Hillary Clinton's Intellectual Property Platform: Too Vague & Confusing

from the take-a-stand dept

Yesterday, Karl covered Hillary Clinton’s newly released platform on technology & innovation as it related to broadband policy and encryption. Today I wanted to look through what it said on another set of key issues to folks around Techdirt: copyright and patent policy. And, as with Karl’s post yesterday, there appear to be some things that sound good, but are so vague and devoid of actual nuance as to be laughable. I get it: this is the political platform of someone running for President, and thus it’s going to be worded in a vague and noncommital way on these issues, because these aren’t issues that lead people to decide whether or not to vote for someone as President.

On the good-sounding side, there are promises about dealing with the orphan works problem and the patent troll problem. But they’re weighted down with language that is quite vague and could mean almost anything, including lots of bad policy proposals.

Effective Copyright Policy: The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system. It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding.

Now, just the fact that a Presidential campaign mentions that there’s a problem with copyright law blocking access to content is somewhat revolutionary, so kudos to whoever got that into the plan. But the weird “while protecting the innovation incentives in the system” trailing line could mean anything and is designed to be just vague enough for anyone to read anything into it. What are the “innovation incentives in the system” right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it’s long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment.

The fact that the orphan works problem gets called out is exciting, but even then the solution isn’t clear. The only real solution to the orphan works problem is to go back to a system of formalities, requiring registration to get a copyright. Then place stuff that isn’t registered and where there’s no way to contact the copyright holder in the public domain. Boom. Problem solved. But it seems unlikely that that’s where Clinton is going with this.

In the more detailed fact sheet, the expansion of these ideas is basically just the same thing as the condensed version but with way more words:

Effective Copyright Policy: Copyrights encourage creativity and incentivize innovators to invest knowledge, time, and money into the generation of myriad forms of content. However, the copyright system has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age. Hillary believes the federal government should modernize the copyright system by unlocking?and facilitating access to?orphan works that languished unutilized, benefiting neither their creators nor the public. She will also promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. She will seek to develop technological infrastructure to support digitization, search, and repositories of such content, to facilitate its discoverability and use. And she will encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the U.S. and abroad.

Open licensing is good. Removing barriers to effective licensing is also good. But there’s no plan here. People have talked about these things for ages and never gotten anywhere because entrenched interests don’t want this kind of thing to happen at all.

Also, there’s a weird call out to SOPA — but not in the copyright section. Rather, she mentions it in the net neutrality section because whatever, no one cares:

She also maintains her opposition to policies that unnecessarily restrict the free flow of data online ?such as the high profile fight over the Stop Online Piracy Act (SOPA).

The language choices here appear to have been workshopped by a committee of hundreds. What the hell does this mean? Does it mean that she would oppose the fight over SOPA? Or SOPA itself? Because it’s pretty clear that she’s implying that she would oppose things like SOPA (which, again, had nothing to do with net neutrality). But she also was a SOPA supporter — at least until it was politically inconvenient. During the height of the SOPA battle, she sent a letter insisting (contrary to the statement in her new platform) that there was “no contradiction” between supporting the free flow of information and enforcing strict copyright laws:

“There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the internet.”

So if she believes that, then SOPA wouldn’t have restricted the free flow of data. Of course, once the public tide turned against SOPA — guess what — so did Hillary, suddenly making it out to have been an important fight for internet freedom, even though she denied that very point just months earlier:

?The United States wants the Internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the Internet itself from plans that would undermine its fundamental characteristics.?

In other words, like a standard politician, we’ve got vague promises and flip flops — along with ignoring previous positions when convenient.

As for patents, for the short version, we’ve got:

Improve the Patent System to Reward Innovators: Hillary will enact targeted reforms to the patent system to reduce excessive patent litigation and strengthen the capacity of the Patent and Trademark Office, so that we continue to reward innovators.

