualified as theft.

I can understand this desire to call it theft because it comes from the gut feeling that the content creator should be repaid for his work. But that gut feeling is wrong because the intent of copyright is not to guarantee an income for the creator but to make sure that people have an extra incentive to create.

AnAmusedCanadian (profile) says:

Re: Re: Re:3 Re:

Actually its not theft. Theft requires that you take another person’s property denying them the use of that property. The actual crime is denying the owner use of their property, not the taking of the property.

Taking a copy of a digital good does not deny the original owner the use of the good. No theft.

The problem with the media company’s business model is that they do not understand what they are selling. They are selling me enjoyment/ entertainment not music, films, paintings, or whatever. Since there is a large amount of entertainment/ enjoyment legally available for free on the Internet, why do they expect people to value their presentation of entertainment/ enjoyment higher than that. The market has set the price. Now they want goverments to ‘fix’ the market to increase the price. What the media corporations need to do is figure out how to improve my enjoyment/ entertainment experience above that of the free products on the Internet. That is a product I would buy.

Mike Masnick (profile) says:

Re: Re:

Ah…the “Techdirt Fallacy”:

Heh. This coming from a guy who has insisted he has nothing against us and does not come here to insult, merely to “add relevant info”? Your true colors are showing…

Copyright law is irrelevant in the 21st century and is being used, perhaps even peverted, by content creators who seek to prop up old business models.

How is that statement a fallacy? You see, the way this works here in the real world, when you claim something is a fallacy, you present actual proof as to why it is a fallacy. You repeated something without presenting any proof.

Copyright law should be eliminated in its entirety since it does no more than stifle innovation and intrude on human, civil and privacy rights without justification.

I’ve said no such thing, but again, even if you believe this is what I’ve claimed, where is the evidence that this is a fallacy.

We’ll wait.

Thomas (profile) says:

Ah…the “Techdirt Truth”:

Copyright law is irrelevant in the 21st century and is being used, perhaps even perverted, by content creators who seek to prop up old business models.

Copyright law should be eliminated in its entirety since it does no more than stifle innovation and intrude on human, civil and privacy rights without justification.


Anonymous Coward says:

Re: Re: Re:

Today the majority are corporations to which title has been transferred (work for hire, assignement, etc.), but in the late 19th and early 20th centuries many of the most prominent and powerful advocates for expanding the reach of copyright law were the creators themselves.

In my personal view copyright law did begin to shift from the original intent of the Founders with the abrogation of the Copyright Act of 1909 in favor of the Copyright Act of 1976.

sehlat (profile) says:

The best response to this is to give them everything they want.

By the time all of this has taken effect and people see just what implementing it will mean, we can watch the entertainment industry sink slowly into the swamp, leaving just a trail of little bubbles, with no one to blame for their demise but themselves.

I think I’m going to put aside a bottle of champagne for that day.

Anonymous Coward says:

Re: Re: The best response to this is to give them everything they want.

Say what? Before the “invention” of copyright, culture didn’t even exist. Neither did art. What do you mean a simple internet search will prove those statements to be incorrect? You know what else didn’t exist before copyright?


mjb5406 (profile) says:

Google will Leave the US, Too

If the so-called “creative community organizations” get their way, the internet here will be no different than that in China… ISPs forced to turn over personal data, acting g as police for the idiots at the MPAA, RIAA and SAG. Maybe we need to classify these thugs as criminal enterprises under the RICO act.

Anonymous Coward says:

Re: You should enjoy this letter then

I think you’d find this CCIA letter very un-extreme. While they briefly touch on the extreme enforcement procedures and penalties, they aren’t that critical of them (Nowhere near as critical as I would be). They seem to say that the enforcement is OK as long as its couched with fair use and the other exceptions we enjoy. In discussing ACTA and other FTAs, there main concern is that we may be exporting only part of our copyright law (i.e. the enforcement and not the needed exceptions).

Steve R. (profile) says:

But Utility Meters are the Real Culprit!

Amazing, the New York Times can publish an expose concerning how automating your utility meters raises serious privacy concerns.

But when the content industry proposes that: “The federal government encourage ISPs to use, and companies to develop, monitoring, filtering, blocking, scanning and throttling technologies to combat the flow of unauthorized material online” there is silence.

Anonymous Coward says:

“Copyright holders be able to combat infringement by making a database of their works available to service providers”

Copyprivilege holders are too lazy to even make a databse of infringing material available to citizens to know whether or not they’re infringing. Instead the RIAA/MPAA and the government just expects us to be psychic.

The problem with the RIAA et al is that they’re lazy, they want to get paid and not do any work. They can’t even take the time to tell us what works they have privileges on.

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