Copyright Czar Agrees That The Gov't Should Let Business Models Decide Winners, Rather Than Legislation

from the time-to-walk-the-walk dept

While I certainly have my disagreements on a variety of points with US Intellectual Property Enforcement Coordinator Victoria Espinel, I will say that she’s always been open to talking about the issues (unlike many others). She’s also worked hard to really listen to people on all sides of the debate around intellectual property, and from what I can tell, take most of their opinions quite seriously, rather than just brushing them off. While I disagree with where she’s ended up on an awful lot of issues, I respect her willingness to listen, and still have high hopes that she’s coming around to realizing that strict enforcement often isn’t the best answer. In the past, she’s specifically reached out to us to discuss different business models and different ways that people can make money without relying on intellectual property, and it appears that she’s been thinking even more about that lately. In a talk at the World Copyright Summit in Brussels, she made it clear that a lot of the issues can be taken care of through business model innovation, rather than legislation:

“The U.S. government doesn’t need to pick winners and losers and the last thing we should think about doing is messing up the Internet with inappropriate regulation,” she told the World Copyright Summit in Brussels.

She also talked up the value of new services, including various “cloud” services from Amazon, Google and Apple (which is interesting, since the record labels still seem to be hinting that Amazon and Google’s services may not be legal, in their minds).

So, kudos to Espinel for making such a statement.

That said, it would be nice if we could see a bit more walking the walk, beyond just talking the talk. Espinel has certainly had a role to play in the PROTECT IP Act, which many people are warning could “mess up the internet,” through its messing with DNS. On top of that, Espinel was also the driving force behind the new bill we recently spoke about that could make embedding and linking to infringing material a felony by extending the coverage of criminal copyright law to include “public performances.” This sort of law does lead to the government picking winners and losers, and is totally unnecessary.

The focus really should be on encouraging the embrace of new business models, rather than ramping up enforcement. The recent SSRC study highlighted clearly the fallacy of ramping up enforcement as a means of dealing with infringement, as it simply doesn’t work and has massive unintended consequences. Hopefully, Espinel will begin moving away from pushing new legislation like these recent efforts, and really will focus on helping content creators and others in the industry to move towards smart new business models instead.

Filed Under: business models, ip, regulation, unintended consequences, victoria espinel

New Report: IP Laws Are Crippling The EU Economy

from the economic-freedom-and-personal-freedom-go-hand-in-hand dept

Glyn Moody points us to a new report from the group EDRI, claiming that intellectual property is harming the economy of Europe. The group lists out a few key points:

• Harmonise exceptions to copyright to create legal certainty across the EU about the permitted uses of works covered by IP
• Establish pan-European licensing arrangements as a matter of priority, and tie future enforcement policy to the successful development of such proposals
• Abandon repressive enforcement measures that would materially damage people’s fundamental rights
• Establishes a moratorium on the exporting of repressive IP enforcement to third countries
• Makes a firm commitment to robust, objective evidence and re-evaluation of policy on the basis of it.

Much of the report is about harmonizing both patent and copyright laws across Europe or creating pan-European infrastructure for patent and copyright laws. I’m of a mixed opinion on those proposals. While I can definitely see the problems of having so many different local patent and copyright laws, historically, attempts to “harmonize” such laws only lead to much more draconian laws with little flexibility. Having different laws in different places allows for countries to experiment with, perhaps, less protectionist efforts, and to show that you don’t necessarily need greater protectionism for the economy to function. On top of that, in my discussions with people throughout Europe, one of the concerns with harmonization was that each market is so different, that a single set of laws would lead to very bad policies in certain countries.

However I do appreciate the concerns about repressive enforcement and the aggressive expansion of repressive enforcement to other countries. All in all, it does seem like another useful report on the problems of today’s intellectual property laws.

