Recently, EFF sent comments to Victoria Espinel, the Obama Administration's "IP Czar,"1 to help shape how U.S. tax dollars are spent on enforcing copyright, trademark, and patent laws for the next two years.

EFF said that when the government encourages (or goads) private companies into making private "voluntary" agreements to cut down on online infringement, the government should insist on the same protections for free speech, privacy, transparency, and due process that we expect from any law coming out of Congress. For example, the Obama Administration had lots of public praise for the "Copyright Alerts" agreement between ISPs and entertainment companies, despite the lack of public input into that agreement and some other significant flaws.

As much as we like Ms. Espinel's oft-repeated statement that the Administration respects "the principles of fair use, privacy, competition, due process, and free speech," we wrote to her that we don't think that's enough when the government throws its weight behind private agreements. She responded to us by email to say that when Web advertising companies created a private agreement not to do business with so-called rogue websites, Espinel's office told them "it is critical that such efforts [are] consistent with…the Administration's broader Internet policy principles."

There's more the Administration can do here, and we'll be making more suggestions to Ms. Espinel's office. We're encouraged, though, to hear a White House policymaker insist that private "anti-piracy" agreements must respect individual rights.

Our comments also covered some other issues we want the White House to focus on:

  • The collateral damage caused by domain name seizures in cases like Dajaz1 and Puerto 80 (Rojadirecta)
  • Innovation and competition are the best way to reduce infringement
  • International agreements on IP laws should be negotiated in the open, with public participation and accountability
  • International agreements should allow countries to define their own patent, copyright, and trademark laws, and to make exceptions like fair use
  • Intellectual property laws and rules should be based on accurate data and sound conclusions, not on vague reports about why IP is good for the economy

We're going to continue talking to White House officials about the future of enforcement. We hope it will help to counter the message they hear incessantly from the entertainment industries that more enforcement is always better, regardless of the damage done to our rights. We'll also be waiting to see how much Ms. Espinel takes EFF's comments and others2 to heart in her next two-year strategic plan.