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Sunday, May 4, 2014

Joe Biden to MPAA on Chris Dodd: "You've got the right guy with the right influence"

Was driving home two nights ago and happened to tune into C-Span, and heard a speaker making some extremely simple-minded and potentially dangerous remarks on intellectual property policy.  At one point I thought it might be Joe Biden, but then I told myself "certainly not", he's smarter than that.  But then he made a reference to the days with Teddy Kennedy, and I was increasingly sure.  I looked it up and here it is:

I have nothing against intellectual property.  But coming up with the right intellectual property policy for the United States is not easy, and can't be driven by platitudes like copying a CD is "theft" and strained attempts to tie intellectual property to millions of U.S. jobs -- and intellectual property infringement to the loss of those many jobs.

It is also dangerous to talk about "intellectual property" without clearly explaining whether you are talking about copyright, patent, trademark, or trade secret.  In this case, Biden was talking almost exclusively about copyright.  After all, it was a speech to the MPAA (Motion Picture Association of America) and could have been written by the MPAA.

I haven't relistened to it (and again, I didn't catch the whole thing), but I just listened to the beginning.  Biden was introduced by none other than Chris Dodd -- the guy who vowed not to become a lobbyist when he left the Senate, and then promptly became one of the most highly paid lobbyists around as lobbyist-in-chief for the MPAA.

Dodd gushed about how long Biden has been fighting for entities like the MPAA on these IP issues, and then Biden came on.  Biden started with what was probably an unscripted story about how he had just left a meeting with President Obama and Angela Merkel, and had told them that he had promised Chris Dodd he would give this speech.  He said Angela looked at him as if he were crazy (apparently to leave such an important meeting), and then Biden said he wouldn't be able to stay to talk because he had to get back with Angela and Obama for a working lunch.  And then, speaking of Chris Dodd, he said:

"There's no question that you've got the right guy with the right influence"

In other words, the MPAA was getting their money's worth from Dodd, since by hiring him, they were able to get Biden to leave a top-level heads-of-state meeting to come talk to them.

That's a pretty brazen reference to the power of lobbyists, and the way companies can buy influence at the highest levels in the United States government.

Prediction:  After Joe Biden leaves politics, he will take a high paying job with the MPAA or the RIAA, or a like-minded organization.

His speech makes it sound like strong intellectual property is needed for the US economy, and that unless we have strong intellectual property policy -- a policy that is binding on other countries as well -- the result is that we will simply be robbed blind.  Yes, robbed -- he repeatedly equated copyright infringement with "theft" (just like I'm equating theft with robbery), and accused other countries of doing it, and contended that this has cost the US billions of dollars and hundreds of thousands of jobs.

I'm just going to make four brief points about the content to demonstrate that the issue is much more complex than Biden thinks it is, even with all the years and thought he's supposedly put in on it.  Others have made these points elsewhere (in response to similar copyright industry statements) so I'll be brief.

1.  Perhaps the most overlooked point is that most of the copyright industries in the United States are essentially foreign owned.  That's what's most scary about them -- and their proxies Dodd and Biden -- wrapping themselves up in the US flag and pretending that it's all about U.S. interests.  Don't get me wrong -- the copyright industry certainly does provide some jobs in the US (see below), but at the end of the day, most of the copyright profits get funneled out of the US.  Here's a link to a great article -- by Jonathan Band and Jonathan Gerafi, titled Foreign Ownership Of Firms in IP-Intensive Industries -- that gives a sense of how little of the entertainment/coypright/copyright-intensive industry is actually US owned anymore:

The recording industry, is, for example, is mostly foreign owned.  Here's an excerpt from Band and Gerafi:

"The three major record labels had an 80 percent share of the U.S. market in 2010 and 2011. Foreign companies own two of these three major labels. Foreign-owned companies generated 76 percent and 77 percent of the Big Three’s global revenue in 2011 and 2010, respectively. (In November 2011, the French owned Universal Music Group purchased the British owned EMI, contracting the four major labels to three labels. The European Commission required UMG to sell roughly one third of EMI to preserve competition in the industry, and Sony and BMG have announced their intention to bid on these EMI assets. BMG is currently a joint venture of German media giants Bertelsmann and Kohlberg Kravis Roberts.)
"Thirteen of the twenty best-selling recording artists are foreign, including The Beatles (UK), Elton John (UK), Led Zeppelin (UK), Queen (UK), Pink Floyd (UK), Celine Dion (Canada), AC/DC (Australia), The Rolling Stones (UK), The Bee Gees (UK), ABBA (Sweden), U2 (Ireland), Phil Collins (UK), and Genesis (UK).
"Major record label Warner Music Group was acquired in 2011 by Access, a privately held company owned by Len Blatvatnik. Blatvatnik was born in the Soviet Union, educated in the United States, and now lives in the UK. He is considered the sixth wealthiest person in the UK."
Admittedly, the Motion Picture Industry is more US-owned than not.  But that, as the Band/Gerafi article shows, is the exception.  And even the Motion Picture Industry is not nearly as US-intensive as the MPAA would have us believe -- after going over the statistics, Band and Gerafi have this to say:
"Accordingly, what is popularly viewed as 'Hollywood' or the U.S. film industry in fact is a network of companies and individuals dispersed throughout what has been termed 'the Anglo-Saxon economy' —the United States, the United Kingdom, Ireland, Canada, Australia, and New Zealand."
Ironically, there are those who argue that the MPAA's outsourcing of certain movie-production-related work -- in particular visual effects -- has cost jobs within the US.  And now, the MPAA's preaching is being used against it by the victims of its practices.  Here's something on that:

2.  Copyright infringement as theft.  It's just not the same thing.  Yes copyright infringement is a tort and it can cause harm to the copyright owner.  But it's not theft, which involves depriving someone of actual physical property.  The analogy is imperfect, because copyright infringement does not deprive anyone of physical property.  Here's a recent example of a U.S. district court judge ordering the MPAA NOT to use misleading terms like "theft" to describe copyright infringement: 

So perhaps now the MPAA knows better, but nobody was telling Joe Biden.

This dumbing down of IP policy plays a role in the current industry-led push to teach "respect" for IP to children.  I have nothing against IP outreach and education, and teaching kids these concepts at an early age.  But I have a strong feeling that the teachers will be trying to indoctrinate the kids with sloppy IP infringement-as-theft analogies.  If Biden doesn't understand the difference between infringement and theft, how is a fifth grader going to?

3.  Copyright Infringement as International Law.  IP rights are national.  Sorry, that's the way it is.  It is only because we have a bunch of treaties (mostly written and negotiated by multi-national corporations) that other countries have to respect "our" IP rights.  The point of IP law in the US originally was to provide just enough of a monopoly return to incentivize creation of useful works, with the goal of getting those useful works into the public domain as soon as possible.  The protections within the US market alone are more than enough to do that [and of course, the ridiculous term extensions that have led to life-plus-seventy copyright durations.are an example of Congress simply ignoring this point].

Anything that we make off of foreign trade has nothing to do with the merits and purposes of IP; it's really just all about bringing home more profits for the IP holders.  That's not necessarily a bad policy (although of course, if the ones who own US-based IP are not paying US taxes, that's another story), but it's not the kind of "natural law" that theft is.  For Biden to analogize foreign IP infringement with the idea that a foreign company might steal a ship full of automobiles (he did, in the context of saying that the countries that are infringing "our" IP wouldn't dream of stealing a shipload of cars) is simply wrong.  

4.  The TPP.  And finally, Biden praised the TPP, yet another treaty designed to make a group of countries -- including the US -- ensure that multinational corporations are able to extract as much money as possible from their intellectual property.  There are probably two sides to the TPP, but the fact that the "pro-transparency" administration has kept the negotiations (and even the text, until a recent leak) secret does make one wonder if it's not just another treaty by and for the corporations.  Here's what Public Citizen says it might do:


I'll let the administration speak for itself here:

Oh, and on Chris Dodd and Joe Biden's prior relationship and support of MPAA this is too good not to share:

 MPAA Laughs Off Kim Dotcoms Conspiracy Theory Linking Joe Biden and Chris Dodds Hollywood Cabal

In case you missed it, I repeat my prediction from above:

After Joe Biden leaves politics, he will take a high paying job with the MPAA or the RIAA, or a like-minded organization.

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