For months, we've been nervously awaiting new White House intellectual property "czar" Victoria A. Espinel's Joint Strategic Plan, and the White House published it (PDF) this morning. But the document turned out to be fairly innocuous; fair use even gets a few mentions. Rightsholders who hoped the federal government would start running "three strikes" Internet copyright tribunals or start ordering ISPs to block websites were disappointed.
Don't get us wrong, there's a bit of the standard rhetoric in the document, as in this:
"Today, the Internet allows for a person who illegally 'camcords' a film at a movie theater in Moscow to distribute a bootleg copy across the globe with the push of a button," the plan warns. "These thieves impose substantial costs. They depress investment in technologies needed to meet global challenges."
On the other hand, there's this refreshing observation:
One of the reasons that the U.S. is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate. By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.
And some of the recommendations, principles, and action items in the document are—dare we say it—sensible, or at least not harmful. We like suggestion number two the most: transparency. The JSP calls for the government to solicit more feedback on IP enforcement through hearings and public rulemakings (as opposed to the back-room-generated Anti-Counterfeiting Trade Agreement).
And the survey urges Washington to "lead by example" by figuring out how to buy less counterfeit stuff itself. This is a particular concern for the FBI, miffed at the number of government agencies that buy bootleg Cisco routers (including the FBI sometimes). While the White House has ordered agencies to clean up their act, that mandate doesn't extend to government contractors; the new JSP says Federal agencies should take steps to fix this mess.
As for particular policies, here's what stood out to us:
No help for "three strikes"
Some groups, like AT&T, asked Espinel to support things like "three strikes" tribunals that would replace the court system for simple P2P cases. The company also wanted the government to "create and maintain a list of international websites known to host and traffic in infringed copyrighted works. The Department of Justice would then be given the authority to require, after thorough investigation and governmental due process, that ISPs deny access to these websites."
No dice, said Espinel.
"The Administration believes that it is essential for the private sector, including content owners, Internet service providers, advertising brokers, payment processors and search engines, to work collaboratively, consistent with the antitrust laws, to address activity that has a negative economic impact and undermines US businesses, and to seek practical and efficient solutions to address infringement." (Emphasis added.)
As for government help, Espinel says that the feds will continue to do what they do now: prosecute criminal cases. That's about it.
Circumvention devices
The plan says the government will soon begin trading samples of "circumvention devices" with the content industry "to assist in determining whether such devices violate an import prohibition." Obviously MPAA and RIAA don't like modchips that allow users to end run DRM restrictions. Groups like Public Knowledge, on the other hand, point out that educators can't exercise fair use rights if they can't access technologies to help them extract video content from DVDs.
In any event, the JSP will soon provide the Department of Homeland Security with the authority to share circumvention gadgets with rightholders, it says, so that they can "assist in accurate determinations of infringement and violation. The U.S. Government will also take action to provide DHS components with the authority to share samples and enforcement information related to seized circumvention devices to strengthen criminal and civil enforcement."
Here's hoping that that sharing process will be transparent, too.
Unlicensed Internet pharmacies
The plan says the IPEC will round up about a dozen Federal bureaucracies, including the Office of National Drug Control Policy, the FBI, and the Food and Drug Administration, and come up with a strategy for fighting unlicensed Internet pharmacies. Espinel's office will chair the resultant committee, which will crank out a report with recommendations about what to do.
The report also promises more vigilance against "foreign-based and foreign-controlled websites and web services" that "infringe American intellectual property rights," but acknowledges that there isn't much the US can do about them. Nonetheless, the government will "expeditiously assess current efforts to combat such sites and will develop a coordinated and comprehensive plan to address them," the IPEC says.
Getting some real piracy numbers
The Joint Strategic Plan does rather delicately acknowledge the Government Accountability Office's recent report on IP theft data, which noted that most industry piracy estimates are bogus. The GAO "questioned the piracy rates estimated by certain industry groups and certain assumptions and methodologies used in those studies," IPEC gingerly observes.
Then it goes further, noting that "there is no known comprehensive study that attempts to measure the economic contributions of intellectual property-intensive industries across all US business sectors," and says it's time to produce one. To get this started, the IPEC will authorize the Department of Commerce's Economic and Statistics Administration to set up a framework for getting the job done.
Enforcement
Finally, and somewhat ominously, the IPEC will review all existing copyright laws "to ensure that they are providing an effective deterrent to infringement (including, as to criminal penalties, reviewing the United States Sentencing Guidelines)."
This review will come 120 days after Espinel submits her plan to Congress. She's scheduled to appear before the Senate Judiciary Committee on Wednesday.
The reaction we've gotten to the document has been mostly favorable—especially from Public Knowledge, which praised Espinel's "carefully crafted and balanced agreements within the bounds of competition to be used when the private sector undertakes enforcement actions. In our view the private industry should not have the ability to cut off someone's Internet access based only on unproven allegations without any due process."
But as for the enforcement recommendations, the Administration should look at copyright law more generally rather than focusing simply on enforcement, PK's Gigi Sohn added. "We urge the Administration to examine how overly strong copyright enforcement and outdated copyright laws can have a negative impact on the economy, on innovation and civic discourse."
The Recording Industry Association of America sent us a positive, albeit noncommittal response.
The report "is a welcome step toward reversing the dangerous trajectory that has endangered America's creative community," RIAA declared. "Addressing the problem of intellectual property theft in a meaningful way is essential to enhancing our global competitiveness and protecting American innovation."
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