I found myself back on Capitol Hill yesterday, listening to the Obama Administration’s top official for intellectual property promise Congress more enforcement of creatives’ rights. She said she is encouraging U.S. firms who facilitate online infringement to stop (Google’s name came up a lot), but it was clear a bipartisan consensus of Congress wants stronger steps.
I’ve spent most of my career working with creatives in one capacity or another. They are passionate about their art, about our culture, about supporting other creatives. In short, they are inspiring. And as a rule, they are too busy creating to focus too much on policy debates surrounding the rights of creatives in Washington, D.C. As a creative myself, I get that, but I’ve also had the privilege of working in the IP policy space for many years here in D.C.
I listened attentively yesterday while the U.S. Intellectual Property Enforcement Coordinator, Victoria Espinel, testified before the U.S. House Judiciary IP Subcommittee. (The webcast is here and Ms. Espinel’s written testimony is here.) There were great questions and hopeful answers. There was, unfortunately, no explicit mention of individual creatives by either Ms. Espinel or any Members of Congress.
That’s to be expected. But there were numerous references to U.S. jobs, and that includes millions of creatives, both self-employed (like me) and work-for-hire (as I have been in past jobs as a writer). “I think about job creation every day,” Ms. Espinel said. Rep. Sheila Jackson-Lee (D-TX) also noted how important IP is to minority- and women-owned businesses, which she said drive U.S. creativity and innovation, and Ms. Espinel agreed wholeheartedly with her.
I wasn’t concerned by the lack of explicit discussion of individual creatives, however. I’ve known Ms. Espinel for years and have enjoyed several discussions with her during her time in the Obama Administration. She shares my passion for creatives of all stripes, and sees herself as their champion in the U.S. government.
Last year, when I was still serving as the first executive director of the Copyright Alliance, we alerted our grassroots network that Ms. Espinel was seeking public comment on copyright infringement. Several hundred creatives submitted comments, sharing how much their rights meant to them. You can see some of their comments here.
The overarching theme of the hearing was so-called rogue sites, criminal offshore websites offering streams and downloads of copyrighted, creative works without permission or compensation. These sites use credit cards to process illegal payments from unsuspecting consumers, putting them at risk of identity theft. U.S.-based Internet registers and registries provide them domain names and host their sites. ISPs connect them, and online ad brokers sell them ads from legitimate companies. Visitors find them through search engines.
Representative Debbie Wasserman Schultz (D-FL) held up screen shots of rogue sites with ads from General Electric and Starwood Resorts, sites in which payments are processed by Visa, MasterCard and PayPal. “This makes the piracy seem legitimate,” Rep. Wasserman Schultz said. Ms. Espinel agreed: “It’s understandable the consumer would have that reaction.”
Ms. Espinel said she is in discussions with search engine companies, financial institutions, and online ad brokers (of which Google is a market leader, just like in search), encouraging them to proactively avoid facilitating offshore criminal sites.
But Member after Member, from both sides of the aisle, told her this wasn’t enough. Rep. Howard Berman (D-CA), a former Chairman of the Judiciary Committee, noted that Google tweaks its search algorithms constantly, and inserted in the record a New York Times story about how Google ensured J.C. Penney would appear lower in their search results after the Internet giant decided the retailer was gaming their search engine. Why couldn’t Google do this for obviously criminal offshore sites? he asked. Ms. Espinel, in a tough spot, said “I don’t want to speak for Google.”
Most of the Subcommittee’s members — I counted eighteen Members of Congress –- were there for at least part of the hearing. For those of you who haven’t spent fifteen years attending Hill subcommittee hearings, that is a remarkable turnout. Given that every single one of the Members told Ms. Espinel that the Administration needed to do more to enforce IP rights, that says a lot for how focused Congress is on this issue.
House Judiciary Committee Ranking Democrat John Conyers (Mich.) was the key author of the 2008 law that created Ms. Espinel’s position. He said he hoped to learn the answer to one key question of Ms. Espinel: “Is she tough enough for this job?”
It’s a legitimate question. She’s a White House official in a statutory position (not a “czar”) but can’t order Cabinet members around (although she discussed new Task Force efforts at the Cabinet level on IP enforcement that she’s chairing). Since the IPEC position was created, I’ve maintained that the individual holding that job has to be both tough and diplomatic.
