Obama Helps Hollywood: Aggressive IP Policy Aids Entertainment Industry

On Aug. 28, the Republican Party announced it had included language about Internet freedom and intellectual property protection in its 2012 platform, becoming the first major party to do so. Former Sen. Chris Dodd, now head of the Motion Picture Association of America (MPAA), swiftly came out in support. A week later, the Democratic Party became the second party to do so when it revealed it had included even more strident language about the value of IP in the digital age. Dodd endorsed the Democratic platform as well.

You'd never think that IP protection was a radioactive political issue barely eight months ago.

Back in January 2012, President Barack Obama seemed to oppose harsh penalties for digital piracy of copyrighted movies and music. He came out against two hotly debated anti-piracy bills, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), helping to secure their defeat in the Senate and House. And it just so happens that January 2012 was the only month in which most Americans were paying attention to IP issues, so many people got a false impression of his administration's views on the matter.

During the other 43 months, the Obama administration has worked hard to support IP protections online. It has done so much to increase enforcement of copyright laws that some call it the most Hollywood-friendly administration in U.S. history.

To understand how that happened, you have to go back to July 2008, when Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, introduced the Pro-IP Act in the Senate. The legislation would increase criminal penalties for intellectual property infringement and dedicate more federal resources to the fight against piracy and counterfeiting.

President George W. Bush's Department of Justice opposed a key measure in the bill: the creation of an intellectual property enforcement coordinator within the executive branch. But the Pro-IP Act passed both houses of Congress resoundingly in September -- with the coordinator clause intact.

One year later, President Obama appointed IP lawyer Victoria Espinel as the first-ever intellectual property enforcement coordinator. Espinel, who had earlier served as the chief U.S. trade official for IP issues, got to work quickly. Just days after she took office in December 2009, she convened a large meeting of government officials and representatives from companies in IP-intensive industries, especially the entertainment business, at the White House.

"At this huge meeting, the vice president himself said to all these IP stakeholders, 'I want to hear from you. I want to know what your problems are. I want to know what the government can do to assist you,'" Jean Bonilla, director of the State Department's Office of International Intellectual Property Enforcement, told The Huffington Post.

Vice President Joe Biden's appearance at that meeting was no anomaly. As a senator, he had been known for vigorous advocacy of strong IP protections; he was the co-founder of the Congressional International Anti-Piracy Caucus and a longtime member of the Senate Judiciary Committee, which handles copyright issues and interacts frequently with lobbyists from the entertainment industry.

"You'd be hard-pressed to find someone on that committee who isn't a strong supporter of IP protections," said Gigi Sohn, the president of Public Knowledge, which advocates for "balanced copyright policies that benefit creators and users."

Biden and Espinel, through their offices, declined to comment for this story.

Biden has often argued that IP-intensive industries -- pharmaceuticals, movies and music above all -- are a cornerstone of the modern American economy. As such, he sees piracy, both digital and physical, as a grave economic threat.

There's plenty of evidence to support this viewpoint. An April 2012 report by the U.S. Department of Commerce, for example, indicated that IP-intensive industries contributed $5 trillion to the U.S. gross domestic product and supported 40 million jobs in 2010.

But Washington lobbyist Markham Erickson, who advises major Internet companies, attributes much of the legislative support for vigorous IP defense to aggressive lobbying on the part of the entertainment industry, which cares passionately about this issue. "For the MPAA and the RIAA [Recording Industry Association of America], their sole focus is to maximize protection for copyright and to maximize control over their distribution of copyrighted works," Erickson noted.

In an email to The Huffington Post, MPAA representative Kate Bedingfield emphasized the broad economic benefits of strong intellectual property protection over any particular interests of the movie studios.

"This Administration recognizes that protecting American intellectual property around the world is crucial to the strength of our economy," she said. "They understand that copyright is the cornerstone of innovation –- and that protecting intellectual property does not mean we can't also protect the free flow of information on the Internet."

As a vice president who agrees with that assessment, Biden has a bigger platform than ever before to fight piracy. And in Espinel, he has found a capable ally.

"She has really increased the tempo of the conversation about intellectual property in Washington," Bonilla said.

The most visible product of their work has been a significant increase in the criminal enforcement of copyright infringement protections. While copyright enforcement has traditionally been handled by private-sector rights holders bringing civil lawsuits, Obama's Justice Department has made IP enforcement a priority, nearly doubling the number of lawyers and FBI agents assigned to it.

William Ross, the unit chief for IP theft at the Department of Homeland Security's Intellectual Property Rights (IPR) Center, has been working on intellectual property issues since 1987, and he said that the government's focus on the matter has never been greater.

"We've seen our IP investigations go up dramatically over the past few years," Ross said. "Seizures, arrests, in pretty much all the categories."

The crown jewel of the crackdown has been a series of domain name seizures known as "Operation in Our Sites." The mission, which the IPR Center launched in 2010, has resulted in the seizure of 839 websites so far, most of which sold counterfeit apparel or broadcasted illegally streamed movies and music.

San Francisco-based IP lawyer Andrew Bridges, who has represented the owners of domain names seized by Operation in Our Sites, questions the Justice Department's legal justification for the mission. "It's a huge stretch based on the Pro-IP Act, which allows for the seizure of property used in the manufacturing or trafficking of articles in violation of copyright law," Bridges argued. "Articles, in that case, are physical objects, and a blog doesn't manufacture or traffic in physical objects."

Few of the seizures have led to criminal prosecutions, largely because most of the domain name owners are foreign citizens and so would need to come to the U.S. voluntarily or be extradited to face charges. Not that extradition is the barrier to criminal prosecution for IP theft that it once was: The State Department's contentious extradition requests for TVShack founder Richard O'Dwyer and for Megauploads founder Kim Dotcom prove that much.

Yet those two are only the most high-profile manifestations of a broader push to make U.S.-level copyright protections enforceable throughout the world. Since the beginning of the Obama administration, the State Department and the Office of the U.S. Trade Representative have placed new emphasis on persuading other countries to enact stricter laws on intellectual property. Tougher IP laws and enforcement procedures have become a central plank of the demands the administration makes when negotiating free trade agreements with other countries.

"What we're looking at in terms of those agreements is a legal regime that says, 'Stealing music or movies that belong to someone else is illegal. This is how you can register your product, these are the rules that apply, and these are the penalties,'" Bonilla said.

The administration successfully wrote such measures into recently ratified free trade agreements with South Korea, Colombia and Panama. Now the focus is on including language about intellectual property in the Trans-Pacific Partnership, a proposed treaty among nine countries on the Pacific Rim. While treaty negotiations entered their 14th round on Thursday, the final draft will almost certainly include a section on IP enforcement.

All these efforts require a tremendous amount of federal resources. Sohn said that Public Knowledge had tried and failed to tally up the exact amount the federal government now spends on intellectual property protection, but concluded it was likely far north of $1 billion a year.

"Proportionate to their contribution to the economy, the amount of taxpayer resources they get to protect their business is enormous," she said.

As much as the push to enforce copyright protections and spread them abroad is a product of the current White House, those who work on the issue hesitate to say that much would change if Republican presidential nominee Mitt Romney were to win this November. Although the most vigorous supporters of Hollywood's interests in intellectual property have traditionally been Democrats, Republicans also count some extremely vocal advocates of copyright protection in their ranks. And indeed, the trend toward greater copyright enforcement since 2008 has some of its roots in the Bush administration.

"It's not a Democratic vs. Republican thing at all," Bridges said. "What it is, is a middle vs. edge phenomenon and an establishment vs. maverick phenomenon."