Tuesday, February 13, 2007

Evan Bayh and Intellectual Property Rights

As we move into the Brave New World of the Information Era, a battle is brewing between those industries that profit from restricting the free flow of knowledge and information and those that are now making information freely available over the internet. The Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) are at the forefront of this battle. Our government has equipped industry with tools such as the Digital Millennium Copyright Act (DMCA) that have empowered them to reach deeper into our personal lives in the name of protecting their copyright entitlements. This has resulted in some blatant abuses of innocent citizens at the hands of corporate giants. Below are a few examples of the heavy-handed techniques employed in the name of copyright protection.

  • Viacom issued 100,000 DMCA takedown notices aimed at YouTube users. Among the 100,000 videos targeted for takedowns was a home movie shot in a BBQ joint, a film trailer by a documentarian, and a music video about karaoke in Singapore. None of these contained anything owned by Viacom. The DMCA takedown process invites this kind of abuse. You don't need a proven copyright infringement claim to fire off a cease-and-desist letter and have online speech immediately taken down. Most online speakers don't have the resources to defend themselves, especially when facing enormous monetary damages if sued when they counter-notice under the DMCA.

  • Working with the RIAA, the Georgia police recently raided the studios of Aphilliates Music Group and arrested DJ Drama and DJ Cannon over the hip hop "mixtape" CDs that the studio is famous for. These are the same mixtapes that the record labels often pay DJs to create to promote their own hip hop artists.

  • ReplayTV was a personal video recorder with user-friendly features. It allowed you to skip over commercials and send recorded TV programs to another ReplayTV device. Former Turner Broadcasting CEO Jamie Kellner called skipping commercials "theft" -- and evidently the major motion picture studios agree. They sued the manufacturers of ReplayTV out of existence, and the company that purchased it buckled under and removed the contested features.

  • Anticybersquatting Consumer Protection Act (ACPA) is a US federal law enacted in 1999 to protect the owners of trademarks from abuse by domain name cybersquatters. In PETA v. Doughney, the defendant registered peta.org and created a website entitled “People Eating Tasty Animals.” The domain name registrant contacted P.E.T.A. and informed the organization that if it wanted the domain name, “it should make him an offer.” The Court found that there was a bad faith intent to profit, and therefore, P.E.T.A.’a rights to its trademark outweighed the defendant’s right to free speech.

While there are many such examples, this brief list gives a pretty clear idea of how far the pendulum has swung in favor of intellectual property (IP) owners. Regretably, the vigorous pursuit of IP rights has inevitably led to the loss of some individual liberty and to the harassment of some innocent individuals.

Enter Evan Bayh and the Intellectual Property Rights Enforcement Act (IPREA). Writing in his blog, he introduces the act in this way: “I have introduced legislation that would elevate the way we treat intellectual property theft to the same level as money laundering and other black market crimes.” What exactly does that mean? There are 3 key things that the IPRE would do:

  1. Create an interagency Intellectual Property Enforcement Network
  2. Establish a mechanism for federal law enforcement to work with state and local law enforcement and the private sector
  3. Create an international enforcement team made up of qualified countries to track and arrest IP criminals across international borders

Lets look at each of these in turn.

Intellectual Property Enforcement Network

The legislation calls for the elimination of the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and would replace it with the Intellectual Property Enforcement Network (IPEN).

NIPLECC was established in 1999. The Council's mission is to establish “policies, objectives, and priorities concerning international intellectual property protection and intellectual property law enforcement.” The Council is composed of representatives from the Departments of Commerce, Homeland Security, Justice and State, the Office of the U.S. Trade Representative, and the U.S. Coordinator for International Intellectual Property Enforcement.

The mission of IPEN is to establish “policies, objectives, and priorities concerning international intellectual property protection and intellectual property law enforcement.” IPEN composition is very similar to NIPLECC, including representatives from the Departments of Commerce, Homeland Security, Justice and State, the Office of the U.S. Trade Representative, and the U.S. Coordinator for International Intellectual Property Enforcement.

So, what’s the real difference between NIPLECC and IPEN? If there is any difference, it’s the emphasis on interagency cooperation. Reading the language of the bills, one gets the impression that there has been some dissatisfaction with the degree of cooperation among the various governmental agencies involved in IP enforcement, and the IPEN is an attempt to legislate cooperation.

Mechanism for federal law enforcement to work with state and local law enforcement and the private sector

You read that right: private sector. The bill does not give any indication as to what this mechanism would be, but how would you like to give the MPAA legislated authority to assist the feds in beefing-up their enforcement of their IP rights? That is precisely what we are looking at here. Evan Bayh’s bill would seek to “establish a formal process for consulting with companies, their designated representatives, and industry associations to strengthen enforcement.” Good God! Do we really need the feds consulting with the MPAA regarding enforcement of their IP rights? Isn’t the situation draconian enough already?