Again, vague language that can be taken in many different ways (again, obviously on purpose). The good: highlighting the problem of “excessive patent litigation” is definitely a good sign and is basically an acknowledgement of the problems with the patent system — mainly patent trolling, but that should include excessive litigation by operating companies as well. But again, that’s immediately weighed down by what follows, which could mean basically anything. Strengthening the capacity of the PTO… for what? To reject bad patents? That would be good. To grant more patents? That might be bad. And the whole “so that we continue to reward innovators.” What does that mean? If you believe that the patent system itself rewards innovators, then that would mean encouraging more patenting. If you believe that the patent system is stifling innovators, then that should mean ending bad patents that are used to hinder innovation. Which is it? Who the hell knows. And I doubt Clinton herself has any real understanding of the issues here either.

The longer version makes it clear she’s supporting some of the current anti-patent troll legislation, which is a good thing:

The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest.

Those are good things. But then we’ve got the expanded explanation of strengthening the PTO and again it’s a giant “huh?”

Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund?ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.

Of course, this is somewhat contradictory with the stuff raised earlier. Fee retention is one of those ideas that perhaps makes sense, but skews the incentives in dangerous ways, possibly pushing the PTO to encourage more patent applications and patents in order to get more fees. Similarly, “faster review” historically has meant lots more crappy patents getting approved — leading to more patent trolling over bogus patents.

So, basically, she’s promising points to the two key sides of the patent debate, without noting how the two plans are in conflict with each other if she’s looking to solve real problems.

Again, none of this is a surprise. This kind of wishy washy political language where none of it really means anything is par for the course for just about any major politician, and Clinton has historically made this kind of noncommittal hand-wavy bullshit an artform all her own. She’s not looking to solve real problems. She’s looking to convince you that she’s actually heard of the pet problem you’re focused on and she has a vague plan to “solve it.” Never mind the details or the fact that the plan conflicts with other parts of her plan.

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Comments on “Hillary Clinton's Intellectual Property Platform: Too Vague & Confusing”

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Anonymous Coward says:

Translation help...

Hillary believes the federal government should modernize the copyright system by unlocking—and facilitating access to—orphan works that languished unutilized, benefiting neither their creators nor the public.

Lets translate this from Politician jargon to lay speak!

Copyright IS for sale to the highest bigger!

Not a damn thing about this even hints at ending the Eternal Copyright monopoly or doing anything against the MafiAA’s!

I.T. Guy says:

“The United States wants the Internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the Internet itself from plans that would undermine its fundamental characteristics.”

Uh huh sure thing Hills. Except that:

Unicorns and Pixie dust you say Hills?
“I would hope that, given the extraordinary capacities that the tech community has and the legitimate needs and questions from law enforcement, that there could be a Manhattan-like project, something that would bring the government and the tech communities together to see they’re not adversaries, they’ve got to be partners,” Clinton continued. “It doesn’t do anybody any good if terrorists can move toward encrypted communication that no law enforcement agency can break into before or after. There must be some way. I don’t know enough about the technology, Martha, to be able to say what it is, but I have a lot of confidence in our tech experts.”

Gettin my hip waders on to navigate the bovine fecal matter spewed from this woman.

Anonymous Coward says:

Presidents don’t really ever need to have intellectual property platforms. Meaningful reform will only ever originate, to the extent that anything ever does, in Congress and in the Copyright Office (a congressional agency). The president’s job will be the same as it is now under Obama: aggressive support of the status quo, and of pro-US business trade policies via the office of the USTR. In other words, there will be no progressive IP policies coming from the Oval Office. They can talk and we can wish all we want, but only our pressure on Congress is going to ever make a difference.

Anonymous Coward says:

Re: Re:

Yes, but you have a huge uphill battle against the electorate. As long as each congress critter keeps their locals happy, they will keep them in office, no matter how corrupt that bastard is.

America is for SALE! The Citizens are greedy an carry huge swaths of contradictory economic & political views.

