Yes, The IPAA Is A Serious Problem: Both In Process & Substance

from the but-doesn't dept

Last week, we were among the first to call attention to the fact that Lamar Smith and the House Judiciary Committee were seeking to rush through an IP-related bill which was similar to a small part of SOPA. We noted at the time that this was a much smaller issue than the key points in SOPA that everyone objected to, but our main concern was the failure in process. The fight over SOPA was as much a complaint about the process by which IP bills get passed as it was about the substance — and this is a point that Lamar Smith and the House Judiciary Committee clearly still have not realized.

In the wake of this, BNA’s Tamlin Bason correctly noted a few factual errors in what a few of us had originally published about the bill. For example, I flipped the setup of the bill, saying that the attaches would be moving from USPTO to Commerce, rather than the other way around, as is the actual case (though, confusingly, the bill also elevates a role from the USPTO into Commerce). I admit that this was a mistake in the writeup, though one that had little bearing on the actual issues raised by the bill and the process by which it was being rushed through. In fact, the process itself was partly to blame. We were told about the existence of this bill and the fact that there would be a markup with less than 24 hours notice last Monday, giving us little time process all the fine print.

While supporters of the Judiciary Committee are now using these minor mistakes to claim that there’s nothing at all wrong with the IPAA, that’s simply incorrect. Gigi Sohn’s careful analysis of the bill shows where there are serious concerns in the substance, mainly in the fact that the role of the IP attache continues to be to only push one side of the equation (enforcement) and completely ignore important limitations and exceptions. On top of that, it leaves the door open to massive expansion of the program. This is exactly how we described it in our original post: a way to expand this program, and a questionable way to get US diplomats doing what’s in Hollywood’s best interest, not the public’s:

Remember when everyone thought the Intellectual Property Enforcement Coordinator (IPEC) only had authority to act with regard to “enforcement” as opposed to other IP policy matters? That limitation is nowhere to be found in the 2008 legislation that created the position or in its legislative history, and there is nothing in this bill that limits the Assistant Secretary’s powers either.

In addition, the Secretary of Commerce is given carte blanche to hire as many Deputy Assistant Secretaries to help as the USPTO can afford. This means that overnight, the USPTO would become the home of yet another office dedicated wholly to the protection of intellectual property.

Have we told you that the USPTO already has personnel dedicated to Intellectual Property Enforcement? It should come as no shock to anyone that these new positions, as well as the attache positions, are likely to be filled by those who believe that more IP enforcement is always better.

In fact, as Gigi points out, the role that will be elevated is the Administrator for Policy and External Affairs, which will become the Deputy Assistant Secretary of Commerce for Policy and External Affairs — a much more high profile position. It’s worth noting that the job is currently held by Shira Perlmutter, an infamous copyright maximalist, former executive VP of the IFPI as well as IP Policy boss at Time Warner. Think she’s going to push for more exceptions and limitations? Yeah, right.

But, honestly, the bigger complaint here is still the process itself. People complained about SOPA being negotiated in back rooms without a chance for real public input. Just because Smith and the HJC chose a seemingly “boring” piece of SOPA to try to rush through without people noticing, don’t think this wasn’t a deliberate decision. Of course they chose a boring piece of SOPA. It was a test to see if people were really that concerned about the process, and to see if they could sneak through this bit of SOPA without anyone noticing. The fact that people spoke up stopped that temporarily, but these attacks on minor errors in the initial rushed writeups shows that the HJC is now trying to minimize the criticism — though it still hasn’t actually released the draft of the bill for public review. While Reddit has been saying that there’s a vote on the IPAA on Wednesday, it doesn’t appear to be on the schedule yet, though we have heard rumors of Friday or early next week from different people.

Smith and the HJC could have avoided this whole mess by doing something simple: being open and releasing the bill and letting the public react to it before rushing it through markup. Nancy Scola, over at ReadWriteWeb has a really good writeup on Lamar Smith’s failings with this bill, which focus on the process failures, and the fact that Smith clearly tried to rush this through:

Fifty days.

That’s the median time it took for eight legislative bills – on economic espionage, identity theft, abortion in the District of Columbia – to circulate in the House of Representatives before they were put on the agenda for Tuesday’s markup session by the House Judiciary Committee.

Zero days.

That’s how long the ninth bill on the agenda, a measure submitted by Judiciary chair Lamar Smith, existed before it was submitted for Tuesday’s markup. Unlike the other eight (H.R. 6029, H.R. 4362, H.R. 3803… ), Smith’s Intellectual Property Attaché Act didn’t even have a number. It had yet to be introduced into the House legislative system.

That’s legislating the future of copyright, the Internet and creative content, Lamar Smith-style.

As Scola points out, it’s clear that IPAA was a “trial balloon” to see if they could sneak IP stuff through in a post-SOPA era: pick something that is good for his Hollywood backers, but which is “maybe just dry enough” that it can fly below the radar and get passed.

We apologize for making a small error in our initial post — though, we likely wouldn’t have done so if Smith had done as he supposedly promised other members of Congress and released the draft long before it went through the markup process. Instead, by trying to sneak stuff through and see if anyone was paying attention, we missed one minor detail in the bill, but not the larger concern nor the serious process issues. If the HJC and Lamar Smith don’t want to see these kinds of reactions, they should be a hell of a lot more open about what they are trying to do. But, of course, that might make it more difficult to get Hollywood’s agenda to move forward. I guess that’s the dilemma they face.

