White House's New Report On Intellectual Property Enforcement Should Get A Copyright As A Creative Work Of Fiction

from the maybe-hollywood-can-make-the-movie dept

The 2008 ProIP Act put in place a number of problematic things, including (via a very sneaky backdoor method) the ability for the US government to directly censor websites (something many people thought was in SOPA but which is already a part of the law, according to a tenuous interpretation of the law by the Justice Department and Homeland Security). It also put in place the job of IP Enforcement Coordinator, officially known as IPEC, but more regularly called the Copyright Czar. The job isn't about more efficient or more effective IP. It's designed solely to push an agenda of greater enforcement as if that must be a good thing. While the current Copyright Czar, Victoria Espinel, actually has been very good in trying to hear from critics of expanded copyright enforcement, the nature of the job itself leaves her little room to do too much.

However, as part of the job, she releases an "annual report" on intellectual property enforcement. Now, as you hopefully know, content published by the federal government cannot be covered by copyright and is automatically in the public domain. But, reading through the newly released annual report (pdf and embedded below), it makes me wonder if we should make an exception here, as it appears to be, in large part, a work of fiction.

There are plenty of questionable things in the report, but I'm just going to focus on a few (we'd be here all day if I dug into even more of the report, but feel free to read and guffaw along with the entire report). Once again, the report seems to assume that "greater enforcement = good thing," despite a near total lack of evidence to support that position. In part, of course, this is the nature of the job itself, so the report has to slant in that direction. But there are some whoppers in the report. Let's dig into a few:
  • "Improved transparency in intellectual property policy-makings and international negotiations." Wait, what?!? Yes, this is the same administration that has been the most secretive when it comes to negotiating IP laws and international agreements. SOPA came out of a secret backroom deal in which the tech industry and the public were entirely left out of the negotiations. That's why there was a public revolt over SOPA/PIPA.

    And, of course, ACTA and TPP negotiations have been significantly more secretive than traditional IP international agreements as negotiation via WIPO and the WTO. In those negotiations, positions are made publicly. With ACTA and TPP the US government has driven a policy of extreme secrecy, requiring special security clearance just to see drafts, and forbidding other countries from releasing reports. With TPP, the USTR has even agreed that the various documents surrounding the negotiations should be kept secret until four years after the agreement is completed and ratified. This is not transparency at all. It's the opposite of transparency. Saying you're transparent and actually being transparent are two different things.

    This is a point where the White House and IPEC in particular could be a lot more effective. It could revamp the entire Special 301 process to make that more transparent and less of a black box where the USTR basically "remixes" the complaints of Hollywood into a report shaming other countries. It could tell the USTR to release its positions and drafts for things like ACTA and TPP publicly so that the public (you know, the real stakeholders) can comment. It could call out the USTR for doing things like participating in an industry-sponsored dinner for negotiators, and partying in Hollywood with MPAA studio heads while kicking civil service organizations out of the hotel where they were meeting. But, instead, it pretends that there's more transparency? That's simply fictional.

    Patting itself on the back for including transparency when it's actually one of the most opaque administrations on such issues is simply ridiculous.

  • What's not in the report. It's really quite stunning what's completely missing from the report. The omissions are quite telling, however. The report appears to completely skip over what happened with SOPA/PIPA. I mean, it's as if the widespread public backlash and outrage didn't happen at all. SOPA and PIPA are barely mentioned at all, and when they are, it's only to mention briefly how random parts of those bills (not the main parts) included little bits and pieces of the White House's legislative agenda on IP around "greater information sharing." How can a report on the state of IP enforcement completely leave out the biggest thing that's happened in IP enforcement in decades? The fact that the public has stood up and said enough is enough on greater expansion of making the government Hollywood's private business model protection service. That's a huge event and to completely ignore it is quite telling.

    Similarly, the report completely ignores last year's realization of the serious problems with Homeland Security's ICE's Operation in Our Sites, the program to seize and censor websites based on mere shreds of evidence. While the report does mention Operation In Our Sites multiple times, it's only to self-congratulate itself for such censorship. What it does not mention is that the program resulted in the wrongful seizure and censorship of sites based on faulty evidence, or the fact that it is still illegally censoring a few websites, despite not having filed for forfeiture, as required by the law.

    In fact, the report seems so ashamed of the November 2010 seizures -- which resulted in all three of the domains in question being seized -- is completely skipped over in the discussion. They discuss the seizures before that one (in the summer of 2010) as well as the operations in 2011 -- but the infamous November 2010 seizure round is simply being written out of history.

    I'd have a lot more respect for Espinel and IPEC if it would actually admit that they fucked up royally with some of these seizures, and then was willing to publicly explain what went wrong, why it went wrong and what the White House is doing to prevent such bogus seizures and censorship from ever occurring again. Instead? It just pretends it never happened at all. That's shameful behavior.

