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.