Our Response To The White House's Request For Comments On Its Intellectual Property Enforcement Strategy

from the be-careful-with-that-hammer dept

Last month, we noted that the new IP Enforcement Coordinator, Danny Marti, is now accepting comments for the administration's next "Joint Strategic Plan on Intellectual Property Enforcement" plan. While I know it's easy to roll your eyes at participating in these things, in years past we sent in comments and were pleasantly surprised to see the resulting plan actually take many of those comments into account, and turn out to be something that was mostly reasonable. We do have some concerns about Marti, given that the comments he's made to date seem to reflect a very... one-sided view of copyright enforcement. However, we're hopeful that he's open to evidence and reason. Below are the comments that we're submitting, much of which was based on the Carrot & Stick research report we released last week. If you'd like to submit your own comments, all the details are here. The deadline is today, October 16th.
Re: Comments on the Joint Strategic Plan

Daniel Marti
Intellectual Property Enforcement Coordinator
Office of Management and Budget
Executive Office of the President
Filed via email

Dear Mr. Marti:

I write to you today in response to your request for comments on the administration's next Joint Strategic Plan for Intellectual Property Enforcement. As both a long-time professional content creator myself, who relies on my content to make a living, as well as someone who studies innovation, works with startups and entrepreneurs on a regular basis, I have grave concerns that the focus on enforcement is too narrowly tailored, such that it may have a negative impact on the overall goals of nearly everyone involved. It is convenient to portray debates about enforcement as being one industry's views v. another, but the more you look, that's rarely the case. Instead, the problem is often that policy makers become too focused on the "enforcement" tool, without looking at the actual evidence of the impact.

Last week, the think tank I run, the Copia Institute, released a new report, entitled The Carrot or the Stick, which looked closely at the actual impact of increased enforcement on piracy around the globe. What we found in every country that we looked at was that ratcheting up enforcement efforts never seemed to show the intended effect. While they may have shown a brief decrease in piracy rates, that decrease was always temporary (often no more than a matter of months). However, when new and innovative services were introduced, the impact was much clearer and long-lasting. As an example, piracy rates for all kinds of content in Sweden were quite high, which might not be a surprise, given that the Pirate Bay started in Sweden. However, piracy rates for music dropped rapidly and permanently when another Swedish business was able to offer service: Spotify. Notably, while music piracy rates dropped massively, the same was not true for movies and television.

Sweden then passed its IPRED law, to ratchet up enforcement, with greater criminal penalties. While piracy rates did drop after IPRED went into effect, the impact was short lived and studies showed that piracy rates quickly returned to normal. Yet, well after that, Netflix entered the Swedish market, and, again, piracy rates dropped precipitously for movies and television.

While some have argued that the greater enforcement works hand in hand with such innovation, the evidence we looked at suggested that was not true at all. In most areas we looked, the rapid innovation cycles (indicated by a rapid increase in authorized services) pre-dated the increased enforcement efforts.

In short: greater enforcement did not decrease piracy rates, while innovation did.

Even worse, it appears that by focusing too much on enforcement, it can actively harm or slow down that very necessary innovation. The MPAA's Jack Valenti once famously declared that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." That was in the midst of the MPAA's heated legal and legislative battle to stop such home video machines. Yet just four years later, revenue to Hollywood from home video surpassed box office revenue. If Valenti had succeeded, things would have been worse off for the very industry he represented.

Time and time again, we've seen that a focus on enforcement often means trying to kill off necessary innovations. Innovations such as the radio, television, the MP3 player, TiVo and more have been sued in an attempt to "enforce" the law, when all that was really needed was for the industry to figure out ways to incorporate them into their business models. A decade ago Viacom sued YouTube for a billion dollars, claiming that it was a piracy site. Yet, just this week, Viacom's movie studio, Paramount Pictures, announced that it was releasing over 100 of its films for free on YouTube. Things change quickly.

Historically, the pattern is clear, however. When new innovations threaten old business models, the solution is not to reach for the hammer of "enforcement." It's to learn from what's happening, to understand what the public is seeking, and to innovate to provide it in a better way. Time and time again this strategy has worked, and it's important to be careful that if you focus solely on the ability to increase "enforcement" that you actually end up with a worse result: destroying the innovation that helps provide the very tools for creating, distributing, promoting and monetizing new content.

Your role and the focus of this report is on "enforcement," but it needs to be viewed in the wider context of "promoting the progress." Rather than falling for the easy story line of two industries at war with one another, it's time to recognize that the best "enforcement" is often in crafting policies that allow for more innovation, that enable more startups and more competition, rather than just looking at what things can be shut down or sued or seized.

