Latest White House Intellectual Property Strategic Plan Much More Balanced & Reasonable

from the a-step-in-the-right-direction dept

The White House’s “IP Enforcement Coordinator” (IPEC), often referred to as the IP Czar, Victoria Espinel, has released the administration’s 2013 Joint Strategic Plan for Intellectual Property Enforcement, which she’s required to put out under the law that created her position, the ProIP Act. When the last report came out, in 2010, we noted that it wasn’t as bad as we’d expected, though it still had some serious problems. The latest report is actually a decent improvement on that one, going much further in recognizing some of the problems many of us have with how these issues are handled. Even the announcement about the report is better. In 2010, even though the report is officially named above, the announcement about it called it the Joint Strategic Plan to Combat Intellectual Property Theft. This year, that inflammatory and misleading language is definitely toned down.

More importantly, there are a lot of good (and somewhat unexpected) things in the report, which shows that Espinel and her office have been paying attention to the concerns many of us have raised over the years, about how the one-sided focus on “piracy” was misleading and not actually helpful. The full report is worth a read, but let’s highlight a few points. The report highlights a key point that we’ve made over and over again, that the best way to actually deal with “piracy” is through innovation, because when innovation is allow to flourish, solutions present themselves:

With respect to the online environment, the Administration believes that when Americans and people around the world are given real choices between legal and illegal options, the vast majority will want to choose the legal option. Accordingly, we encourage the further development and use of legitimate online services as an important part of an effective approach to reducing infringing activity. Today there are a myriad of legitimate ways to obtain music, video, books, games, software, and other entertainment and educational materials through a wide variety of business models. These include paying per use, paying per copy, and paying a fee for access to a collection of works; allowing customers to pay what they wish; and legitimate content that is available for free, including entertainment industry portals and artists and authors using systems to permit free distribution of their works under conditions that they choose.

We believe that legitimate goods, including digital goods, offer clear advantages over infringing ones regardless of price. Use of legitimate goods compensates artists, creators, and those who invest in bringing their works to the public, and provide incentives for future creation and distribution. In addition, legitimate goods are often of higher quality, come with express or implied warranties or guarantees of quality, offer customer services, and do not pose the same risk of viruses or malware. They may also include extra features not available with infringing content. And, increasingly, they may be more convenient and easier to find.

We support and will look for additional ways to encourage and facilitate efforts that will help expand the reach of legitimate alternatives to infringement, including through the development of copyright registries and online databases, micro-licensing arrangements, and other market-driven mechanisms to facilitate smooth and efficient access to content. We also encourage the work of the U.S. Copyright Office to update and improve the copyright registration and recordation system in ways that will facilitate licensing and encourage public-private partnerships.

To some extent, this may be overstating the playing field today with regards to where it should be, and fails to recognize the hurdles that are sometimes put up to prevent legal services from becoming truly convenient and powerful. But we have been moving in the right direction, and it’s great to see the acknowledgement that innovation is the way forward, and holding back innovation with crazy licensing demands does more harm than good.

The paper also focuses heavily on increasing transparency and public outreach, which is important, since this topic has long been dominated by certain special interests:

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

That’s good, but until the USTR actually gets on board with this (and recognizes that transparency is about sharing information to the public, not just listening to stakeholders) we still have a long way to go. The fact that the TPP (and likely TAFTA to follow it) is going to have large intellectual property sections negotiated in complete secrecy is a huge problem. If the IPEC wants to commit to true transparency, it needs to get the USTR on board. The fact that the report, elsewhere, celebrates the signing of ACTA (which was similarly negotiated with almost no transparency) as well as some very poorly designed trade agreements with Panama, Colombia and South Korea suggests that this is still a real problem, where the administration has, unfortunately, not yet changed its strategy, despite its claimed interest in transparency.

There’s also a whole section on getting content creators much more familiar with fair use. Considering that fair use is often something that these kinds of documents ignore, this is really impressive.

Effective enforcement is critical to providing meaningful protection of intellectual property rights, but enforcement approaches should not discourage authors from building appropriately upon the works of others. We recognize the work that agencies across the U.S. Government are doing in the area of intellectual property education, and their efforts to increase and improve this work in the digital environment. This work includes efforts at the USPTO and the U.S. Copyright Office to help the general public better understand the Constitutional purpose and value of intellectual property laws, and the scope of both protections and exceptions in such laws.

The Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists, songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine. Fair use is a core principle of American copyright law. The Supreme Court has repeatedly underscored fair use provisions in the Copyright Act as a key means of protecting free speech, and many courts across the land have upheld the application of fair use as an affirmative defense to infringement, in a wide variety of circumstances.

In order to make fair use more accessible to the authors of the 21st century, ease confusion about permissible uses, and thereby encourage the production of a greater variety of creative works, the U.S. Copyright Office, working in consultation with the Administration, will publish and maintain an index of major fair use decisions, including a summary of the holdings and some general questions and observations that may in turn guide those seeking to apply the decisions to their own situations.

The specifics here will matter, but the fact that they’ll be pushing fair use, and not ignoring it or hiding it away, is definitely a step forward.

It’s also worth noting a very different tone and choice of words in the paper than the usual biased choices. It repeatedly, correctly, refers to “infringement” rather than loaded terms like “piracy” and “theft.” For most of the paper (there are a few exceptions) it focuses on the areas where real threats may exist: with counterfeit drugs (though, too often, we see that conflated with reimported legitimate drugs) and military parts. The paper really doesn’t go into the usual hysterics you see from government documents about online copyright infringement, which is a welcome change.

As mentioned, there are still some issues with the plan. We already mentioned the support for ACTA, TPP and other USTR agreements that are questionable at best. It also talks up the DOJ’s increasing efforts around enforcement, some of which have been quite concerning (Megaupload, anyone?) and increasing efforts for IP enforcement around the globe, which too often has meant having diplomats act as Hollywood’s enforcers in other countries. The report spends a lot of time on “trade secret” enforcement, which is a big buzzword, especially with bigger companies. This is a dangerous red herring, where big companies are seeking laws and enforcement that often will be used to block disruptive innovators, but it’s still better to focus on that rather than some other overhyped claims of copyright infringement.

It also highlights the Department of Commerce’s absolutely awful report that counted all grocery store employees as having jobs because of “intellectual property.” That report has been widely abused by maximalists to argue that we need stronger IP laws, when that’s not what the report shows at all. This latest plan announces that this report will now be updated annually, and that it will “will calculate the number of jobs and the contribution to the GDP on an annual basis.” I hope that they seriously improve their methodology in time for the next release.

On the whole, this report is a big step forward in both substance and tone. There are many points in there that I might quibble with, but given the kinds of documents that we’re used to seeing come out of various governments when it comes to intellectual property issues, this one is quite well done. Combined with today’s news about the FTC going after patent trolls, it actually seems like the administration may realize that “more, stronger intellectual property” and “greater enforcement at all costs” is not the same as effective strategies for promoting the progress of science and the useful arts.

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Comments on “Latest White House Intellectual Property Strategic Plan Much More Balanced & Reasonable”

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Anonymous Coward says:

the first thing to do as far as the USTR is concerned is to give it a name that reflects who it works for and what it’s aims are, transparency and balance are the main two that are avoided like the plague, with the public consideration coming in next! perhaps if countries were to realise that they weren’t discussing things with ‘Trade Representatives’, but instead with ‘Copyright Maximalists’, that had no intention of doing anything beneficial for anyone, anywhere, other than the USA and the entertainment industries there, maybe things would be discussed in a better, more balanced atmosphere?

Anonymous Coward says:

Talk is cheap.

Piracy on the other hand is completely based on actions, there is no grandiose statements, there is no planing involved, there is no backdoor deals taking place and yet it happens and it says more than anybody could put in words.

Action is the only thing people should care about.

Bad medicine is a problem, but good medicine being criminalized and being said to be bad is also a problem.

Would you leave a loved one in pain just so others can have their institutional monopolies? or would you pirate what you need to aliviate their pain and suffer?

Imagine the day you can burn your SSN card and don’t care because your safety net is the knowledge that you know how to produce the equipment and drugs you need, or the food not much but enough to not die of starvation, that is not going to happen based on promises of politicians, it will happen when we like pirates start producing our own solutions.

What if you didn’t need to care if “secrets” were being stole, but if those “secrets” actually reached everyone?

