Last week I had the pleasure of attending the Senate Judiciary Committee hearing on “Oversight of the Office of the Intellectual Property Enforcement Coordinator.”  A webcast is available. It has been quite some time – law school – since I last saw our Congress in action. The following is a report from the hearing including my comments.  In short, I believe that the panel and witnesses have used scare tactics to ensure that the interests of big business are addressed, and that there is little inquiry or actual oversight regarding other steps that could be taken ensuring balance in the action items proposed.

Me in background (far left) at Senate hearing

The hearing included two parts, the first a report from Victoria Espinel, the first Intellectual Property Enforcement Coordinator, and the second testimony from four industry members – from Warner Bros., AFL-CIO (represents many unions including several that work in film, television and music), U.S. Chamber of Commerce, and Carlin America (a music publisher).

A brief summary of the hearings:

  • In general, there was zero controversy.
  • Ms. Espinel discussed the release earlier in the week of the 2010 Joint Strategic Plan on Intellectual Property Enforcement (download it here).
  • The hearing mentioned several words repeatedly:
    • jobs, organized crime, pharmaceuticals, defense, China
  • Ms. Espinel spoke of five primary initiatives in the the Joint Strategic Plan:
    • Ensure the US government is not engaged in assisting piracy by purchasing counterfeit products in procurement.
    • Ensuring efficiency and coordination among law enforcement agencies
    • Establishing a counterfeit pharmaceutical inter-agency committee
    • Combating internet piracy
    • Information sharing and transparency – collecting, examining and reporting data regarding the total nature and affect of intellectual property theft

    All of the panelists and all of the Senators were entirely supportive of the Joint Strategic Plan and the work of Ms. Espinel

My comments on the Joint Strategic Plan and Ms. Espinel’s testimony:

  • The goals are rather short on details and specifics.
  • The goals are intended to offend no one.  While some of them are ambitious, no one is going to dispute that the government should not by pirated software, or that protecting pharmaceuticals has value to the public.
  • The Plan is geared to help big business (specifically, to help the pharmaceutic industry and defense contractors, and to help Hollywood combat piracy from China and on the internet).
  • The words repeated (jobs, organized crime, pharmaceuticals, defense, China) were intended to create a record that scares people.  This could help pass future intellectual property bills and also make it difficult to argue against the work of Ms. Espinel.  It is difficult to argue with the protecting jobs and keeping organized crime out of the business of internet piracy.  But are these really the most important issues? Is our money and time being used is the most efficient manner in regards to the government’s involvement in oversight of intellectual property? (Is there any evidence that the the “mob” is involved heavily in internet piracy of movies?) Are the issues being addressed in the most effective and balanced manner?  I fear that serious inquiry may be glossed over or skipped altogether.
  • Very little attention to small business.  Small business is mentioned only a handful of times in the 58 page Joint Strategic Plan.
  • Zero concern about the effects of over enforcing intellectual property rights. Businesses and ideas are stifled when intellectual property rights are wrongfully used to bully or scare them.  Discussion of this effect on the economy, on innovation, and on jobs, was not present in the Joint Strategic Plan or the testimony.  I believe this issue needs more study and attention.

Entertaining highlights from the hearing:

  • Senator Franken’s discussion of his past in the entertainment industry, and collection of royalties (“I still get a $12 check every time they run Trading Places”) (minute 109)
  • U.S. World Cup goal scored and reported by the chairman (minute 123)

The focus of greater attention and resources devoted to Intellectual Property issues by Congress, by Ms. Espinel’s office, and by business is a good thing.  But I believe that these resources and time need greater focus and more balance between the interests of large companies and owners of intellectual property on one side, and the growing number smaller businesses who rely on trademarks, copyrights and patents as core elements of their success.

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