Tom Sydnor
Potential intellectual-property priorities for the Trump Administration
[Commentary] In many areas of law and policy, the priorities of President-elect Donald Trump seem difficult to predict. But the context of intellectual property (IP) law and policy is different. Simply put, President-elect Trump will soon become – by far – the most experienced user of domestic and international IP rights ever to serve as the President of the United States. During his long business career, Trump pursued sophisticated, usually unified, branding strategies based upon his last name, had great success in the copyright industries, and has used the IP-like rights granted by state laws that protect reputational, privacy, and publicity rights.
The President-elect’s broad familiarity with US IP rights thus suggests a businessman’s approach to IP issues – one that focuses on practical issues, like cost-effective enforceability. Such an enforcement focus could also help strengthen middle-class America by ensuring that federal IP rights can be enforced by ordinary, local businesses, not just by coastal conglomerates. It could be implemented as follows:
Domestically, focus on improving private enforcement of US IP rights – particularly on the internet.
Internationally, focus on enforcing IP-related provisions of existing US trade agreements.
[Tom Sydnor previously served as Director of the Center for the Study of Digital Property at the Progress & Freedom Foundation.]
Tech, communications, and IP policy priorities in a Trump Administration
[Commentary] Under President Donald Trump, technology, communications, and IP policy have an almost “blank slate” quality that I have never before seen. The President and his Administration will have a remarkable opportunity to re-think the policies of several prior Administrations and develop better ones. Here are a few thoughts about how that process could proceed.
Improved cybersecurity will be essential: For too long, on the Internet, basic American rights, including rights to property and privacy, have all but ceased to exist when private or proprietary data is digitized and stored on Internet-connected devices that can be accessed by thieves, “activists,” or foreign governments. That must end.
End “crony capitalism” throughout technology, communications, and IP law and policy: The new Administration wants to end “crony capitalism” — but that term may be too kind. There is no “capitalism” involved in securing a marketplace advantage by using your political influence to buy from the government some unfair advantage for yourself, or some crippling regulation of your direct competitors or producers of complementary goods.
In short, focus on ensuring that private property rights — including IP rights — remain enforceable and enforced, even on the Internet, and consider repealing laws or regulations that attempt to impose one-sided controls on two-sided relationships between businesses that should be expected to settle their differences in the marketplace. These two principles, consistently applied, would do much to improve technology law and policy and reduce regulatory arbitrage.
[Tom Sydnor is a Visiting Fellow with AEI. Previously, he served as Director of the Center for the Study of Digital Property at the Progress & Freedom Foundation.]
Neither Congress nor judges are likely to “save” Aereo
[Commentary] After its widely expected loss in the US Supreme Court, Aereo announced that it would keep trying to avoid paying market prices for content under a new “Plan B.”
After years of arguing that its inefficient system for retransmitting broadcast TV content over the Internet could not be a “cable system” under § 111, Aereo now argues that it can -- because the Supreme Court said so.
Aereo’s “Plan B” argument is far more suspect than a scan of § 111 might suggest.
For several reasons, no bill reauthorizing the direct-broadcast-satellite (DBS) systems compulsory licenses is likely to “save” Aereo, nor is any federal judge who is bound by the Second Circuit’s WPIX v. ivi decision, in which the Second Circuit held that Internet retransmission of broadcast TV could not qualify for the cable-compulsory license.
Of monkeys and men (and copyrights)
[Commentary] In the well-framed photograph, the brown eyes of a female crested black macaque stare straight into the camera, and her lips curl back into the broad grin of someone who knows that she has just snapped what might become an Internet phenomenon.
According to well-known wildlife photographer David Slater, the now famous “monkey selfie” came about when a troop of macaques found and began playing with his cameras. Meanwhile, outside the jungle, this monkey-selfie has caused some of the macaque’s (theoretically) more advanced relatives to work themselves into one of the Internet’s periodic copyright-related tempest-in-a-teapot situations.
Meanwhile, mass Internet piracy on an unprecedented scale -- almost all of it perpetrated by humans against undeniably human creators who own perfectly valid copyrights – will continue, at least until we choose to resume respecting the fundamental human rights of all (human) creators.
Copyrights are more than just federal “privileges.”
[Commentary] On July 1st, the American Enterprise Institute’s panel discussion, Copyrights and Innovation: Understanding the Debate, provided a good overview of the differing perspectives of copyright skeptics and supporters.
However, one set of closing remarks made a critical mistake worth correcting. It was argued that US copyrights are mere “privileges,” because they are protected only by a federal statute -- not by the state common-law claims (and statutes) that protect other private property rights. It was thus argued that if Congress repealed the federal copyright act, then the “privilege” of copyrights would cease to be legally protected by US laws.
But this copyright-is-just-a-federal-privilege argument suffers from at least two fatal defects.
First, it just got US copyright law dead wrong. Some copyright skeptics make this error because the Supreme Court, in Wheaton v. Peters, rejected the idea of federal common-law copyrights.
Second, the idea of abolishing the private copyrights of authors is not really some innovative, liberating, thought-experiment recently concocted by copyright-skeptical academes.
Developed representative democracies like the United States now usually rely on four cultural systems to produce expressive works: (1) an academic system; (2) a philanthropic system; (3) direct government funding of particular works; and (4) a commercial-production system. Copyright laws can interact with all four systems, but they are indispensable only to the fourth -- the commercial-production system.
[Sydnor is a visiting fellow with AEI’s Center for Internet, Communications, and Technology Policy]