IP Czar Focused On Protecting Jobs, Not Promoting Progress?

from the that's-the-wrong-thing dept

We were already somewhat concerned about the nomination of Victoria Espinel for the IP Czar job in the administration (forced on the administration by the silly and pointless "ProIP" Act from last year). On Thursday, she had her confirmation hearings where she said pretty much what we expected about how important intellectual property is, and how she viewed her job as coordinating different government agencies to crack down on infringers. Much of her (brief) testimony (pdf) talked up the usual industry claims about the importance of intellectual property on the economy, not recognizing how misleading they are. These are stats that simply credit anything covered by intellectual property laws, as if the only reason those industries exist is because of those laws. That's a mistake.

But more troubling? Espinel made it clear that her job is not to do as the Constitution requires, and make sure that intellectual property laws are properly "promoting the progress of arts and the useful sciences" (she never mentions this part), but, instead she claims her focus is cracking down on infringement to protect jobs:

If I am confirmed as the United States Intellectual Property Enforcement Coordinator, I will work side by side with agencies, Congress, stakeholders and the public to ensure that jobs that depend on intellectual property are not compromised by others' unwillingness to respect and enforce the rule of law....

But intellectual property law is not about "protecting jobs" it's about encouraging innovation. Innovation can be disruptive. Jobs can get shifted around. Protecting jobs is not encouraging innovation. It's the opposite.

Better and smarter protection and enforcement of intellectual property rights will create more jobs...

There's simply no evidence to support that. Shouldn't our IP Czar rely on actual evidence rather than broad industry claims that are unproven?

Then, on being questioned she appeared to support Hollywood's position that any net neutrality laws won't apply to mandating content filters on ISPs. It's looking like -- just as was initially feared -- this position is really to get Hollywood's own representative in the White House. What a shame. If you must have an "IP Czar" shouldn't it be someone who's actually focused on making sure progress is being promoted, rather than someone who wants to blindly crack down on infringement with no thought towards whether or not it makes sense?

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Obama Finally Appoints IP Czar... Puts It In The Wrong Department

from the of-course dept

In a move that surprises no one, the Obama administration finally got around to officially nominating Victoria Espinel to be the IP Czar, a position that was created out of thin air a year ago in the ProIP Act, though the position went entirely unfilled until now. Hollywood lobbyists have been pushing the administration to appoint someone ever since the spring, and VP Joe Biden had to come out and calm Hollywood execs and lawyers by promising them the "right person" would be appointed (meaning: not someone who is interested in copyright reform).

And yet... there was no appointment for so long. Why? Well, a few weeks ago, it was explained that there was a fight over where to put the position and under what group Espinel's office would exist. The most obvious group was the Office of Science and Technology Policy. The problem? Most of the folks in OSTP actually seem to understand the problems of copyright law. They're fans of openness and understand things like Creative Commons. Entertainment industry lobbyists started to freak out again, that even if they got someone on "their side," that placing them in OSTP would stifle them, as the rest of the group might (gasp!) actually push back on attempts to stretch copyright enforcement towards the maximalist position. Instead, they wanted the position to be either its own office (entirely unlikely) or, in the Office of Management & Budget. Why OMB? No good reason. The position doesn't fit there at all... but putting it there keeps it away from those darn "copyleftists" in OSTP.

So where did the position end up? Yup... it's a part of OMB, just like Hollywood wanted. Lobbyists on all sides of the equation -- including consumer advocacy group Public Knowledge, though, are saying that Espinel is a good appointee. I certainly hope so, though I disagree that the position should exist at all. Also, Espinel was formerly the IP boss for the US Trade Representative -- a group that has been known to push for more draconian IP laws, and to do so cloaked in secrecy. So... I'm hoping to be surprised, but putting the office in OMB and having someone from USTR isn't encouraging.

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IP Czar Won't Be In The Most Sensible Place Because Industry Doesn't Like It?

from the since-when-does-industry-dictate-stuff? dept

As you may remember, last year, thanks to lots of lobbying from the entertainment industry, Congress passed the totally unnecessary "ProIP" act, which made copyright even more draconian. Luckily, the most ridiculous parts of the bill -- like getting the Justice Department involved in civil litigation over copyright -- was dropped. But there was still plenty of bad stuff in there -- including the establishment of an "IP Czar" or "Copyright Czar" who would basically be the entertainment industry's personal representative in the White House, in charge of "coordinating" (i.e., "driving") strategy on making sure that the entertainment industry's obsolete business model is always protected directly from the White House.

