Tell the U.S. government how to protect us from copyright criminals.

The U.S. Office of Management and Budget has put out a request for written submissions from the public:

SUMMARY: The Federal Government is currently undertaking a landmark effort to develop an intellectual property enforcement strategy building on the immense knowledge and expertise of the agencies charged with enforcing intellectual property rights.

Part I: …IPEC seeks written submissions from the public identifying the costs to the U.S. economy resulting from infringement of intellectual property rights, both direct and indirect, including any impact on the creation or maintenance of jobs. In addition, the IPEC seeks written submissions identifying threats to public health and safety posed by intellectual property infringement…

Part II: …IPEC requests written submissions from the public that provide specific recommendations for accomplishing one or more of the objectives of the Joint Strategic Plan, , or other specific recommendations for significantly improving the U.S. Government’s enforcement efforts. Recommendations may include, but need not be limited to: Proposed legislative changes, regulations, executive orders, other executive action, guidelines, or changes in policies, practices or methods. …

(Emphases ours.)  This a fine idea — it’s about time, really.  Below is the letter we sent, lightly edited. Please feel free to use it, verbatim or modified, to send in your own letters whenever public comments are solicited.

Subject: Re: Comments on the Joint Strategic Plan

Victoria Espinel
Intellectual Property Enforcement Coordinator
Office of Management and Budget
Executive Office of the President
Filed via email

Dear Ms. Espinel:

The Federal Government's initiative to develop a coherent and
public-minded enforcement strategy has the potential to do much good.

Any accounting of the cost of infringement must include the jobs lost
because of business models that are suppressed when the public's right
to enjoy and use its intellectual property is infringed upon.  For
example, Google scanned millions of books, many of which have no
discoverable copyright holder, and yet must now pay a ransom to make
the results of those scans available to the public even in restricted
form.  This infringement of the public's right to its own culture has
costs in economic terms, not only for Google, but for the authors and
publishers would like to build upon and add value to past works.

Many web sites are also forced to remove content when requested by
monopolists who hold an exclusive right to distribute that content,
and also by would-be monopolists who do not actually have the
legal right to enforce the takedown, but do so anyway because the cost
of resisting bogus requests is too great a burden for most targets.
These practices interfere with the business models of those web sites,
costing jobs and, again, infringing on public access to information
and art.

Regarding public health and safety concerns: copyright is used to
restrict public access to the computer code that runs medical devices,
thus preventing any public audit of code on which patient's lives
depend.  See
for just one example.  This too is an infringement on public access
that I hope the IPEC will give serious attention to.

Here are specific strategies that IPEC could undertake itself,
recommend to other agencies, or recommend to the legislature:

  1) Require open, unfettered access to source code for all medical
     devices, in order for those devices to receive FDA approval.

  2) Impose statutory penalties for bogus takedown requests that abuse
     the takedown provisions of the Digital Millennium Copyright Act.
     If an entity delivers an improper takedown request, and cannot
     demonstrate that it did so in good faith, then it should either
     lose the right to deliver any takedown requests (and this fact
     should be recorded in a list kept by the Register of Copyrights),
     or pay a penalty sufficiently severe to deter future abuses.

  3) IPEC should take the responsibility to accurately measure both
     the economic costs of overzealous copyright restrictions, and the
     incidence of censorship, suppression, and credible threats to
     public safety resulting from abuses of copyright law.

     IPEC should never rely on figures gathered by holders of
     copyright monopolies, as those figures have historically been
     methodologically suspect and extremely inflated (as when the
     record industry counts illegally downloaded songs as "costing"
     the industry the same price as those songs sold on a retail CD).
     Common sense indicates that IPEC cannot outsource this research.

  4) Treat attribution separately from copyright.  Attribution should
     really fall in the domain of trademark law, which is also within
     IPEC's purview, but which is unrelated to copyright.  The
     current conflation of attribution with restrictions on
     distribution causes much confusion in public policy debates.

  5) Likewise, treat counterfeiting separately from unauthorized
     copying.  The U.S. has an unfortunate history of conflating these
     unrelated issues, for example through its participation in the
     Anti-Counterfeiting Trade Agreement (ACTA), whose very name
     undeservedly tars unauthorized copying with the same brush as
     counterfeiting.  Counterfeiting, whether of currency or trade
     goods, is simply fraud, because it involves lying about the
     provenance or uniqueness of the counterfeited item.  Unauthorized
     copying, by contrast, is not fraud; it is merely unauthorized.

  6) Most importantly, IPEC should phrase its solicitations for
     comments without bias in favor of a particular outcome.  For
     example, the solicitation recently sent by Thomas L. Stoll from
     your office said: "Explain why copyright is critical to you
     as a commercial artist, how infringement affects you, and what
     the U.S. government can do to better protect the rights of
     American artists."

     That is putting the answer before the question.  There are many
     artists for whom copyright is not critical, and who are in fact
     mainly hampered by its restrictions.  If IPEC does not solicit
     their input too, it will have an inaccurate picture of the
     effects of copyright.

Thank you,
-Karl Fogel
 P.O. Box 20165
 Stanford, CA  94309-0165
 +1 (312) 772-2726

Thanks to Public Knowledge for their post drawing attention to this public comment period, and also to reader Mark Ashworth, who wrote us independently about it.