June 21, 2013 | By Mitch Stoltz

U.S. IP Enforcement Moving In The Right Direction on Fair Use and Patent Trolls, Has More Work To Do

Yesterday, U.S. Intellectual Property Enforcement Coordinator ("IPEC" aka the "IP Czar"), Victoria Espinel, released a new three-year plan for enforcing intellectual property laws. The 2013 Strategic Plan is more nuanced and puts more emphasis on data-driven policy that the 2010 plan, and also includes a commitment to educating copyright holders about fair use. There are still some problems with the IPEC's priorities, though. The 2013 Plan continues to celebrate the results of secret and undemocratic trade negotiations.  It pushes for more "voluntary" agreements among Internet gatekeepers to control who can be searched, receive payments, or show advertising on the Internet - agreements that are helping to create a system of "private law" that users can't effectively challenge assuming they even know the rules. In sum, there are still major disconnects between the Administration's IP enforcement strategy and its stated goal of promoting a free and open Internet. But at least it's moving in the right direction.

A New Call for Fair Use Education

For the first time, the Administration's IP enforcement plan includes a strong emphasis on the importance of fair use for copyright. "Enforcement approaches," says the report, "should not discourage authors from building appropriately upon the works of others."  The report then presents a plan:

In order to make fair use more accessible to the authors of the 21st century, ease confusion about permissible uses, and thereby encourage the production of a greater variety of creative works, the U.S. Copyright Office, working in consultation with the Administration, will publish and maintain an index of major fair use decisions, including a summary of the holdings and some general questions and observations that may in turn guide those seeking to apply the decisions to their own situations.

While it can often be hard for copyright users and owners to tell whether a new use of a creative work will be considered a fair use, available to anyone without permission or payment, there are also many clear cases of fair use. Government guidelines - hopefully building on the work that creative communities have done in setting down their own best practices and norms - will help artists and technologists incorporate and build on others' work without fear of lawsuits.

Nods Towards Transparency - But Not For Secret International Agreements 

The 2013 Plan echoes the Obama Administration's broad promises - not always upheld in practice - to make policy transparently and based on good data. "The Administration strongly supports improved transparency in intellectual property enforcement policy-making and international negotiations," said the report. But the Plan also highlights the U.S. Trade representative's role in secret negotiations over the Trans-Pacific Partnership Agreement, which we believe will tighten U.S. and foreign copyright laws and create an obstacle to reform. Though the USTR and IPEC have solicited comments from many members of the public about TPP and other international IP agreements, input without access to the text is not transparency.

"Voluntary" Private Enforcement in the Shadow of Congress

We've long been concerned about "voluntary" agreements among private companies to enforce copyright and trademark. Private agreements like the "Six Strikes" Copyright Alert System and Google's policy of demoting search results based on mere accusations of copyright infringement lack due process protections and robust public input. And the Administration's active encouragement of these agreements - reiterated in the new strategic plan - suggests that they are not truly "voluntary." Throwing the government's weight behind these private agreements suggests an implied threat that if "ISPs, advertisers, credit card companies, payment processors, search engines, domain name registrars, and registries" don't take steps to become copyright police, the government may seek to force them to do so, as the widely derided SOPA/PIPA legislation would have done.

We also note a big gap in the "voluntary" agreement collection.  Where, pray tell, are the public commitments from big content owners that they will take real and strong steps to avoid abusing the various tools at their disposal to take down lawfully posted content?  If users are going to be subjected to a system of private law, seems only fair that they should get some protection as well.

We're encouraged, though, that the Administration believes "it is critical that such efforts be undertaken in a manner that is consistent with all applicable laws and with the Administration’s broader Internet policy principles emphasizing privacy, free speech, competition, and due process." We hope that sentiment is echoed behind closed doors with industry representatives as well as in public reports.  

United Against Patent Trolls

The plan also mentions President Obama's recent commitment to fixing the patent troll problem with new executive actions and changes to the law. We're happy to see the Administration's new focus on abusive patent litigation and the recognition that too much enforcement of intellectual property is as harmful as too little.


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