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Comments in Support of a Balanced, Transparent, and Data-Driven Approach to Intellectual Property Enforcement

Last week, the Center for Democracy & Technology and many others responded to the Intellectual Property Enforcement Coordinator’s (IPEC) request for comments on the next three-year Joint Strategic Plan on intellectual property enforcement. In those comments, CDT refreshes the record on its four principle-level recommendations for the Plan.  We also address emerging (or reemerging) issues in IP enforcement, such as the transparency of trade agreements or new venues and legal theories being considered to conscript intermediaries into Internet content policing.

The number and variety of federal resources dedicated to IP enforcement makes the IPEC’s job an important and demanding one. Just keeping up with the acronyms of entities devoted to that effort can be a challenge. The IPEC convenes an interagency working group involving representatives from “DOC (USPTO, ITA, and CLDP), DOS (EB and INL), and USAID, the Department of the Treasury, DOJ (CCIPS, FBI, and the Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT)), DHS (CBP and ICE), USTR, and the Copyright Office[.]” In addition to coordinating federal resources, the IPEC must also work with other countries on international IP enforcement efforts.

It’s one thing to get all of these resources pointed in the same direction. It’s quite another to make sure they are pointed in the right direction. CDT submitted its comments to help with that effort, particularly in the area of copyright policy and enforcement. As in our earlier comments to IPEC, we propose four basic recommendations for determining where best to focus IP enforcement efforts:

  • In the area of copyright, the Plan should target enforcement against true bad actors and avoid ratcheting up copyright protections across the board in a manner that would impair legitimate business activity and chill technological innovation and fair use.
  • The Plan should not call for imposing new network-policing roles on Internet intermediaries.
  • For copyright, the Plan should focus on effective and efficient use of existing tools, rather than seeking to increase penalties, expand the scope of copyright liability, or otherwise make substantive changes to the copyright regime.
  • The Plan’s goal for copyright should be realistic: making participation in widespread infringement relatively unattractive and risky, compared to participating in legal markets.

CDT’s views on the proper focus of the IPEC’s efforts remains largely unchanged from our previous filings: going after true bad actors, staying away from changes to substantive copyright law, and recognizing the importance of legal alternatives to infringement. At the same time, the comments shine a light on a few new troubling developments. Among them is the continued lack of transparency in trade agreements, this time manifesting itself in the Trans-Pacific Partnership. Copyright is complicated and details matter – unfortunately, there is no clear avenue for public interest organizations to access the content of copyright provisions in trade agreements or discuss that content publicly. The comments therefore recommend either giving the public a chance to review and comment on IP-related text in trade agreements before those agreements are concluded or, in the alternative, not putting IP-related provisions in trade agreements. The current approach to addressing intellectual property in trade agreements is untenable.

Another major new development involves new strategies to enlist Internet intermediaries into the fight against copyright infringement, willingly or not. As detailed more fully in joint comments led by Public Knowledge, some rightsholders may be looking to the International Trade Commission as a venue where they can require Internet Service Providers to “exclude” digital streams of content coming from overseas. This approach resembles the proposed site-blocking remedy in the Stop Online Piracy Act. Our comments also discuss concerns, which we explore in detail elsewhere, with efforts to get the United States Trade Representative and the International Corporation on Assigned Names and Numbers to bear down on domain registrars to take action when notified by rightsholders of infringing content appearing on the website of a registrar’s clients.

CDT is not opposed to intermediaries assisting with efforts to deter and reduce infringement, so long as that assistance is voluntary and transparent. However, when that assistance is compelled and inadequate notice is given to the alleged infringer, enforcement via intermediaries creates serious and unwarranted risks to free expression, innovation, and due process. There are better ways to reduce infringement that do not entail these risks: education, genuinely voluntary initiatives, and encouragement of legal alternatives.

Consistent with those approaches, the IPEC’s request for comments on the Joint Strategic Plan highlighted its objective of “supporting transparency, accountability, and data-driven governance[.]” CDT believes this is the proper focus for the Plan. It has been notoriously difficult for both private entities and government agencies to determine the actual cost of digital copyright infringement as well as the cost of copyright enforcement in terms of its effect on emerging technologies or legitimate content and practices. Helping to fill in the data gaps that pervade the landscape of IP enforcement should be a central function of the IPEC’s office. An honest, data-driven assessment of the costs and benefits of different enforcement mechanisms will bring us closer to a realistic, effective, and balanced overall approach to coordinated intellectual property enforcement. A transparent and data-driven approach can and should protect the rights of content creators and reduce copyright infringement, while giving due regard to the importance of a decentralized and open Internet to innovation, free expression, and content creation.