Create an international enforcement team

Not content with merely fighting suspected copyright infringers at home, this bill would expand enforcement of copyright and trademark law beyond our national borders, thereby enabling US corporations to go after suspected infringers in foreign countries. The international enforcement team would be required by law to exchange information with foreign entities regarding suspected offenders. Furthermore, the IPREA mandates that we establish “a formal process for consulting with companies, industry associations, labor unions, and other interested groups in [foreign] countries” regarding enforcement of copyright laws. This is scary... very scary.

I don't doubt the need to cooperate with our trading partners in protecting IP... In fact, we already are! The US is already a signatory to numerous international treaties designed to protect IP, such as the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Specifically, TRIPS lays out requirements that WTO-member nations must meet regarding copyright protections, enforcement procedures, remedies, and dispute resolution procedures.

Then there is the United Nations-sponsored World Intellectual Property Organization (WIPO). It was established in 1964 and is dedicated to developing “a balanced and accessible international intellectual property system”. WIPO consists of 184 member nations, including the USA, that work together to achieve strategic goals, including the development of international IP laws and standards.

With all of this already in place, why does Evan Bayh want the United States to unilaterally set up a new international IP task force? It simply does not make any sense.


Copyright, trademarks, patents, and other forms of IP are important and deserving of legal protection. But, as we have seen, globalization and the changing technological environment have caused some corporations to feel threatened. They have pressured government to give them additional protections, including stricter IP regulations. This is wrong and counterproductive. Excessive IP regulation leads to “intellectual protectionism”, increasing economic costs and decreasing efficiency. Joseph Stiglitz, 2001 Nobel laureate in economcs, has said "It has become increasingly clear that excessively strong or badly formulated intellectual property rights may actually impede innovation". The IPREA is a clear example of just such excessively strong and badly formulated policy.

Furthermore, there is simply no tangible need for this additional regulation. IPEN is simply a reconstituted NIPLECC. International IP organizations, such as TRIPS and WIPO, already exist and are carrying out the role of an "international enforcement team". And finally, we do not need and do not want the government confering with the MPAA and others in the private sector on matters of IP enforcement. The net effect of the IPREA is simply to further empower industry to enforce these laws. But at what cost to individual liberty? We have already seen the havoc that groups such as the RIAA and MPAA can create with existing laws. Do we really want to empower them further?

Bayh first introduced the IPREA in 2005, and it went nowhere. However, with the Democrats now controlling Congress, it is possible that Bayh will have better luck moving his legislation forward. Let's hope not.

Friday, February 02, 2007

Evan Bayh - A moderate, hawkish veep?

Since Evan Bayh has dropped out of the 2008 Presidential race, there has been quite a buzz about his prospects as a potential Veep candidate. There is often talk of his formidable fundraising capabilities. For example, this The Hill article points out that he had managed to raise over $10 million on his aborted Presidential bid. The article quotes former FEC chair Michael Toner as saying “Bayh could be exactly the kind of vice presidential candidate who could be most valuable in 2008 because of his established fundraising abilities.” The Indiana-based South Bend Tribune, commenting about a possible Clinton-Bayh ticket remarked about his “solid campaign organization” and his $10 million dollar war chest.

Almost every time his name is mentioned, the myth about Bayh being politically moderate is repeated. The above cited Hill article quotes former DNC chair Joe Andrew putting it this way: “He was always a top-tier candidate and he should be for reasons of message and his moderate stance.” A recent Human Events article opining about a Hillary running mate states “Add a moderate running mate like Sen. Evan Bayh (D.-Ind.) and Indiana could be up for grabs, too.”

What fuels this myth about a moderate Evan Bayh? A New Yorker article suggests that it his hawkish position on the use of military force, describing Bayh as “a semi-obscure, non-dazzling senator whose positions, in particular on the Iraq war, have been fairly hawkish.”

I set out to determine if there was any merit to the myth that Evan Bayh is “hawkish”. As usual, I used his voting record in the US Senate as reported by vote-smart.org. There is often in politics a disconnect between perception and reality. When it comes to legislators the only thing that really counts (in my opinion) is their voting record. If Bayh really is hawkish, it should show up in his voting record on military issues, right? Vote-smart.org has categorized all the key votes of the Senate into categories (such as military issues, immigration issues, etc). So I looked at his 2006 voting record in the following categories to see if any pattern emerged: Military, National Security, and Immigration.


There were 7 key Senate votes on military issues. In all but one case, Bayh voted with the majority of Senate Democrats. There is certainly nothing here that makes Evan stand out from the crowd. Here is a quick run down of those 7 votes

Habeas Review Amendment
Only one Democrat (Ben Nelson – NE) sided with Republicans against an amendment that would have allowed terror suspects to file habeas corpus petitions in court. Bayh voted with all the remaining Democrats supporting the rights of suspected terrorists.

Military Commissions Amendment
This amendment would have prohibited the establishment of new military commissions after December 31, 2011. No Democrat voted against this amendment. Fortunately, the Republican majority passed this legislation retaining the President’s power to establish such commissions, which have been used by Presidents since Revolutionary War days.

Oversight of CIA Interrogation and Detention Amendment
This amendment would have required the Director of the CIA to report to the congressional intelligence committees every three months on detention, interrogation and rendition programs. Again, not a single Democrat (not even Evan Bayh) voted against this silly amendment.