Sincerely,

Michael Masnick
Copia Institute

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 16 Oct 2015 @ 12:01pm

    Your response reminds me of your position on copyright: High level nonsense and absolutely nothing concrete.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 16 Oct 2015 @ 12:11pm

      Re:

      Your response reminds me of how far human beings can go into denial.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2015 @ 12:20pm

      Re:

      Your response is a fine example of why Putin needs a better breed of comment troll.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 16 Oct 2015 @ 1:54pm

      That's it?

      All your talk is drivel is all you got?

      If you're not willing to toss up better ideas, or provide at least a brief on why you think Mr. Masnick's suggestion (e.g. push for less enforcement and promote innovation, especially in distro clients) is wrong, then there's no reason to consider what you're saying.

      Thus we'll think either:

      a) You're trolling for replies (and it's working!), or

      b) You have stock in the legacy gatekeepers whose business model has been disrupted by the internet, and all you care about is having your own vault of money to swim in.

      In both such cases we have every reason to ignore your interests.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2015 @ 5:33pm

      Re:

      "Don't sue children" is nonsense?

      Gee, I wonder how the strategy of suing children and grandmothers has worked out. It's almost like the RIAA gave up after a decade of trying or something and making millions of dollars over it!

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 18 Oct 2015 @ 5:01pm

      Re:

      In other words, "I am incapable of refuting a single point you've made."

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 16 Oct 2015 @ 12:10pm

    Well, one can't be clearer than that. You even point to well known cases that clearly show more enforcement produces no result while new legal services shake 'piracy' levels like an earthquake. Karl once bit his tongue when he talked about Wheeler on the FCC, let us hope we have a pleasant surprise here as well.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2015 @ 12:10pm

    Just click report and move on... please don't feed the trolls...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2015 @ 12:11pm

    Your response reminds me of your position on copyright: well-reasoned and grounded firmly in solid facts and verifiable research.

    reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 17 Oct 2015 @ 1:32pm

      Re:

      Your response reminds me of your position on copyright: well-reasoned and grounded firmly in solid facts and verifiable research.

      Which is why it will probably be completely ignored in favor of "OMG! PIRACY IS DESTROYING THE WORLD! WE NEED MORE LAWS TO HELP THE COPYRIGHT INDUSTRY!"

      reply to this | link to this | view in chronology ]

  • identicon
    Socrates, 16 Oct 2015 @ 12:25pm

    Thanks Mike

    Both for taking the time to write to Daniel Marti and for Techdirt.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2015 @ 1:16pm

    Asking moi, if i have a comment?

    Why yes, i do have a comment.

    GET RID OF IT!

    Whether your corporate masters will allow it, thats another matter......but its nice to see where your priorities lie.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2015 @ 1:17pm

    The war on piracy continues to look more and more like the war on drugs, neither has helped but, hopefully with sound reasoning things can turn the corner and create a balance between copyright and the general public, your attempt to provide proof to the copyright czars is beautifully crafted and much appreciated, I hold little hope things will change for the better,. There's way to much money coming from the copyright lobby.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 16 Oct 2015 @ 2:22pm

      Re:

      The war on piracy continues to look more and more like the war on drugs,

      Because both are the result of laws that create criminal business opportunities.

      The sooner those responsible for these laws learn some basic economics the better.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Oct 2015 @ 9:38am

    Michael Masnick,

    I appreciate the work that you are doing. That is an excellent letter.

    reply to this | link to this | view in chronology ]

  • identicon
    GEMont, 17 Oct 2015 @ 11:17pm

    Common sense, logic and facts.

    Beautifully stated, and exquisitely expressed.

    I doubt very much however, that your convincing facts and obvious logic will be sufficient to defeat the hefty graft payoffs and promises of lucrative, cushy, post-political employment, that currently makes up the sole rationale of the general career politician haunting the halls of power today.

    But hell, hope springs eternal.

    Good luck - to us all.

    And thanks for your effort.

    ---

    reply to this | link to this | view in chronology ]

  • identicon
    propertyglv, 20 Oct 2015 @ 11:48pm

    Real estate

    Search thosands of properties in major cites along with guideline values and market values. See the verified listings in Propertyglv and contact to know more

    reply to this | link to this | view in chronology ]

  • identicon
    Kenny, 7 Nov 2015 @ 6:50am

    IP Monopoly abuse via "Blacklisting"

    No due process of the law, not even an accusation that you're erred in some way, you are simply the victim of a Time Warner Blacklist. Get used to it because with monopoly control, there's nowhere left to turn.

    Read it or weep:
    http://computer.sytes.net/time%20warner/first%20rough%20draft%20for%20claim%20against%20time%20 warner.html

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.