More on the DoJ Report

I finally had a chance to decrypt and read through the Task Force report.  A couple points:

1.  To me, there’s something a little strange about a Task Force whose purpose is to “to examine all of the Department of Justice’s intellectual property enforcement efforts and to explore methods for the Justice Department to strengthen its protection of the nation’s valuable intellectual resources.”  The point is to identify potential threats and how to strengthen the law to combat them, without extensive concern with the magnitude of the threat, whether current remedies could be effective, or whether on balance the strenghtened remedies are worth it.

Thus, when the report supports proposals like INDUCE or ART and opposes DMCRA, it’s purposely uncritical.  As long as people realize that, fine.  Somehow, I don’t think that’s how it will spin out. 

I keep thinking of this in terms of the difference between WTO only supporting stronger rights and the DoJ acting as a legal advocate for the government in protecting copyright holders’ rights (see pg 39-40).  They’re both advocating strong rights, but, while the former is a myopic approach contrary to the institution’s fundamental purpose, the latter is generally just part of the job.  This report could be read as the Task Force simply providing information for policymakers to consider; it could also be read as advocacy to policymakers of a particular position and set of proposals.  They say explicitly in the first paragraph that they’re just doing the former, but the liberal use of “should” and “theft” as well as some other elements give me the latter vibe.

One such element: page 7.  In the middle of the page, we get a huge box saying how important the copyright industries are.  We then get the following paragraph:

“When intellectual property is misappropriated, the consequences are far more devastating than one might imagine. First, intellectual property theft threatens the very foundation of a dynamic, competitive and stable economy. Second, intellectual property theft can physically endanger our health and safety. As the examples that open this report illustrate, illegal products are often destructive products. Finally, those who benefit most from intellectual property theft are criminals, and alarmingly, criminal organizations with possible ties to terrorism. This is why an effective legal system that defines and protects intellectual property in all its diversity is essential. Intellectual property theft is dangerous and harmful, and we must protect ourselves from the criminals of the new millennium who steal the ideas and hard work of others.”

Note the second one – if you read the paper, you realize this is really about counterfeit medicines and other products.  In context of the page, it looks like it’s about copyright.  As for the third, warez rings are the least of their criminal org worries and where is this supposed connection between copyright infringement and terrorism?

In fact, if you go through the entire report, they rarely talk about copyright issues in particular until you get to the pending legislation section.  Before that, there are generic proposals about IP and brief generic talk of P2P aiding infringers, but nothing really substantial about copyright.  They do have time to make a material mistatement about Operation Digital Gridlock (pg 16), which was aimed at users of a P2P system and not the network itself.

There’s also the “say yes to licensing!” style section (pg 51-54), proposing educational efforts and a conference “with diverse speakers representing government, industry, and entertainment.”  Diverse, indeed.

2.  The anti-trust section has a very interesting line, not directly aimed at copyright, but on point nonetheless: “Although an intellectual property owner has the right to decide not to license its technology, the owner does not have the right to impose conditions on licensees that would effectively extend an intellectual property right beyond its legal limits” (pg 42).  Right on, though this probably won’t amount to much.

3.  Sujean Song Lee was the special assistant on the Task Force.  I’m pretty sure I remember her as the Harvard UC president who promised us Outkast and just ended up wasting student funds, among other “prominent failures.”  Glad she’s gone on to better things.

Two Quick Points Re: Adam Curry

This Adam Curry post on podcasting and music licensing (via JP).  A very rough quick response:

1.  Perhaps a streaming show would be a performance, but not a downloadable podcast.  That’s a reproduction, if not also a distribution.

2.  For that reason alone, you’d also need rights from the owner in the sound recording (e.g., the record label).  Even if it were merely a performance, you’d still need that authorization.  Unlike for analog performances, sound recording copyright owners have a right for digital performances.