Washington, D.C., is one of the few, if not only, cities in the country where it is commonplace to get into a policy discussion at 8 a.m.  Citizens of the District jump on the opportunity to let their opinions be known.  Thanks to the individuals at BroadbandBreakfast.com, some of the city’s most intelligent and opinionated minds were provided such a chance.  September 14th was the first Intellectual Property Breakfast Club event of the 2010-2011 season and it tackled what has been on the lips of all intellectual property junkies-the recent report from the Office of the Intellectual Property Enforcement Coordinator (IPEC).  In a discussion entitled, “Will the Obama Administration’s Intellectual Property Czar Crush Internet Piracy,” four of intellectual property’s power players looked for consensus as to the future of IP protection in this nation.

In June of this year, President Obama’s “IP Czar,” Victoria Espinel, released the 2010 Joint Strategic Plan on Intellectual Property Enforcement.  The Plan predominately focuses on the U.S. Government’s strategy to protect and enforce intellectual property rights in the United States and then how that strategy will be handled and applied by a variety of offices and departments across the federal government.  Since the release of the Plan, there has been a great deal of interest brewing in Washington, D.C. about its ramifications.  The Senate Judiciary Committee held a hearing the day after the report was released and the House Judiciary Committee conducted its own hearing a month later.  The city has been eager to see where Espinel will lead the federal government and the nation in the coming months and years.  There was a panel in downtown D.C. however that was ready to tell anyone who would listen about the needs and possibilities that were to come out of this report.

The discussion began with a simple question.  “Is it a good thing that [the IPEC report] hasn’t been as high profile as the National Broadband Plan?”  The panel unanimously agreed that it is neither good nor bad, but a simple recognition of the Plan’s moderate and well balanced nature.  Despite the variety of views on intellectual property protection on the panel, the IPEC’s report easily garnered everyone’s support.  The National Broadband Plan was instead rolled out with a one-hundred million dollar budget and it is incredibly difficult for any report to escape the shadow of that.  Gigi Sohn, President and Co-founder of Public Knowledge, was quick to point out that no matter if you agree with the National Broadband Plan or not, it is a bold plan set to change the way that broadband is viewed in this country.  The two plans are almost foils of each other.  However, the panel did not want to make it seem like the Joint Strategy Plan was unimportant.  The Intellectual Property Enforcement Coordinator’s report was issued with half of the President’s Cabinet and the Vice-President present.  Such an audience seems to signify the Administration’s desire to make intellectual property protection and enforcement a priority.

Not every point the Joint Strategic Plan made was met with this general sense of approval though.  Within the enforcement strategy items of the Plan, the IPEC recognizes that technology changes and the growing resourcefulness of intellectual property violators has increased the need for the continuing evolution of intellectual property laws.  The Plan therefore called for the IP Czar to coordinate a process with federal agencies to review existing intellectual property laws and enforcement procedures to determine if current laws needed to be changed to enhance the enforcement efforts.  That review process is set to conclude 120 days after the Joint Strategic Plan went to Congress, meaning that the current Administration, through the Enforcement Coordinator, will issue their proposed legislative changes to Congress by the later part of October.  Sohn was concerned with the prospect of the IP Czar telling Congress how to legislate intellectual property.  If the recommendations and eventual legislation that comes out of the Senate Judiciary Committee are too broad or not defined sufficiently, Sohn expects that we could start seeing websites being the target of unintended enforcement.  Steven D. Mitchell, Vice-President of Intellectual Property Policy for the Entertainment Software Association, thought that this could be an over-reaction, believing the Plan’s purpose to coordinate the efforts of the federal government will lead to different recommendations instead of changing the way that we view and handle intellectual property piracy.  Casey Rae-Hunter, the Communications Director and Policy Strategist for the Future of Music Coalition, seconded the sentiments of Mitchell, but proceeded to bring up the topic that would dominate the rest of the morning: how is the IP Czar going to affect or change the role of Internet service providers (ISPs) in the enforcement of intellectual property laws?

Rae-Hunter said that in recent months increasing numbers of reports have amplified mentions of ISPs needing to be much more “proactive” in how they monitor for intellectual property infringement.  Rae-Hunter asked how will the IPEC bring federal agencies into such decisions and how are ISPs expected to be “proactive?”  Is it done through technological, legal or completely novel means?  This train of thought allowed Sohn to point out the question, “[i]s this something the ISPs and the content holders work out themselves or is this something that government mandates?”  She promised that if ISPs were forced by statutory mandate to monitor and filter content, it would be “World War III.”  Steve Tepp, Senior Director of Internet Counterfeiting and Piracy at the Global Intellectual Property Center with the U.S. Chamber of Commerce, also seemed wary to broach the idea of statutory mandates, insisting however that such mandates have not even been seriously considered by the big players in the game.  Instead, he discussed the idea of voluntary filtering by the ISPs and the willingness he has seen from Internet corporations to cooperate against online piracy and counterfeiting.  While the companies may not want to help shape the rules they will be forced to follow, Tepp has found that the companies are very willing to follow any court order that has been handed down to them. Tepp did not fail to remind the audience and panel that the Plan and the ensuing legislation are all about catching the “bad guys” in the end.  We must find out how to do that while still protecting ISPs, websites, and consumers.

In an effort to answer their own questions, each panelist began to focus on what they knew and what they hoped to see in the future of IP enforcement.  Tepp focused on the “life and death” issues of intellectual property enforcement.  He insisted that the Administration needed to do more to protect the U.S. from counterfeit goods like baby formula or patent-infringing military equipment.  Tepp asserted that if goods like these continue to make their way into U.S. markets, they could cause the deaths of Americans.  Sohn stressed the potential danger of over-legislating without considering the greater ramifications that the “good” Internet sites would face.  She pointed out that there is a large amount of good ideas on how to combat intellectual property piracy, but all those ideas get held up and forgotten when the more controversial ideas like ISP filtering are raised.  Rae-Hunter spoke a great deal about balance and making sure that both “sides” of this large debate are very clear on what they want.  He acknowledged that the content providers in the music industry have failed to determine what they desire from future legislation.  The music industry has consistently been one of the premier advocates of intellectual property protection in the United States, but what is their end goal?   Finally, Mitchell continued to point out that the laws currently in place are not being used to their full effectiveness.  In addition, Mitchell reminded the group that we don’t really know what the definition of enforcement is in this ever-changing context.

The discussion soon ended with the strongest consensus of the entire morning: Victoria Espinel is doing a great job as the Intellectual Property Enforcement Coordinator.  She has managed to create a well-respected, moderate, and achievable plan without the resources that most would assume necessary to affect change.  Her office has only one permanent staff member and individuals on loan from other federal agencies supply any additional help.  Thus, when asked if the Obama Administration’s Intellectual Property Czar will crush Internet piracy, all that was agreed on was that additional questions needed to be asked.  The government has never been forced to deal with such a constantly evolving portion of our economy.  We know something must be done because intellectual property is intricately woven into our nation’s frame, but what is that something?  The Obama Administration, at least in the opinion of the panelists, is doing as good a job determining that as could be expected from anyone.

Video of the “Will the Obama Administration’s Intellectual Property Czar Crush Internet Piracy” panel: Here

2010 Joint Strategic Plan on Intellectual Property Enforcement from the Obama Administration: Here

A list of upcoming meetings of the Intellectual Property Breakfast Club is available here

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