PRO IP and Silence of the Profs?

The House and Senate easily passed, and President Bush signed, the PRO IP Act. Some commentators have been critical of the Act (Public Knowledge, TechCrunch, Declan McCullagh) – but to no avail. However, IP profs (at least, those who blog) have been pretty quiet about the Act. I can conceive of at least three possible reasons for this:

  1. Public choice problem – IP profs know they just aren’t that influential with Congress, compared to industries (such as movies and music) with a significant economic stake. Tilting at windmills isn’t a good use of time.
  2. No big deal – the Act doesn’t make enough substantive changes to IP law (focusing mostly on counterfeit trademarks and setting up a new IP bureaucracy in the federal government) to rally profs to the barricades. It’s not much of a windmill, anyway.
  3. Advancing the ball – the Act is actually a good idea. Windmills can be useful things.

I’d be interested to know what you think.

Update (Oct. 15, 1:30PM): Susan Scafidi has an insightful post at Concurring Opinions. My only quibble: do we want an IP czar generally? Larry Lessig would be terrific, but administrations come and go; the structure remains. (Particularly given the bipartisan consensus on this bill.)

4 Responses to “PRO IP and Silence of the Profs?”

  1. I vote for #2.

    It was on my mental list of things to blog (always a much longer list than the list of items that eventually appear!). And I feel a little guilty I didn’t. But especially once Congress deleted the most problematic provisions — thanks in large part to the efforts of groups like Public Knowledge — it just didn’t seem like too big a departure from existing law. Slightly more heavy-handed, to be sure, but only slightly.

  2. “do we want an IP czar generally? Larry Lessig would be terrific, but administrations come and go; the structure remains.”

    This could be a good thing for PK, the EFF, et al, since they can concentrate their efforts more tightly on whoever is appointed. In terms of logistics, lobbying various members of Congress is more difficult and more expensive than just focusing on one czar, so the advantage goes to the well-funded content industry and its lobbyists. Everyone lobbying one person gets rid of the extra time and expense, which I assume is a bigger problem for the nonprofits and scholarly community.

    While the content industry gets to focus its efforts just as much as the nonprofits do, can they really spend the same amount of money lobbying one person/gov’t agency as they did for the various members of Congress? I’d say that the law of diminishing returns starts to apply after a few million dollars or so. http://www.opensecrets.org/industries/contrib.php?cycle=2008&ind=B02 can help shed some light on this.

    The problems with this are A) How heavily will Congress lean on the czar’s input? Congressmembers can still be lobbied to ignore his or her advice if it doesn’t suit the content industry and B) What if the person appointed to be the czar falls in the IP maximalist camp? Both sides lose the ability to balance one Congressmember against another in a more centralized system.

    Also: Hi Prof. Bambauer, It’s Victor from your Info Privacy class.

  3. Hey Victor! Great to hear from you; thanks for writing. Great point about efficiencies in lobbying / policy promotion. One potential worry here has to do with how much power the IP czar has. It seems that some of the new authority is suasion – pushing US Attorneys to take on IP cases – and also in terms of staff and reporting to Congress. In this sense, the czar may be a type of enforcer, with quasi-prosecutorial discretion, and thus could have significant sway over IP policy “on the ground” regardless of how Congress feels. My own sense is that the content industry has advantages of scale, particularly since Congress is unabashedly pro-IP (although the PRO IP bill did lose its more obnoxious elements, as Bill points out). You’re quite right that checks and balances are wise, particularly when there is a consensus that doesn’t get examined much.

    Also, could we as a society agree to knock off the use of the term “czar”? Anyone who studies Russian history will tell you it’s a loaded gun. Between Nicholas II and Alexander III alone, we’ve more than enough to retire it permanently. (Alexander III had, among other hobbies, an affection for breaking down doors.)

  4. “In this sense, the czar may be a type of enforcer, with quasi-prosecutorial discretion, and thus could have significant sway over IP policy “on the ground” regardless of how Congress feels.”

    That seems to be a big problem with IP law. It’s not something that copyright owners can easily enforce themselves through the civil courts (hence the formation of ASCAP and similar associations), so they try to get the gov’t to shoulder some of that responsibility. I sympathize with the fact that infringers have a much easier time infringing than owners have enforcing, so I wonder whether there might in fact be a little room for gov’t help.

    But the content industry has very different goals from what copyright is meant to do. Their rhetoric about how infringing is “stealing” reveals their view of it as a traditional property right. I don’t mind the gov’t enforcing its constitutional mandate to promote the advancement of science and the useful arts, but the content industry seems to just want a piece of property that it can rent out to others for profit. Since they have such different views of copyright, I’m nervous about the gov’t exercising prosecutorial power on their behalf.

    My gut reaction is that the tradeoff should really be that the more the gov’t is involved in enforcement, the shorter period of time the copyright should last. As the ability to enforce increases and becomes less expensive for copyright owners, they make more money from their work and thus the point of the limited monopoly is fulfilled more quickly. Works then enter the public domain faster and the commons benefits. This doesn’t fit the content industry’s video-rental business model, so they prefer a property right. Let’s hope the internet and P2P continue to make that business model more and more obsolete.

    “could we as a society agree to knock off the use of the term “czar”? ”

    Agreed. Though it might be an unfortunately appropriate term.