White House's IP Strategic Plan Not Nearly As Bad As Expected; But Not Great Either

from the balance? dept

As expected, it looks like Victoria Espinel, the White House’s IP “Czar” has released the official “Joint Strategic Plan to Combat Intellectual Property Theft,” as required by the ProIP Act. Given the history so far, we had expected the report to be quite one-sided in favor of the industry, and the initial announcements about the report suggested that was to be the case. Specifically, in announcing the report, Hollywood’s best friend, Joe Biden, made some typical uninformed comments about how infringement was no different than “theft.”

“We used to have a problem in this town saying this,” Biden told reporters Thursday at a press conference in Washington D.C. “But piracy is theft. Clean and simple. It’s smash and grab. It ain’t no different than smashing a window at Tiffany’s and grabbing [merchandise].”

Except, it wasn’t “a problem” saying it. It was people recognizing that theft and infringement are very, very different. The Supreme Court has made this clear for centuries, going all the way back to the Wheaton ruling, and more recently in the Dowling case, where Justice Blackmun stated explicitly:

Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

But why let the actual details get in the way of protecting your friends in Hollywood? However, as you start to dig into the full report (pdf), it looks like Espinel actually did consider at least some of the concerns that many of us presented in our filings. Again, this is a bit surprising since her initial request for comment seemed to pre-suppose that the industry’s position was entirely fact-based, rather than faith-based. Below is the full report.

The report definitely still leans towards stronger and stronger enforcement and protectionism — despite all of the evidence suggesting this doesn’t actually help to “promote the progress.” But there are some hopeful signs that they at least realize that there’s more to copyright than simply protecting the entertainment industry’s business model. Thankfully, it talks about “effective enforcement” rather than just “more” enforcement. It discusses “promoting innovation” rather than just “strengthening protections.” There is plenty in the report that is problematic as well, but there is, at least, some recognition that only strengthening copyright has costs as well. For example:

By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.

While it’s not much, at least having a nod to fair use and the importance of creativity inspired by building on the works of others is a small step in the right direction. It’s not often you see any such admission in government discussions on copyright law.

There are numerous challenges to meeting these goals of predictability and enforceability. Our effort must be coordinated, efficient and comprehensive. Solutions will require strong and decisive government action, transparency and cooperation from rightholders, importers, exporters and entities that currently benefit from infringement.

Again, perhaps it’s subtle, but the admission that there should be transparency, and that any discussion should include stakeholders, who also “benefit from infringement,” at least recognizes that this isn’t as one-sided as the entertainment industry makes it out to be. While the industry goes on and on about “losses” from infringement, it never admits that other parts of the industry actually benefit quite a lot. Still, notice who is missing from that list? Consumers. You know, the public, whom copyright law is supposed to serve. What about them?

The Administration supports improved transparency in intellectual property enforcement policy-making and international negotiations. As such, the U.S. Government will enhance public engagement through online outreach, stakeholder outreach, congressional consultations and soliciting feedback through advisory committees, official comment mechanisms such as Federal Register notices (FRN), notices of proposed rulemaking (NPRM) and notices of inquiry (NOI), as appropriate for the relevant process. In the context of trade negotiations, the Administration will pursue these objectives consistently with the approaches and considerations set out in the President’s 2010 Trade Policy Agenda, including consideration of the need for confidentiality in international trade negotiations to facilitate the negotiation process.

This is a clear statement on the concerns that many commenters raised about ACTA. While this report and Espinel’s role are not directly related to ACTA (yet), ACTA is definitely on a lot of people’s minds and they made that clear in their filings. It’s good to see Espinel point out that these negotiations need to be a lot more transparent and be willing to bring in stakeholders.

The next part is the part that I’m most happy about. It actually admits that the data on infringement is bunk and that the government should make policy based on actual data:

There is no known comprehensive study that attempts to measure the economic contributions of intellectual property-intensive industries across all U.S. business sectors. Improved measures of intellectual property linked with measures of economic performance would help the U.S. Government understand the role and breadth of intellectual property in the American economy and would inform policy and resource decisions related to intellectual property enforcement.