Filed Under: economy, eu, intellectual property, ip

EU Commission Proposes New IP Rules, With More Weight On Enforcement & Making ISPs Police The Internet

from the that's-not-how-things-work dept

Not a huge surprise given things happening elsewhere around the globe, but it appears that the European Commission (who have already been in the tank for the entertainment industry, as seen in their enthusiastic support of ACTA) has come out with a new plan for intellectual property in Europe that has a major focus on enforcement, including turning ISPs into copyright cops. Of course, it’s long been the desire of the entertainment industry to have ISPs do all the dirty work in trying to stop infringement. The problem, of course, is that all of this assumes it’s somehow easy for ISPs to determine what is and what is not infringing. It’s not. Even the companies themselves don’t seem to recognize it some of the time. It’s sad that so many politicians can’t seem to understand the very basics of the law and technology on these issues, leading to proposals like this one that will not help “boost creativity and innovation,” but will hinder it by stifling the very technology that is most needed for creativity and innovation.

Filed Under: copyright, enforcement, europe, european commission, ip, patents

Developed Nations Protest Developing Nations' Desire To Create Their Own IP Laws

from the hypocrites dept

We’ve discussed many, many times how the US and other developed nations have been relying on extreme secrecy in crafting new intellectual property agreements, such as ACTA and TPP. They continue to insist that no one else should be in the room when they discuss these important laws. So, what happens when some poorer developing nations want to get together to discuss how developing nations might create better intellectual property laws that match their own specific needs? You guessed it. The big developing nations freak out and demand to be in the room. Apparently, the developed nations only think things should be secret for their own intellectual property discussions.

This all happened recently at WIPO, concerning the Development Agenda. As a bit of background, over the past few years, WIPO has finally come around to realizing that a single strict intellectual property regime around the world doesn’t make much sense. Over the last decade, the amount of evidence showing how developing nations are seriously harmed by strict intellectual property laws is overwhelming and, at this point, incontrovertible. With that in mind, the Development Agenda within WIPO has grown, allowing various developing nations to really seek out alternative views on intellectual property. In fact, this is why ACTA and TPP are being done outside of WIPO, despite it being the natural place for such agreements: because the US (mainly), and some others like Japan, didn’t want to let the developing nations into the conversation.

And yet, when the Development Agenda tried to have some private discussions on “enhancing cooperation” on intellectual property issues among developing nations… the developed nations threw something of a hissy fit, and effectively derailed the meetings by demanding to be there. The end result was that the meetings were suspended:

In the project, two inter-regional meetings were planned among developing countries and LDCs, and two annual conferences with the full WIPO membership. According to sources, the two inter-regional meetings would have been closed meetings only allowing members from developing countries and LDCs and that was challenged, in particular by developed countries.

Some concessions were made so that only the first inter-regional meeting would have been closed and the second one would be open to developed countries but only with an observer status, with one conference open to the whole WIPO membership, according to sources. Some developed countries argued that no meeting should be restricted to only some members as some developing countries purported the opposite opinion, saying that a closed meeting would constitute the first step of South-South collaboration, sources said.

No consensus seemed reachable and Egypt asked for a vote to adopt the project, backed up by India and South Africa. Matters got only worse when a developed country member asked for a secret ballot vote, which gave way to a discussion on the WIPO rules of procedures and the difficulty to organise a secret ballot vote this late into the evening and the meeting, sources said.

Egypt finally asked for a suspension of the meeting, backed up by India, according to a source. The vice-chair of the meeting, Garikai Kashitiku, first secretary of the permanent mission of Zimbabwe, suspended the meeting.

While I tend to think that all such discussions should be open, I find it astoundingly hypocritical of the “developed nations” to insist on keeping their own discussions entirely secret (and even taking them out of WIPO to keep them secret), and then to claim that these discussions need to involve them.

Filed Under: acta, developed nations, developing nations, ip, secrecy, wipo

What Have We Learned: Greater IP Enforcement Doesn't Work… Yet That's What Governments Want To Give

from the hammers-and-nails dept

It’s been an interesting few weeks on the research side of things, and it seemed like a recap was in order. Kicking it off, we had two separate research reports from two highly regarded organizations, both of which came to the same basic conclusions concerning strategies for dealing with copyright infringement online. First was the, rather epic, research report from the Social Science Research Council, which concluded that greater enforcement wouldn’t work and wouldn’t stop infringement in various countries around the world. Instead, it argued that the solution was better business models by the entertainment industry. Just a few days later, some research from the London School of Economics concluded basically the same thing, specifically in looking at the Digital Economy Act in the UK. It came up with three basic conclusions: the decrease in sales is due to many factors; providing legal, innovative and consumer friendly services is a much better strategy than enforcement; and focusing on enforcement that suppresses new technologies will not do much good. And, then, finally, late last week, we came across a study that also highlighted that the supposed “damage” done by file sharing appears to be exaggerated.

