White House’s New Report On Intellectual Property Enforcement Should Get A Copyright As A Creative Work Of Fiction

The 2008 ProIP Act put in place a number of problematic things, including (via a very sneaky backdoor method) the ability for the US government to directly censor websites (something many people thought was in SOPA but which is already a part of the law, according to a tenuous interpretation of the law by the Justice Department and Homeland Security). It also put in place the job of IP Enforcement Coordinator, officially known as IPEC, but more regularly called the Copyright Czar. The job isn’t about more efficient or more effective IP. It’s designed solely to push an agenda of greater enforcement as if that must be a good thing. While the current Copyright Czar, Victoria Espinel, actually has been very good in trying to hear from critics of expanded copyright enforcement, the nature of the job itself leaves her little room to do too much.

However, as part of the job, she releases an “annual report” on intellectual property enforcement. Now, as you hopefully know, content published by the federal government cannot be covered by copyright and is automatically in the public domain. But, reading through the newly released annual report (pdf and embedded below), it makes me wonder if we should make an exception here, as it appears to be, in large part, a work of fiction.

There are plenty of questionable things in the report, but I’m just going to focus on a few (we’d be here all day if I dug into even more of the report, but feel free to read and guffaw along with the entire report). Once again, the report seems to assume that “greater enforcement = good thing,” despite a near total lack of evidence to support that position. In part, of course, this is the nature of the job itself, so the report has to slant in that direction. But there are some whoppers in the report. Let’s dig into a few:

  • “Improved transparency in intellectual property policy-makings and international negotiations.” Wait, what?!? Yes, this is the same administration that has been the most secretive when it comes to negotiating IP laws and international agreements. SOPA came out of a secret backroom deal in which the tech industry and the public were entirely left out of the negotiations. That’s why there was a public revolt over SOPA/PIPA.

    And, of course, ACTA and TPP negotiations have been significantly more secretive than traditional IP international agreements as negotiation via WIPO and the WTO. In those negotiations, positions are made publicly. With ACTA and TPP the US government has driven a policy of extreme secrecy, requiring special security clearance just to see drafts, and forbidding other countries from releasing reports. With TPP, the USTR has even agreed that the various documents surrounding the negotiations should be kept secret until four years after the agreement is completed and ratified. This is not transparency at all. It’s the opposite of transparency. Saying you’re transparent and actually being transparent are two different things.

    This is a point where the White House and IPEC in particular could be a lot more effective. It could revamp the entire Special 301 process to make that more transparent and less of a black box where the USTR basically “remixes” the complaints of Hollywood into a report shaming other countries. It could tell the USTR to release its positions and drafts for things like ACTA and TPP publicly so that the public (you know, the real stakeholders) can comment. It could call out the USTR for doing things like participating in an industry-sponsored dinner for negotiators, and partying in Hollywood with MPAA studio heads while kicking civil service organizations out of the hotel where they were meeting. But, instead, it pretends that there’s more transparency? That’s simply fictional.

    Patting itself on the back for including transparency when it’s actually one of the most opaque administrations on such issues is simply ridiculous.

  • What’s not in the report. It’s really quite stunning what’s completely missing from the report. The omissions are quite telling, however. The report appears to completely skip over what happened with SOPA/PIPA. I mean, it’s as if the widespread public backlash and outrage didn’t happen at all. SOPA and PIPA are barely mentioned at all, and when they are, it’s only to mention briefly how random parts of those bills (not the main parts) included little bits and pieces of the White House’s legislative agenda on IP around “greater information sharing.” How can a report on the state of IP enforcement completely leave out the biggest thing that’s happened in IP enforcement in decades? The fact that the public has stood up and said enough is enough on greater expansion of making the government Hollywood’s private business model protection service. That’s a huge event and to completely ignore it is quite telling.

    Similarly, the report completely ignores last year’s realization of the serious problems with Homeland Security’s ICE’s Operation in Our Sites, the program to seize and censor websites based on mere shreds of evidence. While the report does mention Operation In Our Sites multiple times, it’s only to self-congratulate itself for such censorship. What it does not mention is that the program resulted in the wrongful seizure and censorship of sites based on faulty evidence, or the fact that it is still illegally censoring a few websites, despite not having filed for forfeiture, as required by the law.

    In fact, the report seems so ashamed of the November 2010 seizures — which resulted in all three of the domains in question being seized — is completely skipped over in the discussion. They discuss the seizures before that one (in the summer of 2010) as well as the operations in 2011 — but the infamous November 2010 seizure round is simply being written out of history.

    I’d have a lot more respect for Espinel and IPEC if it would actually admit that they fucked up royally with some of these seizures, and then was willing to publicly explain what went wrong, why it went wrong and what the White House is doing to prevent such bogus seizures and censorship from ever occurring again. Instead? It just pretends it never happened at all. That’s shameful behavior.

  • “Voluntary best practices.” The report talks up how there have been a variety of private sector “voluntary best practices” that were “facilitated by the IPEC.” This includes things like the infamous “six strikes” plan that the ISPs have agreed to. While “private sector” solutions are good, what this leaves out is that the “facilitated by the IPEC” part was more about effectively threatening the ISPs that if they didn’t come up with a plan, that it might show up in a law instead. Separately, the problem with “voluntary best practices” like this are that they really do seem to border on government-sponsored collusion. Getting all of the industry’s largest players in a room to make agreements on who to do business with, who to censor and why… and without having it go through government review to avoid abuse? That’s generally something the government used to be against. Why is it for collusion in these cases?
  • “A data driven government.” The report tries to suggest that the government is being more data driven, and less faith-based in its efforts, but that’s belied by the fact that nowhere is any effort being made to empirically look at the effectiveness of this enforcement on “promoting the progress.” Instead, the “data” the report talks about is the data on how they’ve taken the same budget and “turned it into a more than 33 percent increase in seizures, arrests, and investigations of counterfeit and pirated merchandise in FY 2010.” But if those seizures, arrests and investigations are doing more harm than good, or are leading to false accusations, censorship and bogus (taxpayer-expensed) lawsuits, isn’t that a problem? Shouldn’t IPEC be exploring that?

    Separately, it notes that the federal government is conducting an “economic analysis.” That’s good, right? But it’s not conducting an economic analysis on the effectiveness of this enforcement. Instead, it’s conducting an economic study that, by the very setup of the study, is completely missing the point. It’s actually designed to miss the point by starting with the assumption that greater IP is a good thing:

    At the request of the IPEC, the U S Government is for the first time conducting an economic analysis, led by DOC, the Economic and Statistics Administration (“ESA”), and the USPTO, working with chief economists across the Federal government, to identify the industries that most intensively produce intellectual property and to measure the importance of those industries to the U S economy This broad study will examine all sectors of our economy We believe that improved measurement of intellectual property linked to measurements of economic performance will help the U S Government understand the role and breadth of intellectual property in the American economy and will inform policy and resource decisions related to intellectual property enforcement

    And, no, I don’t know why the report seems to do away with the grammatical icon known as “the period” at the end of sentences. Perhaps it was too expensive to license. Either way, notice that this study seems to assume, without evidence, that industries that “produce” intellectual property automatically require intellectual property laws and protectionism. Figuring out which industries produce a lot of intellectual property says nothing about whether or not those industries actually need intellectual property laws, or if those laws are helpful or harmful. When you set up to study something based on faulty assumptions, the end results will not be helpful.

All in all the report clearly tries to paint a rosy picture, but in leaving out the failures and being quite misleading in other parts, this really is a work of fiction, not reality.

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