Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All

Last summer, when President Obama finally got around to nominating a new IP Czar (technically the "Intellectual Property Enforcement Coordinator" or IPEC), Danny Marti, we were at least moderately hopeful that he didn't come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we'd hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern -- but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a "Creativity Conference" put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look: After kicking off with a weak joke about his job title, he starts right in with the misleading talking points.

Summarizing my job, in the spirit of this conference, I think it's fair to say that the IPEC Office is the Executive branch's "creative conscience."

First of all... what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti's predecessor, Victoria Espinel, we often wondered why there was an "enforcement coordinator" at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to "promote the progress of science and the useful arts." And enforcement is often not the best way to do that. In fact, as we've spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it's interesting to see Marti suggest that his role is about being a "creative conscience." For a second, I thought that maybe this meant he'd actually consider what was best for creativity -- meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you'll quickly learn, by "creative conscience" he actually means "protector of a few legacy gatekeepers who often screw over actual creators."

Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action.

Again, that's good if we're talking about actual creativity and all creators. But... he's not.

I'm also responsible for helping marshal the federal government's resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy.

And there we go, right off the tracks. He is focused on protecting the existing system -- even when it is shown to harm creativity, free expression and innovation. That's a problem. Maybe he didn't really mean that? Nope, he means it:

Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We're speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company's market edge. Or the brands that distinguish our companies and their goods and services.

Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you're going to make really silly statements like Marti does next:

Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the "core copyright industries" -- those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials -- added more than $1 trillion to gross domestic product and created and supported millions of jobs.

That's not true. We've gone through these numbers in the past, and shown how they're simply misleading and no one should be using them to make a serious point. They very broadly define the "core copyright industries" such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don't actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the "core copyright industry" isn't contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws.

Intellectual property-based industries are among the U.S.'s strongest exporters.

Well, sure, that's true if you argue that any company with a brand is an "intellectual property-based business," but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that's plainly ridiculous.

Overall, IP industries accounted for over 60% -- Six Zero -- of US exports.

Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands.

The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars.

And how much of that is because of copyright law -- and how much of it is because it's content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he's focused entirely on being the "creative conscience," his actual focus appears to be almost entirely on the commercial side of the creative ledger.

That is why it's so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content.

That last one is a "I work for the President and need to give my shout out to the TPP and TTIP agreements" talking point. But, really, what did he say before that shows why it's "so important to understand and protect IP"? Frankly, I don't see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn't even enter the equation, which is kind of odd if you're positioning yourself as the "creative conscience."

Does he consider how strong copyright is being used to ban books, steal money from artists, shut down innovative services for creators and expose critics? Does he consider how strong patent laws are being used to stifle innovation and make the technology that creators use much more expensive? What kind of "creative conscience" is he?

Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will "open foreign markets" while stifling free expression?

Without understanding these things, for him to just automatically leap to the claim that we have to "protect" the existing system, it's difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances.

The timing of today's event is fitting. Sunday is World Intellectual Property Day -- a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives.

Is it? Really? No, "World Intellectual Property Day" is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity "in our daily lives" is frequently done without the use of intellectual property laws -- and, all too frequently, conflicts with those laws.

This year's theme is "Get Up, Stand Up. For Music" invoking Bob Marley and Peter Tosh's tune, to illustrate how song can serve as a call to action.... Bob Marley's song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over.

Right. Like, remember that time that Bob Marley's family tried to reclaim the copyrights to two of his albums, including "Burnin'" where "Get Up, Stand Up" first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley's family for the right to use that theme for this year's "World Intellectual Property Day," right?

Yes, ladies and gentlemen, Danny Marti is the US's "creative conscience"... for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws -- when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others' songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That's not exactly a ringing endorsement for stronger copyright laws.

And, again, if we're speaking up for "artistic communities, the world over," how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count?

Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist's right to make a living off of his or her artistic labor.

Yes, unless you're Bob Marley's family. Then let us stand up for Universal Music's right to go to court to block the Marley family from that right! Or, unless you're a remix artist creating wonderful new songs by building on the works of the past.

Also, where in the constitution does it say that anyone has a "right to make a living off of his or her artistic labor?" I have many friends who "labor" quite hard in making music, but don't make livings from it. Should I send them to Marti to solve that? Will he "marshal the federal government" to make sure they make a living?

Because this is another nefarious myth. You have no "right" to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have "a right to make a living" from their creative labor, shouldn't they be guaranteed a living? Everyone knows that's crazy. So why do we repeat the myth when it comes to music? Most musicians -- in fact, nearly every musician -- has never "made a living" off of their music. Only a very few have. And it's not because they had a "right" to make a living.

And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not.

Of course, we're back to the misleading use of "theft." Do we consider what UMG did to Bob Marley's estate "theft"? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar "feel" to a Marvin Gaye song as "theft"? Does he consider a woman posting a 30-second video of her child dancing to a Prince song "theft"? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan -- many of whose greatest works where near note-for-note replicas of others' songs -- engaged in theft?

Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word "theft" doesn't really cut it -- which is also why that's not what the law says. You'd think that the guy whose role is to help enforce the law would understand that copying a song isn't "theft." It's worrisome that he does not.

When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity.

Of course, if that "discussion" or "common identity" strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti's world "theft") and thus he will "marshal the forces of the federal government" to bring you down. All in an effort to protect the glorious markets of the creative conscience.

Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer.

And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail.

And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one.

In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way... I feel that we're rapidly approaching the administration's favorite buzzword. I know it's coming, I just know it... and...

One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem -- government, the private sector, and civil society -- can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior.

Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out "anti-social behavior" online. Hmm. Anti-social behavior? Wouldn't that bar songs like "Get Up, Stand Up" that could be seen as "anti-social" in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression?

Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair.

I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is "unfair." Yet, these all seem to be things that IPEC supports.

Stakeholder responsibility will create an environment conducive to creativity.

Let me translate this for you: "Search engines should start censoring sites that the MPAA dubs "unfair" because they challenge the MPAA's business model."

It will benefit those who make a living producing creative works.

Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down.

It will benefit those who enjoy those works.

Unless you no longer have access to them, thanks to US courts censoring them.

Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity.

How? This is a serious question, but I'd like someone to answer it, because history doesn't come even remotely close to supporting that claim as can be seen by Marti's next ridiculous statement:

The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy.

And each and every single one of those was decried initially by the legacy forces -- the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it -- especially innovations like the VCR. And, of course, the internet. We've had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we "respected" IP in the terms of the legacy gatekeepers, we'd have none of those innovations.

Look, I get it: Marti's very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn't even realize just how ridiculous it was for anyone in the "intellectual property" world to cite Bob Marley as a good example of supporting creators.

So go on, Marti, "Get Up, Stand Up!" but recognize that what you're standing up for, is not for the "creative conscience" or for creators themselves, but those who seek to be gatekeepers on that creativity.

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