So… what does this tell us? It seems to support what many people have been saying for over a decade. Fighting what technology allows and what consumers want is not an effective strategy. File sharing, if combined with smarter business models, can allow music to flourish just fine, and (most importantly) focusing on greater enforcement strategies won’t solve any of the industry’s problems, but could actually harm new businesses and new opportunities.

So, given all of that… shouldn’t we be rather alarmed that the key strategic effort by the entertainment industry these days, which is now the official policy of the White House is to focus almost entirely on “greater enforcement”? Of course, part of the problem is that the last time we ramped up our IP laws, with the ProIP Act (driven by the entertainment industry, of course), part of the law was to create an “IP Enforcement Coordinator.” Note how short-sighted this is. It wasn’t about creating an “IP Effective Coordinator.” It wasn’t about creating a role to determine the best or most appropriate levels of IP. It wasn’t even to help content creators understand the economics of the markets they dealt with or to suggest new and innovative business models.

The role was to focus solely on enforcement.

Yet now, as we learn that focusing on enforcement is a mistake, rather than backing off, it seems like those who created the role are simply doubling down. It’s as if they don’t realize how much harm they’re doing to their own markets. It’s really quite unfortunate. These are industries that should be thriving right now. After all, the expenses involved in almost everything they do has gone down. It’s become cheaper to create professional content. It’s become cheaper to package professional content. It’s become cheaper to distribute professional content. It’s become cheaper to promote professional content. It’s even become cheaper to sell the content and ancillary products around the content. Every aspect of the business has become cheaper, and a much more massive audience has been opened up to these content creators. And rather than embrace it, they’ve whined and complained… and the US government’s response is to support them in this? What a shame.

If the current content industries have been unable to take advantage of an amazing new world of content creation, promotion and distribution, it’s their own fault. Having governments get in the game of cracking down on new and innovative technologies, just to protect a few legacy companies too slow and too confused to adapt is not a solution. It’s the same story all over again. The political system is focused on bailing out the companies who failed to change with the market. We’ve seen it time and time again in other industries, and it always comes back to haunt us. We shouldn’t be bailing out the movie industry and the recording industry right now. Both have had plenty of opportunities to embrace new business models. Plenty of content creators outside of the traditional system have done so, successfully. Governments around the world should stop focusing on protecting these players who are too resistant to change.

Filed Under: business models, copyright, enforcement, ip, strategy

Administration's New IP Enforcement Recommendations Will Only Serve To Make IP Less Respected

from the they-don't-get-it dept

Intellectual Property Enforcement Coordinator (IP Czar) Victoria Espinel has come out with the White House’s recommendations on intellectual property enforcement and, as you might imagine, they involve the same strategy as always: ratchet up the punishment. Now, a lot of the proposal is very narrowly focused on things like selling counterfeit products to the military. In situations like that, I don’t have too much of a problem with what’s being said. Those are clear cases of likely harm and potentially putting people in serious danger.

The problem, of course, is that the recommendations don’t stick to these situations and start to stray pretty quickly. So let’s look at a few points in the plan that raise some concerns:

Increase the Guideline range for intellectual property offenses committed by organized criminal enterprises/gangs;

Of course, who’s going to be against that? After all, we keep hearing about how infringement funds organized crime and terrorism. Except, we don’t, really. There was basically one such report, from RAND, which conflated a few issues and has been mostly debunked (including in the recent SSRC report). But, even if we accept that there are organized crime groups involved in these sorts of things, the main fear here is how the government will define “organized crime enterprises/gangs.” We’ve seen those terms stretched before in various contexts to include just a group of a few kids hanging out together. How long will it take until just some kids file sharing with each other are somehow labeled a “gang” for this purpose?

Increase the Guideline range for repeat intellectual property offenders.