* The initial report also stated that Darrell Issa was a co-sponsor of the bill. Scola’s report quotes his office saying that it’s simply untrue and that Issa is not a co-sponsor. We’ve heard similar things as well, and a few others named in the original report have since said they, too, were not co-sponsors.

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Comments on “Yes, The IPAA Is A Serious Problem: Both In Process & Substance”

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DannyB (profile) says:

An idea

There are already strong laws protecting copyright with ridiculous statutory damages for infringement.

Try to sneak this through. It’s a very small rider on some unrelated bill, like, say, defense spending.

Expand the definition of copyright infringement such that it shall now include any acts that the recording or movie industry does not like or wishes to file a DMCA takedown for.

It’s a very short amendment that can be snuck into a vital bill at, oh, say, midnight when the chamber is empty. C’mon, just do it. Nobody reads those bills they vote on anyway.

gorehound (profile) says:

This Kind of Garbage Will Not End

Over & Over and again we go and where it stops no one knows.
Whack A Mole being played by Corrupted and/or Clueless Elected Officials.
Lamar Smith the Internet Hates You and your Supporters on the HJC.You really think that none of us will notice or understand what is being done here.You really think we are that clueless we do not see that every time a SOPA Like Bill is shut down it won’t be brought up again.You can Relabel it anyway you want to.Call it any other name and the Internet will know.
And we will not forget or forgive.

A Guy (profile) says:

Most of what I objected to about SOPA was increasing the deficit in an unworkable attempt to censor the internet. Sometimes increasing the deficit may be necessary but it’s not generally a good idea. Censoring the internet using the SOPA method was impossible anyway.

It seemed like they were attempting to flush money down the toilet with no foreseeable benefit to anyone.

Anonymous Coward says:

I Hate, hate, hate

The idea of congress having any markups or votes on any bill that has not had an adequate time to be presented to the public ticks me off. Every bill should have a bill number and have it’s up-to-date text posted on thomas for a number of days before any action can take place.

The only exceptions ought to be serious emergencies (e.g. enemy soldiers laying siege to the capitol building).

I also propose that all bills be dealt with in a first come-first-serve basis. Committees (or the entire congress) can vote to have bills moved to the front of the line (in case of serious emergencies), or they can vote to have something moved to the back of the line (in case more information is needed before acting on the bill). The current system buts way too much power in the hands of the various chairpersons.

Anonymous Coward says:

the tragedy is, even after finding out what certain politicians, in this case Lamar Smith, are up to and how negative the impact will be on them, when people have the chance to vote these lying arse holes out, they dont! instead, they vote them back in. i’ve never heard such crap in my life! how the hell can people continue to moan about what these bastards are doing, then give them another bite of the cherry? deserve all they get!!!

Anonymous Coward says:

First, let’s say this: When SOPA was defeated, I said it loud and clear: SOPA will get passed, but rather in one whole package it will get passed piecemeal and in stages. Don’t be shocked to see amendments on other bills that change the copyright landscape, especially online.

There is so much online that needs to be addressed, so much has changed in the last decade, and the laws need to be cleared up to deal with these situation. Like it or hate it, regulation is coming. You may not like the process, but sooner or later, the results will be about the same.

Anonymous Coward says:

Quite candidly, I am trying to figure out why the substantive provisions of a bill that moves organizational structure into a more appropriate form seems to be “problematic. The USPTO is, unlike most organizations, self-funded by the fees it collects, thus having virtually no impact of the federal budget other than the amount of fees collected each year that have been routinely taken away from the USPTO by Congress and spent on wholly unrelated matters.

As for involvement in the diplomatic process, the very few assigned are tasked with doing precisely what diplomats are expected to do…promote US interests around the globe. We engage other countries in a plethora of trade matters on behalf of US citizens and companies, so why anything having to do with patents and trademarks raises a ruckus escapes me.

Mike Masnick (profile) says:

Re: Re:

As for involvement in the diplomatic process, the very few assigned are tasked with doing precisely what diplomats are expected to do…promote US interests around the globe

This is incorrect. They are tasked with promoting IP *enforcement* — which may or may not be in the US’s interests.

That’s the concern. It’s why there’s an amendment brewing saying they should *also* be promoting exceptions and limitations to copyright law, since THAT would actually be in the US’s best interests, rather than just a few industry’s.

That’s the concern, as we clearly stated.

Anonymous Coward says:

Re: Re:

This is not promoting US interests.
It is promoting a special interest groups agenda.

The two are not the necessarily the same. Further more, the fact that an industry can sponsor and get in place so much legislation affecting not only the US, but the world in general smacks of cronyism.

Finally, the fact that so much legislation is crafted and discussed in secret only furthers the perception by the world that all parties involved know it is not the right this to do.

If this and any other legislation is indeed the correct course of action, then make it public throughout the entire process and ensure all stake holders stand by their work.

I’ve noticed that at every attempt to push through that type of treaty, whatever, it has been done behind closed doors.

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