A little while ago, we asked you to respond to the IP Enforcement Coordinator's request for comments with your thoughts on the U.S.’s enforcement policy. Today, we’ve sent in our own comments (joined by the Electronic Frontier Foundation, the American Association of Law Libraries, the Medical Library Association, Special Libraries Association, and U.S. PIRG) to be considered as the IPEC puts together the Joint Strategic Plan—the recommended agenda for national IP enforcement.
In our filing, we wanted to make two larger points. First, any analysis of effective enforcement has to take into account not just the harms that result from infringement, but also what the costs and benefits of different enforcement mechanisms are. Second, we should be sure to push for a balanced copyright policy—both with effective enforcement and well-recognized exceptions and limitations—whenever we pursue our copyright objectives at home and overseas.
The request for comments asked only for estimates of the losses due to infringement. We wanted to make sure, though, that the IPEC wouldn’t use those numbers alone as a basis for making policy. Overzealous enforcement measures can also take a toll on the economy, if legitimate services and devices get caught up in the campaign. Even more critically, people’s ability to communicate and create can be chilled through overbroad enforcement. These potential harms should serve as a caution to law enforcement when prioritizing cases. Government resources intended to stop infringement are likely to get more bang for the buck targeting commercial-scale infringers, and are likely to cause less collateral damages to lawful uses if they don’t come out swinging against the next VCR, Tivo, or iPod.
One good sign in the request for comments was a note that any numbers on the costs of infringement should be accompanied with an explanation of methodology and sources of the data for studies. Hopefully, that would prevent any repeats of the situation with the MPAA’s study of online infringement, which was touted as showing that 44% of losses due to file-sharing came from college campuses. As was later revealed (but not before those numbers had a real impact on policymaking for colleges), the real number was more like 15%.
As for promoting a balanced copyright agenda, one of the continual issues in enforcement is infringement in foreign countries. One knee-jerk response to this has been to continually press for expansive IP laws and fewer limitations and exceptions with our trading partners. This can be counterproductive in a number of ways. First of all, it can burn political capital we hope to spend on other issues, and has been used as an excuse to paint all IP laws as mere trade protectionism. To make better use of outreach efforts, there should be a focus not just on the need to enforce IP laws, but also on the limitations and exceptions that go along with them and the safeguards they guarantee for free expression while protecting creators' rights. Limitations and exceptions are also an integral part of U.S. foreign policy in other arenas, whether in promoting access to affordable generic drugs or protecting freedom of speech. As many have noted, it's not difficult for a central control-minded government to turn content filters into censorship systems.
Too often, we see the effects of private enforcement (in the form of takedown notices and lawsuits) go off the rails in pursuit of aims distant from the goals of IP—to promote knowledge, innovation, and creativity. Hopefully, the IPEC will recommend that publicly funded enforcement of IP law will show more discretion and nuance.