Music – Issues in the New Congress: PRO-IP Act “Reform”

by Chris Castle

SFHH Logo 250X250Glenn Peoples at Billboard has an excellent primer on some legislative items that are very likely to come up in the new Congress.  We will discuss each, but let’s start with the PRO-IP Act.

As MTP readers will recall (“Grande Prosecutor Macchiato: What’s Next for the Coffee Generation?“), the Obama Administration has a problem–on the one hand, Google has been a consistent financial supporter of the Administration’s campaigns and has received significant benefits in the form of government contracts, access to President Obama, and even has been mentioned in the State of the Union address.   And who could forget the email from Google’s head lobbyist to Andrew McLaughlin (former worldwide head of lobbying for Google who was given the job of Deputy for technology in the White House (not subject to Senate confirmation).


This may seem innocent, but Alan Davidson’s “grumping” about a White House event for copyright owners does not seem so innocent in a post-SOPA reality.  So we appreciate even more the support for intellectual property enforcement by the Obama Administration, particularly by Vice President Biden.  And the President did, after all, fire McLaughlin for just these sorts of lobbying contacts.

And then of course, there’s the note from Ben Scott at Free Press (a fellow sophisticate of Google) asking for some edits for President Obama’s State of the Union (SOTU).  What do you think made Mr. Scott ask Mr. McLaughlin for some “help” with getting his message in the SOTU speech?

ben scott 1

On the other hand, we have seen the celebrity justice meted out to Google by the Federal Trade Commission on numerous occasions–including the latest debacle of outgoing FTC Chair Jon Liebowitz stumbling through a press conference explaining why the FTC was “voting” to drop the Google investigation without all the commissioners being in the same room at the same time, much less holding an actual hearing.  Crony capitalism?  You decide.

So when it comes to the PRO-IP Act, you have a potential showdown.  On the one hand, you have Google wanting to protect its ability to sell advertising on pirate sites and use its search engine to drive traffic to those sites to boost advertising value.  On the other hand, you have law enforcement using a variety of laws to stop those crimes.

“Reform” by Any Other Name is Nailing You

You will hear a lot about “reform” in this session when it comes to copyright.  For example, PRO IP Act “reform.”

“Reform” is what they call it to manoeuver you to the point that they can just run roughshod over your rights.  Glenn tells us that Rep. Zoe Lofgren is interested in “reforming” the PRO-IP Act.  Why?  Because Ms. Lofgren wishes to “reform” how the government “…seizes and blocks domain names from sites found to infringe copyright. The PRO IP Act, passed in 2008, allows law enforcement to seize property used to commit copyright infringement. Along with law enforcement agencies in other countries, ICE has seized hundreds of domains for websites that illegally sold counterfeit merchandise or hosted illegal downloads or streams. Lofgren explained that her proposal would focus on seizures “based on accusations that a website facilitates copyright infringement and not, for example, accusations of obscenity or libel.”

So a few additional facts:  Ms. Lofgren is Google’s representative in the Congress.  Literally.  Google is in her district and she is as close to Google as 1 is to 2.  I don’t believe Ms. Lofgren has ever taken a position that Google didn’t want.  I know she will meet with constituents who disagree with Google, will even give them a fair hearing, but will promptly ignore everything they have to say and then vote as Google wants her to vote.  This doesn’t have to happen very often for the message to be sent.  You don’t matter.  So don’t be surprised that Ms. Lofgren is carrying Google’s water.

Another fact: The PRO-IP Act created the post of Intellectual Property Enforcement Coordinator, currently filled by the very capable Victoria Espinel.  Ms. Espinel has been extraordinarily effective in furthering the Administrations policies.  She has had virtually no resources under her authority, but has been seconded resources from ICE and other law enforcement agencies.

As Ms. Espinel said in a speech to the American Association of Independent Music (which must have made the YouTube spies present want to “grump” to somebody):

President Obama knows very well that what you do and others like you do is one of the places where the United States leads the world, and we need to maintain our edge in global competitiveness today, tomorrow and into the future. Vice President Biden, for those of you who aren’t aware, has been a longtime supporter. When he was a Senator, this was an issue that he cared deeply about. So, he came to the Vice Presidency-I think unprecedented for a Vice President-with a deep understanding of the issues you face and a great deal of concern.

My office and my job in a nutshell is to bring together all the different agencies of the federal government and the different offices of the White House and make sure we move forward in a coordinated fashion to protect American innovation, to protect American creativity and to implement the President’s priorities.

You will not be surprised to know that Google would like to get rid of her and put someone more pliable in that role, perhaps a former lobbyist for Google.  They are legion, after all.  (A perfect candidate would be Jonathan Band or Markham Erickson–you laugh now….)  If Google successfully undermines Ms. Espinel, it will be a sad day for the music community.

So what protection does the PRO-IP Act offer that Google would like to see ended?  This screen capture will give you an idea.

MLK PTB Trafficking

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