Dear Ms.

Espinel,

For any meaningful thought on what is termed intellectual property (really a misnomer and should really be termed as copyright/patent/trademark laws, or c/p/t to acknowledge that its three very disparate areas of law, and not really property) we should as a whole reflect back on what it is, and what its intent is. What c/p/t laws do is attempt to provide some incentive to create, and then to encourage further creation. This is the intent as specified in the US Constitution. Do the current laws do this? No. Does enforcing the current laws help to bring that around at all? No, in fact they make it increasingly harder to make it possible. So if the laws arent doing what theyre supposed to be doing, they need to be changed. What can be patentable needs to be redefined in a stricter way (and a use-it-or-lose-it provision enacted to increase the viability of patents), copyright terms need to be shortened, and fair use exceptions need broadening; and vexatious trademark suits need to be vigorously discouraged.

As a robotics engineer with creative ties (Im a published author, and worked as a technical consultant on Comedy Centrals BattleBots, amongst other actions) I have both patent and copyright experience, as well as being recently consulted as an expert for a number of p2p civil suits. There is no way to stop peer to peer. As a new technology it disrupts the marketplace, but that is the intent of progress. Sousa opposed the phonograph, and authors and music halls opposed cinema. They now exist. Likewise the UK government tried to outlaw traction engines through enforcement in 1865, and had to give up 30 years later. You cant stop technology, and embracing it makes more sense. The MPAA opposed VHs, but by 1987 they had doubled their business thanks to VHS sales.

Nor is infringement new. Hollywood is the center of the US film industry, as movie makers sought to escape paying Edison royalties (patent infringement). And if any country has th produced a Special 301 report in the 19 century, the US who ignored all non-US copyright would have been at the very top, yet the world didnt end.

The chicken-little attempts to say that without excessive enforcement of copyright, industries would go bankrupt. Theyll make statements that the need for enforcement is there because
Development of the Joint Strategic

Norton P2P Consulting

Plan on Intellectual Property Enforcement (Document ID OMB-2012-0004-0002)

1 of 3

otherwise theyre losing money. The fact is theyre not. US box office revenues have grown, even during a recession, and the spread of p2p. The head of a major RIAA member told Lord Mandelson in September 2009 that record sales were plummeting (as revealed by documents from Lord Mandelsons office, in 2011), to get him on board with the UK Digital Economy Act. However, when the official figures came out in 2010, the sales figures for 2009 were up over 2008, not down. It wasnt a freak trend either; the figures had been going up since 1998, since the introduction of Napster.

Take another example of lies dressed as the truth to promote increased enforcement. The 2005 LEK study by the MPAA put the cost of piracy at over $6B worldwide in 2006. Do you know what else was around $6B in 2006? The turnover of Blockbuster, the company the MPAA tried to prevent from existing some 22 years earlier. That was just ONE company. Add in Movie Gallery, Redbox, Netflix, and the thousands of independent rental companies, and youve got a massive amount of revenue, that enforcement would have prevented from existing. These are the kind of consequences that the studies of losses never take into account. Most of all, the problem is that of double-standards. We have an extension of copyright terms, on the basis of protecting the artist. Yet copyright is itself a contract. Its a contract where in exchange for exclusivity for a limited time, at the end of that time the public gets it. The exclusivity period is a form of payment to the copyright holder. Then the term gets extended. In effect, the public has to pay MORE, because somehow thats fairer to the artist, to give them more payment for the same work, and somehow incentivize them to create more? No matter how much you extend copyright, Kubrick will not make another film, Johnny Cash will not record more material, J.D. Salinger wont write any more books, and Grant Wood will not paint any more. No amount of protection will fulfill the constitutional purpose of copyright.

As noted earlier, Im a writer. I co-edited a book (ISBN-13: 978-1468033991) which was released in January. I have a second due out at the end of the year. People can download the eBook version for free, as its released under a Creative Commons BY-NC-SA license. That means anyone can take it, use it, as long as they note who its by, and release the resulting work accordingly for non-commercial uses (for commercial uses, theyd have to contact us). We also sold a print version on Amazon for $9.99. Despite the eBook being identical (and in many ways superior) it sold well enough to be in Amazons top5000 books for a while. Everyone who bought it was aware of the free eBook version, and still paid for it, showing the lie to the claim you cant compete with free. You certainly can, you just have to treat people

Development of the Joint Strategic

Norton P2P Consulting

Plan on Intellectual Property Enforcement (Document ID OMB-2012-0004-0002)

2 of 3

with respect. The conventional wisdom of the major players is that we would have been unable to sell any, except to those that didnt know about the eBook.

The biggest issue about enforcement, however, is that more people are becoming aware of it, and the more they opposed it. The Internet black-out showed how many people were aware of the vast over-reach of enforcement actions. The ACTA vote in the European Parliament showed that citizens are making their politicians elsewhere aware of the major issues they have with increased enforcement. The Megaupload raid is a particularly appropriate case, one where the FBI is in contempt of court for taking records out of the country illegally, and where serious questions are being raised over the methods and evidence for the raid (to say nothing of the question of if a case can even be brought in the US).

The sad fact is that there is zero evidence that more enforcement is needed. There is zero evidence that enforcement works at all. There is zero evidence that the actions enforcement seeks to deal with are a negative. To date, all the evidence actually proves that enforcement is a waste of time, money and resources, and that its only use is to help maintain dominance in an industry. Its not about the good of the industry itself. This is where it becomes a question of corruption. When law enforcement resources are spent on pet projects with no determinable public good, to enforce laws passed entirely through lobbying and contrary to all reliable evidence, then it has to be considered if there is corruption afoot. Unless and until solid, peer-reviewed evidence can be produced to support conclusions that enforcement is even needed, let alone should be expanded, enforcement should be suspended. Overall, as it stands right now, enforcement of copyright infringement is bordering on the unethical, and on the questionable. It is un-American, serves no public purpose, and acts contrary to the constitutional intent of copyright. As such, it should be stopped forthwith until these issues can be addressed, preferably by having a full and formal review of ALL Copyright, Trademark, and Patent laws based solely on evidence, not lobbying. Sure itll make certain lobby groups unhappy, but the Law and the US Government is meant to serve the people, not a handful of corporations, and its time that was brought back into the thoughts of policy-makers.

Andrew Norton Norton P2P Consulting Nortonp2p@ktetch.co.uk

Development of the Joint Strategic

Norton P2P Consulting

Plan on Intellectual Property Enforcement (Document ID OMB-2012-0004-0002)

3 of 3