Earlier this year, the Senators who pushed this through got antsy and pleaded with the White House to hurry up and appoint someone to the post. In response, the White House sent Joe Biden to an industry gathering, where he promised that the White House would pick "the right person" to represent the industry's interests. And yet... since then, there's been nothing.

It's been a poorly kept secret that Victoria Espinel is likely to be the IP Czar -- and, as former IP person at the USTR (who has always been strongly in support of stronger IP), it definitely seems like the industry will be happy with her. But why has it taken so long? Michael Scott points us to a report from last month that the "problem" is that the White House can't figure out where to place this role:

• A stand-alone office. While this is probably the most desirable in terms of making the position as prominent within the Administration as IP owners would like, it remains [an] uphill battle.
• Office of Science and Technology Policy (OSTP). OSTP is known for espousing views that are less then favorable to the IP community. Placing the IP Czar within OSTP would make no more sense than coupling Oscar and Felix (or for a more modern reference, coupling Harry Potter with Voldemort).
• Office of Management and Budget (OMB). If a stand-alone office is not in the cards than this may be the best alternative. While OMB does not usually establish policy, it does coordinate with numerous agencies on various projects, which is certainly within the purview of the IP czar.

Of course, OSTP is the department that makes the most sense -- but as the writeup notes, the folks in OSTP are actually more technologically focused, and are believers in openness and collaboration -- and are the sorts of folks who are skeptical of the need for greater IP protection (and, yes, some of them read Techdirt). But... given the role, it does seem like the most reasonable spot. In fact, it seems rather problematic that the White House would agree not to put it there, just because the entertainment industry is afraid that OSTP isn't going to just bend over for the copyright industry's interests. If Hollywood is basically getting their own representative in the White House, at the very least it seems fair to temper that position by putting it in a department that will at least debate how strong copyright protection needs to be.

The fact that the White House hasn't simply placed the role in OSTP certainly feels like it agreeing not to do that because the industry lobbyists who pushed for the role in the first place won't like it. That doesn't seem like the way government should be run.

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President Signs ProIP Bill Into Law; White House Gets Copyright Czar

from the don't-you-feel-safer? dept

Apparently, having our elected politicians completely lie to the President, combined with various business groups using totally made up numbers about the so-called "costs" of piracy was enough to convince President Bush to sign the ProIP bill into law, and accept the addition of a "Copyright Czar" position to the White House. It also strengthened copyright laws, yet again, despite little evidence they needed any strengthening. This law is nothing more than a weak attempt to prop up some struggling businesses who made the mistake of clinging to an obsolete business model far too long. All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.

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Congressional Hyperbole Used To Urge Bush To Accept A Copyright Czar

from the and-so-it-goes dept

We've already seen that the Bush administration has said that it really doesn't want the "Copyright Czar" that Congress has been trying to give the White House. However, as the bill sits on his desk to sign, it appears that plenty of folks are trying to pressure Bush into signing it (he has until Tuesday to veto or it automatically becomes law). We already noted that the US Chamber of Commerce was using totally ridiculous and made up numbers about job and dollar losses to get Bush to sign, and now it appears that various politicians are sending ridiculously hyperbolic letters to the White House to push for signing the bill as well (thanks to Jim Harper for alerting me to this).

Let's start with Senator George Voinovich, who actually claimed that signing this bill "would be a fitting achievement and legacy." Now, I don't care what you think of the present administration, but you'd have to be pretty disconnected from world events to think that adding a copyright czar will ever be considered a part of Bush's "legacy." Somehow, I would imagine that there is a long list of other things that will most likely be on his legacy list before anyone gets around to a totally unnecessary copyright czar.

Then there's Rep. Lamar Smith, who ran the intellectual property subcommittee in Congress before the Democrats and Howard Berman took over. However, Smith and Berman -- despite being on different sides of the aisle, have pretty much identical views on intellectual property, so it's no surprise that he would tell the President that signing this bill is "not merely desirable, but necessary." Necessary, huh? For what? That seems like a pretty strong claim without an iota of proof. That's because it's not "necessary" at all. In fact, about the only thing it's likely to do is to hold back the more innovative business models the economy needs by propping up one industry's obsolete business model.