To assess the feasibility of improving measures of intellectual property and linking those measures to economic performance, the Economic and Statistics Administration (ESA) within DOC, in coordination with the IPEC, will convene an inter-agency meeting with relevant agencies to establish a framework for conducting this work. Once that framework is established, ESA will test the feasibility of developing improved intellectual property measures and, if those measures can be developed, they will be linked to measures of economic performance. The resulting analysis and datasets will then be made public.

I do have some fear as to how this will be conducted, but it’s nice to see the government admit that it needs real data, even if elsewhere in the report it relies on faith-based processes currently in place.

Of course, there’s still a ton in the report that is troubling. It regularly refers to infringement as “theft.” Even the name of the report claims that infringement is theft, despite that not being accurate at all. On the more questionable side, we’ve got things like the following:

Strong intellectual property enforcement supports American jobs, protects American ideas and invigorates our economy. Intellectual property laws provide not only legal protection for creators and consumers, but incentives to encourage investment in innovation.

Where is the actual evidence for this? There is none. The actual evidence has suggested otherwise. It has shown that weaker IP enforcement has actually resulted in greater creative output and greater opportunities for creators, consumers and investors.

Included in USTR’s annual Special 301 report is the Notorious Markets list, a compilation of examples of Internet and physical markets that have been the subject of enforcement action or that may merit further investigation for possible intellectual property infringements. While the list does not represent a finding of violation of law, but rather is a summary of information USTR reviewed during the Special 301 process, it serves as a useful tool to highlight certain marketplaces that deal in infringing goods and help sustain global piracy and counterfeiting.

USTR will continue to publish the Notorious Markets list as part of its annual Special 301 process. Additionally, USTR, in coordination with the IPEC, will initiate an interagency process to assess opportunities to further publicize and potentially expand on the list in an effort to increase public awareness and guide related trade enforcement actions.

This is too bad. The USTR Special 301 report is a joke. It is not evidence-based at all. It’s entirely based on what the industry claims is a problem. It’s too bad that the IPEC would suggest that this plan makes sense and should be continued. We were hoping the IPEC would move to a more evidence-based process, but this is not that.

It is critical that we station overseas personnel in countries of concern to ensure intellectual property is made a priority.

This is another problem. The US has been pushing its own IP laws on other countries for far too long. And the real problem here is that it’s actively locking in other countries to rules that have not been shown to help promote progress or creativity, but really are to prop up a few specific companies with big lobbying budgets. We should not be continuing that practice.

The use of foreign-based and foreign-controlled websites and web services to infringe American intellectual property rights is a growing problem that undermines our national security, particularly our national economic security. Despite the scope and increasing prevalence of such sites, enforcement is complicated because of the limits of the U.S. Government’s jurisdiction and resources in foreign countries.

To help better address these enforcement issues, Federal agencies, in coordination with the IPEC, will expeditiously assess current efforts to combat such sites and will develop a coordinated and comprehensive plan to address them that includes: (1) U.S. law enforcement agencies vigorously enforcing intellectual property laws; (2) U.S. diplomatic and economic agencies working with foreign governments and international organizations; and (3) the U.S. Government working with the private sector.

Yes, this is the “we must shut down The Pirate Bay” part of the plan.

All in all the report isn’t nearly as bad as we expected, but it’s also pretty vague. What may be interesting is what comes out of the review of regulatory needs (to be completed in 120 days) or seeing how other aspects of this plan are actually implemented.

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Comments on “White House's IP Strategic Plan Not Nearly As Bad As Expected; But Not Great Either”

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Barry Solow (profile) says:

The Announcement of the Report Set My Teeth On Edge

I haven’t yet read the report. From what you say it is at least a little better than this announcement:


There are many unfounded statements, no distinction made between badly counterfeited drugs and bit-by-bit copying of electronic media and no mention of the vigorous Open Source movement.

Anonymous Coward says:

Re: The Announcement of the Report Set My Teeth On Edge

I think the report merely wants to pretend to be balanced.

