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.

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