Liveblog: TACD IP: IPR enforcement

The next panel is on IPR enforcement. First is Susan Sell of George Washington University.

• Forum shifting/institution shifting.
• Enforcement agenda. ACTA — fear obfuscating details of policy making. Opaque negotiations.
• Customs and INTERPOL not trained to adjudicate complex legal issues. Can they judge fair use?
• Recommendations:
  • Moratorium. No enforcement detail until definitions are sorted out.
  • Evidence-based policymaking.
  • Reform the PTO.
  • Campaign finance reform (cf. Lessig). Cooling-off period from USTR to working in private sector.
  • Enforcement is not just about property rights — also about enforcing fair use, privacy, competition policy, etc.

Next is Christophe Geiger of the Centre d’Etudes Internationales de la Propriété Intellectuelle.

• Draft French enforcement bill (passed Sénat — not discussed in the Assemblée nationale). Even if passed, likely unconstitutional and violates European and international standards on human rights (e.g. right to fair trial, privacy, proportionality)
• Alternative: graduated response (cf. parking ticket)
• Good signs: progress on E&Ls in Europe, WIPO

Next is Paul Levy of Public Citizen.

• Problems of DMCA take-down procedure. OSPs have safe harbor if they comply with the requirements: take action against repeat infringers and take down sword allegations of infringement (with counter-notification).
• This isn’t so good for consumers who are engaging in fair use, e.g. criticism of copyright materials.
• ex: Both Obama and McCain received YouTube takedowns for videos with short excerpts of news. McCain complained about 10-day length of takedown. McCain asked for carve-out for political campaigns — hand review for postings by political campaigns.
• ProgressIllinois posted short excerpts of news; Fox objected. Fox said they should link to full segments instead (but not all videos were available on Fox site). 3 videos had been taken down — YouTube treated as repeat infringer, took down all its videos. Fox said it’d drop its complaints if they wouldn’t do it in the future (waive the right to fair use).
• Recommendation: No assumption that a complaint of infringement is valid; wait for take-down only if no counter-notice received within reasonable period of time.
• Recommendation: Allow the suit for a wrongful takedown to proceed without proof that takedown was willfully wrong. Statutory damages.
• Recommendation: Public notice of takedown [cf. Chilling Effects]

Next is Eddan Katz of EFF.

• History of ACTA: STOP!, EU-US strategy on enforcement, US IP czar predecessor in Commerce Dept.
• ACTA is important and we need to stop it
• In addition to forum-shifting, there’s meme-shifting. The treaty is named “counterfeiting”, but it’s about “piracy”. Need to disentangle them.
• Must address secrecy about ACTA. Opportunity with change of administration.
• Plurilateral agreement — doesn’t require consent of Congress. [Really?]
• Contents of ACTA: not sure — text not public. Three pillars: international cooperation, legal framework. Separate meeting on Internet issues.
• “Information customs”. Customs officers not known for nuance and sensitivity.
• Under WCO, was body for IP — abolished — expect something to replace it.
• Concern about ex officio authority given to customs officials.
• Recommendation: Electronic Device Privacy Act, meant to address border searches of laptops & etc. should be reintroduced and promoted.
• Criminal provisions of ACTA a significant concern. Willful non-commercial infringement.
• DMCA-like provisions may be under discussion (anticircumvention).
• This is a way to exclude the [WIPO] Development Agenda
• Recommendation: Need public access to the substantive language. New U.S. IP czar must work with consumers. Should pass anti-laptop search act. Should consider future economic concerns — think more about what drives innovation.

Questions:
[I asked a question and so was away from my computer.]
My question was on ACTA and the seeming contradiction with the EU’s move to create a fifth freedom for the free movement of knowledge within the internal market. But nobody answered it.