Again, something that sounds innocuous enough until you realize that pretty much everyone is a repeat intellectual property offender every single day. As such just wait and see how the government uses trumped up infringement charges against people to show that they’re “repeat offenders.”

Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;

Quite vague and potentially scary if it’s not clarified. Streaming is a felony? Is that for the end user who does the streaming or the host? Does this mean someone who uploads to YouTube could risk felony charges? We’ve already seen how the government is prosecuting a guy for embedding streams. Think of how many felons this rule might create without clear guidelines. And the “similar new technology” clause seems vague too. Does the White House really want to criminalize technologies before they even have a chance to see if they can help the market? For a White House that has been banging the drum on “innovation,” this makes little sense.

Authorize DHS (including its component CBP) to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and

Yeah, because that worked so well in these earlier domain seizures in which DHS shared songs that were being offered on websites and the RIAA mistakenly claimed they were infringing, despite being sent by the copyright holders — even claiming one song by an artist not affiliated with an RIAA label was infringing, despite having no right to speak for that song. The government already relies way too heavily on extremely biased parties in these situations. Allowing them to lean even more heavily on them rather than independent third parties seems extremely dangerous.

Give law enforcement wiretap authority for criminal copyright and trademark offenses.

Considering that the government now considers linking to infringing files as a criminal offense, this seems like overkill again.

There’s also a big section on dealing with counterfeit drugs. Here, again, there isn’t necessarily an issue with trying to stop counterfeit drugs that are serious health risks. But, too often, the US and other countries have lumped counterfeit drugs in with perfectly safe grey market drugs imported from other countries. Not separating those things out is a problem.

Finally, there’s one bit of oddity. Right at the very bottom, there’s this:

Finally, we recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations

We’ve debated the performance rights tax for quite some time here. It’s nothing more than a bailout for the record labels by taxing radio stations for advertising music. In what world does it make sense to force someone to pay for advertising someone else’s work. Anyone familiar with the history of payola would know that such a performance right is completely anti-market. When left to their own devices, the record labels have always wanted to pay radio stations to play music, knowing that it helps promote the music. But the performance right tax flips that equation over, and says that radio stations now have to pay.

But, really, the bigger question is what does this have to do with enforcement? I’m fine with Espinel going beyond just focusing on enforcement, if she’s going to look for ways to actually help IP live up to its Constitutional mandate of promoting the progress. But this recommendation seems completely out of place in a document focused entirely on enforcement with this one non-enforcement issue tossed in at the end.

The thing is, every time the government ratchets up IP laws in ways that don’t match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.

Filed Under: copyright, enforcement, ip, laws, victoria espinel

Why Is President Obama Setting Up IP Enforcement Committees Rather Than IP Effectiveness Committees?

from the what-a-waste dept

The White House recently announced that President Obama has signed an executive order creating two new, very high level “intellectual property enforcement committees.” The idea is to have high level folks in different federal government agencies coordinating their “enforcement” strategies, when they do things like seizing domains without due process or First Amendment considerations.

Of course, if President Obama were serious about improving American innovation and creative output (and living up to the Constitution), he would have put together intellectual property effectiveness committees, rather than enforcement committees. By this point, you would have to willfully ignore all of the studies highlighting how today’s intellectual property laws tend to cause plenty of harm to think that the laws are “effective.” That doesn’t mean there can’t be effective intellectual property laws, just that what we have today clearly does not qualify. Those laws do serve to help some parties, no doubt, but that’s not the same thing as benefiting society. The Constitution makes clear that the purpose of patent and copyright laws is to promote the progress of science and the useful arts. And yet, at no time has the government ever stopped to look at the question of whether or not these laws actually do promote the progress of science or the useful arts.

It seems, then, that the only reasonable move would not be to ramp up enforcement of the current laws — which have been shown to be problematic — but instead to commission a look at what would actually be most effective in promoting the progress. Unfortunately, that doesn’t seem to be in the cards at all. Too bad.

