Must Read: CCIA Sets US IP Czar Straight On Intellectual Property

from the wow dept

A few days ago, I posted the letter I submitted to the White House IP Czar, Victoria Espinel, concerning her request for comments on the strategic plan for IP enforcement. It was a bit troubling that the questions asked in the RFC focused solely on increased enforcement and the amount of harm done by infringement — as if it never even occurred to folks that increased enforcement might not be best for culture or the economy, and that there may also be mitigating benefits to infringement. I tried to make that clear in my filing, and it was great to see folks like Public Knowledge and the EFF submit comments as well — but the really wonderful filing came from the NetCoalition and CCIA, which we discuss below. First, though, it’s worth noting that the entertainment industry also made its demands…

The RIAA, MPAA and the Screen Actors Guild teamed up to submit their own filing, and as the LA Times noted “it’s a doozy.” Consider it a wishlist of protectionist, anti-consumer, anti-innovation policies, basically demanding that the White House prop up their own businesses, because of their unwillingness to adapt:

Among other things, the “creative community organizations” urged that:

• The federal government encourage ISPs to use, and companies to develop, monitoring, filtering, blocking, scanning and throttling technologies to combat the flow of unauthorized material online;
• Copyright holders be able to combat infringement by making a database of their works available to service providers, rather than submitting individual takedown notices. And once a work is taken down, service providers should be expected to employ “reasonable efforts” to prohibit users from uploading or even linking to them again;
• Copyright owners be able to block unauthorized streams of live broadcasts without going through the formal notice-and-takedown process;
• The federal government press search engines, social networks, hosting companies, domain name registrars and online advertising and payment networks to cooperate with copyright holders on efforts to combat piracy (“Encouraging these intermediaries to work with content owners on a voluntary basis to reduce infringements, and assuring these intermediaries that such cooperation will not be second-guessed, should be top priories that call for the personal intervention of senior government officials if necessary.”);
• A federal interagency task force work with industry to interdict prerelease bootlegs of Hollywood blockbusters and crack down on U.S. services that assist foreign piracy hotbeds;
• States adopt “labeling laws” that “defined unauthorized online file sharing and streaming as a felony,” giving state and local law enforcement jurisdiction to go after unauthorized copying online;
• States use consumer protection laws to go after file-sharing sites that “expose consumers to intrusion, viruses and revelation of personal data.”

You can read the entire entertainment industry filing below, but be ready to laugh at the highly questionable claims:

IPEC Filing: RIAA, MPAA, SAG However, if you want read something enjoyable you should check out the incredibly long, but ridiculously thorough and brilliant filing from the NetCoalition and CCIA. It’s over 100 pages long, but every last page is worth reading. It says everything I wish I could have said in my letter, but does so in excruciating detail, with tremendous sources to back up each point. It kicks off by going through a detailed list of “fallacies” found in the request for comment itself, as well as in the typical complaints from the entertainment industry, including:

• The objectivity fallacy: highlighting how the studies from the entertainment industry that pretend to be objective are anything but — and tend to greatly, if not ridiculously exaggerate the problem.
• The lost sale fallacy: of course, demolishing the industry’s desire to pretend that each act of infringement represents a “lost” sale.
• The causation fallacy: showing how the entertainment industry always places the blame for its problems on infringement, even if there’s little evidence to support that any troubles in the industry were due to infringement. Instead, the filing points out that there are many, many reasons why some companies in the industry have run into trouble that have nothing to do with infringement.
• The innovation fallacy: dismantling the industry’s claim that infringement destroys jobs and discourages innovation, noting that it is historically evident that competition breeds greater innovation than gov’t-backed monopolies, which can be shown to create economic rents and dead-weight loss.
• The industry size fallacy: a favorite of the entertainment industry, which bundles in all sorts of unrelated industries that just sorta barely are touched by intellectual property (furniture!) to make the industry seem huge, in an effort to imply the importance of extra protectionism. But the filing points out how flawed the methodology is, pointing to the CCIA’s own (awesome) use of the same methodology to show that exceptions to copyright contribute more to the economy than the “copyright industries.” This part also points out that if the industry really is so big, then it should be well positioned to withstand any challenges…
• The equivalence fallacy: picking apart how the entertainment industry likes to lump all forms of infringement into one “evil” bucket, without ever acknowledging that there are very, very different types of infringement, and understanding the differences is key in determining actual harm and any “enforcement” strategies.
• The theft fallacy: once again reinforcing that infringement is a different beast than theft, and even the Supreme Court recognizes this… though the entertainment industry seems unwilling to admit it.
• The silo fallacy: elegantly highlighting how the industry loves to talk up losses in CD sales, while totally ignoring how other parts of the business, such as live performances, continue to grow. It also highlights how, despite CD and DVD sales dropping, the number of albums and movies being made has vastly increased.
• The relevance fallacy: laying out the argument that, even if you accept the industry’s claims of losses, they’re often submitting aggregate data that includes a variety of different factors and information that may be distorting the direct impact on specific areas, and setting policy based on such aggregate data could be quite damaging.

Seriously, the entire document is wonderful. It feels like it should be published as a book, and should become required reading for anyone ever writing about, litigating or setting intellectual property policy. You can read the whole thing below:

IPEC Comments: CCIA & NetCoalition Of course, after going through the fallacies, the filing gets to specific policy recommendations, wisely going back to the ProIP bill’s language, highlighting how the purpose of the IP Czar is really supposed to be about true criminal infringement and counterfeiting, and arguing that any enforcement should be focused on those issues, rather than stepping in on civil disputes in what is, effectively, a business model problem. The filing also points out that diplomats enforcing US IP policy around the world are often uneducated in the balance of interests that IP law is supposed to hold, and frequently just push for greater laws and restrictions, without understanding the harm it causes. Along those lines, the CCIA takes the time to express its grave concerns over ACTA — noting its broad scope and potential harm both in the US and abroad.

The conclusion of the document sums up everything nicely:

The spread of the global Internet has facilitated the unauthorized and at times infringing distribution of certain forms of intellectual property, especially copyright-protected content. The ease and minimal cost of copying makes meaningful enforcement costly and difficult. This widely recognized problem has stirred passionate debate about how the problem should be handled by copyright owners, the government, and third parties. This problem is amplified and complicated by the importance of both the content and Internet industries in the U.S. export market, as well as and demands for the U.S. to assert leadership at the international level. This creates a danger of rigid, oversimplified policies toward infringement that (a) make little sense in other intellectual property domains, and (b) undermine the perceived legitimacy of the global intellectual property system.

The solutions to the real and perceived problems the disruptive technology of the Internet has caused for certain entertainment and luxury goods companies cannot be solved by greater government intervention or by shifting more costs to Internet companies. Rather, the solution lies in the evolution of business models to adapt to the new realities of the marketplace.

Seriously. This is an absolute must read, start to finish.

Filed Under: enforcement, fallacies, intellectual property, ip czar
Companies: ccia, mpaa, netchoice, riaa, sag