IP enforcement, spying, and reasonableness

Today’s posts have touched on who should enforce IP rights and what that that enforcement should look like.  Recent comments by Ed Black, President & CEO of the Computer & Communication Industry Association (CCIA — Wikipedia backgrounder), address both of these issues in the context of the White House’s Intellectual Property Enforcement Coordinator’s recent white paper:

The government has shown how its zeal leads to carelessness [previously covered here] in its unprecedented efforts to widely seize domain names for IP enforcement, which ICE undertook this year. Sites were wrongfully shut down based on allegations the user was engaged in criminal conduct deemed lawful by their courts. We are concerned the same low threshold will be used in making decisions to spy on U.S. citizens.

Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content’s every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country.  Does Hollywood deserve its own PATRIOT Act?

This new punitive IP agenda follows just weeks after dictators spying on citizens online was the lead story in every major newspaper.  Perhaps the obvious hypocrisy caused someone to decide to wait to announce the U.S. goal of expanding our government’s powers to spy online.   A screenwriter could almost market this plot as a comedy – if it weren’t so serious.

Maybe we should be grateful our government only wants to make streaming a song or movie a felony with potential prison time as punishment.  What’s next corporal punishment?

This is the latest indication of the extent to which the content industry has infiltrated this administration and managed to turn the Administration’s IP agenda into a policy which protects old business models at the expense of consumers, citizens’ rights and our most innovative job creating industries.

To be sure, Mr. Black speaks as the head of a trade group, advocating for his clients’ interests.  Nonetheless, we’ve covered advocates for the content industry and the broadband industry before.  I think it is important to remember (1) that both sides of the IP debate can make sweeping — sometime unprovable — assertions and (2) there are usually two sides to every story.

Broadly speaking, I have to agree with Mr. Black’s concern with the disconnect between official condemnations of “dictators spying on citizens online” and “the U.S. goal of expanding our government’s powers to spy online.”  As illustrated only a few months ago, the line between vigorous copyright enforcement and totalitarianism can be a thin one indeed.  As Harold Feld of Public Knowledge put it recently over on the LA Times:

In the virtual world, the real but mundane problem of shoplifting undergoes a Hollywood-esque transformation into “piracy,” causing the entertainment industry and folks in Washington to lose all perspective. Consider that Rep. Howard Berman (D-Valley Village) proposed a bill in 2002 to allow record companies to hack into your computer to search for illegal downloads. And how did Berman justify the equivalent of an electronic strip search? “There is no difference between pocketing a CD in a Tower Records and downloading copyrighted songs from Morpheus,” Berman told the crowd of aghast tech executives. “Theft is theft.” True, theft is theft. But I suspect Berman would have objected to an amendment allowing Tower Records to break into your home to recover a stolen CD.

Whatever you think of Mr. Black’s rhetoric — even hyperbole — I think most people would agree that truly draconian IP enforcement is not worth the terrible price it exacts.  Now we just need to reach a consensus on exactly how much is too much…

LA piracy debate

The LATimes just posted the second round of its “piracy Dust-Up” (you can read the first round here), and I thought I’d pull two quotes.

The first is from Harold Feld, the “legal director of Public Knowledge, a Washington-based digital rights advocacy group”, who points to the hidden costs of copyright enforcement:

It’s easy to understand 9 million illegal downloads of “The Social Network,” and hard to understand how the new regulations Sony wants will raise the price of your broadband subscription and your iPod while keeping you from doing cool things on your iPhone.  As the crowning insult, there is no evidence that these new rules would actually make a dent in the illegal downloading problem, or that marginally reducing illegal downloads would translate into an increase in legal sales.

The second is from Andrew Keen, “the author of the upcoming Digital Vertigo: An Anti-Social Manifesto...[and] an advisor to Arts and Labs, a coalition of entertainment and technology companies”:

Rather than worrying about doing “cool things on our iPod,” shouldn’t we instead be trying to craft legislation guaranteeing that 21st century artists have the opportunity to make a living selling their books, their recorded music and their movies?

Here’s the thing that I don’t understand:  in 2006, Keen accused Larry Lessig of being “an intellectual property communist”.  Yet if I understand this debate correctly, it is Keen who wants to focus on ways of “guaranteeing that 21st century artists have the opportunity to make a living” and who is unconcerned whether or not people can do “cool things on [their] iPod[s]”.

Last time I checked, “guaranteeing” certain people paychecks is strongly associated with communism.  It is innovation of the sort that allows people to “do cool things on [their] iPod[s]” that smacks of the capitalism Keen so implicitly embraces.

Keen will no doubt object that I mis-characterize his view insofar as he “only” seeks opportunity, not outcome.  This objection is fair enough — so far as it goes.  But it’s a tricky objection to maintain credibly when it is your opponent (here, Feld) who is calling for balance and proportionality in infringement penalties and you (Keen) who is engaging in the take-no-prisoners logic that “we surrender to the online thieves by treating piracy as a ‘cost of doing business'”.

Mr. Keen, accepting business loses due to shoplifting (in the physical realm) or piracy (in the digital realm) is not “surrender”; it is a fundamental recognition of reality.  Failure to recognize this reality seriously undermines your argument — as does your claim that you only seek “opportunity” when you so clearly will be satisfied only by enactment of one particular outcome.