If the govt was really interested in being balanced the first thing it would do is seek to correct the existing absurdly long copy privilege terms and retroactively apply the shortened terms to existing works. The second thing is it would ensure that the punishment for accidentally falsely claiming infringement is considerably greater than the punishment for accidental infringement (since the claimed copy privilege holder is in a better position to know what s/he has a privilege on than the accused and can do so more affordably) and not the other way around like is the case with our current laws.

The existing laws are already terribly imbalanced, our government not seeking to correct them is just as imbalanced.

Hephaestus (profile) says:

Re: Re: The Announcement of the Report Set My Teeth On Edge

“(since the claimed copy privilege holder is in a better position to know what s/he has a privilege on than the accused and can do so more affordably)”

Actually due to the contracts not being standardized and no true defining laws no one really knows who owns what copyrights. Everything is copyrighted automatically.

John Doe says:

Drugs are illegal too...

How does anyone, even the idiots in the RIAA and MPAA think they are going to stop piracy? Drugs have been illegal for decades, pose serious health and addiction risks and risk of arrest, yet are available in every nook and cranny of this country. File sharing is not harmful to your health so there is way more worth the “risk” than drugs.

Let them pass all the laws they want, it won’t even make a dent in the situation.

***In full disclosure, I neither partake of or condone file sharing, but recognize it is not the evil the media would have you believe.

Nastybutler77 (profile) says:

Transparency starts when?

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

Since when? When will this kick in? After ACTA is already passed?

The Administration keeps giving lip service to improving transparency but when it comes to actually providing it, it never really happens. Transparency for thee, but not for me, right Mr. President?

I’ll believe in their transparency when I can “see” it.

Anonymous Coward says:

Re: Transparency starts when?

Exactly, Obama got elected under the pretext that he will be more transparent but then, upon being elected, he endorses these ACTA agreements in secret and his administration et al releases them only after the documents have already leaked. Transparency? Where?

Anonymous Coward says:

Re: Re: Transparency starts when?

and, ON TOP OF THAT, they want continued ACTA negotiations to occur in secret.

BTW, where in the leaked and released ACTA agreements was there anything that had anything to do with national security? I still haven’t gotten an answer to that one, face it, these people have no credibility whatsoever.

Hephaestus (profile) says:

Re: Re:

The future is going to be fun IP police raiding the bed rooms of 12 year olds, guns drawn, for sharing music and video.

I had to put that image into your head so you would think of the children!!!

That politician trick isnt going to work is it …

How about this. The police kick in the door of someones house and shoot his dog because someone used his wifi connection. yeah we all know thats not going to happen … oh wait it already did.

out_of_the_blue says:

A gov't that lies about war will lie about copyright.

Final results won’t be recognizable from this report, it’s only to lull critics while they calibrate the next increment of tyranny. For instance, the FCC is probably planning on installing spying software or hardware portals as Australia just has for *all* internet access (latest, I think, being a mandatory anti-virus, just skimmed it).

Rekrul says:

All in all the report isn’t nearly as bad as we expected, but it’s also pretty vague.

That’s to placate critics somewhat while they craft new and even more draconian IP laws at the behest of the entertainment industry. Nobody in the US government gives a s*** about anyone who hasn’t “donated” at least $100,000 to their campaign fund.

KD says:

Re: Stronger IP laws DO help American jobs and interests

No,you aren’t looking far enough ahead. Once the stronger IP laws are in place in other countries, the American IP pigs then use those stronger laws as justification for strengthening American IP laws. They get new American IP laws that are even stronger than the foreign ones, which lets them go persuade the other countries to ratchet up their laws, and so on, ad infinitum.

No, there is nothing good about stronger IP laws elsewhere.

Anonymous Coward says:

Isn't the the same Joe Biden who admitted to plagiarism in law school?


Isn’t this “smash and grab” intellectual property theft as well, by his own definition? And a property theft that resulted in a career leading to the vice presidency, at that? Guess it goes to show, crime really does pay, eh Joe?

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