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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 25, 2005

Senate Judiciary IP Subcommitee Hearing On Int'l Copyright Infringement

Posted by Ernest Miller

Well, I listened to the nearly two hours of generally dull testimony for today's Senate hearing on intellectual property (Notice of Subcommitee Hearing: Piracy of Intellectual Property). I suffered so that you didn't have to.

The hearing was chaired by Sen. Orrin Hatch (R-UT), who heads the Intellectual Property Subcommitee of the Senate Judiciary Committee. Sen. Patrick Leahy (D-VT) also attended most of the hearing.

The focus of the meeting was on international copyright infringement, particularly in China and Russia. Flash! There is lots of infringement in these two countries and something must be done about it, such as keeping Russia out of the WTO. And we're really going to get upset with China pretty darn soon. Any minute now, in fact. Just you wait, we'll do something major to China, you'll see.

Read on ...

Sen. Hatch provided an opening statement, noting the shocking news of the availability of Star Wars: Episode III: Revenge of the Sith on the sidewalks of Asia already. He also seemed to cite the monetary losses due to software infringement of the BSA uncritically. Not well known for favoring criminal infringement, The Economist found serious flaws in the BSA's numbers (The Economist Rails on Flawed BSA Piracy Study).

The speaker's statements are now available:

As I suspected the testimony of the person who is supposed to be neutral in these battles and represent the interests of the people was the most partisan of all. Marybeth Peters once again proved she is not fit to be Register of Copyrights. For example, whenever harmonization is an issue, she always pushes to ratchet up the protections of copyright law:
Also, although we ask foreign governments to extend all the rights they afford under their law to their domestic right holders in sound recordings to American right holders as well, many countries point out that the scope of such rights under U.S. law is narrower than theirs, depriving their right holders of the reciprocal protections in the United States. I know that these are controversial subjects, but if we are going to take a frank look at how to solve the problems of international piracy, we need to look at our own deficiencies as well.
She wasn't the only one, however. Sen. Hatch insisted several times that TRIPS was a floor for intellectual property protection, not a ceiling. The ratchet moves ever upward.

Peters is quite suspicious of those whose views on copyright differ from hers, one might almost say paranoid:

In recent years, some like-minded countries have worked together to present arguments on the international level that seek to weaken existing international standards of copyright protection. Couched in terms of encouraging development or cultural diversity, these arguments are premised on the notion that copyright protection is antithetical to the interests of developing countries. What we are facing is an attempted backlash against the TRIPS agreement and our other successes. While we need to continue to work hard for short-term progress on enforcement in individual countries, we must also keep a close eye on these attempts to undermine established international standards of copyright protection.
And, hey, let's not forget to bring in the spectre of terrorism:
And, although the information is sketchy at best, there have been a series of rumored ties between pirating operations and terrorist organizations.
Sketchy, rumored ... but it sure makes a good soundbite, one which Sen. Hatch will pick up on later in the testimony, almost begging Peters to add more to this "rumored" tie.

Pinkos was even more clear about the ties to terrorism:

Unfortunately, the economic benefits of capitalizing on intellectual property rights (IPR) have captured the attention of pirates, organized crime, and terrorists. The global criminal nature of IP piracy has effects in other areas as well. As former U.S. Attorney General John Ashcroft reported: "In addition to threatening our economic and personal well being, intellectual property crime is a lucrative venture for organized criminal enterprises. And as law enforcement has moved to cut off the traditional means of fund-raising by terrorists, the immense profit margins from intellectual property crimes risk becoming a potential source for terrorist financing."
Perhaps he should share some of the evidence they must have on this issue with Peters, so she doesn't have to rely solely on rumors. Another person he could share this evidence with would be Eric Smith who also made the connection to terrorism: "Because piracy is so lucrative and in many of these countries enforcement is weak or governments are not strong enough to combat these syndicates effectively, they have taken over the business of piracy, as but another part of their illegal activities including the financing of terrorism."

Peters continued with her suspicions of those who disagree with her on copyright. Certain unnamed commentators critical of US copyright law are undermining enforcement of copyright abroad; they're "prone to hyperbole," their arguments are imprecise and lack clarity. Unlike the precisely wrong and confusing statements from the Copyright Office (Ganging Up on the Copyright Office).

What is problematic is that some American commentators who are prone to hyperbole about what they see as an imbalance in the U.S. Copyright Act are providing arguments and rationalizations that foreign governments use to defend their failure to address this type of organized crime. The confusion wrought by the imprecision and lack of clarity in these commentators’ statements is not helpful to our achieving the goal for which there is no credible opposition: dramatic reduction in organized piracy of U.S. copyrighted works abroad.
It would have been nice if Peters could give some actual example of prominent, respected commentators on copyright law who provide rationalizations for commercial infringement by organized criminal gangs. I bet she has the list right there, in her pocket. Some reporter should ask.