  • "Voluntary best practices." The report talks up how there have been a variety of private sector "voluntary best practices" that were "facilitated by the IPEC." This includes things like the infamous "six strikes" plan that the ISPs have agreed to. While "private sector" solutions are good, what this leaves out is that the "facilitated by the IPEC" part was more about effectively threatening the ISPs that if they didn't come up with a plan, that it might show up in a law instead. Separately, the problem with "voluntary best practices" like this are that they really do seem to border on government-sponsored collusion. Getting all of the industry's largest players in a room to make agreements on who to do business with, who to censor and why... and without having it go through government review to avoid abuse? That's generally something the government used to be against. Why is it for collusion in these cases?

  • "A data driven government." The report tries to suggest that the government is being more data driven, and less faith-based in its efforts, but that's belied by the fact that nowhere is any effort being made to empirically look at the effectiveness of this enforcement on "promoting the progress." Instead, the "data" the report talks about is the data on how they've taken the same budget and "turned it into a more than 33 percent increase in seizures, arrests, and investigations of counterfeit and pirated merchandise in FY 2010." But if those seizures, arrests and investigations are doing more harm than good, or are leading to false accusations, censorship and bogus (taxpayer-expensed) lawsuits, isn't that a problem? Shouldn't IPEC be exploring that?

    Separately, it notes that the federal government is conducting an "economic analysis." That's good, right? But it's not conducting an economic analysis on the effectiveness of this enforcement. Instead, it's conducting an economic study that, by the very setup of the study, is completely missing the point. It's actually designed to miss the point by starting with the assumption that greater IP is a good thing:
    At the request of the IPEC, the U S Government is for the first time conducting an economic analysis, led by DOC, the Economic and Statistics Administration (“ESA”), and the USPTO, working with chief economists across the Federal government, to identify the industries that most intensively produce intellectual property and to measure the importance of those industries to the U S economy This broad study will examine all sectors of our economy We believe that improved measurement of intellectual property linked to measurements of economic performance will help the U S Government understand the role and breadth of intellectual property in the American economy and will inform policy and resource decisions related to intellectual property enforcement
    And, no, I don't know why the report seems to do away with the grammatical icon known as "the period" at the end of sentences. Perhaps it was too expensive to license. Either way, notice that this study seems to assume, without evidence, that industries that "produce" intellectual property automatically require intellectual property laws and protectionism. Figuring out which industries produce a lot of intellectual property says nothing about whether or not those industries actually need intellectual property laws, or if those laws are helpful or harmful. When you set up to study something based on faulty assumptions, the end results will not be helpful.
All in all the report clearly tries to paint a rosy picture, but in leaving out the failures and being quite misleading in other parts, this really is a work of fiction, not reality.

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  1. icon
    Torg (profile), 6 Apr 2012 @ 1:30pm


    Wow, really? All of that? It's fortunate that God loved us enough to set all that up, or we wouldn't exist. Clearly this is evidence of a super-God that cared enough about us that he created a God that cared enough about us to create a fine-tuned universe.

    Eventually you have to get to a point where you just say "wow, that worked out well", or you get stuck in a cycle of intentionality that doesn't end even when the creators outnumber the stars. That point, for you, is God. That point, for me, is currently math. If there's ever any non-circumstantial evidence that math arose from something else I'll change my mind then.

    The number of stars present in our universe or the particular characteristics of Earth are irrelevant. With physics in place, a universe this large and full eventually arising becomes more or less inevitable. And if a system like ours doesn't show up that first time, then the one after that might have it. Given infinite time all possible things will happen. Pointing out that life exists under conditions that we know life can exist in is not a useful or profound statement. Besides, a number of the things your article claims had to be present for life to occur are not absolute characteristics of Earth. In particular, atmospheric composition has varied greatly historically, and runaway greenhouse and freezing effects have occurred without spelling the end of all life. And, while I don't know the precise tolerances of all the things listed, that it considers Earth's presence in the habitable zone as evidence of precise balance shows that it's not looking too closely at how much variance could be tolerated before things stopped working; the zone that Earth could've formed in to allow it to support life is actually fairly wide.

    "Because it isn't just about us being better people. Spiritual death does exist, and if you don't accept Jesus as the one to atone for your sin, you will pay that price instead when the time comes. I don't like talking about that but it's part of what Jesus spoke about and why he came. There's a part of us that nothing can fill except God, an emptiness that only he can close. We're made that way."

    False. A lifetime of people telling you that you're a sinner and a pathetic being and that Jesus is the only way to fix that has drilled that God-shaped hole into your heart.

