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Libraries at the Fulcrum: Our Comments to the IP Czar.

Photo by nzgabriel under a CC license

Comments of ARL, ALA, ACRL to the IP Enforcement Coordinator (PDF) — 24 March 2010

Last Wednesday afternoon ARL, ALA, and ACRL submitted our comments to the newly-created office of the IP Enforcement Coordinator (or IP Czar). The IP Czar was created by the PRO-IP Act to help coordinate the efforts of all the disparate U.S. government agencies with IP enforcement responsibilities. Plans are all the rage in DC, and the IP Czar is tasked with a plan, too: the “Joint Strategic Plan” for IP enforcement, which is due to Congress ASAP. So in February, the IP Czar issued a request for comments from the public on the costs of infringement and specific recommendations for improving IP enforcement for inclusion in the Plan.

In our comments, the library associations emphasize the complex balance between incentives for creators and access for the public that is embodied in copyright law:

A body of law that represents such a careful balance of interests cannot be justly enforced or improved by a process that is responsive to only one group of stakeholders.
We ask that the IPEC keep in mind that enlarging the control of rightsholders necessarily
diminishes the rights of the public and of intermediaries, including libraries.

Libraries are in many ways the fulcrum in this balanced system: we invest heavily in content (over $1.36 billion for ARL members alone last year) and support many publishing outlets, while at the same time we take advantage of fair use, the right to lend, the right to preserve, and so on to facilitate the widest possible access for our users. Any effort to ratchet up IP protection necessarily erodes access, and we ask the IP Czar to consider whether that is a worthwhile trade off at a time when users are increasingly relying on libraries and other intermediaries for access to scarce informational resources.

As you might expect, content industry groups could not resist the siren call to roll out the usual industry-funded “studies” to back up the usual draconian policy recommendations. TechDirt lays out the industry asks here. Despite the Czar’s request that filers explain the sources and methodology that support any data they submit, it doesn’t look like anyone took the opportunity to defend or revise these notoriously flawed and incomplete studies. Patrick Ross summarizes and links to all the content industry filings here.

It can be difficult to make sense of pleas for help from booming industries, not to mention praise for “creators” from corporations who routinely fight to avoid paying them. Luckily, CCIA and the Net Coalition filed an epic rebuttal explaining all the ways industry arguments fall short. In their 50+ pages of comments (and another 50-ish pages of attachments) CCIA and Net Coalition lay out a laundry list of the fallacies embodied in the industry studies and arguments. Again, TechDirt does a great job breaking down the filing into digestible bullets, but if you care about these issues it’s worth your time to at least read the first part of the comments yourself.

Perhaps the most striking thing that CCIA and Net Coalition point out (see Section III, page 39 of the PDF) is that somewhere between the passage of the PRO-IP Act (which describes what should be in the Czar’s Joint Strategic Plan) and the Czar’s request for comments, counterfeiting and criminal enforcement disappeared almost completely from the agenda. The word “counterfeit” appears repeatedly in the PRO-IP Act — in almost every context where “infringement” is mentioned, counterfeit is also there. But in the Czar’s request for comments? It shows up only twice, in passing. Very strange.

On the consumer/access side, several groups submitted comments warning the IP Czar against aggressive moves that would undermine privacy and openness on the web. EFF and Public Knowledge filed joint comments from the public interest perspective.

We’ll be keeping a close watch on the office of the IP Czar. While her statutory mandate is to coordinate enforcement efforts, she may well decide to make substantive policy recommendations in her Plan.