Then we've got Senator Arlen Specter, who complains that vetoing this bill could lead to "fallout" with trading partners, concerning the equally awful ACTA treaty. That makes very little sense. Both this bill and ACTA were basically written by the same lobbyists, and both serve to do the same thing: prop up a broken and obsolete business model of the American entertainment industry. Vetoing the bill is unlikely to have any serious international ramifications, other than from countries tha might stand up for themselves and push back every time the US demands they strengthen IP laws just to protect a few American businesses who refuse to innovate.

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Commerce Dept Cites Bogus Stats, Chamber Of Commerce Uses Them To Ask Bush To Accept Copyright Czar

from the bogus-stats-are-fun dept

We've seen it time and time again, where totally bogus stats about the "costs" of "piracy" are floated (usually by lobbyists) and then suddenly accepted as fact. It's even worse when it's government officials citing the stats as fact. Yet, we've got that happening again. In urging President Bush to sign into law the ProIP bill, which would give him a copyright czar (something the Justice Department had said it it doesn't want), the US Chamber of Commerce is claiming that 750,000 American jobs have been lost to piracy. Yet, it doesn't cite where that number comes from.

Wired's David Kravets tries to track down the source but finds no one can quite figure it out. Instead, they each point to different gov't organizations which have all quoted the number -- often citing each other, but no one pointing out where it actually came from. Chances are, of course, that the stat comes from a variety of reports, like the easily debunked piracy impact report from the BSA, put together by IDG. That lists out a number for job losses in the software industry that's simply untrue, and is based on only the negative impact of "piracy" impacting jobs, leaving out any positive impact (i.e., if a company used only pirated software, it could hire more people). That's not to defend piracy, but to note that the job loss claim is completely made up -- and now repeated by a variety of different government officials based on... nothing.

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House Follows Senate In Giving The President A Copyright Czar

from the priorities,-people dept

While failing to do much of anything (other than fingerpointing) to deal with the economic crisis we're facing, the folks in the House did spend some time easily passing the ProIP bill that the Senate passed last week. So, now we just have to wait for the President to sign it, and the entertainment industry gets their own person in the White House whose job it is to prop up their business model. Hell, if Wall St. gets one of those, why not the entertainment industry?

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Senate Gives The White House A Copyright Czar

from the have-fun-with-it dept

The Senate has now unanimously passed the new entertainment industry-approved copyright legislation that was proposed by Senator Leahy earlier this year. After the Justice Department complained about the provision that would grant it the ability to take on civil cases, that provision was removed, but there's still plenty to be worried about by the bill -- such as the creation of a "copyright czar" position in the White House. While some of the worst provisions were removed, this still remains a bill that has one purpose: to protect an obsolete business model, rather than letting more innovative models proliferate.

The House still needs to vote on its version of the bill, but it's quite likely to pass quickly.

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Senate Panel Approves Bill To Make The Justice Dep't Hollywood's Private Police Force

from the travesty-of-justice dept

We were just talking about how a huge number of public interest groups had explained to the Senate why the new Enforcement of Intellectual Property Rights Act was a such terrible idea since it would add a Copyright Czar in the White House and let the FBI file civil charges against people caught infringing on copyrights. After all, there's simply no logical explanation for why the FBI should be propping up the obsolete business model of an industry that refuses to change with the market.

However, it appears that public interest groups don't fund campaigns like the entertainment industry does. The Senate Judiciary Committee has gone ahead and approved moving the bill forward by a 14-4 margin, basically handing over Justice Department resources to Hollywood to protect its business model with no real justification.

The bill's sponsor, Sen. Patrick Leahy's explanation is pretty stunning in its ignorance:

"We all know that intellectual property makes up some of the most valuable, and most vulnerable, property we have. We need to do more to protect it from theft and abuse if we hope to continue being a world leader in innovation."

