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Thursday, July 12, 2012

Are SOPA opponents crying wolf over Attaché Act?

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Blog exclusive:

 As of the time I finished this post, the Intellectual Property Attaché Act had not yet been formally introduced, and yet a long list of SOPA opponents had already sounded the alarm. Here is a sampling of some of the articles that went online Tuesday: 

Unfortunately for them, they all got it (at last partially) wrong. I will address those inaccuracies below, starting with the smallest and proceeding to the most egregious.

In Public Knowledge's post, Michael Weinberg wrote: "The bill itself establishes an 'intellectual property attaché program.'"  

The thing is, the IP attaché program has actually been around since 2006, as the PTO website confirms. What the bill, which is indeed being pushed by the chairman of the House Judiciary Committee, Rep. Lamar S. Smith (R-Texas), would actually do is realign the IP attaché program by giving the Patent and Trademark Office direct supervision over the program. Currently, the attachés—each of whom was assigned from the ranks of the PTO—report directly to the Department of Commerce, a situation that PTO officials have said raises problems because it deprives the PTO of the opportunity to assess the work being performed by the attachés.  

In any event, at this point in his post, Weisenberg might be excused for this mistake because the bill itself states:

The Secretary of Commerce, upon the recommendation of the Director of the Patent and Trademark Office, in consultation with the heads of other appropriate departments and agencies, shall establish an intellectual property attaché program by appointing and placing intellectual property attachés in United States embassies or diplomatic missions in countries where the activities of such an attaché are likely.

Thus, the bill, or at least the text of the bill that was released prior to its formal introduction, in fact seems to be creating a new program, but it is one that has actually existed since 2006. I reached out to Weinberg on Twitter and pointed this out. He replied that while "We went back and forth with the post but in the end decided to use their language," meaning apparently that if the text of the bill used the terminology "shall establish," that he felt justified in treating as if it were a brand new program.   

Later in his post, however, Weinberg stated: "While the intellectual property attaché program may be new, the idea of using government officials to police intellectual property rights for rightsholders is not." Again, the program is not new. Weinberg's post then suggests that more attention should be given to modernizing the U.S. Copyright Office. I think this suggestion is perfectly reasonable, but I am not convinced that his point would have been blunted had he noted that the attaché program was not, in fact, a new idea.

At least Weinberg can claim that he was relying on the text of the bill when he took the position that these offices were new. The same cannot be said for the mistakes in the Techdirt and Boing Boing articles.

Since the Boing Boing article seems to rely heavily on Mike Masnick's Techdirt article, I will give it only cursory attention. I will mention that in the Boing Boing post Cory Doctorow says the program "will create a class of political officers who will see to it that all US trade negotiations and discussions advance SOPA-like provisions in foreign law." Given that the program has been operational for six years, no such class of officers will actually be created by the bill. The bill provides no additional revenue to the PTO, so while it does provide the PTO with loose guidance on how to determine what additional countries should receive attachés, it is far from clear how that will be accomplished by "using existing resources."  

Although the remaining text of Doctorow's sentence that I quoted merits little discussion, I will point out when I read the bill I did not get the sense that it is aimed in any way at trade negotiations (those being under the purview of the Office of the U.S. Trade Representative). Instead, the bill seems to contemplate the creation (or continuation) of these IP diplomats being housed within embassies whose job is to narrowly focus on helping U.S. rights holders protect their IP rights.  

To Masnick's credit, he is the only one who noted that the attaché program was already in existence. However, in addition to at least implicitly recognizing the existence of the attaché program, Masnick also claims that the bill would actually expand a similar provision that appeared in SOPA. Though Section 205 of SOPA did contemplate the attaché program—and in fact also gave the PTO supervision over the program—in some ways it was distinct from the IP Attaché Act. Perhaps, most importantly, Section 205 would have required the departments of State and Commerce, with consultation from the Copyright Office, to make sure that every embassy serving a country identified in the Special 301 Report had adequate resources to provide "aggressive support for enforcement action against violations of the intellectual property rights of United States persons in such country." Thus, this provision, as well as another Section 205 provision that would require attachés to be placed in certain geographic regions—some of which are not currently being served by the attaché program—seems to expand the program in both scope and resources.

Masnick then quotes a Politico "blurb" for the assertion that "The measure as proposed would move the current attaché  program housed in the USPTO to the full agency, complete with an assistant secretary of Commerce for Intellectual Property." The bill will, in fact, create that position and task that person with coordinating policy and capacity building. However, the position will report directly to the PTO director. This is consistent with the overall aim of the bill, which in another provision explicitly states, "The [PTO] Director shall maintain authority over training, rating, setting objectives for, and coordinating the activities of, intellectual property attaches.”    

So, when later in his post, Masnick says: "The bill also 'elevates' the IP attachés out of the US Patent and Trademark Office, and sets them up as their own agency, including a new role: the Assistant Secretary of Commerce for Intellectual Property," he is in fact stating the exact opposite of what the bill does. As a quick aside, the word "elevates" is nowhere in the bill, so I am unclear as to where Masnick got it. In any event, the bill gives the PTO more control, not less, over the IP attaché program. Whether this is a good thing or a bad thing could be up for debate, but at the very least the debate should begin with what the bill actually does.  

When the debates were raging earlier this year, both SOPA's supporters and its opponents pointed fingers at the other side claiming that they didn't understand the intent, or the effects, of the bill. Opponents—Techdirt, Boing Boing, and Public Knowledge included—were up in arms claiming that lawmakers could not possibly understand all of the ramifications of the DNSSEC blocking provisions. In fact, a few weeks ago I wrote a blog post critical of a congressional staffer for seemingly admitting that Congress did not fully understand certain provisions of the legislation.  

On the other side of the debate, internet activists were criticized for using incendiary remarks to garner grass roots support, and for ignoring that the primary focus of SOPA and the Protect IP Act was on foreign rogue websites.   

Both SOPA and the Protect IP Act were complicated, lengthy pieces of legislation, with even the SOPA manager’s amendment totaling over 70 pages. Conversely, the text of the IP Attaché Act that we have seen is only eight pages long and is relatively straightforward. While some confusion may be attributable to peculiar language that purports to “establish” a program that is already in existence, internet activists likely do themselves no favors by focusing on what they may fear the bill does, rather than on what it actually does.

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