That ain’t gonna happen in an IP centric world.

We don’t need to make guns or march anywhere, we can just start making things.

Piracy helped me remember what is important in life, we gave away the power to make things to others and we now get surprised when that power is abused? I am sick and tired of complaining, I am starting to make again, so when they say to me I can’t have it I will just go home and make it myself, it may not be pretty, it may not be as good, but as long as it is effective who cares?

Then prices come down, then services improve since if you don’t treat people with the respect they deserve they can just go elsewhere.

So although the political level of it all is important, more important is to do what pirates do. Make your future, do not wait for others to bring it to you, it will most certainly not be what you expected it to be.

Anonymous Coward says:

There has already been a strong european advertisement of TAFTA to try to avoid the ACTA fate. There has been stories of how ipads will be cheaper in EU and how France has safeguarded audiovisual provision from being “damaging”. That and a “SIA”-report with a non-disclosed civil society involvement is there to prolong the process to avoid a repeat of the ACTA-situation…

If you read the TAFTA mandate from EU it even says worrying things about IPR like it will “…build on the existing EU-US dialogue in this sphere”. Can you say ACTA?

There is an explicit but sufficiently vague exclusion of audio-visual culture, that will do absolutely nothing to stop IPR-provisions from Hollywood to enter the agreement. The “french exception” is completely worthless in that regard.

Not to mention that the “transparency provisions in the agreement has absolutely nothing to do with transparency but is only allowing “stakeholders?” this privilege.

All in all, I would call the IPEC fetish with international “trade agreements” as they look today, far more worrying than the change of rhetorics. Sure, it is good to see a change of tone, but today international agreements are far worse than any single countrys laws…

Anonymous Coward says:

Hi Mike,

What’s the point of pretending like you can keep me off of TD when you make a living out of ridiculing others who pretend like they can block people from doing what they want on the internet?

Seriously. I know you see the irony. But what’s the point? I post whatever I want, whenever I want. Your attempts to censor me are completely, 100% laughable and stupid.

Let me ask you this? Why do you, a man who pretends like he loves anonymity and freedom on the internet, make a point to block TOR IP addresses whenever they are used to criticize you?

Seriously. Are you so ashamed and insecure that you have to block TOR, the tool of freedom fighters who rage against dictators, to stop me from criticizing you?

Are you so scared of criticism that you think it?s worth it to block TOR exit nodes rather than receive any criticism whatsoever?

You?re just like China. And you fucking know it.

You are doing whatever you can to censor those who challenge you. Just like China. And you fucking know it.


Anonymous Coward says:

Re: Re:

You’re not wanted here because you add nothing but illegitimate personal attacks and lies.

Mike gave you ample opportunity to be a productive participant in TD discussions, but you insisted on being allowed to lie.

You were rightly banned and yet you insist on being allowed to lie and harrass on a site you have no intention of being an honest member of.

You’re undisputably in the wrong. And you fucking know it.

Anonymous Coward says:

That’s right, folks! As soon as Mike realizes that a TOR IP address is being used to criticize him–not for spam, mind you, but only for the purpose of criticizing Mike–he immediately blocks that TOR IP address from being able to post on Techdirt.

That’s right. Mr. Mike “Internet Freedom and Anonymity” Masnick is so scared of personal criticism that he’d rather block a TOR exit node–the tool of dissidents who criticize their oppressors–rather than leave the TOR IP address open to those who may want to criticize him or others on Techdirt.

Protector of freedom on the internet? You decide. His actions are just like those of an insecure dictator, and he knows it. Mike is just like China, feverishly oppressing those who dare to speak out against him.

staff (user link) says:

more dissembling by Masnick

‘may realize that “more, stronger intellectual property” and “greater enforcement at all costs” is not the same as effective strategies for promoting the progress of science and the useful arts’

Poppycock! All you and the feds ever promote is increased protection for the property of large multinationals and less for small entities. They and you are 2 faced.

Masnick and his monkeys have an unreported conflict of interest-

They sell blog filler and “insights” to major corporations including MS, HP, IBM etc. who just happen to be some of the world?s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are hacks representing themselves as legitimate journalists receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don?t have any.

For the truth, please see

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