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.