Can someone send him a copy of Against Intellectual Monopoly so he can understand how nearly every part of that sentence is wrong. First off, intellectual property, despite the name, is not "property" at all. It's also not "vulnerable" except if you mean that there are better business models out there for dealing with. He gives no convincing reason why we should "protect" it, other than a factually untrue statement about "theft," when infringement and theft are two totally different things and should be dealt with in two totally different ways. Finally, studies have shown that the more "protected" IP is, the less innovation results, so his final clause is simply backwards. This bill will serve to limit American innovation, and open up more foreign innovation instead. But, as long as it means the RIAA doesn't need to innovate...

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Groups Urge Senate Not To Turn The Justice Department Into Hollywood's Private Police Force

from the bad,-bad,-bad-ideas dept

As we noted earlier this summer, Senator Patrick Leahy had introduced a companion bill to the House's dreadful Pro-IP bill, except that Leahy's bill went further. Beyond just adding a "Copyright Czar" position to the White House, it would authorize the Justice Department to start prosecuting civil copyright infringement lawsuits. In other words, it would have the government act as the private police for of the entertainment industry. This is scary stuff. Beyond already handing out unnecessary gov't granted monopolies, the gov't would now be using taxpayer money to settle business disputes from an industry that was only in trouble because it stubbornly refused to update its business model.

It's difficult to see why taxpayers should be paying FBI agents to protect one industry's obsolete business model.

A bunch of special interest groups made that argument to Senators this week, noting that it was a pure gift to Hollywood -- pointing out that all of the companies and groups in the industry already have their own enforcement arms, and it made little sense to have the FBI take part in private business disputes. Hopefully, there are still enough Senators who haven't been convinced by the propaganda provided by the entertainment industry on this issue to recognize what's actually at stake here.

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Now The Senate Wants To Add A Copyright Czar To The White House

from the business-model,-not-a-legal-issue dept

The House of Representatives passed the highly questionable Pro IP bill a few months ago. This bill, which would strengthen copyright law, just as many are realizing it should be headed in the other direction, would also establish a "Copyright Czar" position that would be part of the Executive Branch. Why we need a special Czar to prop up an obsolete business model has not been explained, beyond the usual propaganda from those who rely on that business model. It's quite clear from all the companies we see who are succeeding by changing to new business models that don't rely on copyright that this is a business model issue, not a legal one. But, Congress receives plenty of donations from Big Copyright, so it's no surprise that we see laws protecting it.

The Senate has now weighed in with its version of the law. The bill was introduced by Senator Patrick Leahy, who has received plenty of campaign contributions from Big Copyright. His explanation of the bill is basically the talking points of the industry, showing that Senator Leahy is clearly out of touch with what's really happening with copyright these days:

"The time has come to bolster the Federal effort to protect this most valuable and vulnerable property, to give law enforcement the resources and the tools it needs to combat piracy and counterfeiting, and to make sure that the many agencies that deal with intellectual property enforcement have the opportunity and the incentive to talk with each other, to coordinate their efforts, and to achieve the maximum effects for their efforts. This bill does just that."

Except, of course, the only thing "vulnerable" is an unnecessary business model built on gov't granted monopolies, and there's no explanation why such a commercial issue can't be dealt with by civil lawsuits, rather than criminal ones. As it stands, Leahy is basically making the Federal government the private police of a particular industry, granting it much more power than is reasonable or needed.

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If We Don't Have A Copyright Czar, People Will Die?

from the that-would-be-a-big-no dept

We've already questioned why the White House should play the role of copyright cop. Hell, even the White House has said that it doesn't want to appoint a copyright czar, but that hasn't stopped various legislative efforts to force a copyright czar on the White House -- and it appears that more efforts are on the way.

Business Week is running a rather weak piece looking at the issue, that appears to accept as fact every talking point from those pushing for the establishment of a copyright czar. While the article briefly notes a few quotes from those who oppose it (buried at the end of the article), it does absolutely nothing to dispel the false or misleading reasoning by those in support of a copyright czar. It quotes the totally bogus numbers about "losses" to the economy, without noting that those numbers are very much disputed and inaccurate.