    "All time, matter, space, and energy has a finite beginning. And for them to have that beginning, there must be a Beginner."

    The same was once said of planets, species, and rain. And, as it turns out, all those things do have beginners. They just aren't capable of thought.

    "Albert Einstein himself came to that conclusion, even if he didn't take the next step in admitting who that Beginner was. He at least admitted there had to be one. You really think you know better than him?"

    Yes. Science isn't a religion, and Einstein wasn't a prophet. He was a very, very smart man, and relativity turned out to be very, very correct, but he wasn't infallible, and he would let his basic preconceptions interfere with his beliefs. He also thought that the universe was eternal and unchanging; he even tried to tune his theorem so that it would predict a static universe. How can you claim that there was a Big Bang or cosmic expansion when Einstein said otherwise? Do you really think you know better than him? The answer is yes, you do.

    "Also, eyewitness testimony is considered legal evidence in a court of law, and eyewitness testimony is exactly what the gospels are. The earliest texts have been conclusively dated to within just a few decades of Jesus' death and resurrection, well within the lifetime of the apostles, confirming their authenticity."

    There was eyewitness testimony of witchcraft in Salem dated much more closely to the event than a few decades. Currently more alien encounters happen than divine encounters (barring stupid ones like the char marks on your toast looking like Jesus), but that's not proof of an alien presence near Earth. I'll worry about this if atheism is ever tried in court.

    "And yet you haven't mentioned a single one here. You made a claim but didn't make it up, so your argument fails."

    I was just trying to clarify what I meant by "pretzel", but okay. This is the one you seem to be most affected by, along with this and its offspring. All of these also commonly characterize religions, though you seem to at least be trying to minimize them. I freely admit that I catch myself falling prey to those at times, too, particularly the last one, but most of my beliefs aren't built upon them anymore.

    "You said it yourself, you know your body has a better chance of not acting out if you maintain it. That knowing is faith. That's what I've been trying to say. You're operating from a distorted definition of faith rather than what it actually is."

    We already have a word for evidence-based knowledge. That word is "knowledge". "Faith" comes with a lot more troublesome attachments. I have never seen someone say, right out of the gate, that they have faith that gravity won't suddenly reverse unless they were trying to legitimize their belief in a religion. I have, however, seen plenty of claims along the lines of "faith doesn't require evidence". If your faith does require evidence, you're the exception, not the rule. And even then, you might as well just call it knowledge.

    "What you've just shown is that you haven't learned how to look past the surface. Do you really think God didn't know what would happen? Of course he did."

    Thus rendering the test and associated suffering completely unnecessary.

    "He allowed it because we're all tested and live in a fallen world, and suffering is an inevitable part of that. However, if you had read through the entire book, you would have found that after it was over, God blessed Job and gave back all that was lost, even more than Job had originally had."

    Your honor, I did kill that man's family, but if you think about it it isn't that bad. After all, his ancestors were sinful, and suffering is a part of life, so really what I did was perfectly reasonable. Besides, I contacted an adoption agency beforehand and got him some more kids. He's just being ungrateful.

    "Also, you would have understood that the devil is, basically, on a leash. He can only do what God lets him do."

    No, I understood that. The question at that point was why loosen the leash to that degree? What was gained?

    "The fact that you allowed yourself to be so easily discouraged makes me think that you never really committed yourself to God in the first place. You could have asked someone to help you understand the story if you were having a hard time with it, instead of just abandoning everything."

    I did ask about it. The answer I got was "the devil did that, not God, so it's okay", which wasn't a good answer for me considering the previous point. You're right, though, reading that was the last step of my deconversion, not the beginning. At the time I was a deistic agnostic, the result of a long struggle to believe in God despite everything else I had ever learned. Job was the killing blow, but the process leading up to it was not as easy as "hey, I think I'll abandon everything my parents ever taught me to believe in! That sounds fun!"

    "Except that it's hardly the only account of God's nature in the Bible. Throughout the whole thing, God is described as being beyond time, doing things before time, before the universe existed. He, as Jesus, appeared in a locked room after the resurrection, another example of his extradimensionality. And those are just a few examples."

    Then use those next time. Jonah's story is weak.

    "Can you at least admit that you may not have come to the right conclusions, that it's possible?"

    Of course. I've done it before, after all, with a number of different subjects.

    "Go here to learn more, and don't just dismiss it because then you'll be acting just like a copyright maximalist. Actually spend time reading the articles and listening to the podcasts and try to take everything in. You might be surprised."

    The first article I read showed that species that have adapted to life with predators tend to overpopulate when the predator is removed, and used that as proof that God put predators on the Earth to regulate their populations. I'll keep reading, some of its biblical analysis is interesting, but if that's the quality of evidence I can expect there, I doubt it'll change anything about my beliefs.

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