The Obama Administration and Six Strikes

Soon, major ISPs will be rolling out a “copyright education” program intended to deter infringement. The program, colloquially called “six strikes,” was negotiated between ISPs and the content industries – most notably the RIAA and MPAA. In addition, however, the Obama administration was heavily involved in the negotiations – primarily, it appears, on the side of the content industries.

Researcher Chris Soghoian and I want to find out how involved the Obama administration was. So, Chris filed a Freedom of Information Act request with the Office of Management and Budget (within which the new Intellectual Property Enforcement Coordinator, or IP czar, is located). He got back some documents, but OMB withheld some – notably, drafts of the agreement that had been provided by the RIAA, and also discussions about the negotiations within OMB. In short, OMB kept the good stuff.

So we sued. The case is before Judge Amy Berman Jackson in federal court in the District of Columbia. The parties have submitted motions for summary judgment, and the matter is now before Judge Jackson.

This case has critical implications for IP policymaking, for governmental transparency, and for the role of government in private negotiations. The documents paint a fascinating picture of collaboration, pressure, and capture. (An e-mail from the IPEC’s office makes a point of marking an MPAA official’s birthday; an NBC Universal executive e-mails IPEC Victoria Espinel at her private Gmail address.) I’m linking to the documents here in case anyone is curious:

FOIA

Statute

Soghoian’s FOIA Request

OMB Response

Soghoian’s Appeal

OMB Response to Appeal

Round One

Complaint

OMB Answer

Round Two

OMB Summary Judgment Motion

Espinel Declaration

Sheckler Declaration

Vaughn Index

Redacted Documents

Soghoian’s Summary Judgment Motion

Round Three

OMB Reply Brief

Supplemental Declaration of Victoria Sheckler (RIAA)

Soghoian’s Reply Brief

E-mail from Cary Sherman to Victoria Espinel

Round Four

OMB Response on Discovery

We filed a motion to submit a reply┬áto the OMB’s discovery response, which was denied by the district court. But, I’m including it here to help you understand our position.

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