Military Commissions Act of 2006
The Act's stated purpose is to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes." There were 12 Democrats that voted for the passage of this important legislation. Evan Bayh was NOT among them.

Cluster Munitions Amendment
This amendment would have prohibited any funding from going to cluster munitions, unless it is clearly specified that such munitions will not be allowed near civilian populations. There were 15 Democrats that voted against this amendment. Here is the single instance of Bayh breaking with the majority of Democrats on military issues and voting with Republicans to defeat this amendment.

Troop Redeployment Amendment
This amendment would have required the President to withdraw troops from Iraq by July 1, 2007. Only 12 Senators, all Democrats, voted in support of this amendment. Bayh was not among these left-wing whackos. Does that make him hawkish?

Military Funding and Tax Cuts Amendment
Vote on a motion to waive the budget act in order to adopt an amendment that appropriates $47.27 billion to the military and repeals the extension of tax cuts for capital gains and dividends to 2010 back to 2008. Only one Democrat voted against this crazy scheme – the hawkish Ben Nelson of Nebraska.

Okay, so we clearly see that there is nothing in his voting record on military issues during the course of 2006 to distinguishes Evan Bayh as a hawk. Lets move on to national security issues. Perhaps there we can find a more moderate, more hawkish voting record there.


Vote-smart.org lists 7 key votes on national security issues in 2006. Again, Bayh voted with the majority of Democrats in 6 of these 7 votes. Lets take a look at them.

Security of Cargo Containers Amendment
An amendment that requires the Secretary of Homeland Security to develop a plan for guaranteeing 100 percent of all cargo containers that pass through U.S. ports are scanned. Only 2 Democrats (Ben Nelson-NE and Mary Landrieu-LA) joined Republicans to defeat this amendment.

National Security Amendment
Vote on a motion to waive the Budget Act in order to adopt the recommendations of the 911-Commission Report. This time 3 Democrats (Ben Nelson-NE, Bill Nelson-FL, Mark Pryor-AR) joined Republicans to defeat this amendment.

Rail and Transit Security Amendment
A motion to waive the Budget Act in order to spend $1.1 billion for transit security programs including research and development of bomb detection technology. Two Democrats (Ben Nelson-NE, Kent Conrad-ND) joined Republicans to defeat this bill.

USEMA Amendment
Vote to adopt an amendment that creates the United States Emergency Management Authority under the Department of Homeland Security to replace the Federal Emergency Management Agency (FEMA). This bill was adopted with only 10 Senators opposing it, 8 of whom were Democrats, none of whom were Evan Bayh.

FEMA Amendment
An amendment that designates FEMA as independent and separate from the Department of Homeland Security and authorizes the President to appoint the director of FEMA. This is the one vote in the National Security arena where Evan Bayh broke with the majority of his party. He joined with 13 other Democrats and voted to keep FEMA within the Department of Homeland Security. Was this hawkish? Does this vote distinguish Evan Bayh as a moderate?

USA PATRIOT and Terrorism Prevention Reauthorization
Vote to adopt a conference report that extends the authority of the Federal Bureau of Investigation (FBI) to conduct “roving wiretaps” and access certain business records through December 31, 2009, and makes the remaining 14 provisions of the Patriot Act permanent. Only 9 Democrats voted against the Patriot Act, Bayh was not one of them.

USA PATRIOT and Terrorism Prevention Reauthorization
Vote to invoke cloture on the Patriot Act conference report so it could be voted upon. All Senate Democrats voted against cloture, including Bayh.

The only time Bayh broke with his party on National Security issues was on the FEMA Amendment. Here the idea was to remove FEMA from the Department of Homeland security. Some think it would function more effectively as an independent agency, others do not. In the end, it was left where it was and simply renamed the United States Emergency Management Authority. Anyhow, I fail to see how this one break with the Democratic Leadership distinguishes Bayh in any way. But there is still hope. There was one other topic that is related to national security that might show off Evan Bayh’s hawkish tendencies – Immigration.


2006 was a busy year for immigration reform. Vote-smart.org lists 12 key immigration-related votes. Many people consider immigration reform to be intimately related to national security, so it’s worth looking to see just how hawkish Bayh’s voting record might be on immigration reform. Well, the news is not good for folks that consider Bayh to be a moderate – Bayh voted with the majority of Democrats in each of the 12 immigration reform bills to pass through the Senate in 2006. I won’t bore you with the details of each, you can check them out for yourself at vote-smart.org if you are really interested.


It’s hard to imagine why anyone who happens to vote the same as the majority of other Democrats is perceived as a moderate (much less a hawk), unless you happen to think that the way most Democrats vote is moderate. Ahh… maybe now we are getting somewhere. If you happen to think that Democrats are, in general, moderates and Republicans are, by and large, extremists, then you might naturally think that anyone that simply follows the herd the way Evan Bayh does and votes with the majority of Senate Democrats almost every single time is a moderate. Now I get it.