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Open Internet

CDT Weighs in on Copyright Enforcement Strategy

The Administration’s Intellectual Property Enforcement Coordinator (IPEC) is expected to release its new “Joint Strategic Plan” by the end of this year.  Responding to the IPEC’s request for comments from the public to assist with developing the new plan, CDT has submitted its recommendations.

The plan faces a substantial challenge in the wake of the bruising battle and public uprising over PIPA and SOPA:  namely, the widespread public perception that the Federal Government’s approach to copyright serves a narrow set of corporate interests and ignores important competing values. This colors the debate over copyright policy and, ultimately, threatens to further erode public respect for copyright itself.  That’s a risk that copyright holders and enforcers need to take seriously, because dwindling respect for copyright can fuel high levels of infringement, creating a vicious cycle.

What can the Federal Government do about this challenge?  Well, at a minimum, it can ensure that its approach to copyright enforcement and policy is forthright, fair, and respectful of other interests.  As we explain in our comments, that means taking care to fully assess collateral impacts; establishing guidelines and procedures to minimize the risk of collateral damage, especially with respect to domain name seizures; allowing much greater transparency in trade negotiations over copyright; and supporting affirmative initiatives or reforms that focus on the copyright regime from the point of view of Internet users or other stakeholders, rather than just the major copyright industries.

Our comments also recommend some core principles:  target enforcement carefully on true bad actors; don’t call for new network-policing roles for Internet intermediaries; focus on effective and efficient use of existing legal tools, rather than calling for new ones; and set realistic goals.

Finally, our comments discuss the advantages and risks of trying to reduce copyright infringement through voluntary, collaborative efforts between copyright holders and other parties in the Internet ecosystem.  Actions that focus on educating users about copyright pose limited risks, since they generally won’t cause significant harm even if applied in an overbroad or imprecise manner.  Actions that put private parties in the quasi-judicial role of imposing concrete sanctions are much more problematic, particularly when they are the product of an industry-wide or multi-party framework that arguably is a stand-in for government.  CDT recommends distinguishing between different kinds of voluntary action and emphasizing the importance of broad stakeholder participation and procedural safeguards.

We’ll see how our recommendations fare.  Whether or not they find their way into the written strategy, however, we think our principles and recommendations have a key role to play in enabling copyright policy to chart a sound course that the public can accept and respect.