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It is axiomatic that when you only have a hammer, everything looks like a nail. It follows that when the government established the position of Intellectual Property Enforcement Coordinator (IPEC), the result was an office that sees a world full of problems that it can only fix with the one tool in its kit: more enforcement.
Last month, the IPEC released its three-year Joint Strategic Plan (JSP) for the enforcement of intellectual property rights by the government for 2017-2019. Though the report contains a few rhetorical nods towards balance, in substance it adopts an agenda favoring the legacy content industries.
The bulk of the good news in the JSP is tucked into the Executive Summary, where the plan offers three welcome observations.
First, the JSP acknowledges that the term “piracy” has been stretched beyond usefulness, and that the federal government should not be devoting its limited resources to addressing “any and all” acts of infringement (despite what the big content companies may wish), but rather should only look towards businesses that willfully infringe intellectual property rights at large scales for commercial gain. As we’ve often observed, it is inappropriate for major corporate rightsholders to socialize the costs of enforcing their private rights by deputizing the public resources of the government, while privately enjoying the profits.
Second, the JSP recognizes that limitations and exceptions to intellectual property laws, like fair use, are not just central to our body of laws, but are also an “important part of our culture” that are as responsible for encouraging creativity and innovation as strong protections. (Unfortunately, this shout out in the Executive Summary is the only mention of limitations and exceptions in the entire JSP.)
Finally, it is positive to see the JSP call for the government to engage in data-driven strategic planning, rather than rely on faith-based assertions of the importance of intellectual property and the scope of the infringement problem. However, this is also where the JSP begins to go backwards.
While the JSP calls for more data to drive make smarter enforcement decisions, it is also filled with citations to data based on dubious methodologies and biased sources. For example, the JSP begins by citing the Department of Commerce’s “IP-Intensive Industries” report to highlight the importance of intellectual property protections to the U.S. economy. This is the study that infamously counts “grocery stores” as one of the most “IP-Intensive” industries in the United States, and whose methodology has been criticized as “grossly overstat[ing] the value of IP relative to other factors and motiviations.” Similarly, in a section devoted to online advertising revenues, the JSP leans heavily on reports by the Digital Citizens Alliance, a group closely tied to the MPAA. While IPEC should be commended for calling for data-driven approaches to enforcement, relying on biased data undermines any benefit of such an approach.
The JSP goes from there to endorse two of the entertainment industry’s favorite tools for expanding copyright protections: pressuring intermediaries into voluntary agreements that impose a higher enforcement burden than what is required by law, and exporting the most draconian aspects of U.S. copyright law via trade agreements.
While the JSP acknowledges that the DMCA’s takedown provisions are resulting in questionable and abusive removals of user content, its preferred solution is to have the government encourage private voluntary agreements, which are often troublingly opaque, reached without public input, and leave due process protections in doubt. This ‘solution’ opens the door to the return of SOPA-like threats to the internet by private agreement.
Similarly, the JSP’s embrace of trade agreements for the purpose of exporting strong intellectual property protections is particularly disappointing, given the JSP’s rhetoric about the importance of limitations and exceptions to the U.S. copyright system. Leaving aside the appropriateness of trade agreements as vehicles for forcing other countries to change their copyright laws, IPEC could have used this opportunity to back up its talk about balance and underscore the importance of exporting all aspects of the U.S. system. Instead, the JSP only suggests using trade agreements to benefit rightsholders.
While it’s disappointing to see a government report adopt many of the content industries’ talking points, this should come as no surprise. Thinking solely about enforcement will almost always lead to an unbalanced view of intellectual property law.