US Copyright Enforcement Strategy, Version 2.0

Yesterday the Obama Administration released its updated strategy for intellectual property enforcement. There’s no radical change of course here; in many respects, the new plan follows the initial 2010 plan. Like that earlier plan, the new one wisely steers clear of major landmines, focusing to a large extent on coordinating and improving the mechanics of enforcement initiatives, outreach to foreign countries, and customs and border questions for tangible goods. With respect to the intersection between copyright and Internet policy, however, there are a few items worth noting. (I’ll focus specifically on copyright, even though the plan devotes much space to patents, trademarks, and trade secrets as well).

For one thing, the new plan calls for the Copyright Office to help educate authors (visual artists, songwriters, filmmakers, and writers) about the scope of fair use. That carries the potential for controversy, because guidance on fair use could serve to constrain authors rather than empower them – for example, if the Copyright Office were to adopt a narrow and highly conservative interpretation of what fair use allows. Alternatively or in addition, the guidance itself could be interpreted to support an implication that uses not endorsed by the Copyright Office are presumptively not permitted.

The new plan, however, seems to suggest that the Copyright Office should follow the lead of the courts, not articulate its own policy judgments. The plan calls for the Office to “publish and maintain an index of major fair use decisions, including a summary of the holdings and some general questions and observations that may in turn guide those seeking to apply the decisions to their own situations.”  Moreover, proponents of robust fair use provisions should welcome the plan’s characterization of fair use as a “core principle of American copyright law,” its recognition that “enforcement approaches should not discourage authors from building appropriately upon the works of others,” and its goal of “mak[ing] fair use more accessible to the authors of the 21st century.” Education regarding fair use carries risks that bear watching, but this part of the plan certainly seems well intentioned and appears to constitute a welcome acknowledgment of the importance of fair use.

The new plan also reaffirms the strategy of encouraging voluntary initiatives to reduce online infringement, and highlights three potential industry sectors where new voluntary arrangements might be sought: domain name registries and registrars; search engines; and cyberlockers and similar online storage services. As CDT discussed at length in our August comments on the prospective strategy, encouraging voluntary measures by Internet intermediaries is controversial; in some cases, voluntary enforcement regimes can put private parties in a quasi-judicial role, imposing penalties without the due process and accountability safeguards that apply to government action. With respect to domain name services, search engines, and cyberlockers specifically, there also would be serious questions about what kind of voluntary steps would be reasonable to encourage and what would unduly interfere with (for example) services’ functionality or users’ privacy.

On the other hand, the plan’s section on voluntary initiatives notes the importance of principles relating to privacy, free speech, and due process. It calls for voluntary measures to include involvement of all interested stakeholders and to be as transparent as possible. More concretely, it says the Administration intends to pursue a set of best practices for rightsholders that use the voluntary enforcement procedures. Presumably, such best practices would call on rightsholders to use such tools carefully and responsibly, in ways that would minimize the risks of mistakes or abuse. The plan also calls for an inquiry by the US Patent & Trademark Office to evaluate how voluntary measures are actually working.

One thing the new plan does not directly discuss is the way that the bruising fights over SOPA and PIPA have changed the copyright policy landscape since the release of the Administration’s initial enforcement plan. There doesn’t appear to be any reference to SOPA or PIPA in the plan at all. ACTA is mentioned in a few spots, but without any acknowledgment of the uprising that caused the EU to reject the agreement.

Nonetheless, the plan may reflect these developments in some subtle ways. In our August comments, CDT observed that copyright enforcement in the post-SOPA environment faces a substantial challenge: namely, the widespread public perception that the Federal Government’s approach to copyright serves a narrow set of corporate interests and ignores competing values. To help combat this perception and develop a more balanced agenda, we recommended supporting affirmative initiatives or reforms that focus on the needs of Internet users or other stakeholders in the copyright regime. The plan’s provisions on fair use education and on rightsholder best practices may reflect, at least in part, an effort to address issues facing that broader group of stakeholders. The plan also includes a call for more expert assistance to enable law enforcement to “better navigate highly technical areas such as Internet architecture.” It’s hard to read that and not think of the charge that SOPA supporters (which did not include the Administration, to its credit) were technically clueless and willfully ignoring technology experts.

Finally, the plan seems to recognize that enforcement alone cannot provide a full solution. The introduction to the plan makes the important point that the continued development of the marketplace for lawful content is essential. Elsewhere, the report stresses the importance of educational efforts, to better inform the public about copyright and lawful alternatives to piracy.

The bottom line, though, is that what will really matter is how the Administration’s enforcement efforts are implemented. It’s easier to insert sensible language about balance into a report than it is to achieve balance consistently in practice. From mistaken domain name seizures to inadequate transparency in trade agreements over copyright, there is plenty that needs improvement.

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