Ms. Espinel is both of those things. She is determined to make a difference on behalf of creatives large and small. That includes comic book illustrator and author Colleen Doran and independent filmmaker Ellen Seidler, both of whom have been repeatedly victimized by offshore rogue sites and have received little sympathy from facilitators like Google. And the same rights extend to much larger creative entities such as movie studios, who are major employers and whose works fund the pensions of Hollywood union members and drive U.S. exports.
Personally, I’m heartened that there is a unified focus across political parties and between the Administration and Congress for more enforcement of the rights of creatives in the digital age. I’m also heartened that Ms. Espinel wants to increase enforcement in ways that are fully compatible with due process and the First Amendment, both of which I have championed throughout my career in Washington. It’s pretty rare good news comes out of this town, and even rarer when there is unanimity and cooperation among the politicos here, so I’ll say yesterday was a good day for me, and for creatives everywhere.
I welcome your own thoughts on this subject, and feel free to ask questions about the hearing below or by contacting me directly to learn more.
The Artist's Road 
Dear Patrick,
Thank you so much for taking your precious resource, your time, to not only attend this hearing but to report back what is happening in Washington. For those of us who know you and trust you, it is fabulous to feel like we have an inside line to what is going on.
I, of course, have not had the close contact with people on the hill that you have. Until I connected more deeply with the Copyright Alliance of America last year, I felt that artists and other creative people were not supported at all in current policy making and had been ignored. (As you mention, I often don’t have time to keep abreast of all the workings in Washington, much as I would like to.) It is encouraging to hear we are being represented. (Now, how about some funding for individual artists again? 😉 )
I appreciate all that you do to keep us informed, Patrick. It makes me happy to hear it from the perspective of someone I know, someone who has had an inside line and is intelligent enough to sort through it all and present us with the nuggets of yourinformed perspective. Thank you from the bottom of my heart. 🙂
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Amy, I can’t tell you how grateful I am for your kind words and support. Its creatives like you I think about when I’m at these events, and when I talk with policymakers.
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I second everything Amy said in her comment. I found this post eye-opening on several fronts (both good and bad – didn’t know about the offshore piracy and I’m really sad for those creatives who are being affected).
Thank you for making this readable for someone like me, who would rather get her political summaries from a right-brained person. 🙂
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Thanks, Milli! I know you’re an author, and books are among the many things found on these sites. It’s especially hard for self-published and indie-published authors, who don’t have the legal resources of the major publishing houses.
I mentioned author Colleen Doran above — she’s making her first graphic novel available on her web site a page a day for free, yet people go to these sites and download illegal ones. Hopefully some positive steps will be taken.
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Patrick,
Thank you for reporting on this hearing. I am glad to see piracy being addressed seriously.
I am especially pleased to learn that you personally think Ms. Espinel cares about individual creatives and not just the big corporate players. The U.S. approach to copyright law has been so dominated by the big corporate players recently that it is easy to believe nobody in a policy position is paying attention to all the individuals creating outside a corporate framework.
I have very strong and highly mixed feelings about the current state of U.S. Copyright Law for independent creatives and should actually write a piece on my position. My issues are with the scope of protected material and technological and contractual limitations on fair use. I haven’t fully articulated my own thoughts on the state of the law since I left law school because practicing intellectual property lawyers aren’t paid to think about what the law should be. Maybe it is time for me to do that.
I love the fact that we share this intellectual connection.
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Hi Kate,
Thank you for this comment!
I find compelling this statement of yours: “I haven’t fully articulated my own thoughts on the state of the law since I left law school because practicing intellectual property lawyers aren’t paid to think about what the law should be.” I am not a lawyer, but know many (including many focusing on IP) and this is a common statement — or lament — I hear from them.
If you write something please let me know! 🙂
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Patrick – Thanks ever so much for your post and for attending the event in Washington DC. Your continued interest in the rights of creators is inspirational in many ways.
Secondly, I was wondering if and if so, how many of our elected officials realize that just about everything began from a creative idea(s) arising out of someone’s mind.
Creativity is at the base of every known invention, book, song or composition, movie, etc., and even every business and every job an employer has. Take away the creativity, the generation of new ideas, and what is left, a stagnant society.
