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.
To: email@example.com 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 http://www.softwarefreedom.org/podcast/2010/feb/16/0x21/ 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 Editor, QuestionCopyright.org 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.