See also, FurdLog, Judiciary Cmte Hearing in IP Piracy Today (updated).

Not all of her arguments made it into her written testimony, however. Unfortunately, I'm not a fast enough typist to get a transcript, but Peters also brought the INDUCE Act into the fray. Responding to Sen. Hatch, Peters referred to the Grokster case, saying that if it came out the "wrong" way (presumably a decision that protected free speech and innovation), Sen. Hatch and Leahy would have to take up the effort to pass the INDUCE Act again. Indeed, it was necessary to pass something like that, she argued, because it is hard to lecture other nations on copyright infringement when our current copyright laws are so weak. So, yet another reason to pass the INDUCE Act: we need to convince other countries that we're tough on copyright infringement. I'm sure that China will be duly impressed, as their innovators get yet another step up on American inventors.

Near the end of the testimony, Sen. Hatch followed up on this point, asking the speakers what laws could be passed domestically to help them. He also echoed Peters' sentiments regarding Grokster as well, decrying the terrible consequences if the US Supreme Court decided the case wrongly ... children would be led down the "primrose path" which leads to all sorts of bad things. Because, once you have the idea that copyright infringement is okay, it "permeates" the culture and then all sorts of bad things will happen, apparently. And Sen. Hatch was quite clear that the Supreme Court would be guilty for corrupting America's youth if it decided wrongly.

Pinkos provided an interesting history lesson in his testimony:

The U.S. has long been concerned about IP protection dating back to the founding of our country. For example, Gilbert Stuart’s Athenaeum portrait of George Washington was replicated without authorization by a Philadelphia merchant, who was later sued for copyright infringement.
Yeah, we were so concerned with international copyright back then. If Pinkos wants to cite George Washington's portrait, I'll cite founding father Benjamin Franklin (Dickens's 1842 Reading Tour: Launching the Copyright Question in Tempestuous Seas):
The first American "pirate" was probably Benjamin Franklin (1706-90), who was, among other things, a Philadelphia printer who re-published the works of British authors in the eighteenth century without seeking their permission or offering remuneration.
I wonder why Pinkos didn't use that anecdote?

Overseas copyright infringement is a serious problem. However, it is not a problem that will get better through the demagogery of "threats to our national security" and condemning critics for confusing the issue and undermining enforcement. And, indeed, isn't this really about the enforcement? Do we really need to ratchet up copyright protections even further? As for the INDUCE Act, puhleeze.

Comments (7) + TrackBacks (0) | Category: Copyright | INDUCE Act


1. Lothlorien on May 25, 2005 09:15 PM writes...

Here comes Big Brother!

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2. matt on May 26, 2005 06:30 AM writes...

it must be nice to be a senator. "i know what we'll do" says orrin, "let's get everybody that we know that agree's with our position, and have a policy meeting". "hmmmm..." echos patrick, "then we can base all of our legislative efforts on the basis of informed testimony. sounds good to me."

and we pay them to do this?

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3. matt on May 26, 2005 06:36 AM writes...

forgot one thing...

having marybeth peters as the registrar of copyrights is like have an owner of a baseball team as commissioner. oh, wait, bad example...

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4. Alias Undercover on May 26, 2005 11:36 AM writes...

Why does Marybeth Peters hate America? Sounds like she wants a gulag of ideas set up so people will stop all of this spooky thinking, but that's just my opinion. What, was she scared by an idea as a child?

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5. Mack on May 26, 2005 11:59 AM writes...

If only people cared about this stuff as much as the "threat to social security" and judicial filibusters...

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6. chaser7016 on May 26, 2005 08:25 PM writes...

Would someone please tell these business people that this is a business issue! Change your business model, like get in bed with ISPs and have them start charging monthly bills based on monthly bandwidth usage; mirror cellphone bills. Im sure this isnt too far off in the ISP world(i use my connection to stream my music collection over the net, download content, play Xbox, use it as a phone line via Skype, watch Internet TV, etc...) and thus the copyright people should get with the ISP people and get a cut of our monthly bills.

Why fight the inevitable...oh yeah DVD sales are huge, but would such an idea hurt DVD sales? would just stop the people who hoard content from doing so, as such activity would hit their pocket!

From an avid downloader looking to pay for his activities!

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7. goud440 on May 27, 2005 01:08 PM writes...

The connection between piracy and terrorism was awesome!!!
Well someone has to remind them that the terrorists
were "freedom fighters" for them some years ago! They could also find that kind of info very easily!

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