Our culture and the individual cultures throughout the world are expressed in many ways through the creation and the advancement of new ideas. This includes the laws authored (read, created) by those in power to do so.
Many if not all of these creative ideas come from the individuals and groups making up a given culture. These are folks who are actually doing the creation of the various devices, art, literature, entertainment, products and services making up a culture, in fact, the very nature of our world.
What makes sense to me is the need to support the generation of new ideas arising out of these creative individuals and businesses through proper and effective protection of intellectual property rights. Without serious support for protecting the rights of these creators any culture and in essence all of humanity is refused further definition and forward movement.
Wishing you continued success in your new adventure!
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Hi Don! An excellent point, beautifully expressed.
Not all Members of Congress spend a lot of time thinking about copyright, which is understandable, given how many issues come before them. I think most folks on the House and Senate Judiciary Committees do, and recognize the role of individuals in the creative process.
Some examples: House Judiciary Ranking Democrat John Conyers, who has long been a champion of musicians and had Congress declare jazz a national treasure (http://www.hr57.org/hconres57.html ); Senator Orrin Hatch (R-UT) who has chaired the Senate Judiciary Committee and is an ASCAP songwriter. Many members of Congress are authors of fiction and nonfiction (like our President!), and others favor visual arts (Senate Judiciary Committee Chairman Patrick Leahy of VT is an avid photographer).
I hope your music is going well, it’s great to hear from you!
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Thanks for the update and your work on behalf of creatives large and small.
It’s a long, slow grind towards legislation of any kind. It is especially long and dispiriting when there large swaths of individuals are not fully represented by lobbyists, lawyers, and money.
Thanks again for your work in this effort.
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Thank you, Mark, that’s most kind of you.
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Hi Patrick,
As a creative myself, this seems like a big step in the right direction.
I am a victim of digital infringement myself, and the ‘little guy’ can’t do much because litigation is too long and expensive. And you could loose in the end.
Thank you for the good news from DC. Bipartisan support is great to hear.
Finally, I am proud to be affiliated with organizations like the Copyright Alliance.
Keep up the great writing,
Regards,
Bart
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Bart, thanks for stopping by. I’m glad you shared your story, it’s important for people to learn stories like yours. Best of luck to you!
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This independent artist DELRAY beat out the Black Eye Peas in an award show in los angels where you can’t pay to be nominated and you can’t pay to win. I heard this guy Delray’s music an it’s awesome. His new album The Bigger Picture is on itunes and i think it’s better than the BEP’s. Oh yeah it’s 90 now instead of 30 seconds streaming check him out. This part of the artical below when Delray beat out the Black Eye Pea’s from the Capital Newspaper in Annapolis Maryland.
He added “An Intellectual Property” to the title of his third release, “Robinwood to Hollywood,” to stress the importance of copyrighting.
Jeeve co-wrote and co-produced the new release with Mr. Richardson.
“I’ve worked with a lot of people and a lot of artists and many are pains, but not Delray,” Jeeve said. “We’re buddies and I don’t see that changing anytime soon.”
A rising star
In 2000, Mr. Richardson won a Los Angeles Music Award for independent hip-hop artist of the year, edging out Black Eyed Peas, a multi-platinum group signed to a major label.
In 2003, he won for best independent hip-hop album for “Delray the Album Part 2: Who Would’ve Thought?”
“He’s got the goods as far as the music goes,” said Al Bowman, founder and executive producer of the Los Angeles Music Awards.
He said Mr. Richardson’s song, “Come on Baby Work It,” will be the lead-off track on the upcoming LA Music Awards compilation. full artical – http://findarticles.com/p/news-articles/maryland-gazette/mi_8145/is_20050514/robinwood-hollywood/ai_n51382762/?tag=content;col1
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Patrick,
I am so impressed and grateful! Thank you for your sincere diligence in building and sustaining relationships in DC that are ever so important for bridging communication between creatives and the laws that govern us. I agree with your final statements above… it is very heartening to know that so many in Congress are actually paying attention here! Thank goodness! Some of what you share above is very scary… Very good to know people are paying attention. And now I know, you are too! Will be keeping an eye on this… Thank you for your very important reporting!
My best regards to you ~
Sharon
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