Wednesday, February 24, 2010


This article originally appeared in the 2.25.10 issue of Metroland.

We've been watching how the Obama administration has been handing information and intellectual property issues—these things never break in neat Democrat / Republican Red State / Blue State ways. Bill Clinton, in fact, probably did more damage to rational IP policy than any president ever. So far, there’s been little to report, as Obama’s had his hands full with other things. But there’s a couple really troubling things going on.

First, the administration has been beefing up on what it calls “intellectual property enforcement” by the appointment late last year of the first-ever cabinet-level intellectual property “czar” and just recently the creation of a Department of Justice “task force” that’s supposed to address domestic and international IP “theft.”

It’s unclear what any of this means, but there are plenty of reasons to be worried. As a general matter, enforcement of IP rights like copyrights and patents have always been the responsibility of the IP owners. If you’ve been ripped off, you go get a lawyer and go after the infringer. Only in extreme cases, like with large counterfeiting operations, has the government gotten involved and have criminal sanctions been invoked. This could change.

The fact is that both the IP Czar and the DoJ Task Force have been created at the behest of Big Media, the handful of mega-corporations that control the mainstream music, film, television, and publishing industries; the fact is that Big Media has been running around blaming its problems, real or imagined, on how people use the internet; the fact is that Big Media has for years conflated things like on-line file-sharing and digital copying and storage with “piracy”; the fact is that Big Media has declared jihad on all of us, boldly claiming it’s doing so on behalf of “creators” when it’s really doing so on behalf of its corporate shareholders, who don’t create squat; the fact is that Big Media has commandeered intellectual property laws to be less about the public good and more about protecting, to the public’s detriment, its outdated imperial business models.

And now Big Media is in the White House and the Department of Justice. Should we be concerned? Uh-huh. Big Media is watching you.

Another related area of concern involves a series of secret international trade negotiations that have been taking place over the past year. These closed-door sessions are aimed at creating something called the Anti-Counterfeiting Trade Act (ACTA), and involves representatives from much of the industrialized world, but, notably, neither China nor Russia. ACTA appears to be spearheaded by the United States Trade Representative, also acting primarily at the behest of Big Media, and is thought to have a goal of “toughening” international IP enforcement in order to protect Big Media’s hegemony in the international content market.

But we really don’t know because the negotiations are secret. Why? National security, dummy! Actually, national security is just one of the ever changing and bogus reasons given for incredible lack of transparency. And given what we know about what’s going on, the idea that this process is secret is horrifying.

There have been leaks in the process, and they tend to confirm the worst fears about ACTA: that it’s a massive powerplay by Big Media designed to not only change other countries’ IP laws, but ours, too. The focus of AFTA appears to be “internet piracy”, and leaked documents show a movement towards holding internet service providers (like your cable or phone company) responsible for whatever is being transmitted over their systems. This would, in effect, force your ISP to spy on you, all for the benefit of Big Media. There are signs that AFTA is also looking at essentially suspending any notion of digital privacy at national borders, too. Yikes.

The plan seems to be that our trade representative would negotiate this Big Media wishlist of draconian rules that would change how the internet works, our privacy, our ability to use information, and our ability to create and communicate. Then the Obama administration would send a bill to Congress implementing all these ridiculous rules by changing copyright, trademark, and patent law and probably big chunks of the federal criminal statutes, too. The argument, pushed by Big Media lobbyists, will be that the rest of the world is doing this stuff and we can’t be left behind (Never mind that the rest of the world is doing it because our trade representative told them to, we’ll just leave that part of the story out). And Congress, now more beholden to corporate interests than ever (remember, corporations = people = money = speech) rubberstamps the whole thing. And we’re all royally screwed.

Sound like the tail wagging the dog? That’s exactly what it is. Sound far-fetched? It’s not. This was exactly the game plan Bill Clinton followed to get the Digital Millenium Copyright Act, a similar but less far-reaching travesty of a law, passed in 1998.

So you can’t say it can’t happen here because it already has.


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