Post Senate IPEC Hearing Discusses China and Bad Medicine, Ignores Past Crackdowns on Legitimate Sites

On May

9, 2012 the Senate Judiciary Committee held an oversight hearing of the Office

of the Intellectual Property Enforcement Coordinator (IPEC) with Victoria

Espinel as the sole witness. This

position coordinates the work done by different government agencies to combat

intellectual property theft. The May 9

hearing was the committee’s third oversight hearing on IP enforcement. The hearing was nothing to write home about,

which was unfortunate for a few reasons.

First of all, it was primarily a Democratic Senatorial event. Senator Chuck Grassley (R-IA), the

committee’s Ranking Member was the only Republican senator present, and he left

after his opening statement. The other

senators present apart from Grassley and Chairman Leahy (D-VT) were retiring

Senator Herb Kohl (D-WI), Chris Coons (D-DE), Al Franken (D-MN), and Sheldon

Whitehouse (D-RI). Second, the two stars

of the show were counterfeit pharmaceuticals and China. Senators wanted to know how was IPEC

addressing the problem of counterfeit medications and what specific commitments

did IPEC hope to receive from China to enforce trade secret theft. The hour-long hearing can be succinctly

summarized with Espinel arguing for more funding and stating that having more

US personnel overseas cultivating working relationships with foreign law

enforcement is what the US needs most to combat IP theft.

However,

more important than what the senators and Ms. Espinel discussed during the

hearing was that which was not discussed, namely the issue of US-based

companies and websites having their first amendment rights violated through

government agencies such as Immigration and Customs Enforcement (ICE) via the Recording

Industry Association of America (RIAA).

The best example of this violation is the US-based company Dajaz1.com, a

music blog that features material from mainstream and up and coming artists,

whose areas include technology, videos, and gaming. For over a year the government blocked and

redirected Dajaz1 to an ICE seizure page with no explanation. Court records from this case were recently

released showing that one of the main reasons Dajaz1 remained censored for so

long was because the government obtained three time extensions while waiting

for rights holders and the RIAA to evaluate the infringing content. However, according to Dajaz1 owner Andre

Nasib, the artists and record companies (rights holders) had sent him the songs for promotional purposes. Furthermore, the RIAA and the government refused

to answer Congressional inquiries about this case. So essentially, the federal government went

after a US-based website over content the owner was permitted to have, all

because the RIAA wanted the government to do so. Ultimately, ICE unblocked Dajaz1 with no

explanation or apology.

Public

Knowledge has previously

voiced concern over the threat existing laws pose to innovation and freedom

of speech. Among the numerous reasons PK

and others opposed the Protect IP Act (PIPA) and the Stop Online Piracy Act

(SOPA) was that there were already laws on the books that targeted copyright

infringers, sometimes overreaching through their implementation. It is unfortunate that the Senate Judiciary

Committee failed to address this overreach in its IP enforcement oversight hearing. It is also troubling to see Senators

continue to insist upon legislation combatting IP theft despite the outcry

from the American public during the SOPA/PIPA debacle. The time spent in the oversight hearing would

have been better utilized with a serious discussion about how IPEC, the federal

government, and future legislation should protect American (online)

intellectual property without restricting the innovation and free expression

that make it great.