US IP Czar's report sells out the American public to Big Content

The US IP Czar, Victoria Espinel, has released her long-awaited "Joint Strategic Plan on Intellectual Property Enforcement," and from my cursory read, I have to say it's quite a disappointment. The three areas where US policy is completely out to lunch -- secret treaty negotiations, watchlists of "pirate nations," and evaluating claims of losses due to piracy -- are not adequately addressed in this document, which mostly focuses on flexing US trade muscle to force other countries to adopt policies that suit US needs, even if they run contrary to their own domestic priorities.

On the issue of secret treaty negotiations, such as ACTA, the report has this to say:

The Administration supports improved transparency in intellectual property enforcement policy-making
and international negotiations. As such, the U.S. Government will enhance public engagement through
online outreach, stakeholder outreach, congressional consultations and soliciting feedback through
advisory committees, official comment mechanisms such as Federal Register notices (FRN), notices of
proposed rulemaking (NPRM) and notices of inquiry (NOI), as appropriate for the relevant process. In
the context of trade negotiations, the Administration will pursue these objectives consistently with the
approaches and considerations set out in the President's 2010 Trade Policy Agenda, including consideration of the need for confidentiality in international trade negotiations to facilitate the negotiation
process.

Get that? 89 words about the need for transparency, negated by "including consideration of the need for confidentiality in international trade negotiations to facilitate the negotiation process" at the end. For background, copyright treaties have normally been the purview of the UN's World Intellectual Property Organization, where treatymaking is open and accessible to public interest groups and the press. The Bush administration moved copyright treaties to a private, closed-door negotiation called the Anti-Counterfeiting Trade Agreement, where poor countries, public interest groups, activists, and even members of the governments participating in the negotiations were prohibited. The Obama administration enthusiastically continued the ACTA work, intervening in a Freedom of Information Act request to get the text of ACTA into the open by arguing that US-led copyright treaties must be secret as a matter of "national security."

By including "consideration of the need for confidentiality in international trade negotiations to facilitate the negotiation
process," Espinel's office is giving a free pass to the US Trade Rep to go on making obligations on behalf of the American government without Congressional oversight, public transparency, or access by the press.

Equally grave is the report's acceptance of the legitimacy of the "301" process, by which executives from major entertainment companies are able to nominate countries whose laws they'd like to have changed for inclusion on a special US watch-list, which is then targetted by the trade rep and the administration for heavy bullying to reform copyright laws. This list doesn't solely consist of countries where copyright protection is admittedly weak (such as Russia), but also countries where the existing strong copyright legislation is up for revision (such as Canada), where the MPAA and RIAA would like to sway the debate by having the US intervene on their behalf.

Finally, there's the facial acceptance of the claims of the losses due to piracy. Even the GAO has dismissed the numbers on cash- and job-losses due to piracy put out by trade groups as utter fabrications. Yet this paper does little to address this. I don't see how the US government can propose to fix a problem if they don't know how grave the problem is in the first place. If Espinel's office spends millions of taxpayer dollars on this issue and the MPAA makes up a fresh set of imaginary piracy losses, do we have to start over again?

That, in the end, is the real question: how much money and resource, how much might and muscle, should the US government devote to enhancing the profitability of one corner of the entertainment industry, especially when the measures -- such as those in ACTA -- endanger key American freedoms, threatening to take whole families offline, threatening to establish a Great Firewall of America to block sites that upset the entertainment industry, threatening the ongoing operation of efficient and legitimate services for communicating and exchanging files?

2010 Joint Strategic Plan on Intellectual Property Enforcement (PDF)