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.