IPEC Asks Loaded Questions, But Public Can RespondFebruary 25, 2010
Victoria Espinel gets the Internet. From blogging on whitehouse.gov, to personally reaching out to BoingBoing, she's trying to assure the public that her office, the newly-created Intellectual Property Enforcement Coordinator (IPEC), doesn't exist to put Hollywood's or the pharmaceutical industry's interests first–rather, she sees her job as to “help protect the ideas and creativity of the American public.” To that end, her office is soliciting comment from the public as to what the IPEC's priorities should be.
But outreach by itself won't lead to good policy. The Federal Register Notice the office put out asks some good questions, but plenty of loaded ones. If some industries get their way, their interests will be protected at the expense of the economy as a whole, and of the American public.
There's no doubt that a balanced intellectual property regime can protect American creativity and create jobs. It's also widely accepted that the costs of an unbalanced IP regime can outweigh the benefits–this brief filed back in 2002 by 17 economists, including Milton Friedman, Thomas W. Hazlett, and Kenneth Arrow, explains how extending IP protection can harm the US economy. Thus, it's also excellent that the office is starting a data-driven process. The Notice states:
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.
The costs and benefits of IP are complex, and its proper scope is an empirical question. Thus, data collection is necessary to ensure that we pursue balanced policies as a nation.
In fact, a full cost/benefit analysis of the issues at play would benefit the office. The Notice, for instance, talks a lot about “the costs of infringement.” The costs of enforcement are part and parcel of the costs of infringement. The office was created, in part, to ensure that scarce government resources are directed at the most important problems. After all, the name of the law that created it is the “Prioritizing Resources and Organization for Intellectual Property Act of 2008.” To that end, the office has asked that comments “rank the recommendations in order of priority, where possible.” We'll demonstrate why enforcement priorities need to be focused on consumer harms like commercial piracy and fraudulent drugs. The government should vigorously pursue people who violate IP laws to harm the public. When the harms are purely private, those whose rights are infringed are best able to gauge the proper level of resources to allocate to enforcement, given the extent of the harm. Thus, the proper balance between public and private action is another factor to consider when allocating resource priorities.
Of course, big media are going to use this forum to recommend that the Internet be filtered and wiretapped, that digital locks be put on consumer goods, and that people be required to pay over and over again to access the content they've purchased. In fact, it's hard to read requests like “Describe existing technology that [can] easily identify infringing goods” (Supplemental Comment Topic #7) and “Suggest specific methods to limit or prevent the use of the Internet to sell and/or otherwise distribute or disseminate infringing products (physical goods or digital content)” (#14) as anything but an invitation to do just that. Most methods that purport to do these things have serious unintended consequences, consequences that must be considered in deciding whether their benefit outweighs their costs.
While I'm confident that public participation will give the office the information it needs to recommend a balanced approach to IP enforcement priorities, the leading questions and loaded words used in the Notice are a cause for concern.
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.