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Open Internet

CDT Urges IP Czar to Focus on Bad Actors, Not Intermediaries

Yesterday, CDT filed comments with the office of Victoria Espinel, the White House’s new Intellectual Property Enforcement Coordinator (IPEC). Her first official duty in the newly created position is chair the committee that will draw up a Joint Strategic Plan for IP enforcement. While the scope of the report will be much broader than our focus on Internet copyright issues, we did see a number of areas that called for comment.
Specifically, the comments urge that the Plan consider the significant costs associated with ratcheting up enforcement efforts. Federal enforcement resources should be targeted at truly bad actors, and should avoid entangling innovative legitimate businesses in new battles in the many gray areas of copyright law. We highlight several examples of this phenomenon, likely familiar to readers of this and other tech policy blogs: the VCR, image search engines, garage-door openers, and video-sharing sites, to name a few. This is not to say that copyright disputes involving new technologies should always be resolved in favor of the technology providers, but Federal enforcement should focus squarely and exclusively on bad actors and clear-cut cases.
Our comments also urge the IPEC to resist calls to enlist ISPs in online copyright enforcement. Congress—in the DMCA and Section 230 —has expressly rejected the notion that ISPs should be responsible for policing user behavior. This policy has led to an explosion of innovative services, and it should not be undercut by—to name two increasingly popular examples—“three strikes” or filtering mandates. These practices would come at major cost to free expression and privacy, and may raise constitutional problems. In addition, they would likely undercut US foreign policy efforts to increase Internet freedom globally.
Espinel certainly has her work cut out for her, coordinating an enforcement plan ranging from p2p to counterfeit pharmaceuticals. CDT appreciates the opportunity to provide comment, and will work, along with other public interest commenters, to keep the focus on true bad actors and not good-faith innovators and intermediaries as the plan develops.