However, the most troubling part is that the article plays into the worst and most inaccurate talking point of all that's used in favor of a copyright czar: that the public is put at risk without one. The article notes (as a way of brushing off the quotes from those worried about a copyright czar):

Jeffrey Thurnau, counsel to auto parts maker Gates, showed senators counterfeit timing belts that he says could put drivers, passengers, and other motorists in danger. "We want better coordination between enforcement agencies,"

The subtext: we need a Copyright Czar or people will die. Except, that's simply not true at all. The issue described by Thurnau has nothing to do with copyright, and everything to do with consumer protections. You don't need copyright law to deal with timing belts that don't live up to code -- and pretending we do is simply a lie repeated by Business Week.

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House Passes Pro IP Overwhelmingly

from the well-that's-no-good dept

Last week we questioned why Congress seemed to think that the White House should be playing the role of copyright cop. Yet, apparently, the House of Representatives didn't think it was a question worth asking, as it has passed the PRO IP bill by an overwhelming vote, 410 to 10. It seems like our Congressional Representatives felt that, once they got rid of one bad portion of the bill, that the rest of it must be perfectly fine. This bill has a ton of problems, expanding copyright law and the executive branch's authority in ways that are pretty clearly unnecessary. It is, in effect, a bill to prop up the obsolete business model of one particular industry, so it's rather disappointing that our Representatives have rushed through to approve it with little discussion or debate over whether it's even necessary. Either way, it seems unlikely to get much further, as the Justice Department has already come out against the bill, one would hope that even if the Senate approves a version of the bill, the President would veto it.

In the meantime, though, given just how much damage arbitrary expansions of copyright law have done, you would think that Congress would at least want to spend some time exploring the issues before rushing through new laws. Tragically, it seems that entertainment industry lobbyists still have politicians convinced that stronger copyright is naturally "good."

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Can Someone Explain Why The White House Should Be Playing The Role Of Copyright Cop?

from the thanks-congress dept

This isn't exactly a surprise, but the PRO IP bill, which is actually quite anti-IP, has been approved by the House Judiciary Committee. This is the bill that would create a "piracy czar" with a new department reporting to the White House, whose sole job it is to crack down on piracy. Basically, it's turning the White House into the entertainment industry's private police force, allowing them to prop up an obsolete business model. This is extremely problematic. There's increasing evidence that piracy is not the real problem the industry is facing. The artists who are embracing file sharing and adopting new business models are finding that there are business models that work, that help to better promote and distribute content, while creating new avenues for making money. This is something that the market is working out on its own. Creating a special anti-piracy group within the White House is simply an anti-competitive move by an industry that doesn't want to update its obsolete business model. Yet, through misleading lobbying efforts, politicians have been convinced that this business model needs to be propped up. Why the White House should be forced to involve itself in a commercial dispute that is working itself out is beyond me. Even more to the point, why should the White House be setting up a special group just for this really narrowly focused "issue" when there are so many more pressing problems in this country?

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Copyright Czar: DMCA Is A Good Law

from the for-whom? dept

Marybeth Peters is our nation's "copyright czar," and over the years has tended to side with the big copyright firms over and over again, as if they need her special protection. It's not entirely clear why this big, successful industry needs increasing government protection, rather than learning how to adapt to a changing marketplace on its own (you know, like most other industries), but that's the way it is. In a recent talk, Peters repeated a familiar stance that the DMCA is a good law because it adds to "copyright owners' quiver of arrows to defend themselves." Of course, Peters doesn't discuss who those arrows are pointed at, and the fact that things like the DMCA have put a big fat bullseye on fair use, the public domain and what the general public can do with content. So why should a government official be supporting policies that help a particular industry at the expense of the very concept of copyright that she's supposed to be protecting?

The article actually offers one suggestion as to why: Peters is a self-declared "Luddite" and admits that she doesn't even have a computer at home. In other words, one of the people most responsible for setting up the rules that impact copyright in a new digital age has almost no clue how the market is changing thanks to new technologies. Combine that with putting Hollywood's own politician in charge of the Congressional committee that deals with copyright laws and guess what you get? It's certainly not an approach to copyright that acknowledges what's actually happening in the marketplace. Instead, it's an approach that focuses on setting up artificial rules and barriers designed to enforce a business model from two decades ago that has long since been made obsolete by new technologies. And, in fact, the end result isn't even helping the very industry she so thinks needs protecting. Instead, the old record labels that rely on the DMCA are dying, and it's those who are embracing new business models who are figuring out ways to profit and aren't screaming over the threat of piracy.

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