Should IP rights be enforced via shadow regulations that aren’t vetted or endorsed by users? According to a just-released report, the U.S. Intellectual Property Enforcement Coordinator (IPEC) thinks they should. We disagree.

We’ve written here about the danger posed by Internet regulation done through private agreements. These agreements, sometimes called codes, standards, or “best practices,” have a tendency to become shadow regulations, which can limit individual freedom. They’re also a way for governments to control the behavior of Internet users, or to favor some users over others by quietly coercing Internet companies to disguise government policy as “voluntary” private agreements.

The Intellectual Property Enforcement Coordinator—an office within the Obama White House—has released a strategy document that seems to put the weight of the federal government behind these shadow regulations. The plan gives lip service to transparency, good research, and respect for freedom of speech. Unfortunately, the plan also praises and encourages the negotiation of private agreements between Internet companies that fail to uphold those same values.

The IPEC (or “IP Czar”) is tasked with coordinating patent, copyright, trademark, and trade secret enforcement within the federal government, and writing a strategic plan every three years. The office doesn’t have power to make laws or change federal agency policy directly, but its conclusions carry a White House imprimatur.

We’ve raised concerns about private copyright enforcement agreements between the Motion Picture Association of America and Internet domain name registries, domain name blacklists created by U.S. pharmaceutical companies, and copyright filtering agreements among user-content websites being pushed by the European Commission. These agreements put strong powers of censorship into the hands of businesses with many conflicts of interest, and they promote the building of censorship technologies and programs that tend to be co-opted by still more corporate interests, or by repressive governments. The IPEC Strategic Plan nonetheless gives quiet nods to agreements like these. It even refers to the MPAA’s controversial private agreements with two domain name registries as “Domain Name Registry Best Practices,” even though those agreements weren’t developed with any broad input and don’t purport to be best practices for others.

Shadow Regulation

The plan also calls for “best practices, through a multistakeholder process, for Internet search providers to address search result rankings of significant commercial-scale piracy and counterfeiting sites,” and “private sector best practices” for takedowns under the Digital Millennium Copyright Act, “led through a multistakeholder process.” But the plan offers no examples of any arrangements actually in use today that were developed in a multistakeholder process, nor provides much motivation to platforms or copyright holders to employ such a process now. And as we’ve written, merely labeling agreements among companies and governments as “multistakeholder” says nothing about whether they are transparent and accountable to everyone affected.What’s worse, these shadow agreements are hardly voluntary.

Whenever a government calls on private companies to take actions that aren’t required by law, there’s a specter of coercion. The occupant of the White House can direct favorable or unfavorable treatment towards companies based on how they respond to requests for “voluntary” action. The IPEC Strategic Plan calls for government “benchmarking” of private enforcement agreements, implying that the government will judge outcomes by its own criteria and step in to regulate if the “benchmarks” it sets are not met.

When these requests happen in an area like copyright, where normal democratic processes have led to a firm rejection of expanded enforcement power, we need to be especially cautious. In these situations, government “support” for private action begins to look like bypassing the democratic process.

On the positive side, the IPEC plan contains a strong statement about the importance of limitations on copyright (as well as trademark and patent rights). It refers to limitations on copyright, including fair use, as “the basic principles that have permitted the Internet to thrive.” It also recognizes limitations on copyright as part of the legal protection for free speech. But neither a shout-out to fair use nor the talisman of “multistakeholder” policymaking are enough to protect Internet users against censorship, nor to give them a voice in the functioning of the Internet.

Having declared themselves champions of allegedly “voluntary” enforcement of IP laws by Internet companies and other private gatekeepers, IPEC and the various federal agencies that produced this strategic plan must commit to making sure that private enforcement processes respect Internet users’ freedom, and remain accountable to users.

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