Filed Under: copyright, enforcement, intellectual property, ip, patents, president obama

Local News Website Says You Need To Pay To Read Its Stories, Says It's Collecting Visitor IPs To Sue

from the that'll-go-over-well dept

Well, here’s a fun one. Apparently, there’s a local news site known as The North Country Gazette (don’t click that just yet…) covering parts of upstate New York via a blog format. Rather than putting in place an actual technical paywall, the site has apparently decided to go with a paywall-by-threat model. If you visit a story on the site, it tells you that you’re only allowed to view one page for free, and then they expect you to pay up:

Gotta love that Comic Sans font — in red, no less. Anyway, if you do “abuse the privilege,” apparently you come up against the following (which now appears to have been taken down, perhaps due to all of the attention): In case you can’t see/read the image, it reads:

A subscription is required at North Country Gazette. We allow only one free read per visitor. We are currently gathering IPs and computer info on persistent intruders who refuse to buy subscription and are engaging in a theft of services. We have engaged an attorney who will be doing a bulk subpoena demand on each ISP involved, particularly Verizon Droids, Frontier and Road Runner, and will then pursue individual legal actions.

Where to start? First, I love how “Verizon Droid” (a phone) is included in the list of ISPs. But, more to the point, this site seems to believe that if it just says you can only visit once without paying, and you don’t, it has the right to then use your IP to sue you for “theft of services.” I’d love to see how well that plays out in court.

Filed Under: ip, paywalls, threats, voluntary

IP Czar: Blame China! Congress: Do Something!

from the political-theater dept

In what looks like a big round of political theater, US IP Enforcement Coordinator Victoria Espinel presented to a Congressional committee her plans for fighting copyright infringement overseas, and it seems to boil down to “blame China.” Apparently, all of the elected officials were on board with that, and then asked what to do… to which Espinel provided the same answer that US officials have always given: put pressure on the Chinese to respect US intellectual property. How’s that been working so far? Exactly. It’s a plan for handwaving — which, honestly, might really be the best thing. China really doesn’t care what the US has to say about IP policy, and US lawmakers know this. They also know that the US needs China more than China needs the US right now. That’s why suggestions made by some politicians — such as Rep. Ted Poe about blocking visas for Chinese students and tourists — was dismissed out of hand by others:

Rep. Bill Delahunt… responded to Poe’s argument that we should reduce the number of student visas for China by pointing out this would harm people in his state.

He said many of those would-be students from China attend schools in New England. Not only that, but the families of these students visit, which helps Massachusetts’ business people.

The fact is that waving arms about China ignoring IP isn’t going to do anything. It’s all just a big political exercise, and it’s pretty meaningless. The supposed “harm” has been seriously overblown by companies, and the ability to do something about it is miniscule. If we really wanted to “respond” to Chinese disrespect for US intellectual property, we should be helping companies (1) compete better and (2) adapt to use the situation to their advantage. Instead, we get political grandstanding that won’t help anyone.

Filed Under: china, enforcement, ip, victoria espinel

As Developing Countries Gain More Power In Diplomatic Discussions, Will They Push Back On IP?

from the it's-possible dept

A few folks sent in Andy Oram’s recent blog post that noted how countries like India, China and Brazil were gaining more power on the international diplomatic stage, and that could mean a pushback against more draconian intellectual property attempts. Brazil, China and India have all realized that, as developing nations, they often benefit greatly from reduced intellectual property regimes:

As I understand the argument, the institutions responsible for passing new rules respond to the most powerful countries. The US and Europe are on the decline in these organizations. All the countries that benefit from looser IP regimes–China, India, Brazil–are growing in economic strength and are finding themselves in more and more seats at the tables of the world’s closed economic institutions. For just one concrete example, look at the shift of responsibility in recent years from the G-7 to the G-20. The G-7 is a familiar set of countries that were powerful from the 1950s through the 1970s. The G-20 is truly diverse, bringing in strong economies from around the world (but still just the ones with some international economic clout).

I’ll believe it when I see it. While it is true that those other countries have a seat at the table, it’s still the lobbyists from the US and Europe that seem to be dictating the agenda. In recent years, we’ve definitely pushed increasingly draconian IP laws on those countries. So until we see more serious pushback (and Brazil is really the only major country I can remember that has been proactive on that front — India and China have appeared more willing to claim that they’ll move toward US-style IP rules) it’s difficult to believe this is really happening just yet.

Filed Under: developing nations, ip