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On May 9, 2012 the Senate Judiciary Committee held an oversight hearing of the Office of the Intellectual Property Enforcement Coordinator (IPEC) with Victoria Espinel as the sole witness. This position coordinates the work done by different government agencies to combat intellectual property theft. The May 9 hearing was the committee’s third oversight hearing on IP enforcement. The hearing was nothing to write home about, which was unfortunate for a few reasons. First of all, it was primarily a Democratic Senatorial event. Senator Chuck Grassley (R-IA), the committee’s Ranking Member was the only Republican senator present, and he left after his opening statement. The other senators present apart from Grassley and Chairman Leahy (D-VT) were retiring Senator Herb Kohl (D-WI), Chris Coons (D-DE), Al Franken (D-MN), and Sheldon Whitehouse (D-RI). Second, the two stars of the show were counterfeit pharmaceuticals and China. Senators wanted to know how was IPEC addressing the problem of counterfeit medications and what specific commitments did IPEC hope to receive from China to enforce trade secret theft. The hour-long hearing can be succinctly summarized with Espinel arguing for more funding and stating that having more US personnel overseas cultivating working relationships with foreign law enforcement is what the US needs most to combat IP theft.
However, more important than what the senators and Ms. Espinel discussed during the hearing was that which was not discussed, namely the issue of US-based companies and websites having their first amendment rights violated through government agencies such as Immigration and Customs Enforcement (ICE) via the Recording Industry Association of America (RIAA). The best example of this violation is the US-based company Dajaz1.com, a music blog that features material from mainstream and up and coming artists, whose areas include technology, videos, and gaming. For over a year the government blocked and redirected Dajaz1 to an ICE seizure page with no explanation. Court records from this case were recently released showing that one of the main reasons Dajaz1 remained censored for so long was because the government obtained three time extensions while waiting for rights holders and the RIAA to evaluate the infringing content. However, according to Dajaz1 owner Andre Nasib, the artists and record companies (rights holders) had sent him the songs for promotional purposes. Furthermore, the RIAA and the government refused to answer Congressional inquiries about this case. So essentially, the federal government went after a US-based website over content the owner was permitted to have, all because the RIAA wanted the government to do so. Ultimately, ICE unblocked Dajaz1 with no explanation or apology.
Public Knowledge has previously voiced concern over the threat existing laws pose to innovation and freedom of speech. Among the numerous reasons PK and others opposed the Protect IP Act (PIPA) and the Stop Online Piracy Act (SOPA) was that there were already laws on the books that targeted copyright infringers, sometimes overreaching through their implementation. It is unfortunate that the Senate Judiciary Committee failed to address this overreach in its IP enforcement oversight hearing. It is also troubling to see Senators continue to insist upon legislation combatting IP theft despite the outcry from the American public during the SOPA/PIPA debacle. The time spent in the oversight hearing would have been better utilized with a serious discussion about how IPEC, the federal government, and future legislation should protect American (online) intellectual property without restricting the innovation and free expression that make it great.