March 5, 2010 | By Richard Esguerra

Federal Intellectual Property Enforcement Gears Up

The Obama Administration has been slowly ramping up its attention to intellectual property issues. Over the past few months, we've seen an IP "summit" at the White House. We've seen the successful nomination of a new cabinet-level "IP Czar" position. We've seen the announcement of a new DOJ task force for IP issues. What does it all portend?

Unfortunately, many signs suggest that the administration is paying far more attention to the interests of the entertainment industry than to the public good. At the same time, there are a few positive efforts and indications, so we're holding out hope that things could improve.

The first bad omen came last December, when Vice President Biden invited the RIAA, MPAA and other representatives of the mainstream entertainment industry to a closed-door "Piracy Summit" at the White House. Although Biden's office sold the summit as "bringing together all the stakeholders" in the piracy debate, it failed to invite a single representative of the public interest or the technology industry.

One outcome previewed at the summit was the formation of a new Department Of Justice "Intellectual Property Task Force", which was formally announced in February. Unfortunately, the Department of Justice already has a history of coming down disproportionately hard on victims of the copyright conflict. And while the task force's announcement stressed that IP crime "threatens not only our public safety but also our economic wellbeing," it didn't even pay lip-service to the harms to privacy, free speech, and innovation in the industry's long war on piracy.

Later in February, the government's new IP Enforcement Coordinator (IPEC), Victoria Espinel, announced that "the Federal Government is currently undertaking a landmark effort to develop an intellectual property enforcement strategy" and asked for public input into what this strategy should look like. A major component of the request seeks information about "the costs to the
U.S. economy resulting from intellectual property violations," which in the past has mainly been expressed through skewed, erroneous accounts of the supposed effects of piracy from entertainment industry lobbyists. However, the IPEC is also demanding an unprecedented level of rigor from these studies:

Submissions directed to the economic costs of violations of intellectual property rights must clearly identify the methodology used in calculating the estimated costs and any critical assumptions relied upon, identify the source of the data on which the cost estimates are based, and provide a copy of or a citation to each such source. [Emphasis mine.]

Since some of these poorly executed studies have appeared to successfully persuade members of Congress to change copyright law only in ways that favor the entertainment industry, it's refreshing to see the IPEC pushing for greater validity. To that end, we look forward to seeing the Obama Administration publicly debunk the empty rhetoric that circulates around questions of unauthorized file sharing and its economic effects.

There are other bright points. Late last year, the Administration supported looser international copyright protections for reading materials for the blind. Limitations and exceptions to copyright are a critical "safety valve" in copyright that helps preserve free expression, access to knowledge, and other human rights, and we hope to see them defended by the Administration in other contexts as well.

While IP enforcement appears to have center stage, there are other double-standards and unintended consequences in copyright and trademark law, all of which could benefit from some attention from the White House. The orphan works conundrum remains unsolved. Copyright term and licensing issues stymie creators and archivists. The anti-circumvention provisions of the DMCA still obstruct innovators.

But will the Obama Administration and Congress choose to face these tough, important issues? At the next IP summit, will advocates for questions like these have a seat at the table? Or will the public interest side of intellectual property law and policy continue to languish unaddressed? Time will tell.


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