WASHINGTON — Intellectual property is shaping up as a contentious political battleground this legislative season.
Flush with disagreement over who should get paid and who should get sued, and packed with political maneuvering as competing interests claw at the scraps of what seems an ever-shrinking digital pie, the intellectual property fights are headed to Capitol Hill as lawmakers set to work on a fresh batch of legislation.
“To say the least, the IP agenda is chock-full this Congress,” Sen. Orrin Hatch, a senior Republican member of the Judiciary Committee, told an audience of artists and copyright advocates from around the world here at the Global Copyright Summit, an international forum on intellectual property rights.
“Your industry is one of the few that consistently generates a positive balance of trade. Conversely, copyright piracy is the very antithesis of creativity, crippling growth and stifling innovation in its wake,” Hatch said.
“Appallingly, many believe that if they find it on the Internet it must be free.”
Hatch, a songwriter in his spare time, made no secret of where he stood on the issue, pledging to fight for stronger IP protections on a number of fronts, including patent reform, copyrights and performance compensation.
Hatch vowed that IP issues are one of his top priorities this Congress, but the panel discussion that followed his opening remarks offered a preview of just how testy the coming fights over copyright reform figure to be.
“Clearly the big fight for us is going to be over ISP liability,” said Gigi Sohn, president of Public Knowledge, a digital-rights group and prominent advocate of copyright reform.
In his opening remarks, Hatch praised some of the recent collaboration between rights owners and ISPs to stamp out piracy on their networks. He praised France for enacting a so-called “three strikes” law, which would authorize ISPs to suspend service to subscribers who had been accused of sharing pirated material three times.
The music industry signaled that it was heading in that direction last year, when the Recording Industry Association of America (RIAA) said it was ending its litigation campaign against suspected infringers, and would instead work to build partnerships with ISPs to detect infringers on their networks.
Groups like Sohn’s cried foul, complaining about the privacy intrusions such a scheme would entail. She has also warned that even the best detection system would produce false positives, enticing ISPs to choke off legitimate Internet traffic, which would place them squarely at odds with the principle of Net neutrality.
To date, ISPs’ cooperation with the RIAA has been lackluster. But a bill such as the one Hatch is drafting could seek to write a copyright policing requirement for ISPs into law. Back in February, when Congress was nearing the end of the debate over the economic stimulus bill, Sen. Dianne Feinstein, D-Calif., added language to the broadband portions of the legislation that would have amended its Net neutrality provisions to allow ISPs to filter copyrighted content, but her amendment was removed from the final version.
Sohn also said her group is concerned with some of the appointments that President Obama has made, including naming attorneys who have litigated cases for the RIAA to posts at the Justice Department.
Mitch Bainwol, the chairman and CEO of the RIAA, sat on the panel but did not engage Sohn over his group’s efforts to combat piracy. Instead, his sharpest words were reserved for Benjamin Ivins, a senior attorney for the National Association of Broadcasters (NAB).
The RIAA is in the midst of what Bainwol called “a really, really combative political fight” against “the behemoth of the broadcasters” over the Performance Rights Act, a bill that would require over-the-air radio stations to pay record companies royalties like satellite and Internet radio providers do.
Bainwol accused the NAB of fighting its political battles with a “situational commitment to the truth,” in this case dissembling over the way artists are compensated for their performances on broadcast and lobbying congressmen to adopt a nonbinding resolution to derail the bill.
“The broadcasters are playing a distinctly Washington game, which is to come up with a diversion that is meaningless and give it meaning,” Bainwol said.
“Broadcasters have a symbiotic relationship with the record industry,” Ivins shot back. “Record companies continue to beg us to play their product,” he said, which makes it hard to explain to “mom and pop broadcasters” why they would have to turn around and pay for something they’ve always gotten for free.
The two had a testy back-and-forth before the moderator cut them off and reclaimed control of the panel:
Bainwol: “You’re living in the past”
Ivins: “Your business model is in the past. You should change that, too.”
Ivins: “Why do you sue college students?”
Bainwol: “That’s a cheap shot …”)
As it stands now, the House Judiciary Committee has passed the Performance Rights Act, and it is awaiting consideration on the floor. Hatch said he expects the Senate Judiciary Committee to pass the bill as early as this summer.
Bainwol, who said that the recording industry has been fighting for performance royalties from broadcasters for four decades, hopefully declared, “We’re at a point where the question is not will this pass, it’s when will this pass.”
Some analysts, and certainly the NAB, believe the bill will not pass a floor vote.
