IP Czar's Report Steers Clear of Pitfalls... for Now
Back in March, CDT cautioned the new Intellectual Property Enforcement Coordinator (IPEC) that certain kinds of enforcement policies would risk throwing out the baby with the bathwater. CDT detailed how some policies could create legal landmines for bona fide businesses and thus substantially undermine technology innovation and free expression. CDT urged the IPEC to keep a narrow focus on pursuing true "bad actors" and to avoid calling on Internet Service Providers (ISPs) to assume a new role as copyright police.
Well, today the IPEC released the Joint Strategic Plan on Intellectual Property Infringement -- and the news is good. Many of the Plan's action items relate to coordination, prioritization, and information sharing to improve the Federal Government's enforcement efforts. Many relate to promoting better enforcement by and in foreign countries, especially those with a poor track record. And many relate to combatting counterfeit hard goods and pharmaceuticals, which can pose significant health and safety risks. These are sensible areas on which to focus.
The Plan wisely steers clear, meanwhile, of calling for a new network-policing role for Internet intermediaries. The closest it comes is a paragraph (on page 17) stating that the Administration "encourages cooperative efforts within the business community to reduce Internet piracy." But the same paragraph is careful to specify that any such policy must also "preserve the norms of legitimate competition, free speech, fair process, and the privacy of users"; that "[t]he U.S. Government supports the free flow of information and freedom of expression over the Internet"; and that "[a]n open and accessible Internet is critical to our economy." It also says that agreements in this area should be "balanced" and that solutions should be "practical and efficient" -- a caveat that seems consistent with CDT's recommendation that action items be subject to rigorous cost-benefit analysis, given that some measures could produce fleeting private gains at high social cost.
Indeed, for a report aimed principally at enforcement, the document contains some welcome signs of sensitivity to the need for balance in copyright law. The IPEC's cover letter talks about a "balanced environment," and the introduction notes that "fair use of intellectual property can support innovation and artistry" and that I.P. laws should seek to stop "those stealing the work of others, not those who are appropriately building upon it." The Plan also calls for transparency in the development of intellectual property enforcement policy, which should help promote appropriately balanced policy outcomes. (Lack of transparency has been a longstanding problem in the ACTA negotiations, increasing the danger that an agreement could fail to take adequate account of technology and free speech interests.)
Having said all that, keep in mind that the Plan launches additional inquiries, including a 120-day review aimed at developing recommendations for legislative changes to existing laws. That review will cover not just criminal laws, but laws imposing civil liability as well. This is something CDT had urged the IPEC to avoid, because substantive changes to civil copyright law run a high risk of impacting lawful behavior. So, while the Plan released today stays out of highly controversial questions like secondary liability, it leaves the door open for such matters to emerge later this year. This is an issue that will bear watching closely.