The very people most vocal about corruption are the most supportive of regulation that causes that corruption.

The bigger the government the smaller the citizen!
The more welfare a government provides the less liberty you get!

OldMugwump (profile) says:

Like nailing jello to the wall

That her promises are vague and self-contradictory is not news.

She’s the very archetype of the slimy politician – she says whatever she thinks will get her votes now, in a slithery way calculated to leave her room to do the opposite later when she’s in power.

And emphasizes whichever reading is favored by who she’s talking to at the moment.

Unfortunately for those of us who live in the US, her opponent is Donald Trump.

I’m voting for Gary Johnson.

Mason Wheeler (profile) says:

I get it: this is the political platform of someone running for President, and thus it’s going to be worded in a vague and noncommital way on these issues, because these aren’t issues that lead people to decide whether or not to vote for someone as President.

Then you don’t get it, any more than Team Hillary does, or the vast majority of the establishment politicians on either side, unfortunately.

Think back to 2012. While politicians were debating a bunch of policy-wonky jibber-jabber that nobody but policy wonks actually cared about, there was one very serious political issue that got Americans across the country so up in arms over it that we crashed Congress’s communications systems because we were so passionate about telling them to vote the right way, and everyone here should remember what that is: SOPA.

That was the one notable thing that ordinary citizens actually cared about… and none of the candidates made an issue of it, which I found truly bizarre and, as Mike likes to say, tone-deaf. I remain convinced that, had Mitt Romney taken up the charge of resistance to SOPA and real, pro-user copyright reform, and painted the Obama administration as the strong allies of copyright abuse that they always have been, that he would be President today, despite everything else. (Whether this would have been better or worse than our current situation is a matter for debate. Whether it would have happened, though… I don’t think there’s any question of that.)

This is something that, when people become aware of it, they act on. But politicians don’t realize that, and it seems that even Mike Masnick doesn’t realize that.

That’s very disappointing!

Anonymous Coward says:

These are not problems you can fix without understanding them.

It isn’t just about telling telecoms to respect X, and then listening intently as they say “yes your right, we do”.

The way these markets are manipulated is exceeding subtle and goes all the way down to the bit level. The question isn’t whether a politician has a position, it is whether we should concede that they are even capable of having a position.

HRC and indeed pretty much all of Congress and most of judiciary at the state and federal level, have opinions on the Internet, like a 4 year old has an opinion on being an Astronaut. In terms of netizenship, these people do not qualify as adults, and should have their rights “protected” until such time as they are old enough and wise enough to wipe their own ass in a regular way.

jamiahx says:

Calling out Mike

Mike, I think you’re wanting to return to a formal copyright registration system for the wrong reasons. It is NOT “the only real solution to the orphan works problem” and suggesting so is extremely arrogant (more on that in a bit).

There are naturally or intentionally limited-availability works that would be heavily burdened by the two-copies rule.

(It seems to me that) a lot of software foregoes formal registration yet depends on copyright for their distribution model. It’s not just proprietary stuff that does so, but also the GPL. And this foregoing may even be intentional, as some don’t want everyone just getting a free copy of their proprietary source code from the Library of Congress.

“But someone who uses the GPL wouldn’t be heavily burdened by formal registration,” you might respond. I counter that mandatory registration within and tracking by a government database to enjoy rights enshrined in the Constitution is an extreme burden, and SCOTUS thinks so too in regards to the 2nd Amendment.

While I share your distaste of using unreasonable statutory damages, there are other ways to incentivize registration (lower burden on plaintiffs to show knowledge of infringement, some level of free/discounted legal service provided by the government, free merchandise).

Now as to that alternative solution to the orphan works and out-of-print problems, it actually comes from a story YOU covered . That use-it-or-lose-it feature could require that publishers maintain accurate and up-to-date contact information for the copyright holder while under a Sword of Damocles that, should a work’s information lapse, the work shall transfer into the public domain for their market.

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